Democracy and the American Revolution

Abraham Lincoln’s “Fragment on the Constitution and the Union”¹ famously compares the relation between the Declaration of Independence and the Constitution to Proverbs 25:11’s reference to “apples of gold in pictures of silver.” His point is that the mechanisms of the Constitution (the picture) serve the ideals of the Declaration (the apple). This is often understood to indicate Lincoln’s emphasis on individual rights as the lens through which the Constitution should be interpreted. Yet the timing of the fragment, presumed to have been written between his election as president in 1860 and his inauguration in 1861, suggests otherwise. He wrote the fragment at the same time he was drafting his first inaugural address, a full-throated defense of democracy understood as majority rule.²

In that speech, he declared: “A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.” The nation divided naturally into majorities and minorities on questions over which the Constitution gave the national government jurisdiction. “If the minority will not acquiesce,” Lincoln explained, “the majority must, or the government must cease. There is no other alternative; for continuing the government, is acquiescence on one side or the other.”³

That is also what the Declaration says when read in full. Yet scholarship on Lincoln’s view of the Declaration, the Constitution, individual rights, and the relationship among the three substantially rotates around the assumption of some degree of tension. That is the enduring debate, though contemporarily recast, between Harry Jaffa and his intellectual descendants and those who saw Lincoln’s theory of personal rights as a “derailment” of the American tradition. (With the acerbity for which he was famed, Jaffa was wont to associate these thinkers with John C. Calhoun and describe them with epithets like “neo-Confederate.”)⁴

Might the very terms of this debate, inescapably inflected with 20th-century controversies, including the Civil Rights Movement and the rise of the Warren Court’s activism in the name of individual rights, miss the Declaration’s point—and, with it, Lincoln’s? Put otherwise: Lincoln might find the terms of the debate over his legacy unintelligible in his own dialect. Lincoln’s position can be articulated simply and, it should be said, entirely in keeping with the teachings of the Constitution’s framers. Participation in democratic self-rule is both a right and the only viable political means of securing, as opposed to simply proclaiming, other rights. Individual rights and the common good are not opposing notions, and neither are individual desires and communal aims. A democratic republic exists to pursue them together.

By considering the terms of this debate, we might not only shed light on Lincoln’s understanding of the Declaration of Independence but also better grasp the character of American democracy and the legacy of our founding.

The House Divided

Jaffa’s breakthrough and now canonical study of the Lincoln-Douglas debates, Crisis of the House Divided, understands the two statesmen’s essential division over the limits of majority rule. Stephen Douglas was morally indifferent to enslavement and thus happy to leave the issue to “popular sovereignty.” But Lincoln thought individuals’ most fundamental liberty was not subject to majority rule. The converse also held. Jaffa wrote in the introduction to the 50th-anniversary edition of Crisis: 

Jaffa’s claim is that Lincoln, like Socrates in Plato’s Republic, denies that justice is the rule of the stronger.

Yet two issues are latent in this claim, and a full understanding of Lincoln hinges on separating them. One is what is just—which Lincoln certainly did not associate with “the counting of heads.” The other is the mechanism for attaining justice, which, as Lincoln understood, unavoidably involved counting heads. His refutation of Douglas’s doctrine of popular sovereignty indicates as much. Lincoln’s famous characterization of this notion of popular sovereignty distilled it to the claim “that if any one man, choose to enslave another, no third man shall be allowed to object.”⁶ (Emphasis in original.) Jaffa, noting that Lincoln “picked his words with utmost precision,” understands the warning to be the universalizing nature of Douglas’s claim: There could be no principle that justifies enslaving black Americans that did not at the same time justify enslaving white Americans—or anyone else.⁷

As will be shortly seen, Jaffa’s claims that Lincoln was a statesman, an axiomatic thinker, and a meticulously precise writer are not entirely compatible. Axioms are clean and precise; politics is messy and opaque. More important, Jaffa’s analysis glosses over crucial elements of Lincoln’s case. Lincoln’s horror at the Kansas-Nebraska Act, which enshrined Douglas’s doctrine of popular sovereignty, was not that it subjected individual freedom to plebiscites. Lincoln surely wished for a virtuous political order in which no such plebiscite was necessary. But the question at stake was at what level of government the decisions should be made.

Lincoln stated this principle clearly in his 1854 Peoria address. The immediate problem was not the legality of enslavement per se but that the Missouri Compromise had already settled the question at the national level—because permitting more states to enslave people had national repercussions. This was the import of the “house divided” address:

In other words, the national government had the authority to regulate enslavement because it was inescapably a national issue.

None of this detracts from Lincoln’s horror at the evil of slavery. He ardently wished its “ultimate extinction” and always had. But we must read him as a statesman and not as a professor. In that sense, the popular-sovereignty issue is better understood as a question of federalism: At its core, was this a local or a national issue? Lincoln was no Garrisonian; he did not reject the Missouri Compromise, which permitted enslavement in some states. He objected to empowering individual states to make that decision without regard to its national implications.

We can see this more clearly by looking more closely at Lincoln’s simple summary of popular sovereignty: If one individual enslaves a second individual, no third individual can object. If Lincoln’s reading of the Declaration was focused on personal rights, what business is it of the third individual to be involved at all? One man’s attempt to enslave another is prima facie unjust. There is no need, and indeed there is every injustice, in allowing a third person to participate in deciding the question—whether he objects or not. Lincoln’s question is who the third man is. It is the national and not the local electorate.

The purpose of the foregoing is not to shear Lincoln of his profound and genuine moral orientation to politics by reducing his analysis of popular sovereignty to legal formalisms. But for a country lawyer who thought in axioms—a manner of thought Jaffa admires—forms matter. Adherence to forms provided the means for moral consensus.

Jaffa’s dismissal of neo-Confederates, whom he viewed as intellectual descendants of Calhoun, rests in part on the claim that their reading of the Declaration, unlike Lincoln’s, focused on corporate rather than individual rights. This, again, was inextricable from Jaffa’s inability to resist the ad hominem argument. Adherents of this view were largely (though not exclusively) Southerners at a time when the justice of the Confederate cause was widely considered an open question. Two things may be true. One is that certain Southerners among this group were guilty of, if not neo-Confederate sympathies, at least romanticizing the intellectual depth of the secessionists who precipitated the Civil War. The second is that their reading of the Declaration might still require serious engagement.

In The Basic Symbols of the American Political Tradition,⁹ Willmoore Kendall and George W. Carey (from Oklahoma and Illinois, respectively) assessed the American regime through the lens of the “new science of politics” proposed by Eric Voegelin.¹⁰ They traced the character and development of polities in terms of the symbols through which they understood their engagement with reality. When those symbols went awry, the polity’s understanding of reality changed, a moment that later Voegelinians labeled “derailment.”¹¹

Through a careful assessment of American political development beginning with the Mayflower Compact, Kendall and Carey concluded that the “basic symbol” of America is “self-government by a virtuous people.” That implies, among other things, legislative supremacy leavened by deliberation, a consistent foundation of early American institutions. Kendall and Carey asked whether the Declaration represents a derailment. Their answer was that it does not. The Declaration speaks of the acts of “one people,” not isolated individuals; it creates new sovereignties but self-consciously avoids proclaiming a new nation; and the bill of particulars against King George III consists mostly of offenses against either “virtue” (for example, he has “destroyed the lives of our people”) or self-government (“suspending our legislatures,” among other acts).

On the other hand, Kendall and Carey concluded, Lincoln’s Declaration, both as he described it and as his later admirers extended his argument, did trigger a derailment. They charged Lincoln, especially at Gettysburg, with several mistakes. One is setting the nation’s beginning in 1776 rather than, for example, at the Mayflower Compact or any number of other moments that symbolized deliberative self-government. Moreover, Lincoln seems to ascribe constitutional status to the Declaration. Most important, he elevates equality as the supreme symbol of the American tradition—ignoring the other “self-evident” truths Jefferson proclaimed, including the Declaration’s reference to “the consent of the governed” being the only foundation of “just powers.” Subsequent egalitarians, Kendall and Carey regretted, have extended this symbol of equality from a repudiation of enslavement all the way to a guarantee of equal social, economic, and political outcomes.

Latter-day egalitarians and individualists see the Constitution in progressive terms, as an undemocratic, even antidemocratic document and a departure from the Declaration’s ideals—as evidenced by the founding generation almost immediately realizing their error and adding the Bill of Rights. In this view, the Declaration, like humanity after the fall from Eden, descends into aristocracy before beginning a recovery under Lincoln and reaching its apotheosis in progressivism. Kendall and Carey argued that this understanding misreads both the Bill of Rights—whose “father,” James Madison, described it largely in terms of rights regulable by the mechanisms of self-government—and history. Bills of rights were common devices in the pre-constitutional period, and the debate about a similar instrument at the national level well preceded Madison’s proposal of one after the Constitution went into effect.

Rights and Self-Government

Here we arrive at a point at which these two camps—Jaffa and his individualist students on the one hand and Kendall, Carey, and their fellow advocates of deliberative self-government on the other—may speak past one another on a crucial point on which Lincoln himself shows no signs of confusion.

One bit of evidence Jaffa offered—perhaps the only credible bit of evidence—for the accusation of neo-Confederate sympathies among his opponents was that those opponents shared with Calhoun a corporate understanding of the Declaration of Independence. Calhoun did articulate such an understanding, and he did so often. He insisted the Declaration meant to argue that it was the states as corporate bodies, not the individuals living in them, that were equal to each other. Consequently, no other state had the authority to impose policies, whether tariffs or restrictions on enslavement, on South Carolina without South Carolina’s consent.¹²

But this is not the argument Kendall and Carey make about self-government. Their understanding follows from a deeper problem in the Declaration—its claim that the rights to “life, liberty, and the pursuit of happiness” are “inalienable.” In law, to alienate something is to give it away in exchange for an equivalent—for example, a person selling a house alienates it in exchange for the purchase price. Understood in this way, the Declaration’s self-evident rights are obviously alienable if we understand them to apply to individuals.

We can push the point further. The alienation of limitless natural rights in exchange for regulable civil rights is the entire basis of social-contract theory. From Thomas Hobbes to John Locke to Jean-Jacques Rousseau and beyond, the individual gives up their pre-political right to act without boundaries in exchange for civil rights that are limitable. Civil rights constitute an equivalent because natural rights cannot be meaningfully enforced outside a political context. In the American understanding, as in the British before it, the best guarantor for rights is deliberative self-government in which everyone equally participates. What an entire people cannot do is alienate its right to self-government to another people, which was in effect what the British Empire asked the colonists to do. On this corporate understanding of rights, a people’s corporate right to self-government includes the populace’s responsibility to protect individual rights while adjusting them to political life and the common good.

To develop this understanding fully, we must return briefly to Locke, the theorist widely presumed, with good reason, to be the most significant influence on the Declaration. The vast bulk of Locke’s Second Treatise of Government pertains to the purposes for and methods by which governments are formed.¹³ A reader who stops at the formation of government will misunderstand Locke as much as a reader who relishes the opening poetry in the Declaration of Independence but skips the actual grievances.

Individualist readers of Locke ignore, as do individualist readers of the Declaration, the difference between natural and civil rights—that the state of nature’s independent rights do not, and in fact cannot, transfer to a civil state. That would defeat the purpose of a society banding together in the first place. In paragraph 95 of the Second Treatise, Locke explains that human beings are naturally free and independent—words that appear in the Declaration’s first draft. Crucially, though, freedom and independence are exercised in, not after, the act of forming society. He writes: “When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.”¹⁴

And why must the body politic be bound by the majority? Locke answers in paragraph 96. Because a political community is “one body” and “must move one way,” he explains, 

Compare that phrase—the commonwealth must move and majority rule is the only way it can—with Lincoln’s understanding that, in the absence of majority rule, society would cease. Locke’s invocation of “force” is also suggestive. It echoes both Madison’s and Lincoln’s understanding that republican societies cannot do what is right and just without the majority’s support, so moral ideals are attainable only with moral suasion. That is an inherent moral hazard for the statesman. He is inevitably open to accusations of injustice because building the consensus that makes it possible to do right takes time.

Locke’s readers may reasonably wonder why they had to slog through 94 paragraphs that hint at individual rights only to throw it all away in paragraph 95. One explanation—quite compatible with the Declaration’s explanation and Lincoln’s—is that Locke’s account of society’s purposes is a common reference for persuading the apparently all-powerful majority to behave rationally. We might think of it this way: If a group of students pooled money to form a book-buying collaborative and later a majority of them decided to spend the funds on a night out, stopping them might be difficult. But the others could at least appeal to the original purposes of their compact. Madison made exactly this argument in introducing the Bill of Rights. He was aware, he said, that “paper barriers” could not impede determined majorities. But 

In briefer form, the Declaration follows precisely Locke’s structure—rhetorical grounding followed by the mechanisms by which a just society makes decisions. The Declaration’s rhetorical preamble states several self-evident truths. One is that all men are equally entitled to life, liberty, and the pursuit of happiness. So far, so good, at least for the Lockean individualist account. But the next truth is “that to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed.” That is the moment of exercising freedom and independence—the transition from natural to civil rights. The third self-evident truth, the right to revolution, refers to a return to the state of nature in which the protections of civil laws can no longer be invoked—what Locke famously calls an “appeal to heaven.”¹⁷

The actual grievances that follow can be counted and categorized differently. But the single largest category—roughly 12 of the grievances—pertains to King George inhibiting republican self-government. The king has dissolved legislatures, convened them at distant places, refused to approve good laws, and so forth. Even many of the allegations that pertain to rights are based on the regulation of liberty by republican processes, such as imposing taxes “without our consent” and maintaining standing armies “without the Consent of our legislatures.”

Ultimately, the entire Declaration is a persuasive brief—which suggests that the revolutionary generation did not believe, with Thomas Paine, that people could change their form of government for any reason and on any occasion.

Lincoln’s Declaration

What, then, did Lincoln’s Declaration mean? To read him with an innocent eye, unaware of interpretive controversies, is to see that pitting the Declaration’s equality and attendant personal rights against the Constitution’s devotion to republican self-government is not simply a false dichotomy; it is a dichotomy stated in a language Lincoln does not speak.

Lincoln’s patois was equality, and both the Declaration and the Constitution derived from that principle. He never betrayed any indication that he felt he was contradicting himself. Lincoln described the Declaration as the fount of every political opinion he had ever had;¹⁸ it was the “electric cord” binding generations of Americans.¹⁹ Yet his “beau ideal of a statesman” was Henry Clay, who was devoted to compromise on the issue of enslavement to preserve the Constitution and Union.²⁰ When Lincoln told his longtime friend Joshua Speed that most Northerners “crucify their feelings [about enslavement], in order to maintain their loyalty to the constitution and the Union,” he rued the tension but did not deny its necessity.²¹

In some ways, Jaffa’s reading of Lincoln as more scholar than statesman is defensible, even if that reading exists in tension with itself. Lincoln thought the principles of the Declaration rose from “definitions and axioms”; he often cited Euclid in their defense.²² But he was also a prudent statesman who understood that stating ideals and attaining them were compatible things but still different. Indeed, Lincoln explained as early as 1858, and most extensively at Cooper Union, that the founders knew the Declaration’s ideals would take time:

En route to Washington for his 1861 inauguration, Lincoln frequently invoked the Declaration. He wanted to save the Union and the principle of equality. “But, if this country cannot be saved without giving up that principle—I was about to say I would rather be assassinated on this spot than to surrender it,” he said at Independence Hall in Philadelphia.²⁴ Significantly, Lincoln did not say he would sacrifice one to the other. Still less did he believe it would be necessary. The anguish was directed at himself; he would rather be assassinated than have to make the exchange. Moral suasion within constitutional boundaries was the only way to avoid it.

Lincoln’s commitment to self-government is latent in the terms in which he condemned the doctrine of popular sovereignty. The essential question was where sovereignty properly resided. But he also mocked Douglas for leaving the issue of enslavement to popular sovereignty while professing moral agnosticism. Douglas was, as Lincoln once lampooned him, the only man in America who had no opinion on slavery. Apologists for slavery were actually zealots for it, Lincoln said in Peoria. What he most hated was not the concept of voting on rights but rather doing so unmoored from moral commitments. The essential claim of popular sovereignty was that “there is no right principle of action but self-interest.”²⁵ (Emphasis in original.) Lincoln thought there were higher principles. The Declaration contained them. But both it and the Constitution provided mechanisms for their attainment.

The Republican Principle

How can one hold these commitments to Euclidean principle and statesmanlike prudence—which require the accommodation of principle to circumstance—at the same time?²⁶ To do so seems fraught with problems. Suppose Lincoln could have abolished slavery by sidestepping republican processes. He had opportunities. In August 1861, for example, Maj. Gen. John C. Frémont issued an order declaring martial law in Missouri and emancipating people enslaved by Confederates. Lincoln reversed the order, citing prudential concerns—such as alienating the border state of Kentucky—but also constitutional ones. He enclosed a recent act of Congress governing such actions and told Frémont to conform to it.²⁷

Some readers, citing Lincoln’s wartime censorship, suspension of habeas corpus, and similar measures, have understood him to have deliberately violated the Constitution. Noah Feldman, for example, argues that Lincoln deliberately fractured the “compromise Constitution” to elevate it to “the moral Constitution.”²⁸ Yet Lincoln saw compromise as a moral act unto itself, one rooted in humility and devotion to the common good. A centerpiece of his opposition to the Kansas-Nebraska Act had been that it repealed the Missouri Compromise as a compromise. Lincoln worked assiduously to keep the most intense controversies, including the controversy over the Fugitive Slave Act, out of the Republican convention in 1860. He pacified the border states that permitted slavery because he knew the Union would be lost if they left it.

Lincoln’s moderation and gradualism on the issue of slavery, which he believed were necessary to reconcile the principle of equality as expressed in both liberty and consent, exposed him to abuse. Even in the White House, he tinkered with schemes of gradual emancipation that would have taken the institution of slavery into the dawn of the 20th century. In an interesting passage from an 1859 speech in Chicago, Lincoln addressed these difficulties:

Is there not something deeply immoral in this toleration of slavery—as there was, equally arguably, in his first inaugural speech’s pledge to abide by the Constitution’s fugitive-slave clause, a particular and perhaps unrivaled cruelty that required the return of those who had tasted freedom to their prior chains? By reversing Frémont, Lincoln surely consigned people to enslavement, just as he did by limiting the Emancipation Proclamation to enslaved people in Confederate states but not those loyal to the Union. If the Declaration and Constitution were in tension with one another—if the former was the apple and the latter the picture—should Lincoln not have done all he could, as quickly as he could, however he could, to emancipate enslaved people?

Of course, the statesman has no choice but to hazard the purity of his conscience. He cannot always indulge his immediate moral urges, no matter how right they may be, because doing so can imperil their long-term security.

But a deeper answer rests at the heart of Lincoln’s simultaneous devotion to the Declaration and Constitution. To see it, we must pay adequate attention to Lincoln’s equation, in the passage from the 1859 Chicago speech above, of the “Republican principle” with the wrongness of slavery. We have seen that republicanism was a means of ending slavery and achieving the ideals of the Declaration. But this claim is different. It is that the principle is actually the same. The idea of equality dictated both that everyone could participate in self-government and that no one could enslave other people.

In fact, Lincoln said at one of his 1858 debates with Douglas, the Declaration’s devotion to equality was most clearly expressed in democratic terms. The Declaration’s whole series of self-evident truths culminated in the fact that governments derived just powers “from the consent of the governed,” Lincoln explained. (Emphasis in original.) “If that is not Popular Sovereignty, then I have no conception of the meaning of words.”³⁰

This is the foundation for the argument he makes for majority rule in his first inaugural speech. The Southern states, not the electoral majority, were repudiating the principle of constitutional republicanism. He professed fidelity to the Constitution, including its protections for slavery. He promised to interpret the document according to its plain meaning, not “hypercritical rules.” The whole of the speech is a prudent accommodation of his principles to the rules of the Constitution. On the eve of the 1864 presidential election, which Lincoln could have lost—in which case the Union would have been lost—he defended the people’s right to end the Civil War through democratic processes. “It is their own business,” he said, “and they must do as they please with their own.”³¹

We must return here to the underlying moral dilemma stated above. How could a man who possessed power and saw the right in Euclidean terms endorse—not merely tolerate—its subjection to democratic processes? Why should anyone have to convince a majority of his or her basic rights or even, in the case of enslavement, his or her humanity? In the messy context of political life, as Lincoln knew, there simply is no other way—as much as we might wish it were not so—that rights can actually be secured. The Declaration said as much in stating the self-evident truth that governments were instituted to secure rights. If their just powers then arise from consent, citizens have no choice but to persuade one another. If we are to achieve democratic ideals, including the equality that is the basis of democracy itself, persuasion might even be a moral duty. Without it, we cannot assume the virtue on which self-government depends, nor can we simultaneously enjoy equality in the mutual senses of freedom and consent.

In that sense, the debate over Lincoln (or the Declaration or Locke) is miscast as purely one between majority rule and individual rights. It is, rather, a choice between personal independence on the one hand and a truly common good—attained by the equal right to determine it—on the other. That does not mean slavery is wrong only if the majority says so. Nor does it mean individuals must sacrifice their most essential form of human independence—freedom from slavery—to common goals.

On this question, the searing heat and moral crucible of enslavement can distort our understanding. Ordinary politics entails adjusting personal desires to common aims. Lincoln’s genius, like the Declaration’s, was the reconciliation of individual rights and the common good, not the choice between them. At the end of the “Fragment on the Constitution and the Union,” which casts the Declaration as the apple of gold contained in the Constitution’s picture of silver, Lincoln exhorts us to “act, that neither picture, or apple shall ever be blurred, or bruised or broken.”³² The “neither” indicates he saw no contradiction in preserving both. Nor need we.