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What Did Lincoln Ask at Cooper Union?
on March 28, 2011
In "Abraham Lincoln and the Structure of Reason," authors David Hirsch and Dan Van Haften write that Lincoln used Euclid's principles of geometry to structure many of his speeches, legal arguments, and writings. In Chapter 3, "Honest Abe?," they write that Lincoln misused Euclid in his 1860 speech at Cooper Union by misconstruing the votes cast by three of the Framers of the Constitution on the issue of the power of the federal government to control slavery in the federal territories.
The authors recite a long list of problems with Lincoln's arguments. The question mark after "Honest Abe" in the chapter's title seems to imply that he was less than honest. The authors make this implication explicit, over and over. Lincoln, they write, "confused the issue" and "stretched the math" (p. 48). He "finessed" the votes of three of the Framers (p. 50). He "employed a verbal shell game" by "overstating his conclusion" (p. 50). There was "weakness in Lincoln's argument" (p. 51). The genius of his speech was in "the skillful stretching of the context of the facts" (emphasis in original, p. 51). He "manufactured three votes" by giving them "a significance they did not have" (p. 51). He used "sleight of hand" (p. 53). Lincoln "slyly manipulated the counting" (p. 52). There was "carefully orchestrated equivocation" (p. 53). The facts Lincoln presented at Cooper Union were not in dispute, but the "stretch" he made was in "the legal effect of those undisputed facts" (p. 54). The authors suggest a possible violation of the American Bar Association's Model Rules of Professional Conduct.
Lincoln was not dishonest. The authors write that "the issue Lincoln addressed was whether the Constitution forbids the federal government from regulating slavery in the territories." But, in fact, Lincoln never posed the question in those words. The actual question he asked was, "Does the proper division of local from federal authority, or anything in the Constitution, forbid our Federal Government to control as to slavery in our Federal Territories?" (emphasis in original).
Lincoln answered his own question: "The sum of the whole is, that of our thirty-nine fathers who framed the original Constitution, twenty-one -- a clear majority of the whole -- certainly understood that no proper division of local from federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the federal territories."
What were the votes of the three Framers that Lincoln supposedly "finessed"? The first was in 1784. Lincoln said that "three years before the Constitution -- the United States then owning the Northwestern Territory, and no other, the Congress of the Confederation had before them the question of prohibiting slavery in that Territory; and four of the 'thirty-nine' who afterward framed the Constitution, were in that Congress, and voted on that question. Of these, Roger Sherman, Thomas Mifflin, and Hugh Williamson voted for the prohibition, thus showing that, in their understanding, no line dividing local from federal authority, nor anything else, properly forbade the Federal Government to control as to slavery in federal territory."
On the second vote, Lincoln said that in 1787, "still before the Constitution, but while the Convention was in session framing it, and while the Northwestern Territory still was the only territory owned by the United States, the same question of prohibiting slavery in the territory again came before the Congress of the [Articles of] Confederation; and two more of the 'thirty-nine' who afterward signed the Constitution, were in that Congress, and voted on the question. They were William Blount and William Few; and they both voted for the prohibition -- thus showing that, in their understanding, no line dividing local from federal authority, nor anything else, properly forbids the Federal Government to control as to slavery in Federal territory. This time the prohibition became a law, being part of what is now well known as the Ordinance of '87."
Lincoln candidly and openly (1) stated that the vote preceded the Constitution, (2) made no assertion that it supported the "constitutionality" of the legislation, and (3) used the vote to show the understanding at the time of the line dividing local from federal authority.
It is an old debating technique to state one's own version of an opponent's argument, and then to argue against the resulting straw man.
In paraphrasing, but not quoting, Lincoln's question, the authors never include his phrase "proper division of local from federal authority." Lincoln was responding to a famous article by Stephen A. Douglas in the September 1859 issue of Harper's entitled "The Dividing Line Between Federal and Local Authority: Popular Sovereignty in the Territories." Douglas wrote that the dividing line between federal and local authority was familiar to the "framers of the Constitution." He wrote that the colonial era, imperial England had no authority over "local" matters, including laws affecting slavery. Under the Articles of Confederation, he argued, the people of the territories had an inalienable right to govern themselves with respect to "internal polity," including slavery, while Congress was limited to federal affairs. This was the "dividing line." At Cooper Union, Lincoln countered with the principle that "no proper division of local from federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the federal territories."
The authors assert a need to prove an absolute majority, but if 18 of 39 signers had voted for legislation restricting slavery in the territories after ratification, and only two voted against, then there would have been a clear plurality in favor. A plurality is still enough to elect a President, to elect Members of Congress in most states, and to enact legislation. The authors' chart lists "18 unique yes" votes. An 18-to-2 vote, with 19 silences, is very persuasive. So if Lincoln had addressed the question of constitutionality, he still would have had a strong argument.
The authors also note that neither a legislator's oath nor the Constitution itself can influence a vote prior to the Constitution's existence (p. 50). But if the three voters had in fact favored the policy of federal control of slavery in the territories under the Articles, then it would be reasonable to conclude that they favored the same policy as drafters of the Constitution, in the absence of any evidence that they intended a change in policy.
In short, the authors argue that three pre-Constitution votes on slavery were not relevant to the constitutionality of federal regulation of slavery in the territories, but they are wrong to claim that Lincoln said otherwise. Lincoln said that the pre-Constitution votes showed that the Framers believed that the "proper division of local from federal authority" did not preclude federal regulation of slavery in the territories.
Thus, the authors do not address the question Lincoln actually asked -- whether either the proper division of local from federal authority OR anything in the Constitution, forbids the federal government from controlling slavery in the territories. The reason that Lincoln asked that question is that that was the question that Douglas had raised in Harper's, and Lincoln disagreed with Douglas's answer to it. If the question had actually concerned solely the federal government's power under the Constitution, then the authors' point about Lincoln's use of pre-Constitution votes might be valid. But, because the question also concerned the proper division of local from federal authority, their point is not valid. They do not even mention Douglas's article.
[The preceding discussion expands upon points made in a book review by Henry Cohen of "Abraham Lincoln and the Structure of Reason" in The Federal Lawyer (Feb. 2011, pp. 61-64). In the review, the author of the review acknowledged my assistance to him in preparing it. Available online at the website of The Federal Lawyer.]