• Podcast

The Lincoln-Douglas Debates

August 22, 2019

The Lincoln-Douglas debates — the historic series of seven debates which pitted Abraham Lincoln against Stephen Douglas as they vied for an Illinois Senate seat — began on August 21, 1858. In honor of that anniversary, this episode explores the clash of constitutional visions that characterized the debates between Lincoln and Douglas. Each man argued that he was the heir to the Founders’ legacy as enshrined by the Constitution, as they battled over slavery, popular sovereignty, the nature of rights, and the future of the union. Historians Sidney Blumenthal and Lucas Morel trace the constitutional visions and political rivalries of Lincoln and Douglas from the Kansas Nebraska Act to the Dred Scott decision, through the Civil War and the passage of the Constitution’s Reconstruction amendments. Jeffrey Rosen hosts. 



Sidney Blumenthal is an author, journalist, and political aide who served as an assistant and then senior advisor to President Bill Clinton. He is a fellow at the Society of American Historians and was previously a senior fellow at the NYU Center on Law and Security. Sidney is the author of the five-volume biography The Political Life of Abraham Lincoln. The third volume, All the Powers of Earth, covering Lincoln’s life from 1856-60, will be released this September.

Dr. Lucas Morel is the Professor of Politics and head of the Politics Department at Washington and Lee University. He is on the boards of both the Abraham Lincoln Association and the Abraham Lincoln Institute. Lucas is the author of Lincoln's Sacred Effort: Defining Religion's Role in American Self-government and a forthcoming book on Lincoln and the American Founding, which will be released next July.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources

The Thirteenth Amendment by Jamal Greene and Jennifer Mason McAward.

This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich, Ellie Rutkey and Perri Wilson.

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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center and welcome to We the People. A weekly show of constitutional debate. The National Constitution Center is a non-partisan, non-prophet chartered by congress to increase awareness and understanding of the Constitution among the American people. This episode of We the People celebrates the anniversary of the start of the Lincoln-Douglass debates.

 On August 21st, 1858, that historic series of seven debates in Illinois saw Abraham Lincoln and Stephen Douglas vying for a senate seat and debating crucial issues about the Constitution, it's relationship to the Declaration of Independence, and the future of America. Joining us to discuss Lincoln's constitutional vision and the Lincoln-Douglas debates, are two of America's leading scholars of Abraham Lincoln.

 Sidney Blumenthal is an author, journalist, and a former senior advisor to President Bill Clinton. He is a fellow at the Society of American Historians and was previously senior fellow at NYU's Center on Law and Security. Sid is the author of the five volume biography “The Political Life of Abraham Lincoln,” and the third volume, “All the Powers of the Earth” which covers Lincoln's life from 1856 to 60, the period of the Lincoln-Douglas debates will be released this September.

 Sid, congrats on the third volume publication and it's wonderful to have you back on the show.

Sidney Blumenthal: [00:01:26] Thank you Jeff, I'm delighted to be here.

Rosen: [00:01:29] And Lucas Morel is professor of politics and the head of the politics department at Washington and Lee University. He is on the boards of the Abraham Lincoln Association and the Abraham Lincoln Institute. He's the author of “Lincoln's Sacred Effort: Defining Religion's Role in American Self-Government,” recently he published “Lincoln and Liberty: Wisdom for the Ages” and his forthcoming book, “Lincoln and the American Founding” will be released next July.

 Lucas, congrats on the forthcoming publication of your book and thank you so much for joining me.

Lucas Morel: [00:02:00] Thank you for the invitation. Glad to be here.

Rosen: [00:02:02] Sid, your new volume, “All the Powers of the Earth” covers the period of the Lincoln-Douglas debates. Let's set the stage by helping our listeners understand the constitutional stakes in those debates. Lincoln insisted that the Missouri Compromise should be resurrected and the Kansas-Nebraska act be repealed. Tell our listeners what the Missouri Compromise and the Kansas-Nebraska Act were, and how they related to Lincoln's understanding of the relation between the Declaration of Independence and the Constitution.

Blumenthal: [00:02:57] The Missouri Compromise was the original compromise of 1821 which established a certain line of (landitude) across the country. Above which, in the North, slavery was prohibited. Below which, in the south, slavery was allowed, and that permitted two states to be admitted to the Union balancing each other. Maine, a free state, and Missouri as a slave state, and that held the peace, as it were, in politics until the Mexican war.

 In the Mexican War, a great amount of land was taken from the Mexican's and the question was 'What would happen to it?' Would it be divided into states? Would they be free or slave? It led to an enormous conflict which led to the Compromise of 1850, and that basically kept the Missouri Compromise and added a few things to it.

 In 1854, the Kansas-Nebraska Act was enacted that repealed the Missouri Compromise. This was engineered by Lincoln's perennial rival, Stephen A Douglas, who was a powerful and ambitious senator from Illinois who very much wanted to be the president. He wanted the democratic nomination for the presidency. He tried in 1852 and failed, he wanted it in 1856. He wanted to be the builder of a transcontinental railroad, but how could you build it across the continent across territory that was not organized? As a territory or as a state. So he worked out a deal with the southerners in the congress and they repealed the Missouri Compromise. That potentially opened up all this territory to a question of whether it would be slave or free. Douglas had an idea that the people who settled the land would decide, he called it popular sovereignty. Lincoln, who had been in a kind of chrysalis like a butterfly, he had been in the wilderness after his one term in the congress, said he was aroused as never before.

 he came back into politics to oppose the Kansas-Nebraska Act. He was opposed to the extension of slavery and politics was transformed as a result of it and soon the Kansas Territory became a bloody battlefield between people who wanted it to be a free state and those who wanted it to be a slave state and they literally fought and killed each other. The Lincoln-Douglas debates held that principle sentiment at the core of what was at stake there.

Rosen: [00:05:45] Thank you for that very helpful introduction and for explaining the Missouri Compromise, the compromise of 1850, the Kansas-Nebraska Act, and the nature of the Lincoln-Douglas debates.

 Lucas, when Lincoln opposed the extension of slavery into the territories, was that purely a policy position or was it a constitutional position and how did Lincoln's view of the relationship between the Declaration of Independence and the Constitution inform his positions in the Lincoln-Douglas debate?

Morel: [00:06:13] Yes, those are all very much related. What you see in 1858 is a stark clash of constitutional visions between Lincoln and Douglas and the clash is linked to their opposing interpretations of the founders' intentions, the American founders especially in the Constitution. Each man argued that he was the legitimate heir of the founders' legacy. You've got Douglas quoting the Federalist Papers, Lincoln quoting Madison.

 They both believe that the founders' intentions should be followed but they disagreed on what that intention was. Interestingly enough, in this day and age this is going to sound crazy, but Stephen Douglas actually campaigned in 1858 as the diversity candidate, and I say that it's ironic because Douglas makes it emphatic that he believes the United States was founded by white men, for white men, forever in (inaudible) of white men. He thought that diversity was not a racial thing, but a territorial thing.

 in other words, the federal principle, also known as states' rights. Douglas was the federal candidate in that sense, he believed that the founders had founded this nation as a diverse nation and therefore, if some settlers wanted slavery, they could have it, if others didn't want it, they could get rid of it, but of course the premise was it was whites and always whites and only whites making these decisions. He castigated Lincoln and the republican party which he called the 'black republican party,' the 'abolition party.” He castigated Lincoln as the candidate of union reformity. Lincoln wanted a federal government through congress to squash all the states and territories into one particular mold and he said that that's not what the founders intended.

 Lincoln as a uniformity candidate, for Douglas, was the candidate of centralization, the candidate of over (inaudible) of federal power. Now, Lincoln had to, of course, affirm that there was a federal principle in the Constitution and he repeatedly said that the republican party was not interested in squashing slavery out of the states immediately because they had no federal authority to do so. The question was, 'what's going to happen in the territories?' And are white people, especially in the north, going to do anything about whether black people, people who don't look like them, are enslaved there or not.

 Douglas said the American way, the tried and true 'mom and pop' and apple pie, red, white, and blue way is “leave it for the locals to decide.” Locals at the state level and locals at the territorial level. Lincoln said, “no, this don't care policy, this policy of being different according to Stephen Douglas about the very thing everybody cares about, which is whether slavery is going to spread or not. This policy of indifference, this local, popular sovereignty, congressional non-interference policy, is antithetical to what the founders intended by even creating a nation. A nation as a republic devoted eventually for freedom to be uniform throughout all the land, but that's eventually. It has to happen by the consent of the governed and in this case it meant that that consent had to happen through states.”

 The open thing was, what about territories? Do congress get to tell people what to do or not? And Lincoln would say, “history as well as principle” to explain that congress did, in fact, have the authority to regulate those institutions and those territories East side of the Northwest Ordinance of 1787, which was re-inaugurated under the first congress of the United States when it was, obviously, first foot forward by the articles of confederation perpetual union.” Lincoln would cite that, he would cite congress' efforts to prevent slavery from entering the country in 1808 and then they equated it with piracy in 1820.

 All of this Lincoln cited from the founders, from the founding generation, to show this moral, anti-slavery impulse or (impotist) that they eventually wanted as Lincoln puts it, to put slavery on the course of ultimate extinction. For him, the lone star of the country, for understanding those compromises in the Constitution, was in fact the Declaration of Independence, what he called the spirit of 76. He said the spirit of 76 is antithetical to the spirit of Nebraska, the bill which became the Kansas-Nebraska Act of 1854.

Rosen: [00:10:53] Thank you so much for emphasizing Lincoln's reverence for the Declaration, visitors to the Constitution center's new civil war exhibit know he stood before Independence Hall in 1861 and said “I would rather be assassinated on this spot than abandon the principles of the Declaration.”

 Sid, the Dred Scott decision had come down in 1857 and chief justice Taney infamously held not only that African Americans had no rights, which the white man is bound to respect, but that congress had no power to pass the Missouri Compromise because it violated the property rights of slave-owners. What was Lincoln's position about the Dred Scott decision? What was Douglas' response and how central was that to the constitutional discussion in the Lincoln-Douglas debates?

Blumenthal: [00:11:43] The Dred Scott decision of 1857 was intended to end, once and for all, the entire question of slavery in the United States and whether it could be extended to the territories. Roger Taney, who had been part of President Andrew Jackson's kitchen cabinet, had been appointed to the supreme court, he was the chief justice, he was 80 years old, he was a southerner, from Maryland, a slave state, he himself owned slaves, and he had issued his decision within two days of the inauguration of James Buchanan, a pro-slavery democrat as president.

 Buchanan had, behind the scenes, worked with the supreme court justices to ensure of what the decision would be and that it would be the one that he wanted. Taney's decision declared, not only that a black man had no rights which white man was bound to respect, but that was a historical interpretation of what he said the founders believed. In saying that, he was citing original intent. He was appealing to the concept of original intent of the Constitution and he said that also, the second point, that congress had no role here. That was the sine qua non, the essential position of the southerners in the congress and throughout the south that congress could not prohibit slavery, that they could not rule on it at all, and that therefore, according to Taney, people could bring their slaves into this territory.

 Now, this was not only a blow against Lincoln and the republicans and their position, but also against Douglas. Now, how they each responded vary. Lincoln completely opposed the decision although he said that republicans had to obey the law, but he would do everything he could to oppose it, and he believed that the territories should never be open to slavery. He believed in the concept that it'd been developed by a variety of thinkers including Salman Chase who was then the senator from Ohio in Freedom National that the Constitution itself had provided grounds to limit slavery and he appealed to the founders on an antislavery basis. He cited the Ordinance of 1787, which professor Morel has already pointed out, rightly.

 For Lincoln, that was a crucial point and he believed that the ordinance was intrinsic to the Constitution as one of the first acts passed and also inspired by Thomas Jefferson. It also gave birth to the state that Lincoln came from, Illinois, which was a territory, and it showed that the congress could prohibit slavery in the territories. The decision, the Taney decision, was also aimed at destroying the platform of the republican and the republican party as a political force in the country by essentially making their platform illegal.

 Now, what's Douglas' quandary? Douglas' quandary is that he believed in popular sovereignty. Let the settlers decide. It was a cynical, vague position, that he hoped would satisfy all sides and allow him to get through the process of the democratic party and somehow grab the prize of the nomination for presidency. But the problem with the Taney decision is that it rendered popular sovereignty mute.

 Douglas declared his support for it and he did not acknowledge that the decision had, essentially, demolished his position, but during the debate, Lincoln would make sure that Douglas did not escape and he would trap him on that very point. And he would trap him in a political way, to damage Douglas down the line so that he would be hurt with southerners as he went forward, seeking the nomination.

Rosen: [00:16:28] Thank you so much for emphasizing the fear that Dred Scott inspired in Lincoln that slavery would become national, and Lincoln said during the debates “what's necessary for the nationalization of slaver? It's simply the next Dred Scott decision, it's merely for the supreme court to decide that no state under the Constitution can exclude it just as they've already decided that under the Constitution neither the congress nor the territorial legislatures can do it.

 Lucas, I now am beginning to understand from both of you why Lincoln's emphasis on the original understanding of the Constitution was so important and his insistence that the intent of the founders was slowly to eliminate slavery, rather than to consitutionalize it. In his Cooper Union speech, Lincoln had recently read Madison's notes and he found that Madison explicitly said, as Shawn Wilentz points out in his new book 'No Property in Man,' that the Constitution meant to take no position on whether there could be property in man. How significant was that realization to Lincoln, and do you agree with Shawn Wilentz that we're not? That discovering it convinced Lincoln that the Constitution was not a pro-slavery document and was crucial to his constitutional position in the Lincoln-Douglas debates?

Morel: [00:17:48] I think it reinforced a position that Lincoln had already come to, which was this connection between the Declaration of Independence and it's principles and the Constitutional means of carrying that out, which was the United States Constitution. It helped Lincoln immensely as well as other anti-slavery forces like Frederick Douglas, to point out that if founders were such devotees of white enslavement of blacks, why were they afraid of using that word? The only time, in fact the first time, that the word slave appears in the Constitution is when the United States decides to get rid of it, the 13th amendment, but that of course doesn't happen until later.

 So, Lincoln points out that in the Constitution, whenever slavery is eluded to, the word person or persons is used. So, finding that Madison's notes indicates that they did not want to respect that there could be property in men, human beings, only reinforce the position I believe that Lincoln had come to much earlier. So it was good for him.

 You want, at least during the time of the Antebellum America, certainly up through the early to mid-50's, you wanted the founders on your side. Everybody wanted to be patriotic, it was the confederates, it was the secessionists who would have to make the argument that they were doing something new and better than the founders when they created a government that explicitly put slavery in their Constitution and made white control of blacks the cornerstone, as Alexander Stephens would put it, of their Constitution.

 So, I don't know that it was Lincoln's reading of Madison's notes was a real game-changer for Lincoln. It helps, it bolstered his position, especially because he was trying to rest the mantle of the founders from the shoulders of Douglas, Douglas had been doing that as he was doing it for the mantle of Henry Clay. Trying to show that he was the inheritor of that legacy, of being the great unionizer of the country, but it helped Lincoln, again, establish that connection of between what the founders… how they declared independence originally, in favor of equality, in favor of individual rights, in favor of government in consent of the governed, and connecting that to what they did structurally, politically, with their United States Constitution forming one more perfect union to carry out those principles. Of course principles that had to be done by consent, and that meant they had to respect federalism. They had to respect the rights of the states, if you will. Which is even in the 1860 republican platform.

 So, yeah, Madison is good for Lincoln, but even more profound, I think, for Lincoln, is his respect for Jefferson. Not as a politician, because he was a democrat after all. Lincoln was a (inaudible) term Republican, but his respect for the principles of Jefferson, which he found enshrined in the Declaration of Independence.

Rosen: [00:20:51] Okay, thanks for that.

 Sid, our friend, Shawn Wilentz, got some major pushback from other historians, some of whom argued with Garrison that the Constitution was, in fact, a pro-slavery document and others said that he over-emphasized the importance of Madison's thoughts on whether the Constitution took a position on property and man. How significant was this and why was it significant? Is it just a question of rhetorical notions of original understanding so Lincoln could say that Taney was wrong in his description of the intention of the founders, or was there more precise legal implications from whether or not the Constitution was originally a pro-slavery document?

Blumenthal: [00:21:32] Well, Sean Wilentz's book, I think is a very important book and it makes a case that many people early on, who were opposed to slavery saw in the Constitution…found in it an anti-slavery basis and it does not mention slavery on purpose.

 There is a split that takes place later among the anti-slavery forces and this precedes Lincoln and it establishes the grounds that Lincoln then walks upon and the split is between the abolitionist followers of William Lloyd Garrison, who our immediatists want immediate emancipation, but they also declare that the Constitution itself is a pact with the devil, that it is a pro-slavery doctrine, and Garrison himself lights it on fire at a Fourth of July rally. It should be noted Garrison is a moralist, he does not believe in politics, he believes politics is impure and corrupt and that people opposed to slavery should not participate in politics, they should simply condemn slavery and shame the slaveholders and the south.

 Another group arises, and there are many people in it including Salmon Chase, even William Seward of New York, and other prominent political people. It begins in the Liberty party of 1840 trumps the idea that the Constitution has an anti-slavery basis. That then becomes grounds for them to develop politics, and they develop the idea that slavery is not permitted in the north, and that congress can rule against it, and that the voice of the people can be heard on slavery, and that as Lincoln says, it can be put on the course of ultimate extinction. It also means that slavery is a local institution regulated by the states and that the federal government cannot really protect it.

 So that's the basis of the political anti-slavery movement that over time becomes the republican party, and that is the position that Lincoln takes on himself. Now, the Jefferson business is a very interesting one. Lincoln points out in the “House Divided” speech, accepting the nomination for the senate by the Illinois Republican Party to run against Douglas, leads to the famous debates. That Jefferson was a slave holder and yet he wrote the declaration of independence and Lincoln takes Jefferson as not only a source for his own politics because of that, but he also acclaims him for the new party and he says later, after the debates, it reminds him of a story.

 Many things reminded Lincoln of a story to make people understand what was going on politically, and he said “it reminds me of two drunken men I once saw late at night fighting in the street, and they fought their way into each other's coats, and that's what's going on now. The parties have fought their way into each other's coats and we now have fought our way into Jefferson's coat, the author of the Declaration of Independence, all men are created equal, the man who inspired the ordinance of 1787 that allows congress to prohibit slavery in territories and he is our progenitor. That's our original intent, and it does not belong to the democratic party anymore”

 So, Lincoln is, in his own way, inventing a new tradition of anti-slavery politics.

Rosen: [00:26:02] Many thanks for that.

 Lucas, Lincoln's position against Douglas. Help us understand to what degree it was constitutional and to what moral Lincoln says “if slavery is wrong, then it would be wrong morally for territories to embrace it.” Does he also think it was unconstitutional for them to do so and to what degree was Douglas' position consistent or inconsistent with his understanding of the Declaration?

Morel: [00:26:33] Sure, let me start first by reintroducing the abolitionists because I thought that was very helpful the way you did that because the way I understand Lincoln's political theory or political thinking is he understood the Declaration as stating two grand principles. The principle of human equality, equal rights to life, liberty, and the pursuit of happiness that everybody has simply by being human.

 So, if you got equality on the one side and the other side you've got government right, consent of the governed, and what you have with the abolitionists is they only want to look at one side of the coin. William Lloyd Garrison trumpeting equality but giving short riff to the constitutional consent of the governed. What is Stephen Douglas interested? He ignores equality completely and only wants us to look at consent.

 Lincoln believed in consent, he called it the chute anchor of American republicanism, but Douglas thought consent was everything. It's like, turtles all the way down, for Douglas it was consent all the way down.

 Lincoln saw then, the abolitionists as well as Douglas, is only wanting to see one side of the coin of the Declaration of Independence and Lincoln saw them both and under good Americans as having to see and grab hold of both. Both equal rights as well as the consent by which used to cure those rights, so that, for me, is the platform upon which we have to understand anything about Lincoln's constitutional vision and his constitutional critique of Douglas. He thought and painstakingly laid out in his Cooper Institute address of 1860 that it was a constitutional position that he was on, it was a firm one. It wasn't just a moral one, it was a firm one precisely because he could site the founders. Both their words and their deeds in the revolutionary period and the early American constitutional period, constitutional actions, legislative actions that show that they had the political grounds and constitutional grounds by which two secure, moral ends, like freedom.

 I had mentioned earlier, right? According to the Constitution, congress was not allowed to deal with a particular commodity, and unfortunately, at that time, that commodity was human beings. Out of all the things that congress could do in terms of international trade to get the Constitution and to keep South Carolina and Georgia in the Union, they had to compromise and say, “fine. Congress does have this authority to trade with the Indian tribes and nations, as well as foreign powers except for slavery. We will not allow congress to touch the importation of slaves until January 1st, 1808,” and even then congress wouldn't have to if they didn't want to. Low and behold, the slaveholder president, Thomas Jefferson, in 1807 signs a bill to take effect as soon as constitutionally permissible, banning the import of slaves into the United States, January 1, 1808. They wanted to put teeth into this, so 12 years later in 1820, they equate the importation of slaves into the United States with piracy.

 The punishment for piracy is death. Lincoln is the only president to execute a slave trade, or the famous case of Nathaniel Gordon, February 1862. He's the only president, ever, to punish someone to the fullest extent of the law for enforcing that 1820 law. So, all of this to say, when he was battling against Douglas in 1858 he thought he was not only on the surest ground morally, with regards to slavery being wrong. “If slavery is not wrong, nothing is wrong,” Lincoln once said. He thought he was on the surest ground constitutionally, both by the letter of the Constitution as well as by the actions of the very men who drafted that Constitution, many of whom actually served in the first congresses and obviously President Washington and the few others thereafter.

Rosen: [00:30:46] Thanks for that.

 Sid, I'm still trying to understand exactly what provision of the Constitution Lincoln thought would be violated if a territory decided to allow slavery. There were some abolitionists who invoked article four, section two, the privileges or immunities clause, that the citizens of each state shall be entitled to all privileges and immunities of citizens, and they put in ellipses, of the United States, in the several states that slavery violated that clause, but that was a minority position. If as long as congress refused to resurrect the Missouri Compromise and repeal the Kansas-Nebraska Act, why did Lincoln think Douglas was wrong that the territories could, if they chose, allow slavery?

Blumenthal: [00:31:37] On the grounds that we've discussed, which were the ordinance of 1787, the belief that congress couldn't legislate against the extension of slavery. Which, the Dred Scott decision said they could not and Lincoln contested that, and he continued to cite time and again, the Declaration of Independence. Lincoln said that the Declaration of Independence was the frame of the Constitution and particularly the provision of all men are created equal.

 So, it was on a larger moral ground, and then on a political ground that he opposed all of this. He, in the Cooper Union speech which takes place after the debate in February of 1860, after Lincoln's studies all sorts of newspapers, Madison's notes, and books about the writing of the Constitution, he concludes that the majority of the founders were really anti-slavery and he goes through it. He makes a very deliberate and precise statistical case about it and it's on that basis that he said slavery can be prohibited.

 Lincoln is constantly looking for grounds among the founders, within the Constitution, around the Constitution, in the Declaration, in the Ordinance of 1787, to put together an anti-slavery argument and he never stops doing that. From the moment he makes his first speech in 1854 in the House of Representatives at the state capitol in Springfield, when he talks about the blood of the revolution as a basis for being against slavery because they fought for the principles of the Declaration of Independence. So Lincoln is constantly working at it. He's thinking about the arguments that are made on the other side and he is always trying to find a new means to marshal the founders on his side.

Rosen: [00:34:17] I understand it now that you've both explained it so well that because Lincoln felt that Dred Scott was wrongly decided, in violation of the original understanding of the founders he thought the decision should be overturned. For that reason the Missouri Compromise should be resurrected and that would make Douglas' position out of bounds.

 Lucas, was Lincoln unequivocally correct in his constitutional claims and his originalist claims about the original understanding of the framers or did Douglas have arguable points?

Morel: [00:34:50] I guess the best way to put it is that Douglas could make a plausible case asa result of DeFacto practice that the founders cherished federalism so much that they did not intend for a federal government to have too much authority at the state level, and I say plausible by this example. Douglas constantly pointed out that if Lincoln were correct, that the founders wanted the nation to be uniform in it's principles throughout all of the colonies, then turned states, what that would've done is it would've then made all the states pro-slavery because when the Constitution is formed only Massachusets had banned slavery by that point in time.

 For example, New York doesn't pass a gradual emancipation law until 1799. There are slaves in New York until the early 1820's. So, Douglas would constantly refer to this historical truth which is, yes, the nation began with mostly slaved-holding states. He uses that to make the argument that there's a principle at stake here, what he calls popular sovereignty, and therefore they never intended any major principle to be imposed upon the entire country except the principle of you get to vote.

 Up or down, but nobody gets to tell anybody else how to vote. One state votes one way, another state votes another way, but Lincoln points out that yeah that may have been the case, historically. Nobody can deny that, but the founders did, in fact, intend for the country to be a free country and in order for it to be a free country, yes it can make concessions and compromises in the short run, but to be a free country, notice how they establish structures, political structures, even constitutions on the basis of principles that unless we keep alive those principles those structures can be turn to anti-small or republican or anti-democratic things.

This is what made Douglas' so called don't dare policy so… Lincoln used to be insidious because in the 1850's for slavery to become national, you did not have to preach the expansion of slavery. You didn't have to make a moral defense of slavery. All you had to do was convince free, white, northerners not to care what people who didn't look like them, what happened to them when they were taken to territories.

 He says, “you do that. You teach whites in Illinois and all the way up to Maine that it shouldn't matter to them what happens to a few blacks in Nebraska or Oregon or Kansas,” and he says, “this is basically a (inaudible) , that's what's going to nationalize slavery because if we accept the Dred Scott opinion that congress doesn't have the authority in the territories to deal with that domestic institution and therefore territorial legislatures don't have that authority, then the only thing left is if the Constitution says you have a constitutional right to possess people as long as they're black deriving in a weird way from the 13th amendment according to Justice Taney, then the only thing left is the states. And if the states have a practice of banning slavery, but the Constitution has been interpreted to vest any American with the right to own slaves, guess what the supremacy clause of the Constitution is going to mandate? It's going to mandate that you could take your slave to New York or Illinois and it become a practice that that state cannot contravene.”

 All that's left, as Lincoln predicted in his 'house divided' speech in 1858 is a Dred Scott two. Just one more case that doesn't deal with congress or the territories, it deals with the states and what states can, under the United States Constitution, do or not do. That's what bothered Lincoln. That's why Lincoln thought the enemy in 1858 was not the pro-slave ultras of the south, it was free whites and Douglas' doctrine that would be tempting them to become indifferent to what happens to black people.

 Now let me rush to add a point I should've made on your previous question. It's not that Lincoln said it was unconstitutional for slavery to enter the territories or that slavery per se was unconstitutional. He couldn't say that because slavery did exist in a good number of the states and it existed for the reasons, historically, that we all know as a product of a compromise. What he was arguing is just because we have slavery in our midst, that doesn't mean we shouldn't be working towards its eradication.

 He felt that the founders did what they could as best as they could at the time, and so there's a difference between a principle on the one hand and a compromise on the other. So, I'm sure he thought that the founders believed that for the American Union there would be no freedom for whites or blacks. Individual three number (inaudible) for local independence from foreign powers, namely Great Britain, political independence required domestic unity. So, to keep the union of the American colonies and then union of the states, it required compromises to be made regarding slavery.

 As Lincoln put it, “we had slavery among us,” this was at the time of the founding, “but we could not get our Constitution, the less we permitted them to remain in slavery. We could not secure the good we did secure if we grasped for more, and having by necessity submitted that much, it does not destroy the principle that is the charter of our liberties.

 If you believe in popular sovereignty the way Douglas preaches it, all you're telling people is there is no right principle of action but mere self interest. This is majority tyranny. Basically says if you're outnumbered politically, the only rights or privileges you have are the only rights the majority wants to give you, and Lincoln said “that is counter to the principles of the Declaration. It's counter to the rights of any human being, you have to teach every political majority that each individual has rights that by nature deserve the protection of that majority.”

Rosen: [00:41:29] Many thanks for that.

 Sid, one of the remarkable things that emerges from the latest volume of your magisterial series is what an original scholar Lincoln was in terms of his constitutional research. You not that he read George Fissure's Sociology for the south, which had criticized Jefferson's declaration for it's praise of equality and then you note that before the Lincoln-Douglas debates he read the debates over the federal convention in 1787. He read the autobiography of Thomas Jefferson, the papers of James Madison, Benjamin Franklin's petitions against slavery. To what degree were Lincoln's original to him based on his reading? and tell us about how Lincoln changed his mind about the constitutional status of slavery in light of his extraordinary and deep reading.

Blumenthal: [00:42:19] Lincoln was a lawyer and he was somebody who had learned how to make an argument and he believed that politics depended on many things, but also and ultimately on argument. He learned how to make an argument in many forums. In county courthouses before jury's of common people, he learned how to make an argument in politics in the state legislature. He learned how to make an argument in the United States in his one term in the congress and he was constantly working on himself. He traveled with an entourage of lawyers through central Illinois going county courthouse to county courthouse in the 1850's and they were astounded to find him awake late at night, by candlelight, studying the principles of Euclid.

 why was he studying Euclid? To learn logic, how to make an argument, and he combined that with his own deep reading of constitutional texts. He did not want to simply accept everybody else's derivative accounts of what happened. He had to learn it himself. He had to assimilate it himself. He had to work it out himself.

 Long after his death, his private secretaries, John Hay and John Nicolay, discovered fragments that he had written. Notes to himself, in which he has, in Euclidean logic working out his arguments against slavery from constitutional documents. So, Lincoln is a highly unusual political figure. He's political to the marrow of his bones and in his mind he is crystallizing on his own his constitutional views.

 You have to remember about the Lincoln-Douglas debates, we're talking about these grand constitutional doctrines. Douglas was a master demagog, he was one of the great demagog's of the age and in the debates he throws against Lincoln every racist, political wedge he can. He not only calls Lincoln a clown and a drunk, of course Lincoln was teetotaller, but he also says that Lincoln believes in… Complete negro equality, is the phrase, and I don't believe he used the word negro, Douglas, to the point of favoring amalgamation. Meaning sexual intercourse between the races and forcing Lincoln to debate that.

 He didn't want Lincoln to argue his constitutional abuse, he wanted to put Lincoln completely on the defensive on these racist grounds, and he would say Lincoln is an ally of Frederick Douglas, who was considered to be a disreputable, abolitionist character. Being called an abolitionist was like being called a communist at the height of the cold war. Douglas would use any tactic, employ any infective, use any demagogic trick, and Lincoln had to work his constitutional views through this thicket of demagoguery as well and figure his way forward.

Rosen: [00:46:12] Many thanks for that.

 Lucas, do you agree that Douglas was a demagogue, or do you think he was making plausible constitutional arguments? And then tell us about the relationship between these constitutional arguments in the Lincoln-Douglas debates that we've been discussing and Lincoln's eventual conclusion that an amendment to the Constitution was necessary to ban slavery everywhere.

Morel: [00:46:35] Yeah, I would say that, especially in 1858 but also in 1860, Douglas gets probably his most extreme speech. Its a speech entitled, “The Invasion of the States,” where he actually calls for legislation that will essentially ban conspiratorial speech. Throw people in prison for saying things that might lead to additional John Brown outrages, as what happened in (inaudible) .

 So, I mean, Douglas knew, as Sidney has mentioned, all of the rhetorical, political tricks of the trade and so he could out demagog the worst demagog. But, that said, I think the best way to approach Stephen Douglas is really to see him as someone who, of course is not adverse to having his own wallet in terms of the transcontinental railroad, but someone who really is trying to figure out a way to keep the union together. He thinks the abolitionists are driving the country apart, he agrees with John Calhoun in that sense. He thinks that we have got to find a way to keep the free states and the slave states together, on the same page. He's an expansionist. He wants the United States to expand and now that it's made it all the way to the Pacific, he wants it to go down through Central and Southern America. I mean, he is a manifest destiny guy in all caps and he thinks that the way to do this is local popular sovereignty.

 Who's going to say “no, I don't want to vote in my own interests,” right? This is a policy that sells in New England, it sells in the West, it sells in the South and he thinks it's his ticket, in 1860, to the presidency. His problem, of course, is the democratic party required that the majority had to be a two thirds majority, and that's how the south held their trump card, as it were, and that's what divided the democratic party and eventually led to a republican becoming president.

 I would say that, at least when I teach this to my students, I don't want them going into it thinking “well, we all know Lincoln was right and Douglas is wrong.” I want them to do what they can in reading Douglas' speeches and parsing his arguments to see what is the best case that you could make for Douglas as a true patriot? As someone who really is trying to save the Union, and what policy did he think, brilliantly, that he could settle on that could manage to persuade, again, whites north and south of the Mason-Dixon Line? He thinks popular sovereignty is it, but you let people do what they want locally, who can argue against that, that's the genius of the spread of American democracy, and he thinks that's the key to the future.

 So, I wouldn't come in in all caps as a demagog, I think that at least a plausible case can be made that popular sovereignty was a way to try to keep the union together, but what Lincoln was at pains to point out is, it wouldn't be a Union worthy of the saving. It would be a union where we will have gutted constitutional self-government without even moving a comma of the Constitution. We will have told people “you can do whatever you want politically, as long as you're in the majority,” and if that happens, Lincoln thinks that's something that's going to turn around and bite you on the butt. I hope you're always in the majority, because if you're not, you've basically got no rights.

 Stephen Douglas was at the end of the day what philosophers would call a legal positivist, which is to say that as long as it's legal it's legitimate, it's constitutional. As long as you've got a majority behind you and as long as that majority was legitimate expression of the popular will and consent, then whatever the majority says goes. (inaudible) , the voice of the people is the voice of God. That's Stephen Douglas and Lincoln thought, “that's not America. America has to hold tight, hold on to the original vision that all men are created equal. All meaning all human beings regardless of race, color, creed, you name it. That once we lose sight of that as a people, then we will be moving away from right.” How did he put it in the Cooper Institute Address in conclusion, he says, “let us have faith that right makes might. Not the other way around which is pretty much world history.” If you got the power you can do whatever you want. Lincoln said, no I thought we were doing something different when we declared independence.

Rosen: [00:51:17] Many thanks for that and that fascinating distinction between Douglas' legal positivism, the law is whatever the people say, with a more natural, rights-based vision, that our rights come from God or nature and not from governments.

 Sid, the last question to you is although he did believe in the natural law of principles of the declaration, Lincoln still thought that a 13th amendment was necessary in order to give the government of the United States the power to ban slavery not only in the states that were under rebellion or under military control, but also throughout the union. So, to what degree did his, thinking about the Declaration influence his thoughts about the need for a 13th amendment and what is the relation between Lincoln's position in the Lincoln-Douglas debates and his eventual conclusions that we needed a constitutional amendment to ban slavery everywhere?

Blumenthal: [00:52:14] Well, now we're leaping ahead to the relationship between the emancipation proclamation and the 13th amendment. In the Lincoln-Douglas debates, Lincoln ends by saying that Douglas is blowing out the moral lights among us by not believing in the central principle of the country in the Declaration of Independence all men are created equal. He makes that real in the emancipation proclamation. Which is the greatest confiscation of private property in human history, but it is done on the basis of military power in a civil war, Lincoln finally comes to believing he possesses this military power but that he needs something more than that because the war will end, and then what? Does it still hold? He needs something of permanence to launch the Constitution that establishes the utter legality of what he has done in the emancipation proclamation and to make it universal throughout the country. To make it national. And that's why he requires the 13th amendment.

 He's also afraid of what might happen at the end of the war without a 13th amendment and what are the rights of the slaves. He needs to have this done. So, Lincoln moves from debating rights against the extension of slavery, he goes through the early stages of the war moving deliberately, slowly, opposing the radical republicans who want an early proclamation for emancipation because he must hold the border states. He says, “I must have Kentucky.” He only steps when he feels that he can politically sustain his position and if it could not be politically sustained then it would be ruined, and he reaches the emancipation proclamation, but then, later he must have the 13th amendment.

 Lincoln is thinking on several levels simultaneously, he is thinking constitutionally, he is thinking politically, and he is also thinking morally.

Rosen: [00:55:05] Many thanks for that.

 Lucas, last word to you. How broad a 13th amendment did Lincoln want before he was martyred? In our new exhibit on the civil war and reconstruction, we have an online tool that shows that Charles Sumner originally introduced a draft of the 13th amendment that had an equal protection clause that would've guaranteed equality throughout the Union, but that dropped out and the final draft, of course, merely banned chattel slavery. Do we have a sense of how broadly wanted to enshrine equality in the constitutional and how did tat vision relate to the positions he took in the Lincoln-Douglas debates about the Declaration?

Morel: [00:55:47] Yeah, the great $64,000 question about Lincoln and reconstruction in that question. Next to 'what is Lincoln's religion?' That is the question that us Lincoln scholars get most often is 'had Lincoln lived, had the assassination failed and he survived ina viable way as president, what would reconstruction look like?' I hasten to add that the 13th amendment, Lincoln was late to that plank because he was unsure about how best to secure the emancipation.

 If emancipation were to take place, he wanted it to be established on the surest grounds and for him, plan A was not an amendment to the constitution. Plan A was for the states themselves, again expressing the consent of the governed, to ban it on their own, and he made at least three separate appeals beginning with Delaware in November of 1961 and then the so-called border slave states, those slave states that stayed loyal to the Union. He made appeals to their congressman saying, “look we will loan you the money, congress will loan you the money, please initiate some form of gradual, and yes, compensated emancipation. You do this, this will kill the confederacy, this will kill the cessation effort and they all, even Delaware with it's 1,800 slaves, is (inaudible).

 He threw it back in his face. Lincoln tried to get the American people using this existing structures to do the right thing, to do the most secure thing, which is, 'it's a state institution, have the states ban it.' When those efforts failed, and for the reasons that Sidney also mentioned, political reasons, moral reasons obviously, and prudential ones during the war, when it became a fit and necessary war measure, he issued his emancipation proclamation. But, again, what would happen once the war was over? At that point he got on the bandwagon for the 13th amendment because he thought it would be the only way to actual band the 'great behemoth of danger,' as he put it. The only thing that ever seriously disrupted the American people: slavery.

 How broad should his reach of been? Congress now, under it's provisions, being able to pass laws that would carry it out? Lincoln was a stickler, even as an executive, even during war when the executive, the article two branch comes to the floor more than the legislative or judicial. Lincoln was a stickler for the Constitution and for following constitutional procedures.

 Once the war was over, the executive would recede and congress would come to the foreground again. In a republic, the lawmaking body is the most powerful branch of government, and rightly so. They make the laws, this is the people giving themselves their own commands. Lincoln thought, “at that point, you have to make what congress does jive with what states exist to do,” and Lincoln was not in favor of obliterating the states, he was not in favor of what the anti federalist's called 'consolidation.' So, on the one hand he thought that the slaves deserved any right and privilege that any free white American citizen had, we already mentioned that article four provision with regards to privileges or immunities, that was something he argued for in his inauguration speech of March 4th, 1861. He referenced that in the 1858 debates. In his house divided speech against Stephen Douglas when he accepted the unanimous nomination of the republican party.

 So, on the one hand he believes in the privileges and immunities of citizens of one state being respected by the other states, he also recognized that state governments have purpose and that the vast majority of your rights are going to be secured at the local level. That's called the police power, and Lincoln, I think would've worked with congress to do whatever he could to encourage, let's say, the least prejudicial, the least bigoted, the least rebellious elements of the former confederate states to try to gt them to do right by three to four million black people. The vast majority of whom live in the south.

Rosen: [01:00:08] Thank you so much Sidney Blumenthal and Lucas Morel for a deep, illuminating, and constitutionally exhilarating discussion of the Lincoln-Douglas debates and Lincoln and Douglas' view of the relation between the Declaration and Constitution. I've learned from both of you how important it is to understand the technical details of Lincoln's constitutional views in order to understand the moral majesty of his views as well and of the constitutional achievement of reconstruction.

Sidney, Lucas, thank you so much for joining.

Morel: [01:00:44] Thanks for the invitation.

Blumenthal: [01:00:44] Thank you.

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