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It should come as no surprise that two Civil War-era political leaders born in Kentucky would hold similar constitutional understandings. President Abraham Lincoln (1809-65) and Senator Garrett Davis (1801-72) shared a common biography; both were natives of Kentucky and both followed Henry Clay to oppose slavery and favor democratic values. Both revered the founding principles of the U.S. Constitution as binding. Both served as Whigs in Congress, Lincoln [End Page 363] for one term, 1847-48, and Davis for four terms, 1839-46, where both opposed the Mexican War for similar reasons: they opposed the expansion of slavery. In the secession crisis, the two worked together as a team to keep Kentucky in the Union and crush the Confederacy.1 They fell out after 1863, ultimately because they disagreed not just over slavery but over the nature and meaning of self-government.

Elected to the Senate in 1861, Davis came to Washington echoing key points Lincoln had made in his first inaugural address, especially the idea that "mystic chords" bound the American people together, committing ordinary citizens to their nation and its founding principles. To Davis the "mystic chords" were a "golden cord" or a "magic chain," but the idea was obviously the same.2 Lincoln and Davis both recognized that the power to interpret constitutional law ultimately resided in the people, but at the same time they saw that power was limited by organic law. Before the Civil War, many or most white Americans shared the idea that a static, unchanging Constitution constrained politics.3

The rub came when Lincoln attacked the idea that slavery could be a local matter, left to local elections; slavery, he said, was a moral wrong, an affront to the "leading principle—the sheet anchor of American republicanism" as articulated in the Declaration of Independence. He said that the entire nation had an interest in whether [End Page 364] the states had slavery or not.4 To Davis, such thinking violated democratic principles. He thought that the Founders had limited popular authority by channeling it through the state governments. The people could end slavery but only through their state political systems, not through the apparatus of the national government, so long as they stayed in the Union. Such state-centered constitutionalism could encourage sectional agitation, as Davis fully understood.

Davis saw two features in the "social system" of American constitutionalism that strengthened its force and tended the Union toward permanency.5 The Framers, rather than challenging nature, which would have made the document seem unnatural and contrived and therefore vulnerable to criticism, had instead adapted fundamental rights universally found in natural law. The most important of these, in Davis's mind, protected private property with due process of law. Natural law did not dictate property rights: "The natural law gives no right of property to a man in anything," Davis said. Through a political process the American people chose to put naturally occurring property rights in their constitution. He called it "public national law, growing out of the practice, usages, and uniform customs of the civilized world."6 So long as they remained in the Union, property owners need not fear government confiscation of their property outside legal processes. Basing the Union on natural law, and not just political bargaining, made any agitation against it seem less legitimate, Davis thought. For Davis, though, the naturalness of the Constitution went beyond such bedrock principles, no matter how important they might be. He also thought the Constitution incorporated a way [End Page 365] of thinking about race consistent with the best scientific knowledge available.

Primarily by their silences, many historians have argued for Davis's irrelevance.7 Davis's frequent absences from the secondary sources, when he is so prominent in the primary sources, silently argues that most Civil War-era white Americans did not share his ideology or his continued commitment to antebellum constitutionalism in the postbellum era. "Racism had been rampant" before the Civil War, one scholar recently wrote about Northerners before continuing, "[b]ut the war years changed those attitudes." Racial prejudice endured at the end of...


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