For some of those assembled, the heat in the room was unbearable. They pleaded with their speaker, a man they had just declared as "their first and only" choice for senator, to remove to the front steps of the State House. Although he was willing to do so if the audience desired it, Abraham Lincoln warned the crowd that his voice was not up to an outdoor address and that they would be better able to hear him if they remained assembled as they were.1 And so it was that on June 16, 1858, Abraham Lincoln delivered his famous "House Divided" speech and, if you will forgive the correlation, raised the temperature of the debate between himself and his opponent, Senator Stephen A. Douglas.

The spark from which that heat ensued was encapsulated by Lincoln in precise and eloquent terms when, in the first paragraph of that speech, he declared that slavery agitation in the nation would not cease "until a crisis shall have been reached and passed."2 Then, with the biblical formulation that has given the speech its name he warned, "A house divided against itself cannot stand." It was evident to Lincoln that the United States would either become all free or all slave.3 Furthermore, he argued, the tendency was with the latter condition. Recent political events, namely the Kansas-Nebraska Act and the Dred Scott decision, pointed the country in the direction of slavery as a universally recognized and accepted institution.

Yet, Kansas-Nebraska and Dred Scott were only the efficient causes of this tendency. Lincoln understood that these two things were themselves a product of something even more pernicious; the erosion of the significance of the principle that "all men are created equal" as witnessed by Senator Douglas' "Nebraska doctrine" or "popular sovereignty." According to Douglas' version of "popular sovereignty," leaving the people of a territory free to vote on the question of slavery would be nothing more than to, "leave the people entirely free to form and regulate their domestic institutions and internal concerns in their own way, subject only to the Constitution."4 Lincoln in his "House Divided" speech, however, referred to popular sovereignty as the "'care not' policy" of Senator Douglas because he claimed the dominating sentiment behind it was best expressed in Douglas' declaration that "he cares not whether slavery be voted down or voted up."5 "I do not understand his declaration," Lincoln said, "...to be intended by him other than as an apt definition of the policy he would impress upon the public mind—the principle for which he declares he has suffered so much, and is ready to suffer to the end."6

Lincoln was much alarmed at the idea of Douglas impressing this idea upon the public mind. In his opinion, it would lead, and in fact, was leading to the possibility that slavery would be pushed forward, "till it shall become alike lawful in all the States, old as well as new—North as well as South."7 He called it the "Auxiliary" to the "piece of machinery" for effecting the universal recognition of slavery that was the Dred Scott decision. The Dred Scott decision (which will be more thoroughly discussed within) had essentially decided that negroes were not and could not be citizens of the United States and that neither Congress nor a territorial legislature could pass laws against slavery in a U.S. territory since to do so would be to deprive slaveholders of "due process of law" under the Fifth Amendment. Lincoln feared that there would be another decision from the Supreme Court that would make it so that states could not prohibit slavery within their limits. He argued that it was not unreasonable to expect if given the argument of the Court, and especially if the "'care not' policy" of Douglas, "shall gain upon the public mind sufficiently to give promise that such a decision can be maintained when made."8

Perhaps it will be objected that Lincoln was wrong to lay the blame on Senator Douglas for perpetuating an attitude of moral indifference to slavery. After all, such critics will suggest, it is clear that the Founding Fathers themselves were not averse to slavery. Typically, such arguments will run through a litany of examples pointing to the hypocrisy of men like Thomas Jefferson, who, though he penned the famous words, "We hold these truths to be self-evident, that all men are created equal," obviously did not mean them because he, himself, was an owner of slaves. Such objections, however just they appear to be on the surface, fail to be compelling after a fair investigation of the texts and acts in question.

Lincoln's view of the subject, we think, can be summed up in one succinct quotation, though there are several other references that address the question. This statement appears in a speech given in 1857 after the Dred Scott decision and is in response to Chief Justice Taney's assertion that the Declaration of Independence was not intended to include negroes since its authors did not place negroes on an equal footing with whites in society. Lincoln said:

Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one another…. 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 assert the obvious untruth, that all men were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.9

Lincoln argued that the fact that Negroes, at the time of the Founding and then in his day, did not actually enjoy all that their equality gave them a right to enjoy, did not mean that the idea of their equality was not recognized by the Founders. One can, after all, have one's rights acknowledged and still be unable to effect them.

Perhaps a more powerful part of his argument, however, is the part that addresses itself to the practical reasons why that equality was not then enforced. The Founders, in Lincoln's view, were of limited powers. They could not, as some have assumed in blaming them, enforce every right that they claimed to be legitimate. Besides the limitations inherent in their own natures and in the power that had been entrusted to them, there were also circumstances that were far removed from their control. How, for example, could the entrenched interests of southern slaveholders be dealt with in a way that would not jeopardize the construction of a Union? Furthermore, if that Union were not constructed and not based upon the principle that "all men are created equal," what would have been the chances of those entrenched interests ever being dug out? To what common starting point would an anti-slavery argument appeal? For Lincoln, then, it was a matter of never losing sight of the principle to which the Founders had dedicated their "lives," "fortunes," and "sacred honor," and effecting as much of that in practice as circumstances might permit.

So far from being hypocritical to their principles, Lincoln argued that the Founders positively upheld them. Modern scholarship on this subject seems to confirm this opinion as well. Herbert J. Storing, for example, in an article entitled "Slavery and the Moral Foundations of the Republic," argues that "[t]he American Founders and their immediate descendants, North and South, not only believed in but emphasized the wrongness of slavery, at the same time that they wrestled with the fact of slavery and the enormous difficulty of getting rid of it."10 Because we think that a familiarity with the arguments presented in this essay will help the modern reader in understanding Lincoln as he understood himself, we will briefly cover some of its major themes.

Besides the many excerpts from judicial opinions (most of which came, incidentally, from the South) that demonstrate a striking preference for freedom and an unequivocal moral condemnation of slavery, there are three other points that show, in no uncertain terms, that the Founders are innocent of the charges modern-day cynics (and incidentally, Chief Justice Taney in Dred Scott) heap upon their shoulders. Not surprisingly, these three examples deal with the so-called concessions to slavery in the Constitution, namely, the three-fifths clause, the reference to the slave trade, and the fugitive-slave clause.

Storing begins by taking issue with Taney's assertion in Dred Scott that the right to have slave property is "distinctly and expressly affirmed in the Constitution." Says Storing, "These words are striking: if one had to think of adverbs that do not describe the way the Constitution acknowledged slavery, he could not do better than "'distinctly and expressly.'"11 This is especially true since the word "slave" does not even appear in the Constitution. In fact, in every instance that slaves are referred to, they are referred to as "persons." Article I, Sec. 2(3), the famous three-fifths clause, reads as follows:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Storing shows that since there was dispute at the time or the Founding as to whether population or wealth should be the proper basis for representation, a compromise, which held that population was a good indication of wealth, was adopted. Slaves, since they were regarded as less productive than free labor, were counted on a three to five basis. Southerners, of course, would have loved to have counted them on a one to one basis and thereby have beefed up their representation in Congress. Thus, the old line that the Founders only saw the negro as three-fifths of a person, is, at best, weak. As Storing notes, "The concession to slavery here was not in somehow paring the slave down to three-fifths but in counting him as much as three-fifths of a free person."12

The second provision in regard to slavery appears in Article I, sec. 9(1):

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Taney read this clause of the Constitution to mean that "the right to trade in [slave property], like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every State that might desire it, for twenty years." Yet, even granting Taney's dubious construction of this clause, why only twenty years? Why only in the "States that might desire it" and that "now exist?" Storing wonders if this is not at all a "guarantee of a right," but rather "a postponement of a power to prohibit."13 Furthermore, as soon as Congress could constitutionally prohibit this trade, it did so--unanimously! Are we seeing any indication yet, that the Founders would not have cared whether slavery was "voted up or voted down?" We think not, but let us pursue even more conclusive evidence.

The so-called Fugitive Slave clause would, it seems, be the most difficult for the Founders to explain in terms of their principles. Indeed, as Storing points out, this clause was the most controversial of all the provisions dealing with slavery.14 It reads:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Storing notes that these words were carefully chosen. Suggestions that "fugitive slaves and servants be delivered up like criminals" were rejected by the Convention. Similarly wording such as "bound to service or labour" and "justly claiming their service&qupt; was stricken. Still later, "legally held to service or labour" was taken out and replaced with "under the laws thereof" because some at the Convention did not want anyone to mistake their meaning by assuming that slavery was considered legal from a moral point of view.15 The Founders, then, saw slavery as, "an evil to be tolerated, allowed to enter the Constitution only by the back door, grudgingly, unacknowledged, on the presumption that the house would be truly fit to live in only when it was gone, and that it would ultimately be gone."16

This was how Lincoln viewed the actions of the Founding Fathers. They did the best that they could do under the prevailing circumstances, but more importantly, they had provided, "a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism."17 The task of the Founders, he believed, was "to possess themselves, and through themselves, us, of this goodly land; and to uprear upon its hills and its valleys, a political edifice of liberty and equal rights."18 Of the present generation Lincoln said, "tis ours only, to transmit these, the former, unprofaned by the foot of an invader; the latter, undecayed by the laps of time, and untorn by usurpation--to the latest generation that fate shall permit the world to know."19 With this understanding of his duties, Abraham Lincoln, the "first and only" choice of the Illinois Republican party for the Senate, set out to conquer a usurper: that "now almost complete legal combination--piece of machinery, so to speak--compounded of the Nebraska doctrine, and the Dred Scott decision."20

On January 4, 1854, Senator Stephen Douglas of Illinois introduced a bill that would provide for the organization of Nebraska as a territory of the United States. Under this proposed legislation, Nebraska would extend from the 36 degrees-30 minute line to the Canadian border.21 This territory, being located above the 36-30 line and within that territory acquired through the Louisiana Purchase of 1803, presumably came under the slavery restriction established by the Missouri Compromise of 1820. Yet, when the House of Representatives attempted to pass legislation in 1853 that made no mention of slavery, the Senate voted the measure down with southerners making up the majority of the opposition.22 It was becoming clear that the sectional conflict was once again rearing its ugly head over the question of slavery in the territories, and therefore it is perhaps not surprising that the legislation proposed by Douglas contained the following claus: "When admitted as a state or states, the said territory…shall be received into the Union, with or without slavery as their constitutions may prescribe."23 This clause was not newly-drafted, however. It had appeared four years prior to this Nebraska legislation in the Compromise of 1850, and five years prior to that in the joint resolution for the annexation of Texas.24

The operating principle behind this clause in 1850 had come to be called "nonintervention" and it meant, according to Henry Clay, the leader of the 1850 Compromise, that in the case of New Mexico and Utah (the two territories upon which this clause applied), the anti-slavery laws in effect there from their previous sovereign, Mexico, would remain standing and reinforce the so-called "climatic" barrier to slavery.25 There were other views as to what "nonintervention" meant, and certainly other motives behind the aforementioned clause that grew out of it, but its real effect as to "popular sovereignty" was one of neither expressly installing it nor expressly forbidding it.26

Before going on however, it is important to note the location and circumstances of the territory in question in 1854 as opposed to that of 1850. The land that Douglas wished to bring in as the Nebraska Territory was, as we mentioned before, part of the Louisiana Purchase. This territory was the subject of the Missouri Compromise of 1820, or, as Lincoln called it, the settlement of "the first great slavery agitation in the nation."27 According to this Compromise, Missouri (where slavery was, to some extent, already present) was permitted to come into the Union as a slave state, while in the remaining territory to the north of the 36-30 line, slavery was expressly prohibited for all future time with the same clause that had been employed in the Northwest Ordinance of 1789.28 This clause read as follows: "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted."29 According to Lincoln, "nothing was said in law" about the state of slavery to the south of that line, and although Arkansas was later admitted as a slave state, two other states north of the line, Iowa and Minnesota, were later admitted as free.30

Thus, Lincoln concluded, in this Compromise the preference was with freedom. It did not diverge from the guiding principle of the Northwest Ordinance because, where possible, the very language of the restriction as to slavery was applied. The concession to Missouri and the territory to the south of the 36-30 line was granted for two reasons only: (1) "threats of breaking up the Union were freely made," and; (2) under previous French law, slavery had existed in the parts where it was permitted to remain.31 In other words, Lincoln's point was that Congress' attitude toward slavery was not indifferent. Slavery would be permitted if, and only if, it could not be prevented.

The location and situation of the territories in question in 1850, however, was manifestly different from that in question in 1854. The Compromise of 1850 itself tends to be somewhat confusing because it cannot be pointed to as one particular measure; rather, it encompasses six separate measures passed between July 31 and September 16, 1850.32 In addition, the territory with which it dealt was not acquired through the Louisiana Purchase, but through war with Mexico. Hence, the 36-30 line of the Missouri Compromise (which only concerned the territory acquired through the Louisiana Purchase) did not automatically extend to this area. Furthermore, as Lincoln noted, many men in the House of Representatives (himself included) were determined to see that that line would not extend "because by implication, it gave up the Southern part to slavery, while [they] were bent on having it all free."33 Yet, perhaps one of the most significant distinctions between the Compromise of 1850, the Missouri Compromise, and later, Kansas-Nebraska, was the fact that in 1850 Congress was also dealing with slavery issues outside of the territories. This meant that there was, in a way not previously so evident, more at stake than the fate of the territories. In what was to be the precursor to Civil War, the fate of the nation was clearly in the balance.

As events would have it, the Treaty of Guadalupe Hidalgo, which was responsible for the cession of Utah, New Mexico, and California to the United States, came at about the same time as some other significant events in the organization of that territory. The South attempted to hold Oregon, which was then being governed by an extralegal provisional government as a "hostage" until the status of slavery in the Mexican Cession had been determined.34 At the same time, the question of the "Wilmot Proviso," which would have provided that all territory acquired in the war would never permit slavery, though technically defeated by the passage of the treaty without it, continued to be a serious question in the House.35 Meanwhile, gold had been discovered in California and as settlers rushed in, a free constitution was formed and they applied for admission to the Union.36 These were not the only considerations, however. During all of these problems in the West, there were considerable threats to the interests of the slave states back East. The fugitive slave law was apparently inefficient in the southern eyes, and northerners were clamoring for the abolition of the slave trade in the nation's capitol. Also of consideration was the expansion of slavery in that territory as a result of the indefinite western boundary of Texas, recently admitted as a slave state.37

In short, Lincoln makes it clear that this was a situation of the utmost delicacy and danger. There was a significant threat to the continued existence of the Union if the question of slavery in these territories should be decided in an unwise fashion. "The Union," said Lincoln in 1854 at Peoria, "now, as in 1820, was thought to be in danger; and devotion to the Union rightfully inclined men to yield somewhat, in points where nothing else could have so inclined them."38 Thus, the compromise was settled in the following manner:

The south got their new fugitive-slave law; and the North got California, (the far best part of our acquisition from Mexico,) as a free State. The south got a provision that New Mexico and Utah, when admitted as States, may come in with or without slavery as they may choose; and the north got the slave-trade abolished in the District of Columbia. The north got the western boundary of Texas, thence further back eastward than the south desired; but, in turn, they gave Texas ten millions of dollars, with which to pay her old debts. This is the Compromise of 1850.39

Lincoln would go on to argue in this speech at Peoria that this compromise did not constitute a change in principle from 1820. He had gone to considerable lengths to show that the provision which gave Utah and New Mexico the permission to come into the Union with or without slavery as they saw fit, was motivated by what he called a "system of equivalents."40 In other words, in order to save the Union, men were induced to allow policies that they found repugnant based on their own merits and a part from the consequences of not allowing them. Yet even these concessions were not got by southern bullying alone. Every so-called concession to southern interests was, in turn, "paid for" by a measure that favored freedom. Furthermore, these concessions were granted to a particular place, at a particular time, and with particular specifications. "Now I insist," said Lincoln, "that this provision was made for Utah and New Mexico, and for no other place whatever."41

We now come back to 1854 and Douglas' proposal. His legislation of January 4 had inspired more controversy than he expected. Since Douglas viewed the events of 1850 in a different light than Lincoln (i.e., that it had established a new way of dealing with slavery in the territories), he believed that he could "neutralize" the Missouri Compromise restriction on the Nebraska territory without inspiring too much conflict. The immediate effect of this first proposal would have been similar to the effect of the Compromise of 1850. In other words, popular sovereignty would have been permitted, though not expressly so, while the status of the Missouri Compromise restriction would be left undefined in a manner similar to the Mexican antislavery laws in 1850.42 Douglas, though not yet arguing that "popular sovereignty" was a "constitutional imperative," did believe that the Compromise of 1850 had installed it in principle.

He furthermore believed that this action was wise.43 But, as we have said, this principle, when applied to his Nebraska legislation, fueled angry reactions from both anti-slavery men and southerners. On the one hand there were those who opposed it because it left the Missouri Compromise, something they considered to be final, open to question by either the territorial legislature or the judicial process. On the other hand, southerners, infused with the "positive good" arguments of men like John C. Calhoun, had come to a point where they considered the 36-30 line as a "moral reproach" on their "peculiar institution" and way of life. They wanted an end to all overt federal prohibition of slavery, and they demanded it with as much zeal as those who clamored for the Wilmot Proviso.44

After engaging in a series of negotiations and conferences, Douglas came forward on January 23 with a new bill. This bill would establish two territories, Kansas and Nebraska, and declare the slavery restriction of the Missouri Compromise as "inoperative and void."45 This declaration meant, in substance, that the people of Kansas and Nebraska could establish or not establish slavery as they saw fit, and was, according to Lincoln, nothing less than the repeal of the Missouri Compromise.46 For the Missouri Compromise had firmly and absolutely prohibited slavery in the area. This implied that having slavery was not a choice-worthy way of life for a free people. Slavery was permitted to exist were it could not be removed, but never to extend to where it was not already present. Under the Kansas-Nebraska Act, communities were granted the power to decide for themselves whether or not to have slavery. This did not imply that there was any moral difference between the two. One could vote to have it just as easily as not.

The legislation itself further corroborates Lincoln's interpretation with the clause that declared "the true intent and meaning" of the act as a whole was "not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States."47 As Don E. Fehrenbacher has pointed out, this is an indication that the Kansas-Nebraska act "went beyond the Compromise of 1850" because even if you leave aside the fact that Nebraska was then under the Missouri Compromise restriction, this version of "nonintervention" itself differed from the version that appeared in 1850.48 The version of nonintervention that had appeared before 1854 had never expressly given over to the idea of "popular sovereignty," while the 1854 legislation made it its cornerstone.

The old wording, "with or without slavery as their constitutions may prescribe" left the question of popular sovereignty unclear. As we have seen, as applied by Henry Clay in 1850, this would only reinforce the legitimacy of Mexican anti-slavery laws already in effect. In the territory below the 36-30 line, it had the opposite practical effect as to slavery's existence, but in terms of law and in terms of what a people might be allowed to vote on, it did not explicitly introduce anything new. Thus, before 1854 "nonintervention" was a way to deal with particular problems in particular situations, all presumably as a means to affect some other principle; it was never, itself, the principle appealed to. Douglas, on the other hand, attempted to argue that voiding the Missouri Compromise restriction was justifiable on the grounds that it was "inconsistent with the principle of non-intervention by Congress with slavery in the territories," a principle he thought the Compromise of 1850 had advanced. Similarly, he argued that the 1850 Compromise had legally "superseded" the Missouri Compromise.49 But, as Lincoln endeavored to prove in his speech at Peoria, and as Fehrenbacher has historically shown, "[t]he foundations of this argument were very weak."50

It assumed, for one thing, that the Compromise of 1850 embodied a uniform principle based on some conception of justice, rather than the "system of equivalents," or equal concessions made on the basis of prudence, that Lincoln argued it embodied. In other words, Douglas believed that there was "something new in the principle of nonintervention as it appeared in the territorial acts of 1850."51 But, as Lincoln had argued, and Fehrenbacher has pointed out, there is a "complete lack of evidence" that any member of Congress in 1850 believed that the Compromise they were enacting for Utah and New Mexico would have any effect on the status of slavery in Nebraska. Lincoln, in fact, contended that the Compromise had "no more direct reference to Nebraska than it had to the territories of the moon."52 Again, Lincoln argued that the operative principle behind the Compromise of 1850 was the "system of equivalents" whereby the North consented to a provision it did not hold to be "right in itself," but worth the gamble that slavery would in fact not be instituted in the territories concerned (which it was not) and certainly worth the price that the South seemed willing to pay (i.e. abolition of the slave trade in the District, etc.). With that in mind, Lincoln chastised those who would ask for the application of nonintervention in Nebraska without a similar equivalent offered. "If you wish the thing again, pay again," Lincoln boldly stated.53

The passage of this version of the Kansas-Nebraska bill on May 30, 1854, has often been cited by historians as a turning point in the political life and opinions of Abraham Lincoln. "The Kansas-Nebraska Act," says one Lincoln scholar, "transformed his thinking on the whole subject [slavery] down to its very roots. Thereafter, he became increasingly convinced that slavery and free society were absolutely incompatible."54 According to a prominent Lincoln biographer, Lord Charnwood:

[Lincoln] has himself recorded that the repeal of the Missouri Compromise meant for him the sudden revival in a far stronger form of his interest in politics, and, we may add of his political ambition. The opinions which he cherished most deeply demanded no longer patience but vehement action. The faculties of political organization and of popular debate, of which he enjoyed the exercise, could now be used for a purpose which satisfied his understanding and his heart.55

Why was it that this particular legislation so suddenly and so absolutely affected Lincoln, a man who, "though [a]lways opposed to the institution of slavery...had not hitherto enlisted actively in the crusade against it"?56 We think it will be shown that Lincoln understood the Kansas-Nebraska Act actually to be what Douglas had tried to argue the passage of the Compromise of 1850 was; in short, the introduction of a new principle into America's dealings with the territories regarding slavery. To be even more bold, though we think, more precise, it was the introduction of a new principle into the American regime and therefore a repudiation of the principles that had heretofore guided the nation on this and many other questions: the principles of the Declaration of Independence.

In Lincoln's and the Declaration's understanding of self-government, a government derives its just powers for the consent of the governed. This principle was, he argued, "the sheet anchor of American republicanism."57 To deny this by admitting the men of Nebraska could, if they so choose, govern not only themselves but also another man, was not an affirmation but a destruction of self-government. Said Lincoln:

But if the negro is a man, is it not to that extent, a total destruction of self-government, to say to that he shall not govern himself? When the white man 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 one man's making a slave of another.58

Lincoln saw that to admit the idea that white men could vote on whether or not to enslave other men was to admit something that was a contradiction of the foundations of the Republic. America, as he saw it, was on the verge of repudiating her "ancient faith," and thereby losing every reason to be esteemed. In an 1855 letter to a long time friend, Joshua Speed, Lincoln put it this way:

Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes." When the Know-Nothings [an anti-foreigner and Catholic party] get control, it will read "all men are created equal, except negroes, and foreigners, and catholics." When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty—to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy.59

But Douglas had contended that one argument in favor of the repeal of the Missouri Compromise was something he called the "sacred right of self-government."60 Self-government, then, was an issue. What did it mean to be self-governing? Douglas defined it one way while Lincoln defined it another. In fact, Lincoln said he believed in self-government so strongly that he would be willing to meet Douglas' argument about its meaning by "rushing in" and "taking the bull by the horns."61 As we will see, this is exactly what he did.

Douglas' understanding of self-government, as evidenced by his argument for the right of the people of Kansas and Nebraska to decide for themselves whether or not to have slavery according to their preferences and interests, amounted to the following in Lincoln's view:

Equal justice to the south, it is said, requires us to consent to the extending of slavery to new countries. That is to say, inasmuch as you do not object to my taking my hog to Nebraska, therefore I must not object to you taking your salve. Now, I admit that this is perfectly logical, if there is no difference between hogs and negroes.62

In other words, Douglas' understanding of self-government, if perpetuated, would mean that the United States—Declaration of Independence to the contrary notwithstanding—must recognize the right of the people to decide whether or not they wish to respect the rights of human beings. If a majority decide that there is not reason to treat negroes any differently than hogs, so be it. Lincoln argued that being able to vote on such a question (whether or not there was difference between hogs and negroes) was not only contrary to all principle, but also to practice. He showed that even the south, with its firmly entrenched slavery system, was bound by laws and omnipresent facts which daily brought home to them the humanity of the negro. If negroes and hogs and cattle and horses were equivalent, why did the south join in the unanimous decision in 1820 to declare the slave-trade piracy?63 Why were white southern children forbidden from playing with the children of the white slave-trader but freely permitted to play with slave children? Why was the existence of over 400,000 free negroes tolerated, while wild horses, bears and buffalo were hunted down? Lincoln argued that there was "SOMETHING" that induced them to all of this and that this "SOMETHING" was nothing less than:

...your sense of justice, and human sympathy, continually telling you, that the poor negro has some natural right to himself—that those who deny it, and make mere merchandise of him, deserve kickings, contempt and death.64

Yet Lincoln did not make this point in order to convince the South that negroes were human beings. That "SOMETHING" he had referred to would not let them, in their heart of hearts, to argue otherwise. Lincoln wanted merely to remind them of that "SOMETHING" so that they, and others, might see the manifest injustice in admitting a policy that would call that "SOMETHING" into question.

"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States..." (United States Constitution, Article IV, Section 3.)

Between May 30, 1854, the date of passage of the Kansas-Nebraska Act and March 6, 1857, the date the Supreme Court delivered its opinion on Dred Scott v. Sandford, there were some noteworthy instances of rhetoric and action within the Democratic party leadership that, if not substantiating Lincoln's claim that there was a conspiracy of sorts going on, demonstrates the accuracy of his claim that it looked like one, or, at the very least, shows that Lincoln was justified in his fears about the tendency of the Kansas-Nebraska legislation. For example, in Franklin Pierce's annual message to Congress of December 31, 1855, the President blamed the sectional conflict over slavery on the critics of the institution and described them as partaking in a "passionate rage of fanaticism and partisan spirit."65 Furthermore, he expressed his own doubts as to the legality of the Missouri Compromise, which, according to him, was "in the estimation of many thoughtful men, null from the beginning, unauthorized by the Constitution, contrary to treaty stipulations for the cession of Louisiana, and inconsistent with the equality of these States."66 In substance, this was, of course, nearly exactly the opinion that Chief Justice Taney would deliver about the constitutionality of the Missouri Compromise more than two years later, and conspicuously, that case was then before the Court.67

This is not, however, the only conspicuous piece of evidence. Several weeks following his message to Congress, Pierce sent a special message on Kansas to Congress in which he recommended legislation to prepare it for statehood.68 Senator Douglas, who was then the chairman of the committee on the territories, responded to the recommendation with a forty-one page report in which he argued that the territory clause of the Constitution referred only to the property of the United States and therefore did not confer a power to govern the territories. As Fehrenbacher notes, Douglas saw the territories as "essentially incipient states, to which the rule of state equality fully applied."69 With that in mind, Douglas' report declared that acts for a territory:

...must contain no provision or restriction which would destroy or impair the equality of the proposed State with the original States, or impose any limitation upon its sovereignty which the constitution has not placed on all the States.

and in case that was not clear, Douglas added that such acts:

...must leave the people entirely free to form and regulate their domestic institutions and internal concerns in their own way, subject only to the constitution of the United States.70

If the wording of this report rings familiar, it is because, with the exception of one all important word, "must," it is the very wording of that clause of the Kansas-Nebraska Act that set forth its "true intent and meaning."71 This was the first time that Douglas had argued that the repeal of the Missouri Compromise was necessary because it was constitutionally mandated. With that, both the White House and an influential member of Congress had sent the Supreme Court a message; the Missouri Compromise was, in their opinion, unconstitutional. The Court, as we shall see, could not agree more—or could it?

Dred Scott v. Sandford proceeded from the federal circuit court in Missouri to the Supreme Court by a writ of error.72 The case involved a Missouri slave, Dred Scott, who was taken by his master (then a Dr. John Emerson) to military posts in the free state of Illinois and in a part of the federal territory north of the 36-30 line where slavery was prohibited by virtue of the Missouri Compromise.73 It is, however, important to note that both Scott's residence in these free areas and the date of his filing a petition for freedom, antedated the repeal of the Missouri Compromise by the Kansas-Nebraska Act.

Scott's long battle began on April 6, 1846 when he filed a declaration of trespass against Emerson's widow, Irene, for assault and false imprisonment, claiming damages of ten dollars.74 Fehrenbacher points out that the way Scott went about the suit is significant because it points to certain assumptions in Missouri's law. For example, since it was understood that the beating, bruisings, and ill treatment Dred Scott claimed he received at the hand of Mrs. Emerson would be legal if he was, in fact, her slave, the court would have to rule on his status as a free person before it could reach a verdict as to damages.75 Thus, under Missouri law, a slave could presumably bring a suit for damages against someone who was not really his master.76 Evidently, Missouri law recognized the access of slaves to their courts and, in that sense, regarded them as citizens; a sharp contrast to what Chief Justice Taney would eventually rule about negro citizenship.

This suit took the name of Scott v. Emerson, proceeded through the courts, and eventually, on March 22, 1852, the Missouri State Supreme Court rendered a decision on the case.77 Although Missouri precedents made Scott's case seem strong, Fehrenbacher points out that the precedents were "set by liberal-minded judges who were predisposed to favor freedom," while the current judges, caught up in the arguments of the day, "were a different breed of men."78 This new predisposition in the judges had substantially to do with a recent decision of the Taney Court, Strader v. Graham. Though Taney dismissed this case for lack of jurisdiction, he nevertheless proceeded to pronounce an opinion on the substantive issues involved. The laws of Ohio, he ruled, regardless of their effect upon the group of slaves in question while they were there, did not have to have any effect upon their status in Kentucky.79 In other words, if Kentucky wanted to uphold Ohio law it could, but it was not imperative. Thus, Judge William Scott of the Missouri Supreme Court ruled that Dred Scott was still a slave, explaining that comity, or conflict of laws, "was a matter of judicial discretion, to be 'controlled by circumstances.'"80 The judge, in a haunting example of just how far the psyche of the south had been driven on this question, also offered a "homily" in which he argued that slavery was a "civilizing force" that was part of the "providence of God."81

Though essentially the end of Dred Scott v. Emerson, this was only the beginning for Dred Scott v. Sandford. By the end of 1853, Scott had acquired a new owner, a new lawyer, and a new lawsuit.82 The suit was now taken up in the federal circuit court under the diverse-citizenship clause because Scott's new owner was a resident of New York City (though he was frequently in St. Louis, where Scott lived).83 Pushing this case into a federal court under the diverse-citizenship clause changed the case from a simple suit for freedom into a test of murky waters. The question of negro citizenship under the diverse-citizenship clause had never been determined by precedent.84 The judge in the case, Robert W. Wells, ruled that citizenship, for the purposes of bringing a suit into federal court, implied nothing more than residence and the legal capacity to own property. Thus, although he did claim that his ruling did not extend to the privileges-and-immunities clause, he also acknowledged that a free negro was citizen enough to be covered by the diverse-citizenship claues.85 Still, even though this much was acknowledged by Wells, he still ruled that Scott was a slave for the same reason of comity to which the Missouri Supreme Court had pointed.86

The case then went on to the Supreme Court of the United States despite the strange problem that it posed (i.e. if Dred Scott was still a slave he never had a right to bring forth the suit).87 Although it is admitted that there has been some scholarly question as to what the Supreme Court actually decided in the case because of the variety of arguments used by the Justices in their opinions and the question of whether Taney, after arguing that the Court did not have jurisdiction since negroes were not citizens of the United States, was then permitted to speak on the merits of the case. Fehrenbacher, however, effectually dismisses these objections by pointing out that since the Court, and not individual justices, has the right to determine jurisdiction, even those individual justices who might opine that the case is out of the Court's jurisdiction have a right to speak to the merits of the case if a plurality of the Court accepts jurisdiction.88 In addition, Fehrenbacher shows that since Taney's opinion was the official opinion of the court and did not encounter explicit dissent on any point by more than two justices, "it was authoritative on all the major questions presented by the case."89 As a matter of legal and scholarly debate, the question is provocative. However, for historical purposes, it is clear that Taney's opinion was "[i]n all branches of government and in popular thought, the 'Dred Scott decision'."90

The question then becomes, "What exactly did Taney decide?" Two new rulings came out of the decision; these were: (1) Neroes were held to be "not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States," and (2) since the "right of property in a slave is distinctly and expressly affirmed in the Constitution...the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void..."91

In other words, Dred Scott, because he was a Negro, was not and could not ever be a citizen of the United States according to Taney's reading of the Constitution. It did not matter what his status regarding freedom might be; free or slave, he was still a Negro and as such had, "no rights which a white man was bound to respect" under the Constitution. In addition, it was ruled that Dred Scott was still a slave. His stay in Illinois was inconsequential because Missouri was not, as the lower court had previously ruled, bound under the principle of comity, to uphold the laws of another state. More importantly, however, was Taney's ruling regarding Dred Scott's stay in federal territory. Instead of taking the same approach to this aspect of the argument, or in other words, arguing that the laws of a federal territory need not have force in a state, Taney argued that the law governing that territory, the Missouri Compromise, was unconstitutional. It was unconstitutional, he argued, because its effect was to deprive slaveholding citizen's of the United States of their property whenever they might choose to enter such lands without due process of law. Thus, not only had Dred Scott lost his last battle for freedom, but as Lincoln would show, the Nation was losing the battle for its soul.

Those who had favored the Kansas-Nebraska Act and, of course, Southerners were pleased by the decision of the court. It would, in their opinion, put an end to slavery agitation once and for all. The Court was a respected and venerable institution. Its decisions could not be openly disputed without significant political cost. Stephen Douglas knew this, and even though the Court arrived at its conclusions in a different way than Douglas would have liked, he still would have the upper hand politically if it appeared that his adversaries, the Republicans, were questioning the Court. Of course, the Republican Party could not do otherwise. It was formed with the sole purpose of putting an end to the extension of slavery. The Court in the Dred Scott decision had, in the practical sense of the term, effectively castrated the party. With its virility thus in question, the Republicans in Illinois knew that they would have to pull out the big guns in the upcoming senatorial contest for Senator Stephen Douglas' seat.

Many Republicans on the East coast, Horace Greeley in particular, were willing to acquiesce in the continued leadership of Senator Douglas. To men like Greeley, it appeared that Douglas was about to come over to their side of the political fence. After all, Douglas had been the driving force behind the efforts to vote down the proposed pro-slavery constitution of Kansas from Lecompton.92 Even though Douglas was always distinct in his insistence that his opposition to the Lecompton constitution was due to the "fraudulent" manner in which it was passed (pro-slavery forces from Missouri had rushed in for the vote on the measure, against the will of the majority of people actually living there), and nothing to do with the fact that it was "pro-slavery," many Republicans thought it was a matter of time before Douglas could be persuaded to join their ranks. "He is sure to be with us in the future as Chase, Seward, or Sumner," said the radical antislavery senator from Massachusetts, Henry Wilson.93 Even failing that proposition, many Republicans were willing to argue that Douglas deserved the support of the party simply because he had helped in this battle, and could be expected to do so in the future.

Such suggestions, however, were to a large degree held to be insults to Republicans in Illinois. It had long been an article of faith that Abraham Lincoln would be the most worthy candidate for the Republicans to support for Senator in 1858.94 The Chicago Tribune was particularly annoyed by the patronizing tone of the political advice from the East: "There seems to be a considerable notion pervading the brains of political wet-nurses at the East, that the barbarians of Illinois cannot take care of themselves."95 Thus, the article of faith that Lincoln would be supported Illinois Republicans began to take on the aspects of an entrenched, if not unmovable, belief. Lincoln's support in Illinois grew as a result of Eastern Republicans urging it to acquiesce in the re-election of Senator Douglas and, as Lincoln would show in his speech upon being declared as the "first and only choice" of the party for Senator, he believed the distinction between himself and Douglas to be eminently wise.

Lincoln openly opposed the opinion of the Court in Dred Scott v. Sandford. He opposed it both for its immediate practical effects and also for the implications of its broader political teaching. When Lincoln argued in his famous "House Divided" speech that "Our cause, then, must be entrusted to, and conducted by its own undoubted friends—those whose hands are free, whose hearts are in the work—who do care for the result," he was making a case against supporting Douglas, or to be specific, the arguments of "popular sovereignty," simply because they seemed to guarantee the immediate victory of their political ends.96 This was a vain hope, he argued, because Douglas, by explicitly declaring that he "did not care" whether slavery was voted up or down, had shown his true sentiment on the matter. Douglas was politically useful to Republicans in a particular situation like the one in Kansas. He was not opposed to slavery in principle, but rather because the people of Kansas did not "really" want it. As Harry V. Jaffa has pointed out:

The men who opposed slavery in Kansas would have been helpless if there had not been men in Congress, Republicans from the free states, with the power of their votes to back up the free-soil Kansans. The idea that the slavery issue could be left to be decided in the territories themselves was demonstrated to be pure illusion by the history of Lecompton. If there had been no anti-Nebraska party in Congress—no Republican party—a slave constitution would have been fastened upon Kansas, and Douglas could not have done a thing about it—even if he had wished to.97

In other words, without a moral opposition to slavery there was little that could be done by anyone to prevent its spread. Douglas needed the support of the Republicans in his "anti-Lecompton" heroics, more than he needed the support of anyone. The Buchanan administration and its epigones were willing to accept the work of Lecompton. But Douglas had so committed himself to "popular sovereignty" that there was no backing down. If he was to go head to head with the Buchanan administration, so be it. This was not, however, in Lincoln's understanding, a reason to reward him with their support. What men like Greeley failed to see was that "the nerve of the opposition to Lecompton was not popular sovereignty, but anti-slavery passion."98 This sentiment could not be sustained by a man like Douglas whose policy and character did not permit him to care whether slavery was "voted up or voted down."

After it was established that Abraham Lincoln would be the "first and only" choice of Illinois Republicans for United States Senator, the next step, naturally, was how to win the election. Lincoln proposed that the two candidates hold a series of joint-debates in which one would speak for an hour, the other would respond for an hour and a half, while the original speaker would be granted a rejoinder to last one half hour. These debates, seven in all, have constituted one of the most famous political contests in all of American history. The highlight of these debates, it has often been conceded, was the famous "Freeport Question" asked by Abraham Lincoln and coupled with Douglas' response dubbed the "Freeport Doctrine." At issue here was the ability of Douglas' "popular sovereignty" to withstand the recent Dred Scott decision of the Supreme Court. Douglas' answer to the question and Lincoln's reaction to that answer provide us with a telling explanation as to the differences between them, and may point to a fundamental tension within the American regime.

On August 27, 1858, in Freeport, Illinois, Abraham Lincoln posed the following question to Stephen Douglas, his opponent in the race for the Senate:

Can the people of a United States Territory, in any lawful way, against the wish of any citizen of the United States, exclude slavery from its limits prior to the formation of a State Constitution?99

This was a problematic question for his opponent, the avowed advocate of "popular sovereignty" and purported supporter of the recent Supreme Court ruling on Dred Scott v. Sandford. His response was as follows:

I answer emphatically, as Mr. Lincoln has heard me answer a hundred times form every stump in Illinois, that in my opinion the people of a territory can, by lawful means, exclude slavery from their limits prior to the formation of a State Constitution.... It matters not what way the Supreme Court may hereafter decide as to the abstract question whether slavery may or may not go into a territory under the constitution, the people have the lawful means to exclude it as they please, for the reason that slavery cannot exist a day or an hour anywhere, unless it is supported by local police regulations. Those police regulations can only be established by the local legislature, and if the people are opposed to slavery they will by unfriendly legislation effectually prevent the introduction of it into their midst.100

Thus, Douglas, who had so many times argued that acts regarding the territories, "must leave the people entirely free to form and regulate their domestic institutions in their own way, subject only to the constitution of the United States," was forced in consequence of the Dred Scott decision to consider what exactly "entirely free" meant given the Court's ruling on the meaning of the Constitution. The Constitution, which is declared under article VI as "the supreme Law of the Land...any Thing in the Constitution or Laws of any State to the Contrary notwithstanding," was interpreted by the Taney Court as "distinctly an expressly" affirming the "right of property in a slave." It was for this reason that the Court held the Missouri Compromise to be "not warranted by the Constitution, and...therefore void." In other words, the Congress of the United States could not constitutionally prohibit slavery in the Territories because if slaves were property the only power they had over it was "the power coupled with the duty of guarding and protecting the owner in his rights."101

What Lincoln was trying to elicit from Douglas was his opinion as to the effect of the Dred Scott opinion on his argument that only territorial legislatures could decide, and in fact should decide, on the status of slavery in their jurisdiction. Douglas had declared that he "cared not whether slavery was voted up or down;" that the right of the people to be "entirely free to form and regulate their domestic institutions and concerns in their own way" was the "sacred principle of self government." After Dred Scott, however, his argument was seemingly trimmed. The people, once "subject only to the constitution of the United States," could now seemingly ignore that Constitution in which "the right of property in a slave is distinctly and expressly affirmed." They could institute legislation that was "unfriendly" to the institution of slavery and "effectually prevent the introduction of it into their midst."102 Lincoln pointed out that given Douglas' attitude toward the decision of the Court (that it was sound) it was a "monstrous sort of talk" for him to engage in. This would be nothing less that an encouragement to anarchy when taking into account the Supremacy clause of the Constitution which declares that all states shall be bound by the Constitution, anything "in the Constitution and Laws of any State to the Contrary notwithstanding," and also Taney's statement in Dred Scott which read:

And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.103

Thus, Lincoln had shown how Douglas' doctrine of "popular sovereignty" as articulated in his report on the Kansas-Nebraska Act, had reached a logical point of absurdity. Perhaps, it only became absurd because of the hole he left open with "subject only to the constitution of the United States" (i.e., he didn't know Taney would read the Constitution as a guarantee to the right of "property in a slave"), but we think that it can be argued that the "Freeport Doctrine," as it came to be called, was the natural resting place for Douglas' doctrine of "popular sovereignty," even without the intervention of Chief Justice Taney. We think that behind any idea of "popular sovereignty" in slave questions is an implicit acknowledgement of what Taney would call "the right to property in a slave." We think it can be argued that what Lincoln did at Freeport was expose the fact that there was fundamentally no difference between the opinions of Douglas and the Northern Democrats, and the opinions of Calhoun and the Southern Democrats; both of them grounded all of their opinions in one major false assumption—the assumption that, as Lincoln put it, "if any one man, choose to enslave another, no third man shall be allowed to object."104 Both sections of the Democratic party believed that this and not the proposition that "All men are created equal" was the "sacred principle of self-government."

Of course, Douglas was a Union man. As he saw himself, his actions were pro-Union. The problem Douglas confronted by trying to maintain the Union with his "popular sovereignty" argument was that he approached the question of the rightness or wrongness of slavery as though it were a practical question. But the question that threatened the continued existence of the Union was a moral question. These kinds of questions are not decided by majorities, although majorities can ignore them. Douglas, in other words, attempted to maintain an extra-moral attitude toward an inherently moral question. He tried, as it were, to stay in the middle of the moral question of whether or not slavery was wrong. The problem with attempting to do that is that since the assumption (i.e., that moral and practical questions are the same) is wrong all that follows from the assumption will likewise be wrong. When one assumes that one can approach a moral question in the same way that one approaches a practical question, or that the moral truth behind a question can be determined by the circumstances surrounding it in the sam way a practical truth can be determined, they inevitably equate morality with preference and interest.

Since this was the assumption that Douglas made, it is not surprising that he thought the question of slavery extension could be decided by the compromising position of "popular sovereignty." He did not see himself as compromising on principle. To him, the principle was exactly this. Popular Sovereignty was the definition of "the sacred principle of self-government" in Douglas' view. Lincoln's task was to show that Douglas' understanding of self-government was false; that "popular sovereignty" was a means to self-government, and that ultimately there was something even higher than self-government—the thing for the sake of which self-government was instituted.

The road to self-government, however, is full of compromises. Lincoln, perhaps even more than Douglas, was perfectly willing to use this political device. What then constituted the difference between Lincoln's and Douglas' understandings of compromise?

Douglas, when he used the method of compromise, addressed himself, as was argued above, to a moral question: "Is slavery right or wrong?" By approaching it as though it were a practical question, thus admitting the possibility of compromise, he had to argue, "Let the people decide" or the line of "popular sovereignty" that "I care not whether slavery is voted up or voted down." In certain respects, how could he care? The "sacred principle of self-government" he argued, was the right of the people to decide such questions. This is what he revered; the consequences of this principle were not his concern. His assumption, then, becomes his answer on the question of the morality of slavery. He assumes that the question of the rightness or wrongness of slavery can be compromised and therefore his answer has to be, by the force of the logic of his argument, that slavery is morally right—at least if it is in the interest of the people who choose to have it. Otherwise how could it be that a people could vote on the question of whether or not they prefer to have it? Hence, even before Taney came into the picture, reading a "right of property in a slave" into the Constitution, Douglas had already admitted it implicitly.

Although Douglas attempted with his "I do not care whether slavery is voted up or down" argument to imply that the people could decide whether slaver was right or wrong, it seems clear that this was, in the main, only passing the buck. It was not an answer to the question of whether slavery is right or wrong, and besides, we are not so sure that the people could, given the assumptions of his argument, decide that slavery is morally wrong. On what basis would they do so? It seems clear that once it is admitted that the ability to vote on this question is granted, the only thing that a vote against it could be grounded on is interest or preference.

This is, as we have argued, to be contrasted with the example of Lincoln who maintained a "massive insistence that the spread of slavery be halted by a principle that treated the spread of slavery as wrong everywhere."105 It could not, however, be successfully argued that Lincoln was "doctrinaire" because even though "Lincoln thought all sound policy was based on an 'abstract truth' of universal applicability, he also denounced 'pernicious abstractions' that set people by the ears for no practically good ends."106 Thus Lincoln, when he approached a question with the possibility of compromise, approached it with a view toward the applicability of a moral stance against slavery. If there was to be any compromise it was not to be about whether slavery was morally wrong—the immorality of slavery had already been determined by the Founders, especially Thomas Jefferson, who, according to Lincoln, "in the concrete pressure for national independence by a single people, had the coolness, the forecast and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men at all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression."107 Compromise, if there was to be any, could only be about the extent to which the policies of our government could, at any given moment, reflect the moral teaching in the Declaration, without destroying the Union it secured. Instead of approaching moral questions practically, Lincoln approached practical questions morally. Lincoln saw that Jefferson in penning the words, "all men are created equal," 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. The assertion that "all men are created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use.108

As Harry V. Jaffa points out, "Douglas's doctrine of allowing the people of a territory to decide whether or not they wanted slavery was not, in Lincoln's eyes, a formula for avoiding dispute that had no practical consequences. It was a formula for depriving the North of its moral armor against slavery extension, extension which was threatening to engulf 'all of the States, old as well as new—North as well as South.'"109 Lincoln knew that the most important thing at stake was not the actual status of Kansas, or even the freedom of a man named Dred Scott; rather it was the state of public opinion in a democracy. Lincoln summed it up in the following manner:

Our government rests in public opinion. Whoever can change public opinion, can change the government just so much. Public opinion, [on] any subject, always has a "central idea," from which all its minor thoughts radiate. That "central idea" in our political public opinion, at the beginning was, and until recently, has continued to be, "the equality of men." And although it was always submitted patiently to whatever of inequality there seemed to be as matter of actual necessity, its constant working has been a steady progress towards the practical equality of all men.110

In other words, the danger he envisioned was that the idea of "popular sovereignty" or the "Nebraska doctrine" would take the place of America's original "central idea" and thereby "educate and mould public opinion, not to care whether slavery is voted down or voted up."111

This attitude was dangerous for both its practical implications (i.e., that slavery would be extended) and the more complicated problem of its being absolutely opposed to the Founding principles of America as articulated in the Declaration of Independence and as recognized by the "political public opinion" up until 1854 with Douglas' Kansas-Nebraska Act. Said Lincoln:

...the most imminent danger that now threatens that purpose is that insidious Douglas Popular Sovereignty. This is the miner and the sapper. While it does not propose to revive the African slave trade, nor to pass a slave code, nor to make a second Dred Scott decision, it is preparing us for the onslaught and charge of these ultimate enemies when they shall be ready to com on and the word of command for them to advance shall be given.112

If the United States of America, "conceived in liberty" was ever to see that "government of the people, by the people, and for the people" did not "perish from the earth" the admission of such a principle as "popular sovereignty" into the regime was an impossibility. For a man who does not care whether slavery is "voted up or voted down" cannot be expected to be a great lover of liberty in any true sense of the term. He can be a tyrant or a slave, but he cannot be self-governing. In regard to Lincoln's understanding of free government, Jaffa says the following:

Free government, according to Lincoln, was not the mere process of arriving at decisions without coercion by any formula embodying the principle of majority rule. It was not even government of, by, and for the people. It was government of, by, and for a people dedicated to a certain proposition. Many of those present-day admirers of Douglas who remember the end of the Gettysburg Address forget its beginning. Lincoln's position always embraced both concepts, while Douglas never comprehended the meaning of the principle of equality, nor its relation to popular sovereignty, properly so called.113

In other words, Lincoln knew that "popular sovereignty" as understood by Douglas was a "barren right" long before Dred Scott came onto the scene. It was a "barren right" because properly speaking, it could not even be called a right. Where did it come from? To what principle of government did it adhere? For Douglas this was the only principle that guided government. But majority rule is not a principle, it is only a fact. It is a truth about political existence that cannot be denied, but Lincoln saw that in order for it to be a support to freedom, rather than the destruction of it, the majority that ruled needed "moral lights."114 Those "lights" as evidenced in the Declaration and up until 1854, had always been the proposition "that all men are created equal." It was because of this equality that men were endowed with certain unalienable rights, and it will be noted, liberty was among those rights that man's equality endowed him with. Liberty, in other words, was a consequence of something more fundamental than itself and therefore could have little meaning without that "SOMETHING." In his first Inaugural Address, Thomas Jefferson reminded his fellow citizens to bear in mind, "this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be opression."115 Hence, liberty without equality amounts to a "barren right." For the majority—which is, as Thomas Jefferson noted, "in all cases to prevail"—would not have to concern itself with being "rightful" or "reasonable" if its rule and not equality were prior. After all, without the "moral light" of equality, who is to say what is "rightful" or "reasonable."

Furthermore, Lincoln saw that if Douglas' "popular sovereignty" was coupled with Chief Justice Taney's interpretation of the meaning of the Declaration of Independence in Dred Scott—which argued that the "All Men" declared to be "created equal" did not include Negroes—it would necessarily have to admit the possibility, indeed the probability, that it did not include anyone then living. For in order to say that the Declaration of Independence did not include Negroes, one would have to argue, as Douglas indeed did argue, that the signers of that document were referring:

...to the white race alone, and not to the African, when they declared all men to have been created equal—that they were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain—that they were entitled to the same inalienable rights, and among them were enumerated life, liberty and the pursuit of happiness.116

Lincoln was correct in pointing out that if Douglas' articulation of the Declaration were correct, "not only negroes but white people outside of Great Britain and America are not spoken of in that instrument." According to Douglas' reading of the Declaration, Lincoln argued, it should say, "'We hold these truths to be self-evident that all British subjects who were on this continent eighty-one years ago, were created equal to all British subjects born and then residing in Great Britain.'" Moreover, this reading would mean that the Declaration had promised nothing better than the condition of British subjects to America, hence, "it only meant that we should be equal to them in their own oppressed and unequal condition. According to that, it gave no promise that having kicked off the King and Lords of Great Britain, we should not at once be saddled with a King and Lords of our own."117

Before the question at Freeport, the Democrats had been getting away with waffling on a major moral question—or, to be more precise—the moral foundation of the American regime, by implying that they would, on the "sacred principle of self-government," leave that to the people to decide. Lincoln knew that a "house" so "divided against itself could not stand." Further exacerbating the problem is the fact that the Democratic party was undergoing a sectional conflict of its own. Southern Democrats (ironically, keeping true to the argument) saw the vindication of Southern principles in the Dred Scott decision. Said one southern newspaper, the Constitutionalist of Augusta, Georgia, "Southern opinion upon the subject of southern slavery...is now the supreme law of the land...and opposition to southern opinion upon this subject is now opposition to the Constitution, and morally treason against the Government."118 Yet, what was "Southern opinion on the subject of southern slavery"? John C. Calhoun in 1848 had fairly summed it up in his famous manifesto, the "Southern Address": "'The Federal Government,' he declared, 'has no right to extend or restrict slavery, no more to establish or abolish it...What then we do insist on, is, not to extend slavery, but that we shall not be prohibited from immigrating with our property, into the Territories of the United States, because we are slaveholders.'"119 This manifesto does not differ, in any way whatsoever, from the substance of the Dred Scott decision—with the possible exception that the Dred Scott decision is more absolute than even this. Northern Republicans like Douglas, had lost Southern support because they had refused to uphold the validity of Kansas' pro-slavery Lecompton Constitution. Yet, they explicitly argued that they refused to uphold it, not because it was pro-slavery, but rather because it was apparently not an authentic representation of the will of the people of Kansas. This, however, is not and does not support the notion that the things that divided Democrats were fundamental, or even substantive. This was the most superficial of all reasons for a party to be divided. It was not about principle, it was about fact. Just as the Northern Democrats would have acquiesced in a pro-slavery Constitution had it been "legitimately" voted in, so presumably would Southern Democrats have acquiesced in a free Constitution, at least prior to Dred Scott. But this, if true, only shows that there was no fundamental difference between Northern and Southern Democrats, both of them agreed on the basic moral question of the regime; slavery was, their estimation, morally defensible. In light of this revelation, all other arguments and disputes between them are shown to be petty.

By forcing the issue to the fore at Freeport, Lincoln exposed this truth about Douglas to his audience, which some have argued was a microcosm of the nation at large. If there was no difference between Douglas' position and that of Southern Democrats, what sane Illinoisan who had any regard for his own rights, would support Douglas? After Douglas' response to the question, who at all would support him? It is true that Douglas won the immediate prize, the Senate seat, but at what price? He had just been proven to be no better that a Southern Democrat, his position had been proven as logically inconsistent, and he had not a friend left in the South after his anti-Lecompton "heroics." Lincoln had successfully made the case for a Republican realignment. The only logical position to have if you were a dedicated American, and not a sectionalist, was that of Abraham Lincoln. Thus, the election of 1860 had been, at least in the Platonic sense, decided. Lincoln now had only to appeal to this admitted problem within the Democratic party to defeat it.

The task that Lincoln confronted in 1858 was, above all, that of defining the true meaning of democracy. His debates with Douglas, which have been called the "dialectical preview of the Civil War," were the perfect means for achieving this end.120 For in a democracy like America, where the government derives its just power from the consent of the governed, the only conceivable means of operation is majority rule.121 This is what Jefferson meant when he said that the will of the majority "is in all cases to prevail."122 The only way for a majority to take form or shape, however, is through discussion.123 The debates, by forcing this fundamental question to the fore in the way that they did, also forced citizens to think about the merits of each man's argument. The debates, then, afforded both Lincoln and Douglas the opportunity to perform the highest task of statesmanship: forming public opinion. Furthermore, the debates forced Lincoln and Douglas to form public opinion in the context of defining what would make it "reasonable" and therefore "rightful."

Lincoln was fully aware that the formation of public opinion was the object at stake in his debates with Douglas. Furthermore, he understood that public opinion could not be separated from the principle or the practice of majority rule. In other words, he was aware of this point noted by Jaffa: "Democracy, like any form of government, always terminates discussion with action."124 Knowing full well that the implications of Douglas' argument for "popular sovereignty" as the "sacred principle of self-government" would lead to the practical consequence of universal and eternal slavery if pursued in action with the same vigor it was pursued in thought, Lincoln set out to prove that the theoretical implications of Douglas' argument were absurd. In other words, Lincoln wanted his audience to know that as "the principle of discussion can never be separated from the principle of majority rule," neither "can the principle of majority rule be separated from the natural equality of all men."125 This was, however, exactly the kind of separation that Douglas' argument attempted to advance. In brief, Lincoln wanted to show that Douglas was arguing that majority rule was rightful at the same time that he was arguing there was no standard for its being right. In other words, Douglas thought the will of the majority could be rightful in and of itself. Lincoln, on the other hand, understood that the rule of the majority needed to be guided by the "central idea" of equality that constituted our "moral lights" in order to be "reasonable" and therefore "rightful." Douglas' argument then, ultimately boils down to just this: MIGHT MAKES RIGHT. For what other reason could he have argued that majority rule was right? He had already said that it was an end in itself by declaring it the "sacred principle of self-government."

Abraham Lincoln, however, had a different understanding of self-government. His understanding was grounded in the idea of equality. He saw that all attempts to define self-government in any other way were futile, if not pernicious. He knew, as Jaffa has argued, that "[t]he inner logic of the pro-slavery argument—whether Douglas's 'don't care' version or Calhoun's positive-good version—was such that it endangered the rights of any and every man who advanced or accepted it."126 He knew this because he knew that "all men are created equal" and that if it could be argued that one man had a right to enslave another, no matter what its basis—color, intellect, or interest—there was no escaping the conclusion that the person advancing the argument might one day fall subject to it.127

The following words of warning from Lincoln's Address at the Cooper Institute in New York city, February 27, 1860, gives us a good summation of this view, as well as the antidote to the ultimate conclusion of "popular sovereignty":

Let us be diverted by none of those sophistical contrivances wherewith we are so industriously plied and belabored—contrivances such as groping for some middle ground between the right and wrong, vain as the search for a man who should be neither a living man nor a dead man—such as a policy of "don't care" on a question about which all true men do care—such as Union appeals beseeching true Union men to yield to Disunionists, reversing the divine rule, and calling, not the sinners but the righteous to repentance—such as invocations to Washington, imploring men to unsay what Washington said, and undo what Washington did.

Neither let us be slandered from our duty by false accusations against us, nor frightened from it by menaces of destruction to the Government nor of dungeons to ourselves. LET US HAVE FAITH THAT RIGHT MAKES MIGHT, AND IN THAT FAITH, LET US, TO THE END, DARE TO DO OUR DUTY AS WE UNDERSTAND IT.128

By effectively destroying the sophistry of "popular sovereignty" put forth by Douglas, Lincoln was able to rearticulate the true principles of the American regime—the "Ancient faith" if you will. This, we see, was Lincoln's understanding of the true meaning of democracy; a democracy gets its legitimacy from the consent of the governed to be sure, but more fundamentally, it has a governed who legitimately offer their consent because they know and understand the "central principle" that they are "created equal."

1. Don E. Fehrenbacher, Prelude to Greatness: Lincoln in the 1850's, (Stanford University Press, Stanford, CA, 1962), 70. Return to text.

2. Abraham Lincoln, Speech at Springfield, Illinois, June 16, 1858; Robert W. Johannsen (ed.), The Lincoln-Douglas Debates, (Oxford University Press, New York, 1965), 14. Return to text.

3. Ibid. Return to text.

4. Fehrenbacher, Slavery, Law, and Politics: The Dred Scott Case in Historical Perspective, (Oxford University Press, New York, 1981), (from Stephen Douglas' report on the Kansas Nebraska Bill, 1854), 93. Return to text.

5. Johannsen (ed.), The Lincoln-Douglas Debates, 16. Return to text.

6. Ibid. Return to text.

7. Ibid., 14. Return to text.

8. Ibid., 19. Return to text.

9. Abraham Lincoln, speech delivered in Springfield, June 26, 1857; Roy P. Basler, (ed.), The Collected Works of Abraham Lincoln vol. II, 405-406. (Hereafter referred to as Collected Works). Return to text.

10. Herbert J. Storing, "Slavery and the Moral Foundations of the Republic," in Robert H. Horwitz (ed.), The Moral Foundations of the American Republic, (University Press of Virginia, Charlottesville, 1986.), 319. Return to text.

11. Ibid., 320. Return to text.

12. Ibid., 321. Return to text.

13. Ibid., 322. Return to text.

14. Ibid. Return to text.

15. Ibid., 323. Return to text.

16. Ibid., 324. In discussing this point, Storing points to the argument advanced by Fredrick Douglas. He argued the following:

"I hold that the Federal Government was never, in its essence, anything but an anti-slavery government. Abolish slavery tomorrow, and not a sentence or syllable of the Constitution need be altered. It was purposely so framed as to give no claim, no sanction to the claim, of property in man. If in its origin slavery had any relation to the government, it was only as the scaffolding to the magnificent structure, to be removed as soon as the building was completed." Return to text.

17. Abraham Lincoln, speech given in Springfield, June 26, 1857; Collected Works vol. II, 406. Return to text.

18. Abraham Lincoln, Address Before the Young Men's Lyceum of Springfield, Illinois, January 27, 1838; Collected Works vol. I, 108. Return to text.

19. Ibid. Return to text.

20. Abraham Lincoln, speech at Springfield, Illinois, June 16, 1858; Johannsen (ed.), The Lincoln-Douglas Debates, 14. Return to text.

21. Don E. Fehrenbacher, Slavery Law and Politics, 86. Return to text.

22. Ibid., 85. Return to text.

23. Ibid. Return to text.

24. Ibid., 82. Return to text.

25. Ibid. Return to text.

26. Ibid., 83. Return to text.

27. Abraham Lincoln, speech delivered at Peoria, Illinois, October 16, 1854; Collected Works vol. II, 250. Return to text.

28. Ibid. Return to text.

29. The Northwest Ordinance; Philip B. Kurland and Ralph Lerner, The Founders' Constitution vol. I, (The University of Chicago Press, 1987), 29. Return to text.

30. Abraham Lincoln, speech delivered in Peoria, Illinois, October 16, 1854; Collected Works vol. II, 250. Return to text.

31. Ibid. Return to text.

32. Fehrenbacher, Slavery, Law, and Politics, 80. Return to text.

33. Abraham Lincoln, speech delivered in Peoria, Illinois, October 16, 1854; Collected Works vol. II, 253. Return to text.

34. Fehrenbacher, Slavery, Law, and Politics, 72. Return to text.

35. Abraham Lincoln, speech delivered in Peoria, Illinois, October 16, 1854; Collected Works vol. II, 252. Return to text.

36. Ibid., 253. Return to text.

37. Ibid. Return to text.

38. Ibid. Return to text.

39. Ibid.,253-254 (emphasis on original). Return to text.

40. Ibid., 259. Return to text.

41. Ibid. Return to text.

42. Fehrenbacher, Slavery, Law, and Politics, 86-87. Return to text.

43. Ibid., 85. Return to text.

44. Ibid., 85-87. Return to text.

45. Ibid., 87. Return to text.

46. Abraham Lincoln, speech delivered in Peoria, Illinois, October 16, 1854; Collected Works vol. II, 254. Return to text.

47. Fehrenbacher, Slavery, Law, and Politics, 88. Return to text.

48. Ibid. Return to text.

49. Ibid., 87-88. Return to text.

50. Ibid. Return to text.

51. Ibid. Return to text.

52. See, Fehrenbacher, Slavery, Law, and Politics, 87, and Collected Works vol. II, 259. Return to text.

53. Abraham Lincoln, speech delivered in Peoria, Illinois, October 16, 1854; Collected Works vol. II, 259. Return to text.

54. Fehrenbacher, Prelude to Greatness, 23. Return to text.

55. Lord Charnwood, Abraham Lincoln, (New York, 1917), 118. Return to text.

56. Fehrenbacher, Prelude to Greatness, 23. Return to text.

57. Ibid. Return to text.

58. Abraham Lincoln, speech delivered in Peoria, Illinois, October 16, 1854; Collected Works vol. II, 266. Return to text.

59. Abraham Lincoln, letter to Joshua F. Speed, August 24, 1855; Collected Works vol. II, 323. Return to text.

60. Abraham Lincoln, speech delivered in Peoria, Illinois, October 16, 1854; Collected Works vol. II, 265. Return to text.

61. Ibid., 265. Return to text.

62. Ibid., 264. Return to text.

63. Ibid. Return to text.

64. Ibid., 265. Return to text.

65. Fehrenbacher, Slavery, Law, and Politics, 92. Return to text.

66. Ibid. Return to text.

67. Ibid. Return to text.

68. Ibid., 93. Return to text.

69. Ibid. Return to text.

70. Ibid. Return to text.

71. Ibid. Return to text.

72. Encyclopedia of the American Constitution, 1986 ed., s.v. "Dred Scott v. Sandford," by Don E. Fehrenbacher. Return to text.

73. Ibid. Return to text.

74. Fehrenbacher, Slavery, Law, and Politics, 129. Return to text.

75. Ibid. Return to text.

76. Ibid. Return to text.

77. Ibid., 137. Return to text.

78. Ibid., 136. Return to text.

79. Ibid. Return to text.

80. Ibid., 137. Return to text.

81. Ibid., 138. Return to text.

82. Ibid., 140. Although Dred Scott's new owner was one John Sanford of New York, the spelling of his name appeared as "Sandford" on the official recordings of the court and had never been changed. Return to text.

83. Ibid. Return to text.

84. Ibid., 144. Return to text.

85. Ibid., 145. Return to text.

86. Ibid., 146. Return to text.

87. Ibid. Return to text.

88. Ibid., 176. For a more comprehensive discussion of this question see especially chapters 6, "Before the Court," and 7 "The Opinion of the Court." Return to text.

89. Ibid., 177. Return to text.

90. Ibid., 182. Return to text.

91. Martin Siegel (ed.), The Supreme Court in American Life vol. 3, "The Taney Court 1836-1864," (Associated Faculty Press, 1987), "Dred Scott v. Sandford," 207-216. Return to text.

92. Fehrenbacher, Prelude to Greatness, 40-69. Chapter 3, "The Senatorial Nomination, "deals with the question of Douglas' attachment to the Republicans for the purpose of defeating the Lecompton constitution. It addresses the political motivations and the practical consequences of this move. My discussion of this is drawn, in the main, from this chapter. Return to text.

93. Ibid., 60. Return to text.

94. Ibid., 61-62. Return to text.

95. Ibid. Return to text.

96. Johannsen (ed.), The Lincoln-Douglas Debates, 21. Return to text.

97. Harry v. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates, (The University of Chicago Press, Chicago, 1959 and 1982), 298. Return to text.

98. Ibid., 297. Return to text.

99. Johannsen (ed.), The Lincoln-Douglas Debates, (Second Joint Debate, Freeport, August 27, 1858) 79. Return to text.

100. Ibid., 88. Return to text.

101. Siegel (ed.), The Supreme Court in American Life vol. 3, "The Taney Court 1836-1864" (from Dred Scott v. Sandford,) 215. Return to text.

102. Johannsen (ed.), The Lincoln-Douglas Debates, 88. Return to text.

103. Siegel (ed.), The Supreme Court in American Life vol. 3, "The Taney Court 1836-1864" (from Dred Scott v. Sandford), 215. Return to text.

104. Abraham Lincoln, at Springfield, Illinois, June 16, 1858; Collected Works vol. II, 462. Return to text.

105. Jaffa, Crisis of the House Divided, 276. Return to text.

106. Ibid. Return to text.

107. Abraham Lincoln, Letter to Henry L. Pierce and Others, Springfield, Illinois, April 6, 1859; Collected Works vol. III, 376. Return to text.

108. Abraham Lincoln, speech at Springfield, Illinois June 26, 1857; Collected Works vol. II, 406. Return to text.

109. Jaffa, Crisis of the House Divided, 277. Return to text.

110. Abraham Lincoln, speech at Republican banquet, Chicago, Illinois, December 10, 1856; Collected Works vol. II, 385. Return to text.

111. Johannsen (ed.), The Lincoln-Douglas Debates, (House Divided Speech) 17. Return to text.

112. Abraham Lincoln, speech delivered at Columbus, Ohio, September 16, 1859; Harry V. Jaffa, Robert W. Johannsen (eds.), In the Name of the People: Speeches and Writings of Lincoln and Douglas in the Ohio Campaign 1859, (The Ohio State University Press, Columbus, 1959.), 237. Return to text.

113. Jaffa, Crisis of the House Divided, 348. Return to text.

114. Abraham Lincoln, speech at Columbus, Ohio, September 16, 1859; Jaffa, Johannsen (eds.), 269. Return to text.

115. Thomas Jefferson, First Inaugural Address, March 4, 1801; Harvey C. Mansfield, Jr. (ed.), Selected Writings: Jefferson, (Harlan Davidson, Inc., Arlington Heights, Illinois, 1979), 63. Return to text.

116. (Taken from Lincoln's speech at Springfield, Illinois, June 26, 1857 where he quotes Douglas), Collected Works vol. II, 406. Return to text.

117. Ibid., 407. Return to text.

118. Fehrenbacher, Slavery, Law, and Politics, 230. Return to text.

119. Ibid., 76. Return to text.

120. Harry v. Jaffa, "Value Consensus' in Democracy," in Equality and Liberty: Theory and Practice in American Politics, (Oxford University Press, New York, 1965), 78. Return to text.

121. Ibid., 82. Return to text.

122. Thomas Jefferson, First Inaugural Address; Mansfield (ed.), 63. Return to text.

123. Jaffa, "'Value Consensus' in Democracy," in Equality and Liberty, 82. Return to text.

124. Ibid., 86. Return to text.

125. Ibid., 82-83. Return to text.

126. Ibid., 88-89. Return to text.

127. Ibid., 89. Jaffa demonstrates this point by pointing to an argument that Lincoln advanced:

"If A. can prove, however conclusively, that he may, of right, enslave B.—why may not B. snatch the same argument, and prove equally, that he may enslave A.?

You say A. is white, and B. is black. It is color, then; the lighter having the right to rule the darker? Take care. By this rule, you are to be slave to the first man you meet with fairer sin than your own.

You do not mean color exactly? You mean the whites are intellectually the superiors of the blacks; and therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet with an intellect superior to your own. But, say you, it is a question of interest, and if you can make it in your interest, you have the right to enslave another. Very well. And if he can make it in his interest, he has the right to enslave you." Return to text.

128. Abraham Lincoln, address at Cooper Institute, New York, February 28, 1860; Collected Works vol. III, 550. Return to text.