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Introduction Paul D. Moreno and Johnathan O’Neill T his collection of essays examines American constitutionalism from the founding to the Progressive era. At its center is Abraham Lincoln’s statesmanship on slavery and secession. Additional essays consider issues and events leading to the Civil War, as well as its legacy. All the authors are students or colleagues of Herman Belz, the author of the central chapter, who has devoted his career to understanding the American Constitution and its history. “Like law itself,” Belz has written, “a constitution also has a normative content which is intended to guide and control political and governmental action—to state what ought to be rather than what is. In this sense a constitution prescribes official conduct and provides a standard of legitimacy for assessing the validity of governmental action. . . . Constitutionalism, in turn, is the theory and practice of conducting politics in accordance with a constitution.” The authors in this volume share this understanding of constitutionalism. All emphasize that constitutional principles shape political activity and are not mere epiphenomena of other processes. Constitutional principles are in this sense “configurative,” as Belz’s mentor, Arthur Bestor, put in his essay “The American Civil War as a Constitutional Crisis.” Accordingly, these essays treat constitutionalism as a complex and contested practice that involves political “construction” in addition to judicial “interpretation.” They place important figures, disputes, and judicial decisions within the broader context of the constitutional system, explaining how ideas and institutions, independently and in dialogue with the courts, have oriented political action and shaped events over time. This approach is particularly appropriate to the subject matter because the constitutional conflicts resulting in the Civil War roiled just under the surface of American politics since the founding and reverberated for generations after the fighting ceased. These essays focus on that long prelude and enduring legacy, rather than the intricate and unique problems raised by the conflict and confronted by Lincoln in the brief period from 1861 to 1865. Jeffry Morrison begins with a discussion of Lincoln’s fidelity to George Washington ’s unionism. Morrison shows that the Union was central to Washington’s 2 Paul D. Moreno and Johnathan O’Neill constitutionalism. Indeed, he had been a confirmed unionist before the Revolutionary War, which advanced this commitment, as it did for many other founders . He also saw the nationalizing potential of the frontier, or what would later be called the “territories.” He envisioned it as a true “empire of liberty”—an asylum for the oppressed of the entire world. It also would be a centripetal force defining a liberal American national identity. Lincoln’s commitment to keeping slavery out of the territories persevered in Washington’s vision. Morrison argues that “Washington had developed a view of the union, and its supremacy and supreme importance for American ‘happiness,’ that was, in its own way, nearly as mystical as Abraham Lincoln’s view of the union during the Civil War.” Additionally, Washington faced the first important threat to the new government’s legitimacy in the West: the Whiskey Rebellion of 1794. He responded with what Publius in the Federalist Papers called “energetic” executive power, showing that constitutionally limited government could still be effective government. In his Farewell Address, Morrison adds, Washington noted that liberty was the most intense attachment of the American people. He told his fellow citizens that their liberty depended on the Union, and the Union on the Constitution. Morrison concludes with a discussion of Washington’s last will and testament as “a postscript to his Farewell Address.” There Washington moved inexorably toward the abolition of slavery and thus toward the issue that most threatened liberty and union. Morrison’s essay and the following one by Christian Esh illustrate what Lincoln observed at the outset of the Civil War: “Our popular government has often been called an experiment. Two points in it our people have already settled—the successful establishing and the successful administering of it. One still remains— its successful maintenance against a formidable internal attempt to overthrow it.” Esh shows how the constitutional principle of federalism helped to maintain the Union. In large measure this was because federalism, or “state rights,” was not a southern monopoly. Martin Van Buren and New York became the most ardent defenders of state rights in the North, picking up the mantle of the Virginia and Kentucky Resolutions. Showing that state legislatures participated in constitutional construction, Esh observes that New York often declared its “enthusiasm for a national union expressed in the...

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