Abraham Lincoln, Esq.: The Legal Career of America's Greatest President

Abraham Lincoln as Practical Constitutional Lawyer

205 AbrahamLincolnasPractical ConstitutionalLawyer Mackubin Thomas Owens There is an old saying that goes, “Everybody talks about the weather, but no one does anything about it.” The same could be said about scholars of constitutional law. They may argue about nuances of the Constitution, but for the most part these debates are of interest only to other constitutional lawyers. Those who practice constitutional law do, of course, have some impact on how the Constitution is read. But it is rare for a lawyer of any kind to have a major impact on the Constitution itself. One lawyer who did was Abraham Lincoln. Indeed, no one other than the Framers of the Constitution themselves had a greater impact on the document than Lincoln. In fact, Lincoln’s contributions may exceed those of the framers of the document in that, faced by an unprecedented crisis, he saved the Constitution—and with it republican government. As Daniel Farber has remarked, “to call the Civil War a constitutional crisis is almost a misuse of words, like calling Pearl Harbor a military setback. In the Civil War, the Constitution was placed under pressure that it had never seen before and has not seen since.”1 To understand what Lincoln accomplished, it is necessary to recognize just exactly what it was that Lincoln believed he was saving. It was not simply “the Union.” It was not even simply “the Constitution.” For Lincoln, the Constitution was principally a framework for sharing power within a republican government. This was the real thing he aimed to preserve, because only republican government was capable of protecting the liberty of the people. LincolnbelievedthefoundationforsuchagovernmenttobetheDeclaration of Independence. The Declaration asserts that since “all men are created 206 Mackubin Thomas Owens equal,” a legitimate government derives its “just powers from the consent of the governed.” It is the principles found in the Declaration of Independence that authorize “the people” to “ordain and establish” a Constitution. Such a Constitution establishes a government the power of which is limited by its purpose: securing the God-given rights of life, liberty, and the pursuit of happiness. Thus the Constitution is the means of implementing a republican government capable of protecting the equal natural rights of all. Lincoln articulated the relationship between liberty and republican government on the one hand and the Constitution on the other in a fragment that he probably composed in 1860, perhaps as the basis for some speeches he gave in New England. Here Lincoln observes that, as important as the Constitution and union may be, there is “something back of these, entwining itself more closely about the human heart. That something, is the principle of ‘Liberty to all’” as expressed in the Declaration. With or without the Declaration, Lincoln continues, the United States could have declared independence, but “without it, we could not, I think, have secured our free government, and consequent prosperity.”2 Lincoln refers to the Declaration’s principle of liberty for all as a “word ‘fitly spoken,’ which has proved an ‘apple of gold’ to us. The Union and the Constitution, are the picture of silver, subsequently framed around it,” not to conceal or destroy the apple “but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture. So let us act, that neither picture, [n]or apple, shall ever be blurred, or broken.”3 In other words, republican liberty was the real thing to be preserved by saving the union and the Constitution.4 The means to preserve the end of republican government were dictated by prudence. According to Aristotle, prudence is concerned with deliberating well about those things that can be other than they are (means). In political affairs, prudence requires the statesman to be able to adapt universal principles to particular circumstances in order to arrive at the means that are best, given existing circumstances.5 For Lincoln to achieve the end of preserving the union and thereby republican liberty, he had to choose the means necessary and proper under the circumstances. Aristotle calls prudence the virtue most characteristic of the statesman. It is through the prism of prudence that we must judge Lincoln’s actions during the War of the Rebellion. There are two categories of constitutional issues raised by the War of the Abraham Lincoln as Practical Constitutional Lawyer 207 Rebellion. The first concerns federalism, the theory concerning the “nature of the Union and the states...