Commentaries
Abraham Lincoln Was a Framer of the Constitution
By Wilson Huhn
March 12, 2009
It is time to recognize Abraham Lincoln as a principal framer of the Constitution of the United States.[1]
The Declaration of Independence states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .[2]
As originally written, the Constitution of the United States incorporates many of the ideals which were articulated in the Declaration of Independence. Ratified in 1788, the Constitution expressly sought to “[S]ecure the blessings of liberty to ourselves and our posterity . . . .”[3] Under the Constitution, Americans created a democratic form of government with limited powers delegated to different branches of government.[4] The Constitution prohibited the establishment of an aristocracy[5] and provided for a number of important individual freedoms such as habeas corpus.[6] The Bill of Rights, ratified in 1791, added several important enumerated individual rights and provided for the recognition of unenumerated rights.[7]
But there was one bedrock principle of the Declaration that was not written into the Constitution at the founding: the concept that “all men are created equal.” Neither the original Constitution nor the Bill of Rights guaranteed equality to American citizens. There was a very good reason for this omission-slavery. Many of the framers of the Constitution were slaveholders,[8] and even those who vehemently opposed slavery, such as Benjamin Franklin,[9] Alexander Hamilton,[10] John Jay,[11] and Gouveneur Morris,[12] were willing to recognize the institution of slavery in order to bring the southern States into the Union.[13] The delegates to the Constitutional Convention compromised with slavery by entering into what George Mason referred to as a “bargain” between the North and the South,[14] and which the abolitionist William Lloyd Garrison called “an agreement with hell and a covenant with death . . . .”[15] The word “slavery” was not used in the Constitution,[16] but it was acknowledged and protected. Slaves were counted as three-fifths of a person for purposes of taxation and representation.[17] Slaves who escaped from captivity were to be returned to their owners.[18] The slave trade was to be protected for a period of twenty years.[19] Seventy years after the Constitution was drafted, Chief Justice Roger Taney ruled that slavery was not simply a property right, but a superior kind of property right, because of the special protections that it enjoyed under the Constitution.[20]
Following the Civil War, the United States adopted the Thirteenth, Fourteenth, and Fifteenth Amendments which abolished slavery, guaranteed equal rights to every American, and granted African Americans the right to vote.[21] James McPherson has rightly characterized the Civil War as “the Second American Revolution.”[22] These constitutional amendments established the rights that Abraham Lincoln stood for and fought to achieve.
Lincoln expressed his opposition to slavery and his devotion to equality in numerous speeches, public letters, and remarks.[23] He burst upon the national scene with the Peoria Address, in which he asserted that slavery was inconsistent with self-government:
The doctrine of self government is right—absolutely and eternally right—but it has no just application, as here attempted. Or perhaps I should rather say that whether it has such just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government—that is despotism. If the negro is a man, why then my ancient faith teaches me that “all men are created equal;” and that there can be no moral right in connection with one man’s making a slave of another.
. . . [N]o man is good enough to govern another man, without that other’s consent. I say this is the leading principle—the sheet anchor of American republicanism.[24]
Lincoln repeatedly and eloquently argued that the Constitution should reflect the principles of the Declaration-in particular the precept that all men are created equal. Early in 1857, both Senator Stephen Douglas and Chief Justice Roger Taney had taken the position that Jefferson’s phrase in the Declaration that “all men are created equal” did not embrace black slaves.[25] On June 26, 1857, Lincoln responded to both Douglas and Taney:
I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.”[26]
On August 17, 1858, following the debates with Stephen Douglas, Lincoln appealed to Americans in the strongest terms to “come back” to the principles of the Declaration:
Now, my countrymen . . . if you have been taught doctrines conflicting with the great landmarks of the Declaration of Independence; if you have listened to suggestions which would take away from its grandeur, and mutilate the fair symmetry of its proportions; if you have been inclined to believe that all men are not created equal in those inalienable rights enumerated by our chart of liberty, let me entreat you to come back. Return to the fountain whose waters spring close by the blood of the Revolution. Think nothing of me—take no thought for the political fate of any man whomsoever—but come back to the truths that are in the Declaration of Independence. You may do anything with me you choose, if you will but heed these sacred principles. You may not only defeat me for the Senate, but you may take me and put me to death. While pretending no indifference to earthly honors, I do claim to be actuated in this contest by something higher than an anxiety for office. I charge you to drop every paltry and insignificant thought for any man’s success. It is nothing; I am nothing; Judge Douglas is nothing. But do not destroy that immortal emblem of Humanity—the Declaration of American Independence.[27]
In what may have been an unfinished reply to a letter from Alexander Stephens,[28] Lincoln used a biblical metaphor[29] to express his belief that the Constitution must be read in light of the Declaration-that the Constitution serves the Declaration. Evidently referring to the success of the American experiment, in this undated fragment, Lincoln wrote:
All this is not the result of accident. It has a philosophical cause. Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of “Liberty to all” —the principle that clears the path for all—gives hope to all — and, by consequence, enterprize, and industry to all.
The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity. No oppressed, people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters.
The assertion of that principle, at that time, was the 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. The picture was made, 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.[30]
Lincoln issued the Emancipation Proclamation in September of 1862[31] and it became effective on January 1, 1863.[32] Later that year in the Gettysburg Address, a speech that the historian Gary Wills refers to as “The Words that Remade America,”[33] Lincoln described the United States as having been “conceived in Liberty, and dedicated to the proposition that all men are created equal.”[34] In commemorating a cemetery for the soldiers who had fallen in the battle of Gettysburg, Lincoln urged Americans to rededicate themselves to the cause of freedom:
[T]hat from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God shall have a new birth of freedom—and that government of the people, by the people, for the people shall not perish from the earth.[35]
In the summer of 1864, in the darkest days of the War, with Grant stymied before Richmond and Sherman stalled on the outskirts of Atlanta, Lincoln came under enormous pressure to repudiate the Emancipation Proclamation and to sue for peace.[36] Lincoln was steadfast in standing by his decision to free the slaves.[37] In July of 1864, Lincoln authorized the editor Horace Greeley to begin peace negotiations only upon condition of the southern states’ “abandonment of slavery.”[38] In August, Lincoln stated that he would be “damned in time & eternity” if he were to “return to slavery the black warriors of Port Hudson & Olustee to their masters to conciliate the South.”[39]
In planning for the reconstruction of the southern states, Lincoln favored quick restoration of normal relations with the South,[40] but he was also adamant in his desire to protect the rights of the newly freed slaves. He selected a political rival, Salmon Chase, for Chief Justice of the Supreme Court because he knew that Chase would protect the rights of blacks.[41] He expressed his support for granting former slaves both an education[42] and, at least for some, the right to vote.[43]
Lincoln issued the Emancipation Proclamation under his power as Commander-in-Chief to seize property in areas of the country that were in rebellion.[44] Lincoln acknowledged that the measure was subject to being overridden by statute or judicial decision.[45] Accordingly, a movement arose in Congress to adopt a constitutional amendment abolishing slavery.[46] In the 38th Congress, the measure passed the Senate but failed to gather the necessary two-thirds majority in the House.[47] During the election of 1864, Lincoln requested and ran on a Republican platform that called for the adoption of an amendment abolishing slavery.[48] In a public letter to Albert Hodges in April of 1864, Lincoln had written, “If slavery is not wrong, nothing is wrong.”[49] The country responded to Lincoln’s appeal by reelecting him and by giving the Republican Party 37 additional seats in Congress.[50] When the 39th Congress convened in January of 1865, Lincoln lobbied hard for the passage of the 13th Amendment, making promises and cutting deals to secure its passage.[51] When the Amendment passed the House by a narrow margin on January 31, 1865, “there was an explosion, a storm of cheers, the like of which probably no Congress of the United States ever heard before.”[52]
A month later, in his Second Inaugural Address, Lincoln connected the end of the war to the end of slavery:
Fondly do we hope—fervently do we pray—that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord, are true and righteous altogether.”[53]
Lincoln’s death on April 15, 1865, reinforced the dedication of his followers to protect blacks in their civil rights. The 39th Congress adopted the Civil Rights Act of 1866, granting blacks American citizenship and guaranteeing their rights to enter into contracts, hold property, sue, and give evidence on an equal basis with whites.[54] To ensure its constitutionality the Congress adopted the Fourteenth Amendment,[55] specifically providing that Congress has the power to enforce its provisions.[56] The Fifteenth Amendment quickly followed; it also contains an enforcement clause.[57] Following ratification of these amendments Congress enacted a number of “enforcement acts” intended to prohibit state actors and private parties from interfering with the rights that had been conferred in the Fourteenth Amendment and Fifteenth Amendments.[58]
Beginning in 1871 the Supreme Court began to dismantle the work of the Reconstruction Congress.[59] The Court narrowly construed and struck down a host of civil rights laws that the Congress had enacted,[60] and beginning in 1896 the Court began to uphold discriminatory laws enacted by the states.[61] It was not until 1938 that the Supreme Court returned to first principles and started to enforce the Equal Protection Clause in accordance with the intent of its framers and in the spirit of Abraham Lincoln,[62] and not until 1954 did the Court finally put an end to the doctrine of “separate but equal.”[63]
In my opinion, the clearest expression of Lincoln’s views linking the Declaration to the Constitution appears in his speech of June 26, 1857, in which he responded to the argument of Senator Stephen Douglas and Chief Justice Roger Taney that the words “all men are created equal” did not refer to the slave race.[64] Lincoln made it clear that this was a transcendent truth-a universal principle applicable to all persons. He recognized that perfect equality was not attained by the generation of the Revolution-that due to practical, historical, and psychological reasons based in man’s selfishness and blindness it can probably never be perfectly attained-but that it was an ideal that the founders intended for us to aspire to and to work towards:
They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.[65]
Abraham Lincoln did not look to tradition to define the phrase “all men are created equal.”[66] He understood that there was and would always be an “emerging awareness” of what equality means[67]-that “changed understandings of fact” dictate the overruling of precedent[68]-that, in the words of the Nineteenth Century poet James Russell Lowell, “New occasions teach new duties / Time makes ancient good uncouth / They must upward still and onward, who would keep abreast of truth.”[69] The Supreme Court has extended the principle of equality to require equal treatment of blacks and women, and to prohibit intolerant action directed against other unpopular groups such as hippies,[70] repeat felons,[71] the mentally retarded,[72] and gays.[73] The idea that “persons who are similarly situated must be treated similarly”[74] is now a foundation principle of Constitutional law.
Lincoln, who came from the poorest frontier roots and who received practically no formal education,[75] believed that the purpose of government was to create “an open field and a fair chance” for everyone to succeed in life. Addressing the 166th Ohio Regiment on August 22, 1864, Lincoln said:
It is not merely for to-day, but for all time to come that we should perpetuate for our children’s children this great and free government, which we have enjoyed all our lives. I beg you to remember this, not merely for my sake, but for yours. I happen temporarily to occupy this big White House. I am a living witness that any one of your children may look to come here as my father’s child has. It is in order that each of you may have through this free government which we have enjoyed, an open field and a fair chance for your industry, enterprise and intelligence; that you may all have equal privileges in the race of life, with all its desirable human aspirations. It is for this the struggle should be maintained, that we may not lose our birthright . . . . The nation is worth fighting for, to secure such an inestimable jewel.[76]
In interpreting the civil war amendments it is appropriate to consider what Lincoln thought - what he convinced the American people was worth fighting for in our bloodiest and most destructive war.[77] He and the Union forces did not fight the Civil War to preserve states’ rights, or to deny to people their individual rights, or to secure traditional notions of people’s “place” in society. They fought against those ideas and they prevailed in part because freedom and equality are worth fighting and dying for. Shame on the Supreme Court for denying justice to African Americans for so long,[78] and shame on the present Court for its recent revival of states’ rights in civil rights cases,[79] its narrow construction of civil rights laws,[80] and its opposition to racial integration.[81]
Lincoln was not only a war leader who preserved the union, and he was not merely the Great Emancipator who freed the slaves. He was also a lawgiver who inspired this Nation to dedicate itself to the proposition that all persons are created equal, to incorporate this ideal into our fundamental law, and to treat the principle of equality as one that is “constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people” everywhere.[82] He deserves to be considered to be a principal framer of the Constitution, and the Constitution should be interpreted in light of the enduring principles he stood for.
[1] I am indebted to Elizabeth Reilly for the articulation of the idea that Lincoln was a framer. As is so often the case, she goes to the heart of a problem. I also thank Richard Aynes, J. Dean Carro, and Steve Cook for our comradeship in thinking about the life and work of Abraham Lincoln.
[2] The Declaration of Independence para. 2 (U.S. 1776).
[3] U.S. Const. pmbl.
[4] See U.S. Const. art. I, § 1 (vesting legislative power in a Congress); id. art. II, § 1, cl. 1 (vesting executive power in a President); id. art. III, § 1 (vesting judicial power in the federal courts). In addition, various provisions authorize the President to veto laws, the Senate to confirm nominations and ratify treaties, and the federal courts to decide all cases arising under the Constitution and laws of the United States.
[5] See U.S. Const. art. I, § 9, cl. 8; id. art. I, § 10, cl. 1 (prohibiting the United States and the individual states from granting any titles of nobility).
[6] See, e.g., U.S. Const. art. I, § 9, cl. 2 (prohibiting the suspension of habeas corpus except in cases of invasion or rebellion).
[7] U.S. Const. amends. I-VII (securing specific rights including freedom of expression, freedom of religion, and due process); id. amend. 9 (declaring that the enumeration of specific rights should not be construed to deny or disparage other rights retained by the people).
[8] See PBS: Citizen Ben (2002), http://www.pbs.org/benfranklin/l3_citizen_abolitionist.html ( “Almost all of our country’s founding fathers owned slaves at one time or another . . . .”).
[9] Id. (noting that in 1785, Benjamin Franklin became President of the Society for Promoting the Abolition of Slavery and the Relief of Negroes Unlawfully Held in Bondage).
[10] James Oliver Horton, Alexander Hamilton: Slavery and Race in a Revolutionary Generation, The New-York Journal of American History, Spring 2004, at16, 21, available at http://www.alexander hamiltonexhibition .org/about/Horton%20-%20Hamiltsvery_Race.pdf (noting that in 1785 Alexander Hamilton and John Jay founded and led the New York Society for the Manumission of Slaves, and Protecting Such of Them as Have Been, or May Be Liberated).
[11] Id.
[12] At the Constitutional Convention, Gouveneur Morris reportedly stated that “He never would concur in upholding domestic slavery. It was a nefarious institution-It was the curse of heaven on the States where it prevailed.” 2 Max Farrand, The Records of the Federal Convention of 1787, at 221 (1911), available at http://memory.loc.gov/ammem/amlaw/lwfr.html (last visited Mar. 11, 2009) (citing remarks made by Morris on August 8, 1787).
[13] Franklin, Hamilton, and Morris signed the Constitution. Library of Congress, The Constitution of the United States, http://memory.loc.gov/cgi-bin/query/r?ammem/bdsdcc:@field(DOCID+@lit(bdsdccc0802)) (last visited Mar. 11, 2009). Hamilton and Jay, along with James Madison, authored the Federalist Papers urging its adoption. Library of Congress: The Federalist Papers, http://thomas.loc.gov/home/histdox/fedpapers.html (last visited Mar. 11, 2009).
[14] 3 Farrand supra note 12, at 367 (reporting George Mason’s remarks that Georgia and South Carolina struck a bargain with three New England states to permit the slave trade to continue for twenty years in return for other concessions). On August 21, 1787, John Rutledge of South Carolina had offered this reason to the other members of the Constitutional Convention for allowing the slave trade to continue:
Religion & humanity had nothing to do with this question-Interest alone is the governing principle with nations-The true question at present is whether the Southn. States shall or shall not be parties to the Union. If the Northern States consult their interest, they will not oppose the increase of slaves which will increase the commodities of which they will become the carriers.
2 id. at 364.
[15] Michael Kent Curtis, John A. Bingham and the Story of American Liberty: The Lost Cause Meets the “Lost Clause,” 36 Akron L. Rev. 617, 665 (2003).
[16] Lincoln likened the framers’ refusal to use the word “slavery” to a disease that the victim wishes to deny or conceal, but which he nevertheless longs to be free of:
Thus, the thing is hid away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out at once, lest he bleed to death; with the promise, nevertheless, that the cutting may begin at the end of a given time.
2 The Abraham Lincoln Association, collected Works of Abraham Lincoln, 274 (Roy P. Basler, ed. 1953) [hereinafter Collected Works], available at http://quod.lib.umich.edu/l/lincoln/) (”Peoria Address,” October 16, 1854).
[17] U.S. Const. art. I, § 2, cl. 3 (three-fifths clause).
[18] Id. art. IV, § 2, cl. 3 (fugitive slave clause).
[19] Id. art. I, § 9, cl. 1 (clause protecting slave trade).
[20] See Dred Scott v. Sandford, 60 U.S. (19 How.) 451 (1856) (”[T]he right of property in a slave is distinctly and expressly affirmed in the Constitution.”).
[21] U.S. Const. amend. 13 (abolishing slavery); id. amend. 14 (prohibiting the states id. abridging fundamental rights, depriving due process, or denying equal protection of the laws); amend. 15 (guaranteeing the right to vote to every citizen regardless of race).
[22] James M. McPherson, Abraham Lincoln and the Second American Revolution (1991); Michael Kent Curtis, The 1859 Crisis Over Hinton Helper’s Book, The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment, 68 Chi.-Kent L. Rev. 1113, 1167-72 (1993) (describing how the Republican Party believed that the Constitution should reflect the principles of the Declaration); id. at 1172 (”If the Civil War was the second American Revolution, the Thirteenth and Fourteenth Amendments gave birth to a transformed Constitution and Bill of Rights.”).
[23] Wilson Huhn, Abraham Lincoln and the Transcendent Constitution: Lincoln’s Speeches, Letters, and Remarks, available at http://www.uakron.edu/law/constitutionallaw/lincolnSpeeches.php (last visited Mar. 11, 2009) (collecting the speeches, letters, and remarks of Abraham Lincoln relevant to the interpretation of the principles of equality and self-government).
[24] 2 Collected Works, supra note 16, at 265-66.
[25] Id. at 406 (setting forth Stephen Douglas’ argument that the phrase “all men are created equal” simply meant that Americans were the equal of the British people); Dred Scott v. Sandford, 60 U.S. (19 How.) 410 (1856) (Chief Justice Taney stated, “[I]t is too clear for dispute that the enslaved African race were not intended to be included” in the phrase “all men are created equal.”).
[26] 2 Collected Works, supra note 16, at 405-06.
[27] Id. at 547.
[28] See 4 id. at 160-61 (setting forth letter from Alexander Stephens dated December 30, 1860, to Lincoln using the biblical reference to “A word fitly spoken by you now would be like ‘apples of gold in pictures of silver’”).
[29] Proverbs 25:11 (King James) (”A word fitly spoken is like apples of gold in pictures of silver.”).
[30] 4 Collected Works, supra note 16, at 168-69.
[31] 5 id. at 433-36.
[32] 6 id. at 28-30.
[33] Gary Wills, Lincoln at Gettysburg: The Words that Remade America (1992).
[34] 7 Collected Works, supra note 16, at 22-23.
[35] Id.
[36] See Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln 645-48 (2006) (describing the political uncertainty during the summer of 1864); William Lee Miller, President Lincoln: The Duty of a Statesman 370-90 (Alfred A. Knopf 2008) (same); David Herbert Donald, Lincoln 493-30 (1995) (same).
[37] 6 Collected Works, supra note 16, at 407-09 (Letter to James Conkling, August 26, 1863) (”But the proclamation, as law, either is valid, or is not valid. If it is not valid, it needs no retraction. If it is valid, it can not be retracted, any more than the dead can be brought to life.”); 7 id. at 49-51 (Annual Message to Congress, December 8, 1863) (”[W]hile I remain in my present position I shall not attempt to retract or modify the emancipation proclamation; nor shall I return to slavery any person who is free by the terms of that proclamation . . . .”).
[38] 7 id. at 435 (setting forth the “Niagara Letter,” Lincoln’s instructions to Greeley for peace negotiations)
[39] 7 id. at 507; see also id. at 499-01 (Lincoln’s letter to Charles D. Robinson, stating that it would be “treachery” to allow black soldiers to be re-enslaved, and that such an act could not “escape the curses of Heaven, or of any good man”).
[40] Goodwin, supra note 36, at 589 (describing Lincoln’s “10 percent plan”); id. at 639 (describing Lincoln’s pocket veto of the harsh reconstruction plan contained in the Wade-Davis Bill). In the closing remarks of Lincoln’s Second Inaugural Address, Lincoln stated:
With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan—to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.
8 Collected Works, supra note 16, at 333.
[41] Goodwin, supra note 36, at 681 (stating that Lincoln “[T]rusted that Chase would help secure the rights of the black man, for which [Chase] had fought throughout his career . . . .”).
[42] Id. at 589 (speaking of the reconstruction of the government of Louisiana, Lincoln stated, “Education for young blacks should be included in the plan.”).
[43] Donald, supra note 36, at 487 (Lincoln proposed granting the vote to some blacks, “[E]specially those who have fought gallantly in our ranks . . . .”).
[44] In the Emancipation Proclamation Lincoln stated:
I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty three, … do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free . . .
6 Collected Works, supra note 16, at 28-30.
[45] The Emancipation Proclamation itself expressly bound only the Executive Branch to action, stating, “[T]he Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.” 6 Collected Works, supra note 16, 28-30.
Lincoln acknowledged that the oath to accept and support the Emancipation Proclamation that he wished to impose upon rebels as a condition for the return of their full political rights was “subject to the modifying and abrogating power of legislation and supreme judicial decision.” 7 id. at 49-51.
[46] Daniel A. Farber & Suzanna Sherry, A History of the American Constitution 391 (2005) By mid-1863 “most Republicans had become convinced that abolition was necessary to ensure the Union’s future security . . . And the only way to abolish the institution itself was through a change in the fundamental law.” Id.
[47] Id. at 392.
[48] John Woolley and Gerhard Peters, Political Party Platforms, http://www.presidency.ucsb.edu/ws/ index.php?pid=29621 (last visited Mar. 11, 2009); Donald, supra note 36, at 504 (Senator Morgan, the opening speaker at the 1864 Republican Convention, “[O]pened the proceedings by urging, at Lincoln’s suggestion, that the convention ‘declare for such an amendment of the Constitution as will positively prohibit African slavery in the United States.’”); id. at 505 (reporting that the Republican platform “endorsed a constitutional amendment abolishing slavery”).
[49] 7 Collected Works, supra note 16, at 281.
[50] Goodwin, supra note 36, at 665-66 (describing the results of the 1864 election).
[51] Id. at 686-88 (describing Lincoln’s efforts to secure the passage of the Thirteenth Amendment); see also Farber & Sherry, supra note 46, at 392 (noting that the debate on the Thirteenth Amendment in the 39th Congress commenced with Representative Ashley, the floor manager for the 13th Amendment, quoting Lincoln: “Mr. Speaker, ‘If slavery is not wrong, then nothing is wrong.’”).
[52] Goodwin, supra note 36, at 689 (quoting Noah Brooks).
[53] 8 Collected Works, supra note 16, at 332-33.
[54] Civil Rights Act of 1866, ch. 31, sec. 1, 14 Stat. 27 (making all persons born in the United States citizens and recognizing specifying certain rights that all citizens enjoy on the same basis as white citizens).
[55] On May 8, 1866, the opening day of debate on the adoption of the Fourteenth Amendment, Representative James A. Garfield observed:
The civil rights bill [of 1866] is now a part of the law of the land. But every gentleman knows it will cease to be a part of the law whenever the sad moment arrives when [the Democratic] party comes into power. It is precisely for that reason that we propose to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution, where no storm of passion can shake it and no cloud can obscure it. For this reason, and not because I believe the civil rights bill unconstitutional, I am glad to see that first section [of the Fourteenth Amendment] here.
Farber & Sherry, supra note 46, at 442 (alteration in original); see also Kenneth M. Stampp, The Era of Reconstruction 1865-1877, at 136 (1965) (”Fearing that the Supreme Court might rule against the constitutionality of the Civil Rights Act, the Joint Committee on Reconstruction, after much wrangling, incorporated its substance into the first section of the Fourteenth Amendment.”).
[56] U.S. Const., amend. XIV, § 5 (giving Congress the authority to enforce the provisions of the Fourteenth Amendment).
[57] Id., amend. XV, § 1 (conferring right to vote regardless of race or color); id. § 2 (giving Congress power to enforce the Amendment); Farber & Sherry, supra note 46, at 455-80 (describing the adoption and ratification of the Fifteenth Amendment).
[58] Act of May 31, 1870, c. 114, 16 Stat. 140; Act of Feb. 28, 1871, c. 99, 16 Stat. 433; Act of Apr. 20, 1871, c. 22, 17 Stat. 13; see also Farber & Sherry, supra note 46, at 480 (describing the Civil Rights Laws adopted by the Reconstruction Congress); Francisco M. Ugarte, Reconstruction Redux: Rehnquist, Morrison, and the Civil Rights Cases, 41 Harv. C.R.-C.L. L. Rev. 481, 494-95 (2006) (describing the adoption of two civil rights laws by the Reconstruction Congress and critiquing the decisions of the Supreme Court overruling these laws); Wilson Huhn, The State Action Doctrine and the Principle of Democratic Choice, 34 Hofstra L. Rev. 1379, 1439-46 (2006) (describing three Reconstruction Civil Rights Laws directed at the action of private individuals and the Supreme Court’s rejection of each law).
[59] See C. Vann Woodword, The Strange Career of Jim Crow 70-71 (Oxford Univ. Press 1966) (”The cumulative weakening of resistance to racism was expressed also in a succession of decisions by the United States Supreme Court between 1873 and 1898 . . . .”).
[60] See, e.g., Blyew v. United States, 80 U.S. (13 Wall.) (1871) (narrowly construing Section 3 of Civil Rights Act of 1866, thus allowing murderers of elderly black woman to go free); United States v. Cruikshank, 92 U.S. 542 (1875) (narrowly construing the Enforcement Act of 1870, thus allowing the perpetrators of the Colfax Massacre to go free); United States v. Reese, 92 U.S. 214 (1876) (construing Section 3 of the first Enforcement Act broadly, so as to render it unconstitutional); United States v. Harris, 106 U.S. 629, 640 (1883) (declaring provision of Ku Klux Klan Act unconstitutional); The Civil Rights Cases, 109 U.S. 3 (1883) (striking down federal Civil Rights Act of 1875); Baldwin v. Franks, 120 U.S. 678 (1887) (following Harris in finding the Ku Klux Klan Act to be unconstitutional insofar as it applies to private action); Hodges v. United States, 203 U.S. 1, 14 (1906) (Brewer, J.) (finding criminal provisions of Civil Rights Act of 1866 unconstitutional as applied to private action).
[61] See, e.g., Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding Louisiana statute requiring separate railroad cars for blacks and whites); Williams v. Mississippi, 170 U.S. 213 (1898) (upholding provisions of Mississippi constitution and laws such as poll tax, literacy test, disqualification for certain crimes, and residency requirements, which were designed to disqualify African Americans from voting); Gong Lum v. Rice, 275 U.S. 78 (1927) (upholding Mississippi statute requiring separation of the races in the public schools).
[62] See, e.g., State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) (ordering State of Missouri to enroll African American in state university law school).
[63] Brown v. Board of Education, 347 U.S. 483 (1954) (overruling Plessy and ordering the end of state-sponsored segregation in the public schools).
[64] See supra note 25 and accompanying text.
[65] 2 Collected Works, supra note 16, at 405-06.
[66] In contrast, Justice Antonin Scalia considers nothing but “tradition” to be relevant in interpreting the demands of Due Process and Equal Protection. See United States v. Virginia, 518 U.S. 515, 568 (1996), in which Justice Scalia, dissenting from the Court’s ruling admitting women to the Virginia Military Institute, states:
[I]n my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot supersede-and indeed ought to be crafted so as to reflect-those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts. More specifically, it is my view that “when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.”
Id. at 568 (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 95 (1990)).
[67] See Lawrence v. Texas, 539 U.S. 558, 571-72 (2003) (”[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”); id. at 572 (”[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.”) (internal citation omitted) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring)).
[68] See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 855 (stating that one factor in deciding whether to overrule precedent is “whether facts have so changed, or come to be seen so differently . . . .”); id. at 863 (stating that in West Coast Hotel v. Parish, 300 U.S. 379 (1937), and Brown v. Board of Education, 347 U.S. 483 (1954), the Court had been correct to overrule major precedent because each of those decisions “rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions.”).
[69] James Russell Lowell, The Present Crisis, available at http://lowell.classicauthors.net/Poems OfJamesRussellLowell/ (last visited Mar. 9, 2009).
[70] U.S. Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (striking down federal law intended to prevent “hippies” from receiving food stamps, and stating, “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”).
[71] Skinner v. State of Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (striking down law that imposed sterilization upon repeat felons who had committed crimes such as grand larceny but not upon felons guilty of white collar crimes such as embezzlement, bribery, or tax evasion).
[72] City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 447 (1985) (striking down refusal of Texas city to grant a special use permit for a group home for the mentally retarded, quoting the “bare . . . desire to harm” standard from Moreno).
[73] Romer v. Evans, 517 U.S. 620, 634 (1996) (invoking the “bare . . . desire to harm” test from Moreno, in striking down a state constitutional amendment prohibited the governor, the state legislature, political subdivisions, or any state agencies from adopting laws or policies prohibiting discrimination against gays and lesbians); Lawrence v. Texas, 539 U.S. 558, 577 (2003) (”[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)); id at 582 (O’Connor, J., concurring) (”Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”).
[74] See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 368 (1886) (stating that a law is constitutional under Equal Protection if “it affects alike all persons similarly situated”) (quoting Barbier v. Connelly, 113 U.S. 27, 32 (1884)); Trimble v. Gordon, 430 U.S. 762, 780 (1977) (Rehnquist, J., dissenting) (stating that the general principle of equal protection is that “persons similarly situated should be treated similarly”).
[75] Donald, supra note 36, at 19-37 (describing Lincoln’s childhood); id. at 29 (quoting Lincoln as speaking about his education in the third person in saying that “the aggregate of all his schooling did not amount to one year”); Goodwin, supra note 36, at 46 (citing the “unimaginable” obstacles that Lincoln overcame from his childhood).
[76] 7 Collected Works, supra note 16, at 512.
[77] The Civil War accounted for more deaths (over 600,000 soldiers killed) - nearly as many as the number of deaths from both world wars, Korea and Vietnam combined. See Miller, supra note 36, at 353.
[78] See supra notes 60-61.
[79] See Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (implied constitutional principle of state sovereign immunity precludes claims for employment discrimination under Age Discrimination in Employment Act); Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (state sovereignty immunity precludes claims for employment discrimination brought by disabled individual against the state university under Title I of the Americans with Disabilities Act).
[80] See Ledbetter v. Goodyear Tire & Rubber, Inc., 550 U.S. 618 (2007) (ruling that the statute of limitations for an action under Title VII as a result of gender discrimination in salary or pay begins to run when the employer grants the lower raise or bonus, and is not renewed as the lower pay continues); United States v. Morrison, 529 U.S. 598 (2000) (striking down federal Violence Against Women Act as applied to private acts of gender violence). Likewise, the Court has interpreted the broad language of 42. U.S.C. § 1981, which prohibits racial discrimination in the making and enforcement of private contracts, as not applying to a situation where the plaintiff alleged:
“[her supervisor] periodically stared at her for several minutes at a time; that he gave her too many tasks . . . that among the tasks given her were sweeping and dusting, jobs not given to white employees. On one occasion, she testified, [her supervisor] told [her] that blacks are known to work slower than whites. According to [petitioner, her supervisor] also criticized her in staff meetings while not similarly criticizing white employees.” Petitioner also alleges that she was . . . not offered training for higher level jobs, and denied wage increases, all because of her race.
Patterson v. McLean Credit Union, 491 U.S. 164, 178 (1989). See also Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 111-2, 123 Stat. 5, (reversing the result in the Ledbetter case to clarify that a discriminatory compensation decision occurs each time compensation is paid).
[81] Parents Involved with Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S.Ct. 2738, 2768 (2007) (striking down voluntary school integration plan and characterizing the plan as “discrimination on the basis of race”).
[82] See supra note 65 and accompanying text.
