Recall Lincoln’s (via Harry Jaffa) argument against slavery from earlier in the summer. Lincoln creatively interpreted Jefferson’s line that “all men are created equal” as a meaningful substantive constraint on, and indeed the basis for, democratic self-government. Human equality means that no man is good enough to rule another without his consent. No man a god; no man a slave. Enslavement denies the precept of democracy: consent of the governed. And so, enslavement contradicts democracy. The Thirteenth Amendment prohibits it. Lincoln tells us why.
Yet abolition presented its own questions—“It is rather for us to be here dedicated to the great task remaining before us . . . that this nation, under God, shall have a new birth of freedom.” Abolition left millions of penniless, landless, and homeless freedmen scattered across a ravaged land that still—North and South—viewed them as outsiders, if not inherently inferior. Lincoln’s syllogism against slavery, after all, had been race neutral! Before crowds who would just as easily expel all black Americans from the State of Illinois (if not the continent!), he proclaimed man’s natural equality and the immorality of the institution that enslaved those seen fit for it, but solicited votes against slavery predicated on its potential to degrade the white man’s working conditions too. Lincoln’s simple and individual argument did convince ordinary Americans to oppose the condition of enslavement, and did provide a simple constitutional basis, but it did not fully address the bases for American chattel enslavement. An ordinary convert to Lincoln’s cause in 1858 might easily still believe black Americans racially inferior, even if they should not be enslaved. As he explained at Charleston, Illinois, on September 18, 1858:
I will say then that I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races, [applause] that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality.
Was freedom nothing more than permission to starve or scrape by meager livings, disenfranchised and unwanted in the land of one’s birth?
Much of Lincoln’s apparent ambivalence might be explained away as the contingent, fleeting concessions of pragmatic politics. He, Jaffa notes, could not realistically push for the extension of political rights to black Americans in 1858 without sacrificing the cause of abolition in the first place. “Lincoln understood the task of statesmanship . . . to know what is good or right, to know how much of that good is attainable, . . . to act to secure that much good,” and to not “do anything to hinder future statesmen from more perfectly attaining his goal.”[1] Consider the circumstances prompting Lincoln’s moderation. Thus far in his political career, he had watched the once promising-enough cause of abolition—buoyed by Jefferson’s prophecy, Congressional abolition of the import of the enslaved (on the first day Constitutionally permitted!), and both the Northwest Ordinance (passed by the First Congress, no less!) and the Missouri Compromise barring slavery’s expansion North—dashed by Southern conquest of Northern Mexico, repeal of the Missouri Compromise in 1854, and the Supreme Court’s rejection of Congressional authority to abolish slavery in the territories in 1857’s Dred Scott v. Sandford—an obvious first step toward rejecting the States’ authority to do the same within their jurisdictions. By 1858, Lincoln had been reduced to preaching slavery’s immorality to white supremacists. Necessity demanded as much of his arguments as did reason.
Moreover, parse the master litigator’s concessions carefully. Lincoln admits in the present (“am not”) and past (“have never been”) tenses. Strictly, he admits nothing of the future.[2] Sure enough, Lincoln moved forward on the matter during the War. After decades defending the Missouri Compromise from slavery’s expansion, once elected (during the Secession Crisis) he categorically rejected its renewal—and its recognition of slavery’s dominion over the South—in the Crittenden Compromise. Though he trod carefully around the Border States, initially rejecting emancipatory efforts, he soon pressed for compensated emancipation. That failing, he ordered emancipation by military necessity—uncompensated. And by the end of the War, Lincoln had laid the groundwork for black veterans’ enfranchisement. While his state of mind in 1858 remains murky, Reconstruction under Lincoln’s hand would hardly have been constrained by concessions made in darker days.
The foregoing seems sufficient explanation. Politics is a dirty business, paths jagged. If some horrific concessions are the price of effective politics, one finds it difficult to argue with Lincoln’s results. But Jaffa attempts a principled explanation—defense, actually—of Lincoln’s troubling disclaimer: that insofar as emancipation solicited black Americans’ consent to governance, an opportunity to emigrate might justly be afforded in lieu of citizenship.
The ethnocidal impracticality of expelling millions from the land of their birth seems at least as remarkable as the proposition that the United States should spend upwards of six hundred thousand lives securing the freedom of their fellows only to banish them. We may grant for the sake of argument that some Freedmen, perhaps many, did not want to be Americans. Who can blame them? But radical one need not be to recognize that having constructed—constituted, one might say—a major portion of this nation, black Americans by their toil already counted among the People. True, “[a]dmission to the status of citizen is always something for the legislative power in civil society to determine, from the point of view of the advantages of society.”[3] Yet one doubts that a champion of conservatism preaching the Anglo-American compact theory of government would so quickly abandon the Anglo-American Common Law of Contract—unless the Common Law tenet to treat likes alike does not span skin color? A hornbook’s grasp of the subject would recognize that white America offered and consented to black Americans’ participation in civil society by importing them and reaping the benefit. Perform (as my Contracts professor would admonish) the compact.
Turning to the question at hand, though, why not make citizens of the Freedmen? The public will, Jaffa assures us, would not admit it. “Lincoln said over and again that he believed opinion was well-nigh universal in the country against any more equality for the Negro than that implied in a policy of turning slavery back on its existing legal rights in the slave states.” Eighteen score and twelve-odd pages into a tome proclaiming the statesman’s role in shepherding the public will within substantive limits compatible with democratic self-government, we are suddenly to throw up our hands at the notion that American public opinion stood against black citizenship? Apparently so. “Now the opinion of the governed, unfortunately for the utopians for the world, does not always favor the full and unequivocal recognition of that very equality which, alas, constitutes the title deeds of its own authority.” “Political justice, as a compound of equality and consent, requires deference to opinions which deny many of the implications of abstract equality.” The philosopher might take the attorney’s advice: don’t answer unasked questions. For what public will but act of Congress in 1866 and Constitutional Amendment by 1868 made citizens of the Freedmen? Nevertheless, Jaffa defends the justice of the bypassed public opinion:
[T]he privileges of citizenship are not unalienable natural rights but civil rights, to be determined by civil process . . . no man need be accepted whose joining does not make the others feel more secure . . . [it] is clear that Negro slaves were not members of the civil society established in 1776 or of the one perfected in 1787 . . . In any case [the Freedman] was certainly a non-member. The principles of the Declaration do not require that any one who chooses to reside in a land where he is not a member of the polity has a right to a share in the government of that polity merely because he is subject to its laws. The proposition that all the governed have a right to an equal voice in the government applies only to those who are members of the civil society. Whether rightly or wrongly, the overwhelming opinion of white Americans before the Civil War was that Negroes were not fit to exercise the privileges of citizenship . . . The right to emigrate was a corollary of the right to liberty.
Expulsion, we are told, might justly follow abolition.[4]
If Jaffa means to discuss merely who might become a citizen, that left unsaid dredges a deeper question. Why did the overwhelming public opinion believe black Americans unfit for citizenship? Our great moralist does not say. But we know the answer: racial animus—America enslaved those seen fit for bondage. The real question, then, is this: if democracy cannot survive the state of enslavement can it nevertheless survive its bases? By Jaffa’s own teachings, no.
Now, a gracious reader might, “[w]hether rightly or wrongly,” credit Jaffa for merely defending and not himself adopting Americans’ “overwhelming” racial animus. But it is hard to see how such a racial barrier between freedom and citizenship would not negate Jaffa’s framing of America as a credal rather than ethnostate (or of the elect deliberating under God—to the extent the two differ). If we may within the framework of democracy justly limit our recognition of others’ equal humanity to those of our own race, then our creed means nothing. Moreover, just as Jaffa teaches that Douglas’ moral indifference to human enslavement opened the door for its expansion across continent (and race), so too the moral allowance of racial animus toward any permits it toward all. We know race to be a social construct. And experience proves no “white” man safe from racial animus; just ask the Irish. It should come as no surprise that racial animus—the basis for American chattel enslavement—embodies the same pernicious tendency to swallow all around it that the state of chattel enslavement did. Majority subjugates minority until only a tyrant remains.
Consistency and practicality aside: Jaffa’s teachings impart a more fundamental lesson: The racial animus that would justify limitation of or exclusion from citizenship would necessarily justify enslavement. Consent of the governed may be necessary for democracy, but is by no means sufficient. Democratic majority rule requires our submission to the votes of others, especially when we find ourselves in the minority. “Those forming a civil society by means of compact can do so only in virtue of their prior recognition of each other’s equal humanity.”[5] In more concrete terms, submission to the vote of another requires recognition of the other’s basic capacity for self-governance. So the basic equal human dignity and capacity that entitles one to be governed only by consent also qualifies one for citizenship (the process of naturalization comprising no more than formal offer, assurance, and marking of mutual consent).
One might be tempted to distinguish capacity for democratic or communal self-government from capacity for personal self-government. That would be folly; no one acts in a vacuum. Even Aristotle recognized the inherent link between the two, teaching the injustice of enslaving those “who [are] morally and intellectually capable of managing their own lives without injury to others.”[6] That is, the mark of fitness for freedom is simultaneously personal and communal—the ability to order ones affairs and play well with others. This, of course, makes sense. If demos truly differs from aristos (or whatever it is in Greek—I did my undergrad in aerospace engineering, not classics), then the basic human capacity for self-governance suffices for one to join the communal project. We may certainly search for the best representatives to form a government. But democracy resides in the principle that each individual is entitled to vote based on whether she can put bread on the table. Denial of that basic human dignity, on whatever animus or prejudice, subordinates.
Before closing, it’s worth answering another question Jaffa glances over. Why jump to expulsion? Why not grant Freedmen the ready-made status of free-person-lacking-political-rights, that of white women? Because, for all the reasons above, a large, permanent, disfavored and disenfranchised minority cannot remain free. More so. Lincoln’s phrasing, disavowing social and political equality, implicitly confers some civil equality with free-status. But those old rights buckets, useful in theory, never hold in practice. For one, stupid is as stupid does—believers in social or political inequality vote like it. That is, no one who opposes interracial marriage or integrated schools votes in favor of black voting rights. The question isn’t how much social or political equality civil equality buys. It’s how much civil equality social and political inequality tolerate. Judging by the example of women in this nation, not much. Law rarely serves those excluded from its drafting.
For another, rights have a nasty habit of bouncing around the buckets depending on favor. Despite Congress naming equal access to public accommodations in the Civil Rights Act of 1875, the Court discussed such accommodation in both 1883’s Civil Rights Cases and Plessy v. Ferguson as social issues. And consider education—which Montesquieu ranks among the most important bases of republican citizenship, or bodily autonomy and marriage equality (both race and sex)—matters central to one’s self-governance, each long treated as mere social matters in American law.
The immediate answer seems clear enough. On emancipation, freed black Americans had to be offered equal citizenship. And so we did—sort of. We have yet to fulfill the reasons for that correct action. Democracy rests upon the mutual recognition of our shared dignity and capacity for self-governance, our compact to rule by majority will, and the acceptance that we may sometimes be in the minority—subject to disagreeable rule by others. Equality marks each of us as fit for citizenship. And it rejects not just the state of enslavement or subordination, but the animosities and prejudices that give rise to it. Any way you cut it, Jaffa-via-Lincoln teaches the folly of dividing the human species into the elect and not, lest all be enslaved by the greatest. One searching for the floor between fitness for citizenship and fitness for freedom will find none. Denial of either leads to subordination.
[1] Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates 370–71 (3d 1982).
[2] Id. at 383.
[3] Id. at 379.
[4] Id. at 372–80.
[5] Harry V. Jaffa, A New Birth of Freedom: Abraham Lincoln & the Coming of the Civil War 115 (2000)
[6] Crisis at 345.
Bobby nicely lights up the point that treating certain people as “socially” inferior equates with, or at least inevitably leads to, treating them as legally inferior. Equal is equal, at the voting booth and at the lunch counter. One may hope that Bobby will soon address the next question: when a society has in fact denied basic equality to a group, may that society pay special “affirmative” attention to that group in order to remedy the past injustice?