1860, Abraham Lincoln’s Understanding of the Constitution, Part 2: The Importance Of The Union – Guest Essayist: David J. Shestokas
“… if constitutionally we elect a President, and therefore you undertake to destroy the Union, it will be our duty to deal with you as old John Brown has been dealt with.”
– Abraham Lincoln, December 3, 1859
John Brown had been hanged for treason on December 2, 1859. Brown had lead a raid on the federal arsenal in Harper’s Ferry, Virginia on October 16. Brown and his group had intended to secure weapons to arm slaves for a revolt against their masters. The United States Marines, commanded by Colonel Robert E. Lee captured the raiders, foiling the plan. On November 2, Brown received his death sentence.
The day after Brown was hanged, Abraham Lincoln was in speaking in Leavenworth, Kansas. He was nationally known from his famous debates with Stephen Douglas the year before and a leader of the fledgling Republican party. In Kansas that day Lincoln made clear his belief that seceding from the Union would be treasonous; the penalty for secession should be no different than Brown’s: death by hanging.
Fifteen months later, on March 4, 1861, Lincoln would take the oath of office as the sixteenth president. His inaugural address that day laid out his view of the Union and the Constitution. While more nuanced and legally argued, the message was ultimately the same as on that December day in Kansas.
Anticipation of Lincoln’s Inaugural Address
Presidential campaigns were much different in 1860 than in the modern era. Active campaigning by candidates was generally considered undignified. The candidate would stand on the platform promulgated by his party and surrogates would actively campaign. Following his May, 1860 nomination and November, 1860 election, Lincoln rarely left his Springfield home. He had maintained a careful silence leading up to his inauguration.
The silence was intended to avoid further fanning the flames of secession. Six weeks after his election, South Carolina became the first state to declare it was leaving the Union. By Lincoln’s March 4 inauguration, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas had joined Georgia’s declaration.
After almost ten months of silence, Lincoln’s critical inaugural address was much anticipated. In the face of the secession crisis, the new president’s view of the constitutional nature of the Union was needed to be clearly stated.
The First Inaugural, the Constitution and Slavery
The Constitution took center stage in Lincoln’s First Inaugural Address, perhaps more than ever before and ever since. Lincoln would rely upon the Constitution to work to allay the fears of the secessionists, and yet affirm the authority of the federal government in the face of secession.
Given that slavery was tearing the country apart, Lincoln initially addressed both his understanding of his constitutional authority and his intent:
“I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”
He then quoted from the party platform that he stood upon for his election:
“That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend…”
Having denied any constitutional authority to interfere with slavery within a state, he quotes the Constitution’s Fugitive Slave Clause. Having addressed the president’s lack of constitutional authority to interfere with slavery, the right of states to regulate what happens within their borders and the affirmative duty of all taking an oath to uphold the Constitution to facilitate the return of slaves, Lincoln has summarized his view that membership in the Union does not imperil a state’s “domestic institution”.
Lincoln asserts that he takes the presidential oath of office without reservation and fully understanding the nature of the Union as regards to slavery.
The First Inaugural, the Constitution and the Union as Perpetual
A theory of the Constitution among secessionists was that it was a voluntary contract or agreement among the states to create an association. The contract theory included the premise that as a voluntary association, each state had the legal right to leave the association if it so decided. This was a theory with which Lincoln clearly disagreed.
In the inaugural, on the subject of perpetual union, Lincoln starts with his clearly stated conclusion that no government builds into its basic law the seeds of its destruction:
“I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.”
Lincoln the lawyer, reminds adherents to the contract theory that while parties to a contract can violate the contract, a contract may only be lawfully rescinded if all parties agree. Without such agreement, the contract remains in effect.
To strengthen his conclusion of perpetual union, Lincoln goes back to a time before the Constitution even existed. The colonies created the Articles of Association in 1774, the Declaration of Independence in 1776, the Articles of Confederation in 1778, and finally the Constitution in 1787.
The relationship between the Articles of Confederation and the Constitution as found in the Preamble is Lincoln’s final stitch in his argument of the Union’s inviolability. The Articles had created a “perpetual union”. The Preamble listed among the Constitution’s purposes the creation of “a more perfect union”. If any state could simply leave and destroy the Union, the result would have been something less perfect than existed before the Constitution.
With that in mind, Lincoln explained:
“It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void…”
In Lincoln’s view of the Constitution and the Union, neither Georgia, Mississippi, Florida, Alabama, Georgia, Louisiana, nor Texas had left the Union.
In the balance of his address, Lincoln struck a conciliatory tone, speaking of bonds, history, heritage and the practical aspects of sharing the continent. Despite this tone, despite the legal, common sense arguments, anyone aware of his statement the day after John Brown was hanged, knew Lincoln saw any effort to destroy the Union as a treasonable offense worthy of the death penalty.
David Shestokas, J.D., is a former state prosecutor and author of Constitutional Sound Bites, explaining America’s Founding Documents in a 21st Century presentation. The Spanish edition Cápsulas Informativas Constitucionales is the first book to explain American founding principles for the 36 million Americans more comfortable in Spanish than English. Follow him on Twitter: @shestokas and visit his website: Constitutional and Legal Education and News.
 No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. Constitution, Article IV, Section 2, Clause 3.
 “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Constitution, Article I, Section 1, Clause 8