Abraham Lincoln and American Constitutionalism
AS THE NATURE OF THE AMERICAN POLITICAL TRADITION in its formative period may be said to depend on the relationship between the Constitution and the Declaration of Independence, so the nature of twentieth-century American government may be said to depend on the relationship between the Civil War and the American Founding. Lest we lose sight of this fact in undue celebration of the Founding Fathers, we have been urged to turn our attention to the constitution makers of the 1860s, who are said to have improved on the work of the framers by refusing "to acquiesce in outdated notions of 'liberty,' 'justice,' and 'equality.'" The source of this advice, Mr. Justice Thurgood Marshall of the United States Supreme Court, goes so far as to say that while "the Union survived the Civil War, the Constitution did not.""In its place," writes Justice Marshall, "arose a new, more promising basis for justice and equality, the 14th Amendment."1 The nation, we are led to infer, was thus given a new fundamental law by the constitution makers of the Civil War era.
Coming as it does from a custodian of the Constitution, who reflects the views of many contemporary scholars, this provocative thesis commands our attention. The purpose of the present essay accordingly is to evaluate it through analysis of the thought and action of the figure who stands at the center of any serious consideration of Civil War constitutionalism--Abraham Lincoln. Lincoln of course did not live to take part in the events leading to the adoption of the Fourteenth Amendment. He did, however, play a decisive role in determining the outcome of the issue that forms the premise of Justice Marshall's argument, namely, whether the Constitution survived the Civil War.____________________