Higher Law and Lincoln's Antislavery Constitutionalism: What It Means to Say the Civil War Was Fought Over Slavery
Date of Degree
David S. Reynolds
Common Law | Constitutional Law | Legal | Legal History | Literature in English, North America | Military, War, and Peace | Natural Law | Political History | United States History
Constitution, American Renaissance, Abolition, Political Violence
The US Civil War was fought over slavery. But what do we really mean when we say that? This paper examines that question, first by exploring the idea of “higher law,” which gained tremendous traction in American society starting around 1850. Proponents of the idea claimed that laws such as the Fugitive Slave Act are immoral; that the immorality of such laws is self-evident, and that such immoral laws should be resisted—sometimes even with violence. Meanwhile, opponents of the idea of higher law were not necessarily in favor of slavery, but they opposed the use of extra-Constitutional means to bring about its end. Newspaper articles, editorials, letters, poems, and more from the 1850s and through the war years prove that beyond the well-known figures who promoted or opposed higher law, people throughout the nation became very familiar with the idea; the ubiquity of references to higher law helped to drive a mass, antislavery movement among Northern whites and Blacks alike, and made possible the 1860 election of the anti-slavery candidate Abraham Lincoln.
Lincoln recognized, however, the risks inherent in the idea of higher law; after all, one could claim that the right to enslave Blacks and to create a new nation around the principle of white supremacy was also self-evident; in fact, many did. But Lincoln found an ingenious way to synthesize his own commitment to the Constitution with the idea of higher law, by positing that the nation had already been founded on a “higher law,” one which promoted, above all else, human equality. Lincoln argued for an integrated reading of the Constitution and the Declaration of Independence, insisting that the lofty principles of the Declaration should be understood as a tacit feature of the Constitution. Lincoln held, therefore, to a strict antislavery constitutionalism, which led him to attempt to use non-violent, Constitutional means to eliminate slavery in the South. The war that followed was a war to save the Union, of course, but when viewed through the lens of his antislavery Constitutionalism, Lincoln’s commitment to saving the Union becomes indistinguishable from his hostility to slavery. In other words, Lincoln fought the Civil War for four, long, horrific years—at the cost of 700,000 American lives—in order to bring an end to slavery.
Rogers, Joel A., "Higher Law and Lincoln's Antislavery Constitutionalism: What It Means to Say the Civil War Was Fought Over Slavery" (2023). CUNY Academic Works.
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