- A Response to John Burt
John Burt has written a thoughtful, incisive, and persuasive piece; my response, therefore, will be brief. First, I think that his focus on the Declaration of Independence and its centrality in Lincoln’s legal thought is exactly right. The Gettysburg Address is, of course, the most famous instance of Lincoln’s deep belief in the ideals and aspirations of the Declaration and his appreciation of its legitimizing authority in the nineteenth century, and Burt has done a wonderful job of showing us Lincoln’s utilization of the Declaration in an underexamined, yet deeply revealing, speech on the Dred Scott case by combining the skills and insights of literary and historical analysis. His close reading of the text of Lincoln’s speech and his care in putting the text in an ideological context are the best kind of interdisciplinary work; Burt’s expert use of this method offers original analysis that enriches our understanding of Lincoln and his connection to American constitutional thought.
As a legal historian, I would, nevertheless, urge him to historicize his arguments. I think the piece tends too much to treat the ideological commitments and ideals of the founders of the Constitution as fixed or in place as of the close of the Constitutional Convention. To be clear, Burt is quite explicit that the application of these ideals within particular political contexts is not fixed, but the underlying set of commitments, in his analysis seems set as of 1789, awaiting expansion as history demands it.
To be sure, Burt quite correctly steers us away from endless and unanswerable debate over whether Jefferson was a hypocrite or was dedicated to the ultimate destruction of slavery. Still, he does seem to have identified a set list of powerful ideals contained in the founding documents. This list includes (1) a kind of basic moral equality and (2) a fundamental commitment to democracy, or a “culture of freedom.” He is at all times sensitive to the fact that these are protean concepts, expanding as history demands they expand. [End Page 752]
Still, in setting forth this list, Burt might rule out the possibility of transformative change, which adds to the list. In this way the argument is at points a bit teleological. It seems to argue or demonstrate that we as a nation are moving to a fixed point over time and moving to the perfection of the essential ideals of the Declaration of Independence in particular. In his analysis of Lincoln’s speech, Burt seems to treat the Declaration of Independence as having an essential nature or purpose. The analysis then considers the extent to which Lincoln is attuned to this essential nature, and whether or not a case like Dred Scott undermines the nature of the Declaration.
This approach allows for deep inquiry into the meaning of Lincoln’s speech in light of the ideological commitment of the founding era, but I do wish to stress the historical point that there is no fixed purpose or set of ideals to the Declaration or the Constitution. The meaning imparted to these documents is historically contingent and changes over time. This is not to argue that these vitally important founding documents do not contain ideological commitments, only to argue that commitments are historically fluid; there is no true path from 1776 onward that Lincoln did or did not discover in the era of the Civil War. It is crucial to remember that when it came to the Dred Scott case, Stephen Douglas, and even Roger Taney for that matter, thought they were supporting the ideals of the Declaration of Independence every bit as much as Lincoln.
I do think Burt’s sensitive and nuanced reading of Lincoln’s reading of the Declaration is certainly correct in so far as it captures Lincoln’s emerging conception of the central role of the Declaration as an antislavery document. Where I differ is in the implication that Lincoln in some essential way has it right, that his reading of the Declaration was intrinsically correct, or true to the Declaration’s essential nature. Indeed, Lincoln’s reading of the Declaration and the Constitution as antislavery documents...