NARRATOR: When Lincoln accepted his nomination as the 1858 Illinois Republican Senate candidate, he gave his famous “House Divided” speech. He opens by remarking where the country stands after the infamous Dred Scott decision. “We are now far into the fifth year, since a policy was initiated with the avowed object, and confident promise, of putting an end to slavery agitation. Under the operation of that policy, that agitation has not only not ceased, but has constantly augmented. In my opinion, it will not cease until a crisis shall have been reached and passed. “A house divided against itself cannot stand.” I believe this government cannot endure half-slave and half-free. I do not expect the Union to be dissolved - I do not expect the house to fall - but I do expect it will cease to be divided. It will become all one thing or all the other. Either the opponents of slavery will arrest further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction, or its advocates will push it forward, till it shall become alike lawful in all the states, old as well as new - North as well as South.” Lincoln saw that the slavery compromises of the Founders were no longer tenable. But what did that mean? Was a Union founded on compromise even worth preserving? Was the Constitution irreparably tainted? Did the ideas of the Founders still matter? In this episode, we’re going to discuss two men who believed that the vision of the Founders did matter and was worth fulfilling. Abraham Lincoln and Frederick Douglass knew that the work of the Founders would not be complete until the promise of liberty and justice was finally extended to all Americans. My guests for today are: Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. Steven Calabresi, the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. and Lucas Morel, Head of the Politics Department at Washington and Lee University. PUBLIUS: Everyone knows that Abraham Lincoln led the nation through the Civil War. But why was the Union important to him? Why was he so insistent that the whole nation would end up either being pro-slavery or anti-slavery? Professor Morel, couldn’t he have just let the slave states go their own way? LUCAS MOREL: But for Abraham Lincoln, the United States would look very different today. We may have even avoided a war, but in avoiding that war, we might have become a very different country. Why do I say that? Lincoln in the 1850s recognized that as bad as slavery was, that the way to put slavery as he put it on the course of ultimate extinction, not immediate but ultimate. It couldn't be immediate because we're a federal system and slavery was a state institution, so Congress's hands were tied in terms of what it could do with regards to slavery. That to put slavery in the course of ultimate extinction, Lincoln thought, you know what our target needs to be? Not slave owners, not white slave owners in the South. Our target, the public opinion that needs to be shaped in the 1850s, it's not white southerners, it's white northerners. Why do I say that? White northerners don't own slaves. What is Lincoln's deal? What's his concern? His concern is, well, we whites up in the North may not own slaves, but a good number of us are bigots. A good number of us believe that the black man is inferior, not just the black man, but other races in this world are inferior. What was happening when Kansas-Nebraska Act passes in 1854, it opens up territory that way back in 1820 Congress said, "Slavery shouldn't go there. End of story." But again, every new Congress can pass laws changing their mind. And Douglas, Stephen Douglas, the incumbent Senator of Illinois, got Congress to change their mind. He is the chair of the committee on territories and he says, "This vast territory we call Nebraska, let's divide it up into two territories. One Nebraska, one Kansas, and let's allow the locals to decide this question of slavery. Let's not have the national government and therefore the American people at large divided over this question. This thing that is breaking up this country. I've got a solution." It's a solution he thought he found in the founders. The founders didn't mandate all slavery, all freedom at the time, they let it happen at the state level. Why don't we adopt the same thing today? Take it off the national table. His policy was called popular sovereignty. We could call it local popular sovereignty, congressional non-intervention. Take it out of Congress's hands and say, "Let the locals decide. In the same way that state citizens decide whether they want to enslave blacks or not or whatever rights black should have, let's let local whites in Kansas, in Nebraska, in Oregon, other territories. Let's let them decide what should happen to black people." Lincoln's like, "Oh, my goodness." If whites in the North who are not in favor of slavery just are taught to become indifferent, not to care what happens to people who don't look like them, way out in those territories. He says, Lincoln says, "Do you see what's really going to happen? You can pretend to be neutral on the institution of slavery and guess what happens to the institutional slavery? It becomes national." It in fact will spread, not because any white northerner is making an argument in favor of it. Stephen Douglas never makes an argument in favor of it, but he also never makes an argument against it. Lincoln says, "He's got to be the only American who doesn't have an opinion on whether slavery is right or wrong." Douglas is like, "I don't care. Let the locals decide this." Lincoln says that policy of popular sovereignty is insidious precisely because it'll only take a handful of slave holders to move to those territories, establish slavery as a practice, and so by the time it becomes a state, you won't be able to get rid of it. That's precisely what happened in Missouri. That's why in 1820, compromised Missouri was allowed to continue as a slave state even though a minority of the white population owned slaves. What Lincoln pointed out is something is toxic. The most dangerous thing, the great behemoth of danger as he called it, slavery. Something that bad to the American Republic will actually spread. Not because anybody is making arguments in favor of it, it's because someone has taught a good number of whites in this country. Whites in the North, whites in the free states, not to care. To turn a blind eye, to become indifferent about the expansion of slavery into the territories. That issue alone in 1854 is what produces the Republican Party. Lincoln doesn't join it for two years. He still thinks he's a Whig, W-H-I-G. He still thinks he's a follower of Henry Clay. He's not sure what this Republican Party really stands for. It's when it becomes coalesced around that fundamental policy, that issue. Namely, we believe that the Congress under the United States Constitution does in fact have the authority and therewith the duty to prevent the expansion of slavery into the territories. Therefore, we are going to work to elect people who believe that. Lincoln thinks this is not a new idea. In fact, he claims it was the founder's idea. Remember when we look back to the founding, even though the national government couldn't attack slavery where it existed. Where it did have authority, it did. Under the Constitution as early as January 1, 1808, Congress was permitted. Not mandated, but permitted to ban slavery. In other words, let's cut off the supply. What does Congress do? Who's president in 1807 signs that statute to take effect as early as possible? The slaveholder, Thomas Jefferson. A ban on the importation of slaves. So, we've tried to cut it off at the supply and then what else did we do? We tried to prevent it from spreading. The only territory owned by the American people generally at large was the Northwest territory. What did the Articles of Confederation Congress and the first Congress under the United States Constitution do? Article six Northwest Territory Ordinance bans slavery from the only territory that the United States possesses at the time. For Lincoln, he says, "I'm going to connect the dots here. We're cutting it off as early as the national government Constitution allows us and we're preventing it from spreading." This is a strange way to shore up slavery. If you want to enforce slavery and make it the law of the land, this is the exact opposite of what you would do. You would let the floodgates open in terms of where people could buy, if you will, human labor as cheaply as possible. You would let it spread, you would facilitate it. You would encourage it as much as possible at the national level. The exact opposite happened. We cut off its supply as best as we could. In fact, in 1808, that law wasn't strong enough. 12 years later in 1820, we equate the importation of slaves into the United States with piracy. Do you know what the punishment for piracy was? Hanging until dead, all of that, capital punishment off with his head. We strengthened our attempts at preventing more slaves from being imported into the United States and at least in the early generations attempted to prevent it spread where we could. The only thing I would add is that Lincoln obviously appealed to the Declaration of Independence to shore up the principles that undergird the policies and practices that he wanted the nation to pursue. He thought to shape public opinion in the North, the safest way, reliable way, the truest way to do it is to look to the fathers as he put it. What did the fathers say? What did the fathers write? We hold these truths to be self-evident that all men are created equal. PUBLIUS: What about in the Constitution itself? Didn’t the Constitution protect slavery? Professor Calabresi, how did Lincoln and others reconcile the words of the Declaration with the text of the Constitution? STEVEN CALABRESI: There are actually clauses in the original Constitution that slavery was arguably in contradiction to. For example, Article 4, Section 4 of the Constitution has a clause that says, "The United States shall guarantee to every state in this union a republican form of government." The question is, "What is a republican form of government?" Well, the framers meant, "Not a monarchy. Not an aristocracy. Not a theocracy. Not a dictatorship. Not an oligarchy." The abolitionists argued, beginning in 1835, and more loudly as time went on, the abolitionists argued that the slave states were really aristocracies or oligarchies because some people were born slave owners and other people were born slaves. This is obviously correct. Under the guarantee clause, the slave states actually were not republican forms of government. You can make a good argument from the original meaning of the Guarantee Clause that slavery was actually unconstitutional from the beginning, even though people didn't act on that and didn't realize it. The Bill of Rights has in it a clause that says that the United States shall not deprive any person of life, liberty, or property without due process of law. Due process of law usually means a trial by a jury of your peers or a statute enacted by the legislature. Abolitionists argued that slaves were deprived of liberty without a jury trial and without there being a legislation that sanctioned the deprivation of liberty. Slaves had due process rights. The Guarantee Clause and the Due Process Clause could easily be used as Frederick Douglas used them to argue that slavery was unconstitutional, and the concessions the framers made to slavery were in fact very minimal. I think Frederick Douglas establishes that the original public meaning of the Constitution's text is actually inconsistent with slavery. I personally believe it's inconsistent with slavery. I personally believe that slavery in the South was, from 1789 until the Civil War, a violation of the guarantee of a republican form of government, because the South was either an aristocracy or an oligarchy. It was a rule by a few over the many. What about the original intention? Well, there the chief argument for the original intention of the framers being pro-slavery is the argument by Chief Justice Roger Taney in the majority opinion in Dred Scott against Sanford. Taney argues that it's hard at the present day in 1857 to imagine just how racist the framers of the original Constitution were and were the low opinion they held of African Americans. Taney and the majority opinion in Dred Scott makes a lengthy, original intent argument basically as to why slavery is okay and is constitutionally protected. Chief Justice Taney and Dred Scott v. Sanford really made the argument that the original intention of the framers was racist. This is just plain inconsistent with the facts about what was going on in the 1780s and 1790s. It's a fact that in the 1780s and in 1791 all of the New England states abolished slavery. It's a fact that shortly after 1800, New York, New Jersey, and Pennsylvania abolished slavery. It's a fact that in 1787, Congress, in regulating the Northwest territories, prohibited slavery in any federal territory. It's a fact that George Washington felt it was important to free all of his and Martha's slaves upon their death. It's a fact that the framers were children of the Enlightenment. Jefferson and Franklin had spent a lot of time in France in the 1770s and 1780s. They knew all the leading French Enlightenment thinkers. They were contributors to the Enlightenment themselves. A premise of the enlightenment is that all men are created equal and that feudalism is wrong where people are born nobles or serfs. It's just not possible to find evidence of an original intention of supporting slavery. Even the Articles of Confederation declare that all free inhabitants are citizens entitled to privileges and immunities. Even under the Articles of Confederation, which governed the United States from 1777 until the Constitution went into effect in 1789, free African Americans were citizens of the United States who could vote and who did vote in five of the 13 States. There just is no evidence to support the proposition that it's a matter of original intent and the framers liked slavery. Alexander Stephens, the vice president of the Confederacy, actually acknowledges that the framers, including Thomas Jefferson, oppose slavery, and he defended the Confederate Constitution because it condoned slavery. Alexander Stephens absolves Thomas Jefferson of any guilt for supporting slavery and suggested Jefferson thought slavery was an evil that he knew not how to get rid of. PUBLIUS: That brings up an interesting point. The Confederate states were dissatisfied with the original United States Constitution so they wrote their own Constitution which explicitly protects slavery and slaveholders. Professor Morel, let’s talk about Frederick Douglass who was not only a famous abolitionist but also one of the first Originalists to think about the Constitution. How did Douglass come to interpret the Constitution as “a glorious liberty document”? LUCAS MOREL: The modern debate over the United States Constitution has being either pro-liberty or pro-slavery. It was a debate that happened inside of one man. In fact, a very famous man, the most photographed man of the 19th century, and that is Frederick Douglass. Next to William Lloyd Garrison, he was the most famous abolitionist in the world, certainly in the United States. Frederick Douglass, under the tutelage of William Lloyd Garrison in the late 1840s, actually read the constitution as a pro-slavery document. He read it for all the reasons people today who claim it's a pro-slavery document read it. That is because of the Three-Fifths Compromise, a Fugitive Slave Clause and Non-importation Clause regarding the slave trade. He says, "What country have I, this country does not know me as a citizen. It knows me not as a man. The only thing that ties me to this country are people who look like me, most of whom are enslaved." When he decided to start his own newspaper, the North Star in the late 1840s and at the turn of the decade there. In 1850, he actually announced that he was undergoing some rethinking on the subject of the Constitution. He started thinking more deeply, reading more profoundly, not just the Constitution but other abolitionists like Garrett Smith and Lysander Spooner, and he came to the conclusion that the Constitution in fact was pro-liberty. In fact, because of a number of things. For example, the word slave is not used anywhere in the Constitution. Frederick Douglass decided this is the key. This is the massive lever that even the slaveholding country in practice gave the slaves to eliminate slavery. And so, Douglass came by 1852 emphatically to see the Constitution as pro-liberty, not pro-slavery. He said it leaned toward freedom. Even that Three-Fifths Compromise language, he said leaned towards freedom. What led into this in principle is he saw the constitution as the means to the ends spelled out in the Declaration of Independence and he called those eternal principles, saving principles. He called it the sheet anchor of the United States, and so someone who should know about slavery and escaped slave himself who became a great orator against slavery. Frederick Douglass was persuaded. Abolitionist as he was, persuaded that the constitution in fact, was the fundamental way of getting rid of slavery, not the barrier to it. When his former mentor, William Lloyd Garrison, argued with him and said, 'No, it's pro-slavery, Mr. Douglass." Frederick Douglass begs to differ. When William Lloyd Garrison said, "Let our erring sisters go, let the slave states go and we will no longer have a union with slaveholders." He had that on the mass side of the liberate or no union was slaveholders. Douglass said, "No, this country created, or at least a practice the institution of slavery for all these years. It doesn't relieve itself of its responsibility by simply letting the slave states go." He said, "No, this is a problem." It's kind of like keep your friends close your enemies closer. He said, "To get rid of slavery, we need to keep the slave states in the union and use political means. Constitutional means to eradicate slavery." PUBLIUS: I want to know more about these different interpretations of the Constitution at the time of Lincoln and Douglass. How was Frederick Douglass persuaded to change his mind? Does this early debate about the Constitution have any relevance to modern discussions about interpretive methods? Professor Calabresi mentioned the “original intent” of the Framers. Does or should that make a difference in how we now view the Constitution? Professor Barnett, you are an Originalist Constitutional scholar. Any thoughts on this? RANDY BARNETT: Douglass gets persuaded by the anti-slavery Constitutionalists. He ends up being one of their leading proponents, but Douglass was with the Garrisonians, essentially. There are rows in opposition to the Garrisonians, a group that was later referred to as Constitutional Abolitionists because they disputed that the Constitution actually sanctioned slavery, in part because it didn't mention slavery by name. The issue is who is right. When Madison's notes were first made public in 1840, Wendell Phillips, a Harvard trained student of Justice Story, who was William Lloyd Garrison's legal right hand, wrote a book called The Constitution A Pro-Slavery Compact. In it, he used Madison's notes to prove that the intentions of the framers were pro-slavery. That they actually were trying to advance the slavey cause. They used the notes because anti-slavery Constitutionalists had been arguing, well, the Constitution doesn't say slavery, therefore the founders were anti-slavery. He goes, "No, no, no, here are the notes. It proves they were pro-slavery." It was immediately after that that Lysander Spooner wrote his book, The Unconstitutionality of Slavery, along with William Goodell wrote another book called The Unconstitutionality of Slavery, which was published about the same time. What Spooner argued was that Madison's notes were irrelevant because all they proved was the intentions of the framers. "The intentions of the framers," he said, "were not law. What was law was the public meaning of the words they wrote. The public meaning of the words they wrote didn't mention slavery." Here is where we first see a major division between what you might call Framer's Intent Originalism, which was argued by the Garrisonians and public meaning Originalism, which was argued by Spooner, Goodell, and others, and Jared Smith. It was on the basis of those three writers that Frederick Douglass, who was originally a Garrisonian, who believed and expressed the view that the Constitution was fundamentally slavery changed his mind very famously, and credited those three with having influenced him, and then he became a very, very ardent proponent of the original public meaning approach to the text of the Constitution. You had two camps. One were the Garrisonians, who argued that the Constitution was pro-slavery. Then grew up the anti-slavery constitutionalist like Spooner, and Goodell, and others who argued that the Constitution was fundamental anti-slavery. There did arise a middle group. The middle group basically took the following position. Freedom National, slavery local. That the Constitution did acknowledge the continued existence of slavery. That the Constitution accommodated without acknowledging the continued existence of slavery within the states, and that the federal government would have no power to directly abolish slavery in the states that currently had it. At the same time, the Constitution did not expressly defend or authorize slavery. It did not endorse slavery in the sense of it never authorize property in man, which is what they said. As a result, the federal government could pursue anti-slavery policies, as long as they didn't involve doing away with slavery in the existing states. This middle group, it's entirely pro-slavery, and it's entirely anti-slavery, they became the Republican Party. That was the Constitutional platform of the Republican Party. Freedom national, slavery local, and that it was incumbent on the federal government to do, as a matter of policy, everything anti-slavery it could do within its proper jurisdiction. If it did that, eventually slavery would then be isolated and put on the road to extinction. We have to believe that the Southern states agreed that the Republican program was threatening to slavery or they wouldn't have seceded the moment the Republicans took power. The Republicans knew under their vision of the Constitution, that since slavery was a local institution it would continue to be, they couldn't ensure that slavery wouldn't go on even after the Civil War. The only way they could stop that from happening was by passing the 13th Amendment. If you're an Originalist today, you're constantly confronted that the idea that the original Constitution was flawed, either because it endorsed slavery, or because at least it tolerated slavey, and didn't do anything about it. One of the responses I make to that is that I'm under no obligation to defend the original Constitution because that's not the Constitution we live under. Today we live under the Constitution as amended. I'm only obligated to defend, if I choose to, the Constitution that includes the 13th Amendment, the 14th Amendment, the 15th Amendment, and the 19th Amendment, which gives the right to vote to women. As a result, that's the Constitution, the original meaning of which either is or is not good enough to form a legitimate government that deserves the benefit of the doubt when it passes laws that are consistent with the rules that are contained in the original meaning of the Constitution. PUBLIUS: Let’s hear the words of Frederick Douglass himself on the issue of the meaning of the Constitution and the intentions of the Founders: Frederick Douglass at the Scottish Anti-Slavery Society in Glasgow, Scotland March 26, 1860 It should be borne in mind that the mere text, and only the text, and not any commentaries or creeds written by those who wished to give the text a meaning apart from its plain reading, was adopted as the Constitution of the United States. It should also be borne in mind that the intentions of those who framed the Constitution, be they good or bad, for slavery or against slavery, are so respected so far, and so far only, as we find those intentions plainly stated in the Constitution. It would be the wildest of absurdities, and lead to endless confusion and mischiefs, if, instead of looking to the written paper itself, for its meaning, it were attempted to make us search it out, in the secret motives, and dishonest intentions, of some of the men who took part in writing it. It was what they said that was adopted by the people, not what they were ashamed or afraid to say, and really omitted to say. Bear in mind, also, and the fact is an important one, that the framers of the Constitution sat with doors closed, and that this was done purposely, that nothing but the result of their labours should be seen, and that that result should be judged of by the people free from any of the bias shown in the debates. It should also be borne in mind, and the fact is still more important, that the debates in the convention that framed the Constitution, and by means of which a pro-slavery interpretation is now attempted to be forced upon that instrument, were not published till more than a quarter of a century after the presentation and the adoption of the Constitution. These debates were purposely kept out of view, in order that the people should adopt, not the secret motives or unexpressed intentions of any body, but the simple text of the paper itself. Those debates form no part of the original agreement. I repeat, the paper itself, and only the paper itself, with its own plainly written purposes, is the Constitution. It must stand or fall, flourish or fade, on its own individual and self-declared character and objects. Again, where would be the advantage of a written Constitution, if, instead of seeking its meaning in its words, we had to seek them in the secret intentions of individuals who may have had something to do with writing the paper? What will the people of America a hundred years hence care about the intentions of the scriveners who wrote the Constitution? These men are already gone from us, and in the course of nature were expected to go from us. They were for a generation, but the Constitution is for ages. A Constitution for ages is worth fighting for. Regardless of any mistakes or compromises that the Founders made, they “brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” Let’s close this podcast with Lincoln’s most famous address. You’ve probably heard it many times before but try to imagine being part of the original audience - ordinary people who must have been asking themselves whether the Union was really worth the price of the horrific and bloody war. Abraham Lincoln at Gettysburg November 19, 1863 Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that 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. Lincoln and Douglass were leading voices for freedom and equality for *all* Americans, as United States grew in territory and population. The Antebellum generation was forced to confront changing circumstances that finally brought slavery to the front of the national stage…leading to a brutal war and ultimately to the passage of the 13th, 14th and 15th Amendments of the Constitution which abolished slavery for good. This “new birth of freedom” meant that the sacrifices of the Founding and Civil War generations were not in vain. Amended, our Constitution could truly serve as a “Glorious Liberty Document" NARRATOR: Thank you for listening to this conversion from the No 86 Audio Series. The spirit of debate animating the Federalist Papers in the Founding Era inspires all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!