The David C. Baum lecture: Abraham Lincoln and the American Union

University of Illinois Law Review

Volumn , Issue 5, 2001, Pages 1109-1132

  Amar, Akhil Reed ^a  

^a YALE UNIVERSITY   (United States)

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EID: 25844461361     PISSN: 02769948     EISSN: None     Source Type: Journal    
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References (81)

1. Gettysburg Address (Nov. 19, 1863), in 7 THE COLLECTED WORKS OF ABRAHAM LINCOLN 22, 23 (Roy P. Basler ed., 1953) [hereinafter COLLECTED WORKS].
2. Farewell Address at Springfield, Illinois (Feb. 11, 1861), in 4 COLLECTED WORKS, supra note 1, at 190. Several versions of this address exist; my lecture quotes from the version written out by Lincoin as the train was leaving Springfield. The manuscript begins in Lincoln's handwriting, but concludes with that of his secretary, John G. Nicolay. Perhaps its most haunting phrase to modern readers (who know, as no one did that day, the rest of Lincoln's story) - "or whether ever, I may return" - are in Nicolay's hand. A version published in an Illinois paper on February 12, 1861, does contain the following: "With these few words, I must leave you-for how long I know not." Id. at 191. This newspaper version, with minor punctuation changes, appears on a plaque at Lincoln's tomb in Springfield.
3. James Buchanan, Fourth Annual Message (Dec. 3, 1860), in GREAT PRESIDENTIAL DECISIONS 215, 228-29 (Richard B. Morris ed., 1966) [hereinafter Buchanan's 1860 Message].
4. For a different reading of this address, stressing its tactical flexibility, see DAVID M. POTTER, LINCOLN AND HIS PARTY IN THE SECESSION CRISIS 318-33 (1942).
5. First Inaugural Address (Mar. 4, 1861), in 4 COLLECTED WORKS, supra note 1, at 262, 265-70 [hereinafter First Inaugural Address].
6. Id. at 264-65.
7. Buchanan's 1860 Message, supra note 3, at 221 (summarizing but rejecting this view).
8. First Inaugural Address, supra note 5, at 265.
9. U.S. CONST, art. V ("[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate."); see also Lincoln's Speech at Galena, Illinois (July 23, 1856), in 2 COLLECTED WORKS, supra note 1, at 353, 355 ("We don't want to dissolve [the Union], and if you attempt it, we won't let you.");
10. Letter of December 17, 1860, to Thurlow Weed, in 4 COLLECTED WORKS, supra note 1, at 154 ("I believe you can pretend to find but little, if any thing, in my speeches, about secession; but my opinion is that no state can, in any way lawfully, get out of the Union, without the consent of the others . . . ."). Read broadly, these statements might seem to insist that every state must agree to secession; read narrowly, they merely reject the idea that each state may unilaterally secede without the general (though not necessarily unanimous) consent of sister states and the American people as a whole.
11. First Inaugural Address, supra note 5, at 267-68.
12. Special Session Address (July 4, 1861), in 4 COLLECTED WORKS, supra note 1, at 421, 426, 436-37, 439 [hereinafter Special Session Address]. For more discussion of the implications of Lincoln's allusion to the Union's "territorial integrity," see infra Part III. For more discussion of the implications of Lincoln's allusion to "succeeding elections," see infra text accompanying notes 22-27.
13. Gettysburg Address, in 7 COLLECTED WORKS, supra note 1, at 23;
14. see also Letter of January 11, 1861, to James T. Hale, in 4 COLLECTED WORKS, supra note 1, at 172 ("We have just carried an election on principles fairly stated to the people. Now we are told in advance, the government shall be broken up, unless we surrender to those we have beaten, before we take the offices . . . . [I]f we surrender, it is the end of us, and of the government.").
15. First Inaugural Address, supra note 5, at 270.
16. For discussion, see 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 128-29 (1998);
17. HERMAN V. AMES, THE PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES DURING THE FIRST CENTURY OF ITS HISTORY 293-94 (1897);
18. POTTER, supra note 4, at 101-11; Stephen Keogh, Formal & Informal Constitutional Lawmaking in the United States in the Winter of 1860-1861, 8 J. LEGAL HIST. 275, 280 (1987). Lincoln did not support Crittenden's call for a national referendum, but his reasons seem more substantive than procedural: he strongly disagreed with the specific compromises with slavery that Crittenden was seeking to enshrine in the Constitution.
19. See CONG. GLOBE, 36th Cong., 2d Sess. 237 (Jan. 3, 1861) (Remarks of Senator John Crittenden) ("I do hope that the representatives will respect and regard and give a proper influence to the sense of the people").
20. For a quick discussion, see Ronald D. Rotunda, The Aftermath of Thornton, 13 CONST. COMMENT. 201, 206-09 (1996).
21. See also GEORGE H. HAYNES, THE ELECTION OF SENATORS (1906);
22. Vikram David Amar, The People Made Me Do It: Can the People of the States Instruct and Coerce Their State Legislatures in the Article V Constitutional Amendment Process?, 41 WM. & MARY L. REV. 1037, 1068-71 (2000).
23. It's worth noting that the Lincoln-Douglas Senate race of 1858, in which the parties nominated U.S. Senate candidates before the statewide election of state legislators, with the senate candidates bringing their campaigns directly to the electorate, has been described as the "first important step toward the Seventeenth Amendment." DON E. FEHRENBACHER, PRELUDE TO GREATNESS: LINCOLN IN THE 1850s 49 (1962). See generally HAYNES, supra, at 99.
24. See, e.g., Special Session Address, supra note 11, at 440.
25. Id. at 437. Even in South Carolina, the consensus among "duly qualified voters" of course excluded black folk themselves from the conversation and the voting tally. The exclusion of both slaves and free blacks from Southern deliberations, and the pro-slavery rules of political apportionment within many Southern states-rules that gave more clout to districts with large slave populations should remind us that we must be very careful not to automatically equate the views of politically dominant forces in the South with the views of "the South" itself. In most Southern states, blacks accounted for between a quarter and a half of the total population. If we count all the people within states, it becomes much harder to say that confederate governments really reflected the views of their respective state peoples. For more discussion, see Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 COLO. L. REV. 749 (1994). In addition, antebellum Southern governments criminalized antislavery speech, rendering suspect any claim that these governments were genuinely "democratic" by the standards of today or even by the standards of antebellum Northern states. See infra note 31.
26. But see Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (dictum) (casting doubt upon the power of a treaty to cede state territory absent state consent).
27. But see supra note 18.
28. See U.S. CONST, art. IV, § 3 ("[N]o new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."); id. § 4 ("The United States . . . shall protect each of [the States] against Invasion . . . .").
29. First Inaugural Address, supra note 5, at 264.
30. Id. at 270.
31. Id.
32. Special Session Address, supra note 11, at 439-40 (emphasis added); see also supra note 12.
33. For powerful reminders of the enormous importance of the very fact of a regular election in 1864, see HERMAN BELZ, ABRAHAM LINCOLN, CONSTITUTIONALISM, AND EQUAL RIGHTS IN THE CIVIL WAR ERA 33-34 (1998);
34. PHILLIP SHAW PALUDAN, THE PRESIDENCY OF ABRAHAM LINCOLN 290-92 (1994).
35. It is interesting to note that, between 1939 and 1945, America held three regular federal elections - two of them presidential elections. Lincoln's 1864 precedent made any deviation unthinkable, even in the midst of an all-out world war. In marked contrast, England held no general Parliamentary elections between November, 1935, and July, 1945. The general election scheduled for 1940 was postponed by amendments to the Septennial Act of 1716. As Churchill himself acknowledged to Commons in October, 1944, "[N]o one under thirty has ever cast a vote at a General Election, or even at a by-election, since the registers fell out of action at the beginning of the war." WINSTON S. CHURCHILL, TRIUMPH AND TRAGEDY 586-87 (1953).
36. For a rich discussion of the difference between fixed electoral timetables in America and the more fluid electoral timetables characteristic of parliamentary systems, see Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633 (2000).
37. Cf. Lincoln's Speech at White House Serenade (Nov. 10, 1864), in 8 COLLECTED WORKS, supra note 1, at 100, 101: We can not have free government without elections; and if the rebellion could force us to forego, or postpone a national election, it might fairly claim to have already conquered and ruined us . . . . [The election] has demonstrated that a people's government can sustain a national election, in the midst of a great civil war. Until now it has not been known to the world that this was a possibility. These words, of course, came after electoral victory was his; but Lincoln had committed himself to a regular election long before he had any strong assurance that he would win. Indeed, in the late summer of 1864, Lincoln thought it "exceedingly probable" that he would be defeated by an administration that would likely undo his stance towards the Confederacy. In such an event, he deemed it his duty to preserve the Union as best he could until the end of his constitutional term, and thereafter surrender his office.
38. See Lincoln's Secret Memorandum Concerning His Probable Failure of Re-election (Aug. 23,1864), in 7 COLLECTED WORKS, supra note 1, at 514.
39. Even if all the non-Lincoln votes had gone to a single opposition candidate, Lincoln would still have won a clear electoral college majority. See FEHRENBACHER, supra note 16, at 160.
40. Id. at 114-20.
41. But see supra note 28.
42. This background helps explain the meaning of Lincoln's pointed suggestion in his First Inaugural that if Northern states should respect Southern rights by allowing the Article IV fugitive slave clause to be enforced, then presumably Southern states should likewise respect the Article IV "privileges" and "immunities" of Northern "citizens." Such immunities encompassed freedom of speech, press, petition, assembly, and worship in the minds of most Republican Party leaders; this ideology would eventually culminate in the language of the Fourteenth Amendment's privileges or immunities clause, designed to protect free speech and other fundamental rights against state abridgement. See generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998), and the myriad works of Professor Michael Kent Curtis cited therein. Another possible reason for the Slave Power's fear of Lincoln in 1861 was that Lincoln could, as President, appoint territorial governors who might try to enforce antislavery policies in the territories, thereby constricting slavery's expansion. Such policies might have faced tough sledding before the Taney Court, however. See Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 450 (1857) (proclaiming antislavery laws in federal territories unconstitutional). Moreover, although Lincoln's anticipated territorial policies may have threatened slave owners' long-term interests, these policies did not pose any immediate threat to the Slave Power's dominant power base in the South.
43. See generally JEFFERSON DAVIS, THE RISE AND FALL OF THE CONFEDERATE GOVERNMENT (rev. ed. 1958).
44. See infra text accompanying note 50.
45. Special Session Address, supra note 11, at 433-35.
46. This brief sketch represents a composite of arguments I have elsewhere presented. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1442-62 (1987);
47. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 462-69 & n.37 (1994); AMAR, supra note 31, at 5-6, 156-58.
48. U.S. CONST. art. VI ("This Constitution . . . shall be the supreme Law of the Land . . . any thing in the Constitution or Laws of any State to the Contrary notwithstanding.").
49. See supra text accompanying notes 6-7.
50. U.S. CONST. art. V (stating that a constitutional amendment "shall be valid to all Intents and Purposes" if proposed by a properly convened convention or by two-thirds of each house of Congress and ratified by "the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof").
51. See THE FEDERALIST No. 5, at 50 (John Jay) (Clinton Rossiter ed., 1961) (quoting letter of July 1, 1706, from Queen Anne to the Scotch Parliament); An Act for rendering the Union of the Two Kingdoms more intire and complete, 1707, 6 Ann., 40 (Eng.).
52. 1 WILLIAM BLACKSTONE, COMMENTARIES n.e (Oxford, 1766).
53. THE FEDERALIST No. 5, at 50 (John Jay) (Clinton Rossiter ed., 1961).
54. Id. No. 11, at 91 (Alexander Hamilton) (emphasis added).
55. 2 THE DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 463 (Jonathan Elliot ed., rev. ed. 1888) (emphasis added).
56. Letter of July 20, 1788, in 11 THE PAPERS OF JAMES MADISON 189 (Robert A. Rutland & Charles F. Hobson eds., 1977) (emphasis altered). Several of the quotations in this paragraph could be read to imply that even the national people should not be able to dissolve the Union, but the more natural reading in context is simply a rejection of the notion of unilateral state secession.
57. First Inaugural Address, supra note 5, at 265.
58. Buchanan's 1860 Message, supra note 3, at 221 (emphasis added).
59. See infra Part III.
60. Robert E. Lee came from what was perhaps Virginia's first family, tracing its roots back five generations to the arrival of Richard Lee from England in the first half of the seventeenth century. Both the general's father and grandfather had served in Virginia's House of Burgesses, as had a great many extended relations. See BURTON J. HENDRICK, THE LEES OF VIRGINIA, A BIOGRAPHY OF A FAMILY 1, 48, 76, 97, 329 (1935).
61. Letter of December 20, 1859, to Jesse W. Fell, in 3 COLLECTED WORKS, supra note 1, at 511.
62. First Inaugural Address, supra note 5, at 265.
63. Special Session Address, supra note 11, at 434.
64. DOUGLASS ADAIR, FAME AND THE FOUNDING FATHERS 75-76 (Trevor Colboum ed., 1974).
65. This paraphrase of Publius borrows from an earlier essay of mine, which attempts to present these ideas with far more elaboration and documentation. See Akhil Reed Amar, Some New World Lessons for the Old World, 58 U. CHI. L. REV. 483 (1991).
66. U.S. CONST, art. I, § 10, para. 3 ("No State shall, without the Consent of Congress, . . . keep Troops, or Ships of War in time of Peace . . . .").
67. Article I counterbalances state-influenced militias against a potential federal professional standing army; and both the Second and Third Amendments reflect concern about a potentially overweening federal army. For details, see AMAR, supra note 31, at 46-63.
68. See supra note 36.
69. For details, see Amar, supra note 53.
70. First Inaugural Address, supra note 5, at 269; see also Lincoln's Second Annual Message to Congress (Dec. 1, 1862), in 5 COLLECTED WORKS, supra note 1, at 518, 527-28 [hereinafter Second Annual Message].
71. Second Annual Message, supra note 58, at 527-29.
72. See also Lincoln's famous comment after Grant captured Vicksburg, thereby giving the Union control of the mighty Mississippi: "The Father of Waters again goes unvexed to the sea." Letter of August 26, 1863, to James C. Conkling, in 6 COLLECTED WORKS, supra note 1, at 406, 409.
73. CARRY WILLS, INVENTING AMERICA xv-xvi (1978);
74. GARRY WILLS, LINCOLN AT GETTYSBURG 57, 77-79 (1992).
75. The Gettysburg Address, in 7 COLLECTED WORKS, supra note 1, at 23.
76. The Almighty has His own purposes. "Woe unto the world because of offenses! for it must needs be that offenses come; but woe to the man by whom the offense cometh!" If we shall suppose that American Slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope - fervently do we pray - that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether." Second Inaugural Address, in 8 COLLECTED WORKS, supra note 1, at 333.
77. Second Annual Message, supra note 58, at 532.
78. See ERIC FONER, RECONSTRUCTION 49, 74, 180, 183 (1988).
79. Letter to James S. Wadsworth (Jan. 1864), in 7 COLLECTED WORKS, supra note 1, at 101.
80. Last Public Address (Apr. 11, 1865), in 8 COLLECTED WORKS, supra note 1, at 399, 403.
81. Gettysburg Address, in 7 COLLECTED WORKS, supra note 1, at 23.