by Eva T. H. Brann
St. John’s College, Annapolis, Maryland
[This review of George Anastaplo, Abraham Lincoln: A Constitutional Biography (1999), was published in 46 South Dakota Law Review 666-69 (2001). It is to be included, as the Foreword, in any subsequent reprinting of that book.]
This book is a collection, mostly of “talks” given for particular audiences—talks, not lectures, with the directness and human reach implied in the deliberate informality of the term. It is a book that a Lincoln scholar cannot ignore, and a Lincoln lover would not want to miss. For the book is a treasure trove of quotation, analysis, and application. It is stuffed with quoted texts, some of which cannot come before our eyes often enough and many of which amateur readers would, to their loss, never come across. These talks, moreover, abound in close readings of documents and speeches that demonstrate at the same time the immense implications of words fitly spoken by statesmen and the requisite citizen’s art in deciphering them. Furthermore, every one of the parts—Prologue, seventeen chapters, and Epilogue—draws a moral and points out the relevance to contemporary American life.
The arrangement of the pieces, brought together from disparate publications, is very roughly chronological. The Sixties are represented by considerations of the Declaration of Independence (1776); here, although Anastaplo joins the position according to which the Declaration does not imply a particular frame of government, it is neatly shown that the four references to God in the document view Him in terms of the familiar separation of powers: as giving law, judging the world, and acting as its protecting executive.
From the Seventies and Eighties come talks on the Northwest Ordinance (1787) and the Constitutional Convention of the same year, all tending to show that the Founding generation did what it prudently could to put slavery in the course of ultimate extinction; Anastaplo emphasizes the overwhelming importance of the Northwest Ordinance in making the northwestern territory into free states and so assuring that the North would prevail in the war to come. The Eighties and Nineties yield the pieces devoted to Lincoln’s speeches and other writings, to which the remaining chapters are, it turns out, contributory, so that the collection is an integral whole. I might say here that the texts of the talks are supplemented by notes for which copious is not the word; there are five hundred and thirty three of them, and though much of the annotation consists of references, there are also fascinating supplements to the text. My favorite is the citation in aid of showing that the Gettysburg Address is sheer poetry; to make the point, someone simply reprinted the speech giving each rhetorical colon its own line.1
It is perhaps a permissible inference that the collection is not only a history of Lincoln’s developing relation to the Constitution, but also a reflection of Anastaplo’s own interests. Some scholars’ studies are so single-minded that their writings are perforce unitary, others are all over the map and only the single authorship holds their oeuvre together, but Anastaplo seems to have shaped the course of his inquires to the sequence of the country’s great issues and documents.
At the end of the Prologue, Anastaplo says that the collection might be entitled A Dialogue on Prudence. No doubt he means the prudence, or imprudence, of the authors—all but two Americans—whose writings he considers: Lord Mansfield’s Somerset decision, which opens the book, a prosaically narrow and prudently phrased ruling against the forcible removal of a slave from England, which had large moral consequences; Jefferson’s Declaration of Independence; the Continental Congress’ Northwest Ordinace of 1787; the Constitutional Convention’s Constitution; and, above all, Lincoln’s pronouncements. There are also examples of prudent realism overdone: Anastaplo respectfully questions whether Tocqueville’s understanding of American democracy in terms of “self-interest rightly understood” is adequate to the issues of the Civil War.2 Anastaplo sees an alternative in a civic prudence that considers duties as well as rights.
There is even an exemplar of imprudence set out in a review of a volume of Calhoun’s papers. In Calhoun, local passion outran an extraordinarily high intelligence, blinding him to the self-contradiction of his purported hatred of tyranny in the national government and his simultaneous defense of chattel slavery, not as a contingent necessity, but as a positive good. This dubious intellectual leadership brought a “proud, often generous but yet crippled people” to the brink of disaster.3 Calhoun’s lack of prudential statesmanship is to be compared to Lincoln’s practice of it, as it is suggested by Harry Jaffa: Calhoun deprecates the principles of natural justice enunciated by the Founders as mere rhetoric, a precursor position to Marx’s view of “ideology” as a rationalization of class interests, while Lincoln took such principles as the fundamental springs of his political action.4 Anastaplo comments that Calhoun should have been guided by the cardinal Christian virtue of prudence, a more charitable goodness than the passion for preserving a way of life. As Lincoln, quoted by Anastaplo, said, “the plainest print [be it in the Bible or in the Declaration of Independence] cannot be read through a gold eagle.”5
But the prudence referred to in the subtitle also reflects Anastaplo’s own wish to be as alert to prudential considerations (and as magnanimous) in appraising the speech and action of the statesmen dealing with complex life-and-death issues. Anastaplo’s admiration for Lincoln’s careful dealing in these matters, slavery above all, and his downplaying of it as a war aim, come out especially in the chapters on the Lincoln-Douglas debates and on the Emancipation Proclamation. As in the case of Calhoun, Anastaplo accuses Douglas, by far the better man, with a genuine concern for his country, not of immorality, but of not “listening to himself.” For example, you cannot denounce the arguments of the former slave Frederick Douglass in almost every one of your speeches [during the Lincoln-Douglas Debates] and also hold that the slave’s opinion does not count in the great issue of the day, whether it is despotic in the national government to deprive the slaveholder of the right to take and hold him into the free Territories. Lincoln, on the other hand, interprets the letter of the founding documents to acknowledge the manhood and thus the rights of slaves, but his doing so does not mean that he countenances slave revolts such as John Brown’s. For such rebellions would tear the political fabric: “For better or for worse . . . a full recognition of the rights of the African slaves depended upon a healthy political community in the United States, a community that was both moral and secure.”6 Hence, it follows that an enunciation of moral condemnation, even in the absence of immediate action, is not to be scorned.
Thus Anastaplo is an ardent defender of Lincoln in an issue currently debated: whether he was morally lukewarm and politically dilatory in the anti-slavery cause. The chapter on the Emancipation Proclamations, which pays special attention to the preliminary version of September 1862, shows it, in all its formalism, to be a lawyerlike mode of care for implicit meaning. For example, it may be read as a possible invitation to slaves for self-emancipation by becoming fugitives from rebel territories.7 However, it is the Final Proclamation of January 1, 1863, which is forthright about the fact that the emancipation of slaves in the rebel states is a war measure, not a moral crusade. Lincoln had always been clear about his central war aim, which was the preservation of a political good, the Union, rather than the ending of a moral evil, slavery, since the former was a condition of the latter. The Emancipation Proclamation is therefore attacked nowadays as testimony of Lincoln’s moral pusillanimity, and it is against this attack that Anastaplo especially defends it as an example of prudence. He is helped there by Frederick Douglass, who said in 1876:
Had he put the abolition of slavery before the salvation of the Union, he would have inevitably driven from him a powerful class of the American people and rendered resistance to rebellion impossible. Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical and determined.8
That is as good a description of political prudence as possible; such prudence is expediency put in the service of principle. Anastaplo demonstrates, with the deepest appreciation for the detail bearing on the realization of such a policy, how Lincoln went about his brand of statesmanship. The chapter concludes as it begins, with a reference to Lincoln’s own characterization of prudential rhetoric. It is borrowed from Solomon: “A word fitly spoken is like apples of gold in pictures of silver.”9
And that is where Anastaplo’s heart, the heart of a trained lawyer, seems to be in these talks: with the close analysis of Lincoln’s great speeches, the First and Second Inaugural (1861, 1865), the Fourth of July Message to Congress (1861), and the Gettysburg Address (1863). Or perhaps it is just that these best repay loving and perspicacious attention. Of these, the First Inaugural is most germane to Lincoln’s constitutional views,10 especially concerning judicial review: while Supreme Court decisions are dispositive in individual cases, ultimately the meaning of the Constitution is not fixed by the Court, but by the People. The Gettysburg Address is the speech most revealing of the American heart; it is at once messianic and meticulous, precise and poetic. Indeed, a short chapter, the central one, is devoted to Lincoln as poet, for he wrote verse in his younger years. No one would call Lincoln’s poems distinguished, but they show the melancholy state of mind and preoccupation with death that were a part of his humanity, and from these amateur efforts to the perfection of the funeral oration at Gettysburg, there is a direct line.
I think it must be clear that in all the talks, without prosing or preaching, Anastaplo takes the part of principle, not as a purist, narrow line inattentive to consequence, but as a source of action that intends to be effective—the mediating virtue being prudence. To my mind, this country is as good as, human nature being what it is, human institutions can make an earthly place. Were we all to appropriate the author’s sober enthusiasm for the prudence delineated in this book, it might be very heaven.
1. George Anastaplo, Abraham Lincoln: A Constitutional Biography, p. 298, n. 279 (1999).
2. Id. pp. 109-10.
3. Id. p. 120.
4. Id. p. 122.
5. Id. p.122
6. Id. p. 175.
7. Id. p. 214.
8. Id. p. 199 (quoting What Country Have I? Political Writings of Black Americans, pp. 52-53 [Herbert J. Storing ed., 1970]
9. Id. p. 227 (citing Proverbs 25:11).
10. Id. p. 177.