Some weeks back, I asked why—morals aside—our constitutional notion of equality should care to remedy the racial and gender disparities. What should equality mean in a democracy? Slavery, perhaps this nation’s ultimate morally charged constitutional question, seems a natural place to start the inquiry. Indeed, right off the bat, we hit a similar curious question. The Thirteenth Amendment tells us that slavery is forbidden—but does not tell us why. The moral imperative is plain: treat others as you would be treated. But is that it? Must the abolition of human chattel enslavement in a democracy depend entirely on the moral clarity of the voting populous? Lincoln thought not.
In Crisis of the House Divided,[1] political theorist Harry Jaffa asks and answers what possessed the unlikely-contender and on-again-off-again politician Abraham Lincoln to contest the 1858 Senate election against the titan of American politics, Stephen A. Douglas, and—both ultimately and more importantly—to shatter the Union’s political consensus. Every American grade school history touches on the Lincoln-Douglas debates, but beyond the cursory mention of “popular sovereignty,” it seems (if my experience carries any weight) few of us grasped the import. At ground level, the two clashed over slavery’s potential expansion into the territories, namely what would become Kansas and Nebraska, and presumably also the land in between and north of those future states and California. More seriously, the two debated slavery’s fundamental compatibility—or not—with self-government. The weight of the question bears a fulsome retelling.
Perhaps to the reader’s surprise, Jaffa dedicates the first portion of his text to a favorable distillation of Douglas’ position, to the point where one might fairly wonder what tree the mad-Kentuckian was barking up. In this telling, Douglas’ apparent indifference to slavery masked not a broken moral compass, but instead rested upon the Senator’s utter devotion to the principle of “popular sovereignty”—to local rule, even regarding the most important questions. True, at times Douglas’ immediate actions appeared to conflict with this principle. He supported the various Federal interpositions on the matter, namely the Missouri and 1850 Compromises. But those merely served, first, to preserve the Union and, second, largely vindicated local opinion (as, for that matter, he believed the old Northwest Ordinance of 1789 did). So viewed, in the contingency of circumstance, Douglas remained true to his principle: the sanctity and competence of local rule.
And, indeed, if one really abhorred slavery, what empirical quarrel could be had with the Senator? The cotton plantation had reached its natural territorial limits. Who, after all, would populate our Manifest Destiny if not the teaming recent immigrants of the Northeast—all wary of competition from enslaved labor. Already, Northwest Ordinance or no, the old Northwestern settlers had decided in favor of Free Soil. So too, recently, California. So too, likely, Nebraskans (for that matter, Kansans were headed in that direction too—Lecompton affair notwithstanding). Why manufacture sectional controversy when slavery seemed ready to resolve itself?
But, of course, Lincoln via Jaffa replies, the matter would not have resolved itself. Aside from the fact slavery had not, in actuality (as Jaffa later notes), reached any “natural” boundaries. Politically, Douglas owed his success in resisting the Lecompton fraud (where pro-slavery voters, including many Missourians, stuffed Kansas ballot boxes to establish a slave-constitution) to the Republicans who categorically opposed the expansion of slavery. And legally, atop the Fugitive Slave Act (part of the Compromise of 1850), the infamous Dred Scott decision, nullifying Congress’s power to prohibit slavery in the territories, offered an easy springboard for the Supreme Court to soon declare that states too could not prohibit slavery within their jurisdiction. Practically speaking then, there was nothing local about it—the cancer was not content to remain a regional quirk in the American system.
More fundamentally, though, Douglas erred not simply in a naïve attempt to stitch consensus between a North whose abolitionists rejected one possible end of popular rule and a South whose Calhounian tradition denied its means, but in his unadulterated adherence to the popular will. That the popular will often, if not usually, led to right, Lincoln did not dispute. Their dispute lay in why the popular will mattered.
To Lincoln, the Declaration’s recognition that “all men are created equal” supplied the answer: No man is good enough to rule another without his consent. This necessary consent of the governed—embodied in, among others, the popular will—marks the foundation of self-government (without which the Constitution could not have been framed). Democracy thus consists not in the mere form of democratic decisionmaking but in the continuing maintenance (even renewal) of the substantive principles supporting the self-government—prime among them: human equality. In upholding the majority will to whatever end, Douglas would have voters reject their own governing mandate.
In both theory and practice, then, slavery fundamentally contradicts democratic self-government. Lincoln included black Americans in the proclamation of equality—whether the Founders intended that or not (though both Jaffa and Lincoln argue they did, at least in part), they simply discovered more than they appreciated. And so, on principle, in denying equality, human enslavement necessarily denies the consent of the governed, and thus contradicts democracy. Equally so in fact, Lincoln argued. Any justification of black enslavement justifies white. Permitting each community to pick and choose among their basic principles inexorably leads to nullification and disunion. Majorities subjugate minorities until only minority remains. Popular sovereignty by necessity devours itself.
Lincoln’s problem, and ours, was that the Founders compromised all of this by instantiating slavery in the Constitution. The Reconstruction Amendments remedied that. But the importance of Lincoln’s reasoning lies not just in his transformation of (as conservatives then and now often argue) an otherwise personal moral issue into a salient political one, but in recognizing its fundamental constitutional import. The Thirteenth Amendment no more made slavery wrong than the Fourteenth Amendment made racial animus wrong. Both merely corrected errors which threatened our entire democratic project.
[1] Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (3d 1982).