Debating the Meaning of the Constitution

ABRAHAM LINCOLN, Cooper Union Address (1860)

In 1860, the clear point of contention between Republicans and Democrats was the authority of Congress to regulate slavery within the territories. Illinois senator Stephen Douglas, whom Lincoln had famously debated in 1858, promoted the idea of “popular sovereignty” whereby voters would decide the fate of slavery in a territory, claiming the founding fathers had endorsed such a policy in the Constitution. Lincoln’s meticulous rejoinder in his Cooper Union address in New York City argued instead that the founders had acknowledged Congress’s duty to regulate slavery in the territories. A minor political figure before the speech, Lincoln’s New York triumph propelled him to the front ranks of Republican Party politics, leading later that year to his nomination for president.

The facts with which I shall deal this evening are mainly old and familiar; nor is there anything new in the general use I shall make of them. If there shall be any novelty, it will be in the mode of presenting the facts, and the inferences and observations following that presentation.

In his speech last autumn, at Columbus, Ohio, as reported in “The New-York Times,” Senator Douglas said:

“Our fathers, when they framed the Government under which we live, understood this question just as well, and even better, than we do now.”

I fully indorse this, and I adopt it as a text for this discourse. I so adopt it because it furnishes a precise and an agreed starting point for a discussion between Republicans and that wing of the Democracy headed by Senator Douglas. It simply leaves the inquiry: “What was the understanding those fathers had of the question mentioned?”

What is the frame of government under which we live?

The answer must be: “The Constitution of the United States.” That Constitution consists of the original, framed in 1787 (and under which the present government first went into operation), and twelve subsequently framed amendments, the first ten of which were framed in 1789.

Who were our fathers that framed the Constitution? I suppose the “thirty-nine” who signed the original instrument may be fairly called our fathers who framed that part of the present Government. It is almost exactly true to say they framed it, and it is altogether true to say they fairly represented the opinion and sentiment of the whole nation at that time. Their names, being familiar to nearly all, and accessible to quite all, need not now be repeated.

I take these “thirty-nine,” for the present, as being “our fathers who framed the Government under which we live.”

What is the question which, according to the text, those fathers understood “just as well, and even better than we do now”?

It is this: 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?

Upon this, Senator Douglas holds the affirmative, and Republicans the negative. This affirmation and denial form an issue; and this issue — this question — is precisely what the text declares our fathers understood “better than we.”

Let us now inquire whether the “thirty-nine,” or any of them, ever acted upon this question; and if they did, how they acted upon it — how they expressed that better understanding?

In 1784, 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.…

In 1787, still before the Constitution … the same question of prohibiting slavery in the territory again came before the Congress of the Confederation; and two more of the “thirty-nine” who afterward signed the Constitution … 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.…

In 1789, by the first Congress which sat under the Constitution, an act was passed to enforce the Ordinance of ‘87, including the prohibition of slavery in the Northwestern Territory. The bill … passed both branches without yeas and nays, which is equivalent to a unanimous passage. In this Congress there were sixteen of the thirty-nine fathers who framed the original Constitution.…

This shows that, in their understanding, no line dividing local from federal authority, nor anything in the Constitution, properly forbade Congress to prohibit slavery in the federal territory; else both their fidelity to correct principle, and their oath to support the Constitution, would have constrained them to oppose the prohibition.

Again, George Washington, another of the “thirty-nine,” was then President of the United States, and, as such approved and signed the bill; thus completing its validity as a law, and thus showing that, in his understanding, no line dividing local from federal authority, nor anything in the Constitution, forbade the Federal Government, to control as to slavery in federal territory.…

In 1803, the Federal Government purchased the Louisiana country.… Congress did not, in the Territorial Act, prohibit slavery; but they did interfere with it — take control of it — in a more marked and extensive way than they did in the case of Mississippi. The substance of the provision therein made, in relation to slaves, was:

First. That no slave should be imported into the territory from foreign parts.

Second. That no slave should be carried into it who had been imported into the United States since the first day of May, 1798.

Third. That no slave should be carried into it, except by the owner, and for his own use as a settler; the penalty in all the cases being a fine upon the violator of the law, and freedom to the slave.…

In the Congress which passed it, there were two of the “thirty-nine.” … They would not have allowed it to pass without recording their opposition to it, if, in their understanding, it violated either the line properly dividing local from federal authority, or any provision of the Constitution.…

The cases I have mentioned are the only acts of the “thirty-nine,” or of any of them, upon the direct issue, which I have been able to discover.…

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; while all the rest probably had the same understanding. Such, unquestionably, was the understanding of our fathers who framed the original Constitution; and the text affirms that they understood the question “better than we.” …

But enough! Let all who believe that “our fathers, who framed the Government under which we live, understood this question just as well, and even better, than we do now,” speak as they spoke, and act as they acted upon it. This is all Republicans ask — all Republicans desire — in relation to slavery. As those fathers marked it, so let it be again marked, as an evil not to be extended, but to be tolerated and protected only because of and so far as its actual presence among us makes that toleration and protection a necessity. Let all the guarantees those fathers gave it, be, not grudgingly, but fully and fairly, maintained. For this Republicans contend, and with this, so far as I know or believe, they will be content.

And now, if they would listen — as I suppose they will not — I would address a few words to the Southern people.…

You say we are sectional. We deny it. That makes an issue; and the burden of proof is upon you. You produce your proof; and what is it? Why, that our party has no existence in your section — gets no votes in your section. The fact is substantially true; but does it prove the issue? … The fact that we get no votes in your section, is a fact of your making, and not of ours. And if there be fault in that fact, that fault is primarily yours, and remains until you show that we repel you by some wrong principle or practice.… Do you accept the challenge? No! Then you really believe that the principle which “our fathers who framed the Government under which we live” thought so clearly right as to adopt it, and indorse it again and again, upon their official oaths, is in fact so clearly wrong as to demand your condemnation without a moment’s consideration.

Some of you delight to flaunt in our faces the warning against sectional parties given by Washington in his Farewell Address. Less than eight years before Washington gave that warning, he had, as President of the United States, approved and signed an act of Congress, enforcing the prohibition of slavery in the Northwestern Territory, which act embodied the policy of the Government upon that subject up to and at the very moment he penned that warning; and about one year after he penned it, he wrote LaFayette1 that he considered that prohibition a wise measure, expressing in the same connection his hope that we should at some time have a confederacy of free States.…

Again, you say we have made the slavery question more prominent than it formerly was. We deny it. We admit that it is more prominent, but we deny that we made it so. It was not we, but you, who discarded the old policy of the fathers. We resisted, and still resist, your innovation; and thence comes the greater prominence of the question. Would you have that question reduced to its former proportions? Go back to that old policy. What has been will be again, under the same conditions. If you would have the peace of the old times, readopt the precepts and policy of the old times.

You charge that we stir up insurrections among your slaves. We deny it; and what is your proof? Harper’s Ferry! John Brown!! John Brown was no Republican; and you have failed to implicate a single Republican in his Harper’s Ferry enterprise.…

Under all these circumstances, do you really feel yourselves justified to break up this Government unless such a court decision as yours is, shall be at once submitted to as a conclusive and final rule of political action? But you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, “Stand and deliver, or I shall kill you, and then you will be a murderer!” …

A few words now to Republicans.…

Wrong as we think slavery is, we can yet afford to let it alone where it is, because that much is due to the necessity arising from its actual presence in the nation; but can we, while our votes will prevent it, allow it to spread into the National Territories, and to overrun us here in these Free States? If our sense of duty forbids this, then let us stand by our duty, fearlessly and effectively. Let us be diverted by none of those sophistical contrivances wherewith we are so industriously plied and belabored — contrivances such as groping for some middle ground between the right and the wrong, vain as the search for a man who should be neither a living man nor a dead man — such as a policy of “don’t care” on a question about which all true men do care — such as Union appeals beseeching true Union men to yield to Disunionists, reversing the divine rule, and calling, not the sinners, but the righteous to repentance — such as invocations to Washington, imploring men to unsay what Washington said, and undo what Washington did.

Neither let us be slandered from our duty by false accusations against us, nor frightened from it by menaces of destruction to the Government nor of dungeons to ourselves. LET US HAVE FAITH THAT RIGHT MAKES MIGHT, AND IN THAT FAITH, LET US, TO THE END, DARE TO DO OUR DUTY AS WE UNDERSTAND IT.

www.abrahamlincolnonline.org/lincoln/speeches/cooper.htm.

READING AND DISCUSSION QUESTIONS