In getting right about Lincoln and habeas corpus, I reflected more broadly upon his claim that the Union is perpetual and his thinking about political authority. My conclusions follow, roughly grouped according to topic. The first section contains my own views about the logic of rules, and the rest is an interpretation of Lincoln in light of them. I do not claim that mine is the only possible interpretation. I do think it is more capacious than efforts to place Lincoln in some particular meta-ethical framework. For Lincoln’s purposes, and our own, such efforts seem unnecessary.
1. Rules, Laws, Authority
There is no such thing as a rule that confers authority upon some other rule.
Suppose we are playing a board game with ten rules. An eleventh rule that “the preceding ten rules shall be observed” would be pointless. Observing the ten rules is playing the game, and we agreed to do that going in.
Rules can be described hierarchically — “A pawn shall move thus until it reaches the eighth rank, and then it shall be promoted” — but their authority comes from outside the entire description, from them who play the game.
Games themselves can be played hierarchically in accordance with some rule. “Keep playing checkers until, of any four consecutive games, neither player has won more than two. Then switch to chess.” But again, the authority of the rule establishing the hierarchy comes from them who play the games. Any further rule stating that “the rule for transition from checkers to chess shall be observed” would be superfluous.
A law is a rule in a game that supposedly we have to play, and so it cannot present itself as an option. Optional laws are not a possibility that is ruled out; rather, “optional law” means nothing.
The authority of the laws cannot be established by some particular law, just as there can be no rule conferring authority upon some other rule. Something’s being required or prohibited by law constitutes a reason to do it or not to do it, but only insofar as we are already committed to the system of laws, a commitment that must rest on something other than the simple fact that they happen to be the laws.
Nothing can force us to play a legal game except a pre-legal ethical duty — and this forces (which is the wrong word) in an altogether different sense.
Revolution is rejection of the system of laws. It is the political analogue of walking away from a game. But the analogy breaks down here: We can walk away from a voluntary game without forbidding others to play it, and without their forbidding us to walk away. A political game, by contrast, presents itself as one that everyone must play. The question of revolution is the question whether everyone shall be forced to walk away, or forced to continue playing.
2. The Perpetual Union
A rule in the Union’s supreme governing document that the Union be perpetual would be like the rule: “You must keep playing this game forever.” If we walk away from the game as revolutionaries, we are rejecting that rule along with all the others. And if we do not walk away, any such rule is superfluous.
Whether it is defensible to walk away depends on the game.
From the difference between brute political authority and the moral authority on which it may or may not rest arises the right, even the obligation, to overthrow unjust government. It is what Lincoln calls, in his first inaugural address, the “revolutionary right.” The doctrine of the Union’s perpetuity cannot be understood as abrogating this right.
The Declaration of Independence invokes a moral authority that is prior to the legal authority of the Constitution. It states, in the form of “unalienable rights,” the basic principles that the Union must instantiate in order to be legitimate.
A right of secession from the Union would be a right to walk away from the game at will, as distinct from a right to walk away in accordance with some enumerated exit procedure.
Lincoln asserts in the first inaugural that “no government proper, ever had a provision in its organic law for its own termination.” At a glance this might seem to rule out the possibility of an enumerated exit procedure. But Lincoln also says that “the people themselves” can, “if they so choose,” “fix terms for the separation of the States”; implicitly, they would have to do so through the established federal political process. And in his July 4, 1861, message to Congress, Lincoln says: “The sophism [by which the Confederates claim a right of secession] . . . is, that any state of the Union may, consistently with the national Constitution, and therefore lawfully, and peacefully, withdraw from the Union, without the consent of the Union, or of any other state.” An “organic law” for the “termination” of a “government” should thus be understood as a law authorizing a party subject to that government to throw off its authority at will.
If the Constitution had contained an enumerated exit procedure, the laws of the Union would have been no less irrefrangible, for a state could have exited only according to the procedure.
Lincoln’s fundamental point is that a right of secession would cause the Constitution to be self-undermining, just as a law that presented itself as an option would thereby cease to be a law. The doctrine of the perpetual Union flows from the same logic as the doctrine that states have no right to nullify federal law.
These doctrines nonetheless cannot be understood as laws of the Union, for the reasons presented above. Rather they are presuppositions of all its laws, absent which those laws could not be what they claim to be.
The clearest term Lincoln uses to characterize the status of the secessionists’ actions is “legally void” (first inaugural). When he says in the July 4 message that states can leave the Union only “against law, and by revolution,” “against law” should be understood to mean that a revolutionary acts from outside the whole system of established laws. Whether we will retrospectively consider him a revolutionary or merely a rebel depends on whether his intended revolution succeeds, for whether it succeeds determines whether we will continue to acknowledge the authority of the system he seeks to overthrow.
There is no legal fact-of-the-matter — in the sense of a question on which a judge might rule — about whether the secessionists were rebels. That is not because the law doesn’t take its view, but because the law could not possibly take any other view. It is not a question to be decided by the content of the law.
Such learned analyses as this one, from a scholar of the Constitution, therefore rest on a fundamental error. Lincoln appears to stand on ground of questionable solidity only if we misunderstand his claim about the Union’s perpetuity as a claim of constitutional interpretation. It is not a legal claim at all, but a logical claim about legal authority. That is the import of his first-inaugural statement that “in contemplation of universal law . . . the Union of these States is perpetual.” (His “in contemplation . . . of the Constitution” turns out to be nothing more than a piece of textual evidence establishing that the Union predates the Constitution. One should think of the matter this way: The act of unification established the sovereignty of the United States through the will of its people, and the nation’s laws at any time, including its supreme governing document at any time, give form to that sovereignty.)
3. Legal, Meta-legal
What a revolutionary is to a criminal, Lincoln is to a lawman, and James Buchanan — who would have refused to preserve the Union by force — is to a deserter.
All three types ascend from adherence of the individual to some particular rule, to adherence of society to a system of rules: ascent from the legal to the meta-legal.
Lincoln is a meta-lawman only insofar as he acts consistently with the enumerated rules and procedures of the Constitution. If he breaks enumerated rules to preserve the Constitution and the Union — if, for example, the Constitution says that the president shall never revoke the privilege of the writ of habeas corpus — he becomes the meta-legal version of a tough lawman. And if he claims to establish new constitutional procedures for the sake of the Union’s preservation — if he claims to legislate, or to review legislation — he becomes a counter-revolutionary.
Our moral judgments of criminals, lawmen, and deserters do not necessarily transfer to revolutionaries, meta-lawmen, and meta-deserters. The Founders were good revolutionaries.
Whether it is defensible to be Washington, to be Lincoln, to be Buchanan depends on some standard of justification logically prior to the supreme governing document and the laws framed under it. For example, if the people have no will to preserve the Union, Buchanan’s position may be defensible. Lincoln’s standard is the expressed will of the people to preserve the Union, which itself is justified morally by the principles of the Declaration of Independence. These same principles justified Washington in becoming a revolutionary. (None of which is to say that, as a legal matter, the Constitution must be interpreted in light of the Declaration. Of that debate I venture no judgment. I do say that if the Constitution fails to instantiate the principles of the Declaration, the people have a moral obligation to change it, or to overthrow the political order that makes such change impossible.)
Lincoln does not have to seek office or take an oath to defend the Constitution, but once he does, he must defend it or else become a revolutionary or a meta-deserter.
Lincoln’s reason for seeking office and taking the oath is parallel to our reason for not rebelling and for defending the Union when called upon to do so. Here, his position does not ascend from the legal to the meta-legal, for nothing in the established laws can demand any citizen’s adherence to all of the established laws. He does what he does, and we do what we do, because all of us see that it is right and good.
This points to the difference between a liberal founder and a liberal dictator: The former acts in partnership with a people.
Those who seek to destroy the Union have rejected our understanding of what is right and good. They are accordingly indifferent to Lincoln’s oath, and he to them: “That there are persons in one section, or another who seek to destroy the Union at all events, and are glad of any pretext to do it, I will neither affirm or deny; but if there be such, I need address no word to them. To those, however, who really love the Union, may I not speak?” (first inaugural).
As a citizen Lincoln would not have supported, and as an officeholder he would not have vowed to defend, just any arrangement. He looks totalitarian only if we forget this, forgetting, too, his insistence that there exists a right of revolution.
4. The Moral Foundation
We have appealed to the principles of the Declaration, the unalienable rights of “life, liberty, and the pursuit of happiness.” But what makes them rights? One answer, which is forever to be respected, and which is the Declaration’s own, is that God granted them to us.
Another way of saying this is that all human beings possess equal and fundamental dignity because they were created in God’s image, and that it would be incompatible with this dignity to deny to any of them the rights of life, liberty, and the pursuit of happiness.
One might think, alternatively, that the basic and equal dignity of human beings is self-evident. Someone who thinks this may believe in God, but he does not think the idea of God must play a theoretical role in justifying what is blindingly obvious. (He may think that it provides additional support for what is blindingly obvious.) This, too, is forever to be respected.
It is in virtue of this basic dignity that people are entitled to govern themselves rather than be ruled by others.
From the very idea of self-government follows the content of the basic negative liberties enshrined in the Bill of Rights. Self-government is impossible if those who are to govern themselves cannot express themselves freely (hence freedom of speech); if they cannot cultivate moral convictions, including those that follow from belief in God, which acknowledge that dignity in virtue of which they are entitled to govern themselves (hence freedom of religion); if they must surrender the means to defend themselves against a government that usurps their sovereignty (hence the right to bear arms); if they cannot take part in the established political procedures, expecting to be governed according to the results (hence due process).
More broadly, self-government cannot well succeed absent a robust civil society comprising Burke’s “little platoons,” the spontaneous forms of social organization that allow the people, as much as they are able, to avoid subservience to and dependence upon the state.
In an apartheid democracy only a portion of the people govern themselves. Simultaneously they rule others. But if all people possess equal dignity, all are entitled to participate fully in the political process and receive the protections on which such participation depends. Apartheid rule is accordingly unjust, whatever its substance, however putatively or actually benevolent. (To believe otherwise was Calhoun’s theoretical moral error about slavery. His empirical moral error was to suppose that slavery was good for the slaves.)
It is our fundamental commitment to the equal dignity of all people, and not one or another meta-ethical support for this commitment, that is the foundation of our political order. This is not to deny the value of a metaphysics of morals in motivating the commitment, or to exclude it from framing one or another theory of ethics. But a metaphysics of morals is not required for the justification of liberal self-government.
There can accordingly be a deep harmony between the ideas of natural-rights theorists and those of moral-political constructivists, provided that all share a belief in universal human dignity.
There are intimations of this harmony in Lincoln’s thoughts about the will of God and the will of the people. Certainly he believed in God, and not merely the God of the deists but a personal being who intervenes in the affairs of men. Yet it is the people, not God, to whom he appeals for authority. It is they who are his “rightful masters” (first inaugural). Southern politicians err in that “they are not partial to that power which made the Constitution, and speaks from the preamble, calling itself ‘We, the People’” (July 4 message). He asks: “Why should there not be a patient confidence in the justice of the people? Is there any better, or equal hope, in the world?” (first inaugural). This hope is felt in the belief that God will achieve his purposes through the people, yet it does not follow that the people seek or should seek to execute God’s will: “If the Almighty Ruler of nations, with his eternal truth and justice, be on your side of the North, or on yours of the South, that truth, and that justice, will surely prevail, by” — mark well this by – “the judgment” — mark well whose judgment — “of this great tribunal, the American people” (first inaugural). And although Lincoln entertains the possibility that he and his fellow citizens are instruments of God’s will, indeed God’s vengeance, he rejects the idea that they are agents of it. In fact, he categorically disclaims knowledge of God’s will when he asserts, in effect, that no matter what may yet happen, “as was said three thousand years ago, so still it must be said ‘the judgments of the Lord, are true and righteous altogether’” (second inaugural).
5. There Is No Such Thing as a Liberal War?
War is illiberal in that we fight it through means whose absence liberalism presupposes and whose existence is incompatible with its.
Yet it is right to call the destruction of liberalism, or its absence, a catastrophe, and there is such a thing as a war to stop a catastrophe. In that sense, there can be liberally purposed war.
We may, and we should, say both that it can be morally right to fight a war and that any war is a moral catastrophe. Here, the Rawlsian distinction between ideal and non-ideal theory is illuminating, although I have become doubtful, as once I was not, that there can be any such thing as non-ideal theory. We just have to do the best we can.
It is easy for a war commander, or a founder, to blur the line between personal ambition and strict necessity, or to be unsure of what constitutes strict necessity. And again there is no way categorically to draw a line. We can only look at the actions of a Lincoln and judge them in the light of the circumstances in which they were taken, the good they were meant to serve, and the voice of conscience — as he himself did.