Lincoln's Mentors

by Michael J. Gerhardt

  In Illinois, Republicans did better than expected, winning four congressional districts, more than the Whig Party ever had in a single election. Lincoln and Browning were vindicated in their belief that a former Democrat had a better chance than a former Whig at winning an election against a Democrat when their candidate for the House, William Bissell, won.

  Lincoln had grown experienced in counting votes for logrolling in the state legislature and later in nominating conventions and general elections. In 1856, the Democrats had won the presidential election again in Illinois, but the margin between Buchanan and Frémont was less than 4 percent in the popular vote. By Lincoln’s estimate, the results in Illinois and the nation were equally promising for the Republicans: Buchanan had won in both because the opposition vote was split between Frémont and Fillmore. Fillmore received over 15 percent of the popular vote in Illinois, nearly four times the margin separating the two major candidates there.

  After the election, in December 1856, Lincoln told a gathering of Chicago Republicans that the path to the White House was clear—if all the factions that opposed Buchanan could “let [their] past differences, as nothing be” and could agree that the proposition that “all men were created equal” was “the ‘central idea’ in our political public opinion,” then the Republicans could win the next presidential election.30 This might have sounded to many as obvious but hard to do, but for Lincoln, the essential thing that winning required was maintaining party unity, a theme he had been stressing since Clay lost in 1844. For that strategy to work, Lincoln believed only a moderate could draw enough support to win in 1860. But the political landscape could change a lot over the next four years. And it did.

  IV

  * * *

  As a lawyer, Lincoln well understood that Supreme Court appointments were among the most important legacies of a president. Once on the Supreme Court, justices—appointed for life—decided the great constitutional questions of the day and would continue to do so for decades thereafter. They were beyond any political retaliation, and if one shared the same constitutional outlook as the president who nominated him, he would entrench that view into the fabric of American constitutional law for many years after that president left office. The Constitution empowers every president to nominate justices—and everyone in the Senate with the authority to confirm or reject them based on their merit or outlook.

  When Lincoln was a child and until his early twenties, the man who presided over the Court was John Marshall, who had studied law with the same man whom Clay had studied with. Marshall came to the Court appointed by the last Federalist president, John Adams, and remained as its leader long after Adams’s Federalist Party died. In his nearly thirty-five years as chief justice, Marshall wrote many of the Court’s landmark opinions upholding the Federalist vision of a strong national government. Among these, as Lincoln and Douglas knew, was the opinion in 1819 upholding the national bank, a centerpiece of Clay’s American System. Marshall died in 1835 renowned as the Great Chief Justice for having maintained comity on the Court and having raised its stature among the grand institutions of the federal government. To replace Marshall, Jackson appointed his closest political adviser and attorney general, Roger Taney. Taney had written Jackson’s famous veto against Clay’s national bank in 1832.

  Now, in a case that began in a small courtroom in St. Louis, the Court had to make the biggest decision it had ever confronted, and the nation knew and watched. At issue in the case, called Dred Scott v. Sandford, was the constitutionality of Clay’s other singular achievement, the Missouri Compromise. Rumors swirled through Washington that, in preparing for his inauguration, Buchanan had written the two Pennsylvania justices on the Court—John Catron and Robert Grier—asking them to side with the slave-owners challenging the agreement Clay had forged in Congress. Taney assured Buchanan, both before his election and on the day of his inauguration, that he had the case well in hand and that Buchanan and the Democratic Party should expect a welcome outcome. The decision in Dred Scott came down on March 6, 1856, just two days after Buchanan was sworn in. The timing confirmed the widespread suspicion that the Court’s majority was conspiring to take the heat off Buchanan by solving the slavery debate on its own.

  At stake in the case was the fate of Dred Scott, a Missouri slave, who had been taken by his owner, army surgeon Dr. John Emerson, first to Rock Island, Illinois, whose constitution prohibited slavery and which, as Lincoln repeated in more than a few speeches, was covered by the Northwest Ordinance, which prohibited slavery. From Illinois, Emerson took Dred Scott to Fort Snelling, in the Minnesota Territory, where slavery had been barred by the Missouri Compromise. After returning to Missouri, Emerson died. Scott found a lawyer—former Jacksonian Democrat Montgomery Blair, the son of Francis Blair, who had helped Jackson found the Democratic Party and had run the newspaper that became Jackson’s mouthpiece while he was in office. (The entire Blair family left the Democratic Party in protest over the Kansas-Nebraska Act.) Before the Supreme Court, Montgomery Blair argued that Scott had been made free as a result of having traveled through Illinois and the Missouri Territory, both of which had stripped him of whatever slave status he had and regarded him as a free man.

  Though each of the nine justices wrote an opinion, Taney wrote the official opinion for the Court, joined by six others. First, the Court ruled that Scott was not entitled to sue, because only citizens of the United States could bring a lawsuit in federal court and as a slave (and descendant of Africans), he was not eligible to be a citizen of the United States. Taney declared that the framers never intended for Negroes to be citizens of the United States, that, at the time of the founding, enslaved Negroes were considered “so far inferior, that they had no rights which the white man was bound to respect,” and the framers had not included them in either the Declaration of Independence or the Constitution.31

  Second, the chief justice ruled that traveling through the Missouri Territory did not transform Scott into a free man because the Missouri Compromise was unconstitutional. On behalf of the majority, Taney explained that slaveholders had a constitutional right to own slaves under the Fifth Amendment of the Constitution, which protected their property from being deprived without “due process of law.”32 Taney said the law did just that, and so he undid another centerpiece of Clay’s legacy.

  If there was anything novel in what the Court did, it was the decision holding that the Constitution affirmatively protected slavery. But, in terms of reasoning, there was little new in the opinion insofar as Lincoln was concerned. He knew the arguments against the Missouri Compromise well; he had studied that law and followed the congressional debates on its constitutionality for more than two decades. He had also discussed it at length in his eulogy for Clay and again in his speeches in Springfield and Peoria in 1854. Well versed in the arguments that slave-owners and Democratic senators like John Calhoun and Jefferson Davis had been making for years about the rights of slave-owners to own slaves, Lincoln saw no reason to rehash these arguments now. Much as he had once joked to a friendly audience, with respect to the Kansas-Nebraska Act, he said that he “could not help feeling foolish in answering arguments which were no arguments at all.”33

  On the merits, Lincoln agreed with the two dissenting opinions. One was written by Justice John McLean, whom Lincoln and Browning had supported more than once for president. They knew McLean supported the Missouri Compromise, so it was no surprise that he dissented. Jackson never said much about the Missouri Compromise after it had been signed into law by President Monroe in 1820, but everyone presumed his silence meant he supported it. As a Jackson appointee, McLean was a living reminder of the complexity of Jackson’s legacy.

  The other dissent came from Benjamin Curtis, a Fillmore appointee. Lincoln agreed with his argument that slavery was wrong and violated the promise of the Declaration of Independence. Curtis had taken the dramatic step, after issuing his dissent, of resigning in protest of the decision, but he merely enabled Buchanan to replace hi
m with Nathan Clifford, a virulently proslavery zealot whom the Senate approved 26–23, the closest Senate confirmation vote up until that time.

  The Dred Scott decision placed the Court at the center of national attention. Lincoln, too, closely followed the case. As a lawyer, he was disposed to be respectful of the Court, even when he knew it was wrong. Indeed, he had previously defended the Court as the ultimate arbiter of disputes over slavery. During the 1856 presidential campaign between Buchanan and Frémont, Lincoln said, “The Supreme Court of the United States is the tribunal to decide such questions,” and he pledged for the Republicans that “we will submit to its decisions; and if [the Democrats] do also, there will be an end to the matter.”34

  Lincoln did not publicly discuss the decision until Douglas gave him the opportunity. In June 1857, Douglas returned to Illinois to defend the “honest and conscientious” justices in the majority and to condemn any criticism of the Court as a “deadly blow at our whole republican system of government.”35 He heartily agreed with Taney’s claim that African Americans belonged to “an inferior race, who, in all ages, and in every part of the globe . . . had shown themselves incapable of self-government.”36 It was not uncommon for people who defended slavery to claim it kept white women safe from African American men or for the people who owned slaves to rape and terrorize them, and Douglas, true to form, warned his constituents that Republicans favored the “amalgamation, between superior and inferior races.”37

  On June 26, 1857, Lincoln delivered a speech at the State House in Springfield, responding to Douglas’s defense of the Dred Scott decision. He began, as expected, by declaring that the decision was “erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it over-rule this. We offer no resistance to it.”38 As he had in the past, Lincoln was expressing the classical respect for a Supreme Court decision that might have been wrongly decided; there was a right way to undo it and a wrong way. The wrong way was to disobey it. Clay would never have sanctioned flouting the rule of law, and Lincoln would not go that far either. Instead, Lincoln was reminding his audience that the Constitution provides legitimate ways to overrule or undo erroneous decisions, including persuading the justices that they erred. Another, but not one mentioned in Lincoln’s speech, was appointing justices who would move the Court in a different direction.

  Lincoln knew that Douglas, once the beneficiary of the Illinois Democrats stacking the state supreme court to rule as they would like, was being hypocritical in his praise for the Court. Rather than being guilty of any such hypocrisy himself, Lincoln instructed his audience on how weak the opinion was and built the case for its overruling. In January 1856, Lincoln acknowledged that, if the Court had decided that Dred Scott was a slave, he “presumed, no one would controvert its correctness.”39 Now, in June, he went further: “If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history,” it would be “factious, nay, even revolutionary,” not to accept it.40 But that was not this case. When a majority of the justices—overruling numerous precedents and ignoring Justice Curtis’s historical evidence showing many states had recognized African Americans as citizens—extended their ruling to an entire race, it was wrong. Thus, the decision lacked the attributes of a decision commanding respect from the other branches and the American people. Without saying so, Lincoln was questioning this Court’s legitimacy.

  Lincoln did not end his speech there. He was especially troubled by Chief Justice Taney’s claim that neither the Declaration of Independence nor the Constitution was ever intended to include African Americans. Lincoln declared that Taney was doing “obvious violence to the plain unmistakable language of the Declaration,” which used to be thought by Americans to include everyone.41 In this, Lincoln agreed with Clay that the Declaration’s great pronouncements were intertwined with the Constitution. But the Declaration, on Taney’s reading, “is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it.”42 Not only was Lincoln making it clearer that the decision lacked legitimacy, but he never again spoke of the Taney Court with any respect; indeed, he largely ignored it.

  The legitimacy of the Court’s decision, Lincoln argued, was eroded further by Taney’s appearing to be in league with Douglas and the Democratic Party. For many Radical Republicans, this was the heart of the matter, though it took Lincoln time to get there. He charged that Taney and Douglas had allied to oppress Negroes and conspired to perpetuate and extend slavery. Lincoln argued that Douglas tried to make the oppression tolerable by suggesting Republicans wanted to have sex with black women. Lincoln rejected “that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife.”43 The authors of the Declaration of Independence never intended “to say all were equal in color, size, intellect, moral developments, or social capacity,” but they “did consider all men created equal—equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.’”44

  In the end, this was not a radical speech, though many would charge that it was. Instead, it was Lincoln’s return to the familiar ground that he shared with Clay (and the old-line Whigs he was wooing) that the Constitution must be understood in light of the promises of the Declaration of Independence.

  V

  * * *

  Lincoln was determined in 1858 not to repeat the mistake he’d made too many times before, as when he’d last delayed entering the Senate race. Now he wasted no time. Two years before the Senate election, he hustled to consolidate support within the Republican nominating convention in Illinois. In August 1857, he began encouraging his fellow Republicans to do something “now,” in letter after letter, to take control of the Illinois state Senate. It was imperative Republicans capture the Senate because it would be selecting whoever took Douglas’s seat.45

  Clay had never been subtle in his campaigns. Regardless of whether he was running for the House, Senate, or presidency, he let the world know his views loudly, if not clearly. It was not always a winning strategy for Clay; he peaked too soon in every presidential race he ran. Particularly with respect to securing his party’s nomination for the Senate, it would be better, Lincoln thought, to consolidate support within his party while the opposition was preoccupied with smoothing the path for its nominee—this time, Douglas, of course—to win the general election. “Let all be so quiet that the adve[r]sary [Douglas] shall not be notified,” Lincoln advised his supporters.46

  It came as some surprise to Lincoln, however, that continuing violent instability in Kansas transformed the upcoming midterm election. Lincoln characterized what unfolded next as “the most exquisite farce ever enacted.”47 President Buchanan wanted to rush the admission of Kansas through Congress, but Free Soil voters in Kansas decided not to participate in the selection of a state Constitution because they thought it was rigged against them. As a result, only about 2,200 voters out of the registered 9,000 showed up at the state convention held in Lecompton, Kansas, which was charged with drafting the new constitution for Kansas. Unsurprisingly, the delegates drafted a proslavery constitution, which guaranteed not only that roughly two hundred slaves already in Kansas would remain in bondage but that their offspring would also be slaves. The new constitution further provided that it could not be amended for seven years. Then the delegates rejected Buchanan’s advice that they should ratify the constitution they had just drafted. Instead, they arranged for a referendum on the question of whether more slaves could be introduced into the state.

  Eager for the Kansas crisis to be settled, Buchanan preemptively kept pushing for the convention to ratify a new constitution. When the delegates produced the proslavery constitution he had been pushing, their Lecompton Constitution
, Buchanan sent it to Washington for Congress’s approval.

  To nearly every Democrat’s surprise, Douglas split with Buchanan and decided to oppose the Lecompton Constitution. Because it was increasingly likely he would face Lincoln in the Senate race set for the next year, he understood that Lincoln would press him mercilessly on the defects of the drafting of the document—particularly on the failure to follow the prescribed path for admission, which required a statewide referendum on the new constitution. Douglas was already losing public support over the Kansas-Nebraska Act, Bleeding Kansas, and the Dred Scott decision, each becoming an albatross he had to shake in order to keep his seat and begin his presidential campaign.

  The Lecompton Constitution violated Douglas’s principle of popular sovereignty because the inhabitants of the Kansas Territory had not actually exercised their right to choose their own form of government. It was a constitution foisted on the people of the state rather than one they had approved themselves. Douglas knew that—and publicly acknowledged as much. He vowed to lead the Senate fight against the Lecompton Constitution. He denounced it as “a flagrant violation of popular rights in Kansas” and a violation as well of “the fundamental principles of liberty upon which our institutions rest.”48 He stressed that he took issue not with the proslavery constitution itself but rather with the process by which it was adopted.

  The announcement permanently estranged Douglas from Buchanan, who began to systematically remove all Illinois patronage from Douglas’s control. However, much to Lincoln’s chagrin, Douglas’s opposition to the Lecompton Constitution pleased Republicans nationwide, and Senator Trumbull went further to suggest that, despite the fact that Douglas was a Democrat, the Illinois Republicans nominate him as their candidate for the Senate. When Republicans from outside the state appeared to rally around the idea, Lincoln and his supporters pushed back hard. In the meantime, Democratic newspapers in Illinois proclaimed Lincoln unelectable and touted the possible candidacy of “Long John” Wentworth, a former congressman and editor of the Chicago Democrat newspaper, for the Senate.