Revolution at Gettysburg?

Garry Wills: Lincoln at Gettysburg: The Words That Remade America. New York: Touchstone, 1992.

 

At Gettysburg, Garry Wills writes, Lincoln “revolutionized the [American] Revolution by “one of the most daring acts of open-air sleight-of-hand ever witnessed by the unsuspecting” (38). In so doing, he substituted a “new constitution” for the old one. More than a mere rebirth, the new birth of freedom fundamentally transformed American politics.

Lincoln effected this revolution by treating the Declaration as if it were “founding law,” and not simply a declaration (145). By doing so, he constitutionalized the principle of equality, which appears nowhere in the 1787 Constitution itself. Union, which had preceded that constitution, became a legal reality for the first time, no longer only a “mystical hope” (145), as limned in Lincoln’s “mystic chords of memory” speech on the eve of the war. These United States became this United States; we became one, by law.

Wills recognizes that some of the Framers and some of the most prominent constitutional lawyers all along has asserted such a conception of constitutional union founded upon the sovereignty of Americans as one people. But by winning the Civil War and speaking so persuasively at Gettysburg, Lincoln made that theory a political reality. He won the consent of the governed for the idea of national unity.

Well in advance of Garry Wills, Lincoln’s opposite number, President Jefferson Davis of the Confederate States of America, agreed with Wills’s characterization of Lincoln’s accomplishment, although he cannot be said to have shared Wills’s evaluation of it. Unlike Calhoun, who called the equality of unalienable rights a self-evident lie, thereby dismissing the authority of the Declaration of Independence altogether, Davis refused to concede an inch of principled ground to the North. The Declaration of Independence, he said, declared the self-government of the American people as states—i.e., as thirteen sovereign peoples. The 1787 Constitution does not refer back to the Declaration at all. “Unlike the governments of the States, which find their origin deep in the nature of man”—in certain unalienable rights—the federal government “sprang from certain circumstances which existed in the course of human affairs, lacking any authority but the ratification of the sovereign [peoples or] States.” The peoples instituted their State governments in order to secure the unalienable rights of man; the federal government, by contrast, was instituted only to secure the objects enumerated in the Constitution, objects delegated to that government by the states, the peoples. Therefore, no sovereign people can be “disloyal” to the United States government. The sovereignty of the peoples implies the right to secede from the Union. In denying this right, and in enforcing that denial, the United States government effected an “entire subversion of those principles on which the American Union was founded” because “the alternative to secession is coercion,” the abrogation of consent. The dress rehearsal, so to speak, for this subversive drama played out in the North itself during the Civil War, when Lincoln suspended the writ of habeas corpus, ordered warrantless arrests, and otherwise abridged “personal liberty” by “military domination” of “the northern peoples.” [1]

To Davis, then, Lincoln is a revolutionary subversive, an Illinois Cromwell leading a fanatical band of abolitionist neo-Roundheads on a tyrannical adventure of death and destruction. The legal entrenchment of equality in a powerful national government will bring Americans to their knees before a new Moloch, the State, which will replace the States, thereby destroying the very equality it pretends to vindicate.

This is no mean argument in either the benign formulation of Wills or the jaundiced view of Davis. The line of succession goes from Calhoun to the Confederates to Willmoore Kendall to Wills, who knew Kendall at Yale, and retains the Kendallian interpretation of the relation between the Declaration and the ‘old,’ pre-Lincolnian, Constitution with respect to the status of the States. Back in his ‘conservative’ years, Wills was an unabashed Calhounian. [2]  Pats of the Lincoln-as-revolutionary argument closely resemble the truth. In considering the argument I shall first look more closely at the Gettysburg Address and the Second Inaugural Address. I shall then compare Lincoln’s claims not with those of such commentaries as Joseph Story and Daniel Webster but with those of Jefferson and Madison, close colleagues known for their decisive involvement in the events of 1776 and of 1787, respectively.

In declaring their independence, Lincoln said, “our fathers,” the Founders, “brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” Conceived, brought forth, created: this is the language of childbirth. It is a paradoxical childbirth, associated with fathers, not mothers. “Conceived” and “brought forth” are from Numbers 11. Moses asks his angry God, “Was it I who conceived this people? Was it I who brought them forth, that thou shouldest say to me, ‘Carry them in thy bosom as a nursing father beareth the suckling child, unto the land which thou swearest unto their fathers?'” Americans, the new Israelites, were brought forth from Egypt/the British Empire and the tyranny of Pharaoh/George III. Moses/Washington cannot bear this burden alone. God tells him to gather the elders, and say to the people, “Consecrate yourselves for tomorrow, and you shall eat meat, for you have wept in the ears of the Lord….” The Lord’s Spirit will now be upon not Moses alone, but upon the elders. Moses wishes that the Spirit of prophesy were upon the whole people (Numbers 11.28).

The Declaration calls Americans a people, a people who existed before and after independence. Lincoln describes the bringing forth of “a new nation”; a nation must be an independent people. This independent people was conceived in liberty; long before independence, before George III and parliament designed to reduce them to slavery, Americans had enjoyed civil liberty. The new nation was “dedicated to the proposition that all men were created equal.” In part because Britain had required some colonies to permit slavery and, as recently as 1769, had vetoed a colonial enactment to suppress the slave trade, Americans had not secured the God-endowed unalienable right of equality; the slaves obviously had not, but neither had the free, precisely because the violation of your natural equality potentially threatens mine, even if mine seems secure. Americans rejected the principle of slavery even as they tolerated its practice; this Lincoln had demonstrated unanswerably in his address at the Cooper Institute in New York City in February 1960.

“We hold these truths to be self-evident, that all men are created equal” in their “unalienable rights” of life, liberty, and the pursuit of happiness. The truth of the Declaration has become a proposition in Lincoln’s language, but is no less true therefore; he means that equality is the premise of a syllogism (the Declaration is an extended syllogism) or an axiom of a proof. The nursing fathers of the Declaration had held the truth of human equality to be self-evident. But Americans since then, like the Israelites, had disregarded the laws of Nature and of Nature’s God. “When we were the political slaves of King George, and wanted to be free, we called the maxim, ‘all men are created equal,’ a self-evident truth; but now when we are grown fat, and have lost all dread of being slaves ourselves, we have become so greedy to be masters that we call the same maxim ‘a self-evident lie.'” [3] The loss of the dread of tyrants leads a selfish and stiff-necked people to insufferable pride, bespeaking a less of the fear of God, who created men and endowed them with unalienable rights, and who allows tyrants to serve as the scourge of the wicked (Romans 13).

The Civil War—the judgment of God upon the new Israelites—tests “whether that nation, or any nation so conceived and so dedicated”—Israel old and new are particular nations with universal significance—”can long endure.” In his Independence Day message to Congress two years earlier, Lincoln asked if all republics had the “inherent, fatal weakness” of needing a government too strong for the liberties of the people or else of having  a government too weak to defend itself. A republic, a nation dedicated to natural equality, requires popular sovereignty to secure it. Its government, popular self-government, must find a way to survive an appeal from lawful ballots—the election of Lincoln—to unlawful bullets. As labor is prior to capital, the people are prior to government; only a government that oppresses its people, attacks the people’s own laws, can justly be overthrown by force. The people of Israel left Egypt, the tyrannical rule of Pharaoh, but did not thereby release themselves from the law of God. Just the opposite: to survive, they must bind themselves all the more closely to the life-giving, right-giving God, as “the sheep and the wolf are not agreed upon the definition of liberty” (Sanitary Fair Speech, April 18, 1864). What is self-evident to the sheep is not self-evident to the wolf, a predator who would take the product of labor from others, up to and including their liberty and their lives—destroying political freedom on the same principle.

The consecration by the people of the Gettysburg cemetery, their dedication to “the unfinished work” of the nursing fathers who brought them forth from Egypt but did not see them enter the Promised Land, will mean that the Spirit of the Lord—for the new Israelites, the truths of the Declaration—will be upon not only the nursing fathers but upon all the people. The new birth of freedom means the emancipation of the slaves and the full emancipation of the free, including the former slave-masters, who have contradicted their own right to rule by claiming a universal truth as a particular entitlement for themselves. Contrary to Wills, the Gettysburg Address does not entrench equality in the Constitution; the Address never mentions the Constitution at all. Lincoln never suggests that the Constitution contradicted the Declaration; as Lincoln had argued at the Cooper Institute, the directly unmentioned institution of slavery is acknowledged only in the sense that it is the scaffolding of the Framers’ political construction, intended to be removed once the edifice is completed.

The new emancipation required a new political ‘testament,’ which is the Second Inaugural Address. “Woe unto the world because of its offences! For it must needs be that offences come; but woe to that man by whom the offense cometh!” Those are the words of Jesus of Nazareth, not Moses, of the New Testament, not the Old. They comprise a threat to the proud and a guarantee to the humble. Moses, the humblest man of his time, governed a prideful, stiff-necked people, swollen with new-won liberty. As God starved the Israelites out of their pride, in fourscore wilderness years, so God has punished Americans, slave-masters and non-slaveholders alike, with “this terrible war,” retribution for slavery and for the toleration of slavery. Psalm 19, singing of the perfect law of the Lord, His judgments true and righteous altogether, and of his servants who pray not to commit “presumptuous sins” or transgressions against that law, stands against the self-righteousness of the old, and now the new, Israelites. Lincoln would guard against the continued arrogance of the victorious, not only the Thaddeus Stevenses of the world but any Northerner who might preen himself on victory over the South. A just and lasting peace among Americans, and other nations, eschewing the malice and hard-heartedness of the proud, must proceed with charity and firmness in the right, “as God gives us to see the right.” Truths are truths, whether self-evident or not, but few truths are self-evident to the same people at all times. A people must humble itself to see clearly, to enable itself to hold the truth of equality to be self-evident. In the Second Inaugural, Lincoln seeks to make certain truths self-evident, again, by pointing to the horrors of war as punishment for slavery. Self-government means self-limitation, involving humility in power as well as self-assertion when confronted with tyrannical power. The principle of equality requires the highest degree of self-government in a people and its representatives. Otherwise, God will do harshly what His people should do themselves, gently.

No more than in the Gettysburg Address does Lincoln mention the Constitution in the Second Inaugural. He mentions the nation and the Union. The Declaration did not need to be entrenched in American law because it already was. Madison had held that the Declaration was “the fundamental act of union” of the States (G. Hunt, ed.: The Writings of James Madison, 219-221). The Declaration was placed at the head of the statutes-at-large of the United States Code, and was described as one of the organic laws of the United States. The Declaration and the Union precede the Constitution, which is designed to for a more perfect Union than the one which had existed between 1776 and 1787. Unless a more perfect Union can somehow be claimed to mean one that explicitly supersedes the principles of the Declaration—a claim that could only be sustained by claiming that the Constitution’s indirect acknowledgment of slavery is such a supersession—then the Wills argument collapses and Lincoln must be admitted to be right. That is, Lincoln’s Second Inaugural is to the Constitution what the New Testament is to the Old Testament in the eyes of the Protestant Christians who prepared and used the King James Bible, Lincoln’s Bible. To such readers, the New Testament affirms the Old while extending it beyond the Jewish people to all peoples. Similarly, the Constitution secured equal rights for some Americans; the Second Inaugural points to the constitutional amendments that Lincoln recognized to be necessary in order to entrench that universalization in law.

But what did the American Founders themselves think? Lincoln had canvassed their views in his 1859 speech to the Cooper Institute in New York, finding that they opposed slavery in principle. I shall consider briefly the exchange between Jefferson and Madison on Jefferson’s proposed text for law students at the University of Virginia. The anthology was to include writings by John Locke and Algernon Sidney, the Declaration of Independence, The Federalist, and the Virginia Report of 1799. Madison reviewed these suggestions and agreed with Jefferson’s intent: “It is certainly very material that the true doctrines of liberty, as exemplified in our Political System, should be inculcated on those who sustain and may administer it.” For this purpose, Locke and Sydney “are admirably calculated to impress on young minds the right of Nations to establish their own Governments, and to inspire the love of free ones.” The Declaration is also “rich in fundamental principles.” But such principles “afford no aid in guarding our Republican Charters against constructive violations”—that is, against misconstruing, misinterpretations innocent or malicious. For such aid, the students need to study The Federalist, along with Washington’s First Inaugural and Farewell Address. Law students need to understand the legal, institutional structure that secures rights, as well as the rights themselves. (See Madison’s letter to Jefferson, February 8, 1825.) As both men knew, The Federalist in its central essay links the Declaration of Independence to the Constitution by referring to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions should aim and to which they must be sacrifice. There is simply no suggestion, by any of the principal American Founders, that the natural rights enunciated in the Declaration are contradicted—as distinguished from qualified—by the Constitution. To put it in Lockean terms, the laws of the social compact, of civil society, will differ from the rights of the state of nature. But those laws are intended to secure those rights; they will inevitably do so imperfectly, but unless their overall effect is such security, they are not legitimate. Neither Jefferson, Madison, nor Lincoln disputed the overall security of rights under the Constitution, even as all three men also regarded slavery as a specific contradiction of natural rights.

What, then, of Jefferson Davis’s claim that the Constitution only addresses the relations among States, not the rights of individuals within the States? This is partly true; the Constitution after all constitutes a federal government, under which the States preserve many rights of self-government. But the claim is also partly false. The Constitution does operate on individuals, not only on States; in this it differs from the Articles of Confederation. Publius calls the new governmental system, “party national, partly federal.” Davis and Wills claim that it was wholly federal, against the words of The Federalist. They are antifederalists in disguise—Davis in a thoroughgoing way, Wills (since his turn leftward) only insofar as he interprets the intentions of the Founders. The phrase, “the people of the United States” makes sense as both the peoples of the States and the peoples of all the States collectively. If not, then such phrases as that from The Federalist quoted above, and such a document as the Northwest Ordinance (which prohibits slavery in the territories) simply do not make sense. Otherwise, there is no Union, only an alliance. But the Constitution constitutes a government, not an alliance.

The Federalist shows how the federal government can operate by means of popular consent without the violations of civil and natural rights that undiluted ‘democracy’ in the original Greek sense permitted. The old democracy rested upon pure popular sovereignty; no natural rights were reserved against popular opinion. Tellingly, the Greek democracies also rested upon slavery and religious intolerance. And why not? If justice is what the majority of citizens say it is, and then majority says that slavery and religious intolerance are just—’positive goods,’ so to speak—then there can be no problem. The American Founders resisted pure or ‘majoritarian’ democracy as a threat to the security of rights government is designed by the people to effect. In this, Lincoln follows them, extending the protection of civil rights to Southern blacks by emancipating many of them during the war and by advocating the adoption of antislavery constitutional amendments. This is not a constitutional revolution, but rather a continuation and legitimate extension of the Founders’ enterprise.

As for Will’s claim that Lincoln caused ‘us’ to read the Constitution differently, I think it can be given short shrift. How many constitutional law scholars today connect the Declaration with the Constitution at all? Wills mentions none. Does the general public connect the two document? Perhaps vaguely: But has that changed at any time since the 1780s? Lincoln does not effect a revolution so much as he prevented one: a revolution which would have sundered the principles of the Declaration from constitutional government, by means of Douglasite ‘popular sovereignty’ in the North and in all remaining territories, and/or by means of Calhounite States’ sovereignty in the South. These were doctrines of nineteenth-century white-supremacist nationalism; the only thing to be disputed between them was the size and number of the nations. Lincoln prevented a revolution against natural rights.