The Perpetuation of our Political Institutions, Part V: The Lincoln Formula, contd.

     At this point in the proceedings at hand, having discussed Lincoln’s alarm at the frequency of mass violence in contemporary America, along with his observations on the effects which the absence of a common foe and a set of positive exemplars was likely to have on American political culture going forward, one might fairly be given to ask how the lot of it all fits together. What, to put it simply, was Lincoln trying to say with all this? The answer, in this writer’s estimation, is what we shall call “the Lincoln Formula.” It was the mix of causes and effects, trends and implications which Lincoln described and diagnosed for his audience at the Young Men’s Lyceum in January of 1838, all for the purpose of reinforcing and affirming the republican form of government in America. How, precisely, Lincoln came to develop this prescription, he did not say. By way of observation, one assumes, and research, and a great deal of penetrating thought. But the thing itself, upon consideration, would seem to be transparent enough.

    As of 1838, scarcely sixty years into its existence as a free and sovereign nation, the United States of America stood at something of a crossroads. Relations with the British had become about as cordial as they had been since before the Revolution, thus robbing the American people of their most persistent common enemy. And the once great influence of the Founding Generation had faded into something like a pale wisp of its former self, thus removing a source of stability and cohesion from the American socio-political dynamic. Mass violence was becoming increasingly normalized in every quarter of the American republic, respect for the law seemed accordingly to be on the wane, and it appeared to a young lawmaker from Springfield, Illinois that the disintegration of the United States was well and truly in the offing. And why not? The American people were no better than any other. No more righteous, or pure. They had shown this plainly enough in the ways that they lately perpetrated or ignored certain acts of brutal violence upon ostensibly innocent individuals. People had been killed because of their profession, the color of their skin, and for voicing unpopular opinions. And what had the law done to restrain or to punish them? Nothing. And what was bound to be the result of this abdication of responsibility? Lincoln’s answer was twofold. Those who had succeeded in taking the law into their own hands would come to believe they had license to do so again. And those who had watched as the law was ignored would come to understand that the very concept no longer served any purpose. The lack of a common foe or some kind of supervisory influence would hasten these developments, effectively opening the way for those whose ambition equaled their audacity to cast aside all pretense of decency and simply seize what they believed to be theirs by right of force. The law would not restrain them. Fear would not restrain them. The judgement of others would not restrain them. They would make of themselves a Caesar and people would flock to their banner. This is what Lincoln dreaded, and why he felt the need to speak out.

    But anxious though he was, Lincoln did not seek to address his chosen audience without some manner of solution in hand. His speech, after all, was titled, “The Perpetuation of our Political Institutions.” So what was his plan? How were the American people supposed to perpetuate their institutions? “The answer [,]” Lincoln declared,

Is simple. Let every American, every lover of liberty, every well-wisher to his posterity swear by the blood of the Revolution never to violate in the least particular the laws of the country, and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and laws let every American pledge his life, his property, and his sacred honor—let every man remember that to violate the law is to trample on the blood of his father, and to tear the charter of his own and his children’s liberty.

Simplicity would indeed seem to have been the order of the day, for this was far from a radical prescription. Indeed, one might quite fairly describe it as an inherently conservative one. Obey the law, Lincoln said, in all things. Do not question its validity, or its wisdom, or who it may harm, or who it may benefit. Just follow it, and encourage others to do the same, and report those who do not. It was sound enough advice given the circumstances which Lincoln had described, if also a trifle naïve. If all that it took for people to stop taking the law into their hands was for someone to tell them that they really, really shouldn’t, there would scarcely have been any reason for Lincoln to raise any kind of alarm to begin with. But then it wasn’t just that Lincoln was asking his countrymen to be scrupulously lawful. He was asking them to comingle their feelings for the law with the respect which they still held for a very specific cohort of Americans.

    It is, granted, a little strange on its face that Lincoln should have attempted to invoke the example of the Founders in the same speech in which he later sought to argue that their influence over the American socio-political community had all but faded into nothingness. If the authority of the Founding Generation had, as he claimed, been so completely enfeebled by the passage of time, what purpose could it possibly have served to invoke them as a means of encouraging the faithful observance of the law? The answer, upon reflection, is that Lincoln more than likely did not think these two things were mutually exclusive. Yes, by dint of time, the Founders were no longer in a position to offer much active guidance to, or exercise much active restraint upon, their fellow countrymen. But they didn’t necessarily mean that their significance had entirely vanished. As Lincoln said himself, he did not think that, “The scenes of the Revolution are now or ever will be entirely forgotten [,]” and he further hoped that, “They will be read of, and recounted, so long as the Bible shall be read [.]” The likes of Washington, Jefferson, and Madison might indeed had passed from the earth, but the memory of these men yet still carried some weight. One could no longer appeal directly to their wisdom, perhaps, but an oath could be sworn by their deeds and on their legacy. And as their copious writings had survived beyond their own deaths, so could the American people still benefit from their example. A page of text was bound to be somewhat less useful in seeking to grapple with the exigencies of the present moment than a living, breathing individual, of course. But the deeds and thoughts which these pages each described could nevertheless function as a kind of moral ideal. The Founders may have faded into history, in short, but history in itself was not entirely without its uses. On that note, consider a famous phrase devised by one of the Founders themselves.

    John Adams – that dour and dependable New Englander who became the first one-term President in American history upon his defeat by Jefferson in 1800 – was, among other things, the principal architect of the first constitution of the state of Massachusetts, adopted in 1780. Although, “first” is something of a misnomer given that the document in question is still in force to this day. But in any case, Adams was its chief author, and the frame of government which he described therein was quite unlike those of Massachusetts’ sister states. Whereas most of the former Thirteen Colonies had gravitated towards administrative frameworks whereby the executive branch was almost wholly subservient to the legislature and the constitution itself was a simple act of law that could be altered or discarded at will, Adams’ construction of his home state’s new governing charter was centered on fairly robust conceptions of balance, stability, and popular sovereignty. Rather than allow the Massachusetts General Court – being the state’s legislative assembly – to choose a chief executive by way of a joint ballot its two houses, for example – a procedure which was adopted by most other states during this same period – the Governor of Massachusetts was to be elected by a statewide ballot of all those citizens otherwise qualified to vote for members of the upper and lower houses of the legislature. At the same time that this “separation of powers” would accordingly serve to create a popular counterweight to the power of the legislative branch, the constitution also contained language describing the specific procedures by which amendment thereto were to be submitted and approved. Alterations to the state constitution were to be considered by way of consultation at the county level, with a statewide convention being called for that purpose only as a result of an overwhelming popular vote. Not only did this construction further serve to circumscribe the authority of the General Court as compared to its counterparts in other states – wherein the relevant legislatures could and did choose the state’s chief executive and amend the state constitution at will – but it also placed the power of altering the terms of the constitution more fully in the hands of the citizens of Massachusetts. 

    These kinds of measures, it bears repeating, were quite unusual for the era. Owing to the widespread suspicions which most contemporary Americans had come to harbor for the very concept of executive authority, those state constitutions which made any mention of an executive branch – for not all of them did – tended to do so within a balance of power and responsibility that strongly favored the legislative branch. State legislatures were the bodies responsible for approving the relevant constitution, and for amending it, and for electing the state executive, and in some cases even for making certain political appointments. In comparison to these kinds of administrative arrangements, the form which the constitution of Massachusetts ultimately took might understandably have caught certain of the Bay State’s citizens off guard.  Doubtless with the intention of providing some degree of clarification, Adams helpfully included, in the form of the final article of the accompanying “Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts,” a kind of fundamental statement of intent.   “In the government of this commonwealth,” it read,

The legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

As a description of the functional significance of the separation of powers, this declaration was undeniably a meaningful one. In order for his desired formulation of republican government to both function and garner the support of his fellow Bay Staters, Adams more or less needed to re-contextualize the purpose of executive power in a way that separated it from its less constructive connotations. Affirming that the executive authority would remain strictly confined to its own pre-determined sphere, and that the integrity of said sphere would be upheld and policed by the other branches of government, doubtless accomplished this recontextualization to a significant degree. But so, too, did the far simpler exhortation with which Adams concluded the clause in question. The purpose of providing for a strict separation of powers, he declared, was to ensure that the government of Massachusetts, “May be a government of laws and not of men.” A weightier statement of political purpose for the United States of America in the early 1780s, one would fairly struggle to conceive.

    Not only had the American Revolution itself arguably sprung from a disagreement over the primacy of certain fundamental laws – particularly as they grated against the desires of certain powerful men – but the enduring fate of the various American states in the event of their formal independence from Great Britain arguably pivoted on the question of where political authority would ultimately reside. Would the former colonies adopt written constitutions, or would they proceed ad hoc, more or less in the British fashion? Would they have strong executive? Weak executives? Executives of any kind? Standing armies? Volunteer militias? Frequent elections? Term limits on office holders? Clearly, there were a great many question which the American people had yet to answer even if they managed to secure British recognition of their independence, a task made harder still by the lack of any particularly desirable exemplars. Each of the states accordingly attempted to do craft a frame of government in their own specific way, some emphasizing the authority of the legislature, some maintaining the significance of executive power, and some few even attempting to devise novel forms of consultative administration. But in seeking to identify and answer what appeared to be some of the more urgent questions before them, the authors of these various individual frames of government sometimes lost sight of what arguably should have been their most fundamental concern. As John Adams stated in 1780, a republic like Massachusetts was supposed to be, “A governments of laws and not of men.” Not any laws, mind, but just laws. And not any men, mind, but all men.

    Certain American states, as of the promulgation of the Massachusetts constitution in the fall of 1780, had failed to live up to this very basic standard. Many of them, granted, had made a point of adopting constitutions which either severely weakened executive power or failed to describe an executive branch at all, thereby ostensibly prioritizing consultation and procedure over individual decision-making. But in practice, it turned out, legislative majorities could be just as arbitrary – and just as cavalier – as a singular executive. Beset with pleas from all sides to lower taxes, raise taxes, relieve debts, and print excessive amounts of cheap paper currency – all of which demand stemmed from the economic depression that followed immediately upon the conclusion of the Revolutionary War – legislators in a number of states learned very quickly over the course of the 1780s that the surest way to stay in power was simply to give the voters what they wanted. The results, to say the least, were chaotic. The overprinting of paper bills, intended to help farmers pay off their debts in states that lacked robust export markets, led to alarming levels of inflation that severely devalued the assets of property owners, bondholders, and even demobilized veterans who had yet to receive their promised back pay. In certain jurisdictions, pursuant to calls from their beleaguered constituents, state legislators even went so far as to cancel personal debts entirely, in the process calling into question the validity of any and all contracts entered into therein. The debt-holding voters who supported the relevant legislative majorities made out very well by these measures, of course. As did a certain class of risk-seeking speculator whose success depended in no small part on access to cheap property and the existence of unstable markets. But to those who were not in debt, who owned property, or were in possession of bonds or other promissory articles, these kinds of policies were potentially ruinous.

    As far as the relevant state government were concerned, however, the harm which the various debt-relief measures that they approved may have inflicted upon some portion of their constituents was neither here nor there. With few exceptions, most of the early state constitutions, if they mentioned private property at all, declared that it was perfectly acceptable for the state to seize said property if it did so by way of legislative mandate. So long as the legislature in question passed a law which duly authorized the erasure of debts, therefore, those whose property had effectively just been taken from them had no grounds upon which to petition for redress. Where this kind of arrangement became problematic, however neat it may have appeared on the surface, was in the manner in which it appeared to violate the long-established concept of private property which existed nowhere else but in the annals of the English common law. Legislators and reformers in certain states, it was true, had set out at the dawn of the 1780s to create a corpus of written law for their respective jurisdictions that substantially severed the American states from any further dependence on English common law jurisprudence. But certain core ideas – property, personal integrity, contracts, etc. – had become so intrinsic to life and law in the former Thirteen Colonies that it would have been exceptionally difficult to create codified definitions thereof. Most states, in consequence, did not do so, instead relying on the common understanding of things like property and contracts to form the basis of their laws and their legal procedures going forward.

    State laws passed during the tumultuous 1780s which treated property in somewhat novel ways accordingly found themselves substantially at odds with many of the basic common law precedents which continued to underpin contemporary American jurisprudence. Taxation, though in reality a kind of seizure of private property, had long since become an accepted practice in English common law jurisdictions. And while the overprinting of paper bills which certain state governments authorized in the aftermath of the Revolutionary War may have been somewhat unwise, there were no injunctions lodged in the common law tradition against a duly recognized government choosing to produce and distribute some form of circulating currency. But there were no precedents in place which would have excused the effective seizure of private property at will. A person could be fined if found guilty at trial, or had their assets seized, or been deprived of their land in exchange for a reasonable financial settlement. But to have a piece of property simply taken from them? Even if it was only taken in the sense that its value was erased, and even if the taking was authorized by the relevant legislative assembly, such an action fell wholly outside the existing common law conception of private property rights. Certain state constitution may have asserted that such things were acceptable, but the relevant state courts – armed with nothing more upon which to base their judgments than common law principles and common law precedents – would have been hard-pressed to justify such actions if the injured parties were determined to file suit.

    This dynamic – between law as a product of the moment and law as a product of precedent and principle – was arguably what Adams was attempting to illuminate with his aforementioned statement of purpose at the end of the Massachusetts Declaration of Rights. It wasn’t his intention simply to affirm the primacy of collective, legislative authority over singular, executive authority, but rather to assert the importance of established definitions of right and wrong, legal and illegal over those devised in response to either personal whim or popular clamor. Government, it was true, did not exist solely to serve and perpetuate the interests of influential or ambitious individuals. But nor was its purpose to give effect to the desires of a popular majority if those desires ran counter to established concepts of justice. A legislative majority may have been able to claim a stronger moral justification for its actions than a hereditary monarch or a self-appointed tyrant, say, but claims to moral superiority did not give a majority license to do as it pleased, take what it pleased, imprison whom it pleased, and generally disregard the rights and the liberties of the minority. In this sense, when Adams declared that Massachusetts was to be, “A government of laws and not of men [,]” he meant specifically that the state should not have been prey to arbitrary whims of any kind. “Laws,” in this context referred to those derived from established principles, and “men” referred to any men who would place their own desires – whether for material comfort or for reelection – ahead of the basic principles upon which the community at large functioned.

    Though speaking some almost sixty years later and in another part of the country entirely, Abraham Lincoln seemed intent on drawing the attention of his countrymen to much the same basic conflict as John Adams had all the way back in 1780. Consider, to that end, the examples of recent mob activity which he cited as evidence of his belief that the American people were steadily losing respect for the law. In all three cases – the Murrell Excitement in 1835, the lynching of Francis McIntosh in 1836, and the murder of Elijah Lovejoy in 1837 – the relevant appendages of the American criminal justice system ruled that no charges were to be laid because no crime could be conclusively attributed. In all three jurisdictions – Mississippi, Missouri, and Illinois, respectively – the inhabitants thereof would surely have continued to affirm that murder was a sin in principle and a crime in fact. And it wasn’t as though, in any of these cases, the law had simply failed to respond. But notwithstanding the inquiries that were conducted and the trials that were held, extrajudicial murder was in each instance functionally validated by the relevant legal authorities. Did this not represent a contradiction in terms? Murder was illegal, still, and yet the legal authorities in three different states had ruled that the killing of certain people in certain ways was not subject to punishment. What kind of sense was this arrangement supposed to make? How was American society supposed to function if the members thereof were forced to reconcile the idea that murder was illegal with the fact that it was also, in certain circumstances, entirely permissible?  What made it permissible? Who could commit murder, and whom could they target? Were these set categories, or were they subject to change?

    These kinds of questions naturally bring us back to John Adams. He said, in 1780, that the Commonwealth of Massachusetts was intended to function as a government, “Of laws and not of men.” Granted, he made this claim at a time when many of Massachusetts’ sister states had gone rather overboard in empowering their legislatures, granting them powers which the basic precepts of the common law would have had difficulty trying to justify. The sixty years which elapsed between that point in time and the delivery of Abraham Lincoln’s speech to the Young Men’s Lyceum in Springfield did much to clarify and to stabilize the relationship between statutory law and common law in the United States of America. That being said, Adams’ core contention remained a cogent one even in 1838. What particularly concerned Lincoln at that point in time was the apparent gulf which he perceived between American statutory law in itself and its practical application. Regardless of what the law had to say on the subject of murder, people were being killed in certain American jurisdictions without their killers being in the least bit harried or waylaid. The law had not changed, nor its fundamental moral backing, but certain men were being permitted to violate it at will. Lincoln may not have quoted from Adams directly in his response to this worrying state of affairs, but his prescription was absolutely in keeping with what Adams had famously declared. Obey the law, he said. Do not take matters into your own hands, or follow those who do, for America is not a nation where men may simply do as they please. On the contrary, the government of America, like that of Massachusetts, is a government of laws. Again, Lincoln did not say these words exactly, but his invocation of the, “Patriots of seventy-six” would nevertheless seem to indicate that Founders and their legacy were at the very front of his mind.