The Frame of Silver

Discovered after his death, Abraham Lincoln’s secretary found a private record of the President’s that was never published. Reflecting on the relationship of the Declaration of Independence to the Constitution, Lincoln wrote the following personal meditation on Proverbs 25:11 – “A word fitly spoken is like apples of gold in pictures of silver.” 

He believed that the expression of the Declaration of Independence declaring “liberty to all” –

…was the word "fitly spoken" which has proven an "apple of gold" to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn and preserve it. The picture was made for the apple -- not the apple for the picture.[1] 

Lincoln identifies the Declaration’s principles of liberty and equality as the heart and soul of the Constitution that it was designed to protect and preserve. The Declaration of Independence states: 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

To summarize these basic principles: 

1. It is a self-evident truth is that all men are created equal; 

2. Another self-evident truth is that all men are endowed with natural (or inherent) rights from their Creator, including life, liberty and the pursuit of happiness; 

3. Governments are instituted among men to secure these rights and to provide for their safety; and 

4. Governments derive their just powers from the consent of the governed. 

Therefore, how do these principles both define the purpose of government and offer guidance on the proper constitutional form of government? How does the Constitution provide a frame of protection for these principles?

The first proposition is that the primary purpose of government is to secure the natural rights of men. The Framers recognized that two great threats to liberty and equality in a democratic republic were: (1) factions; and (2) tyranny – encompassing the human tendency to exercise arbitrary power. In Federalist No. 10 [2] James Madison defines a faction as either a minority or a majority of citizens who are united “adverse to the rights of other citizens.”[3] He concludes that since we are unable to remove the causes of faction we can only control its effects. Madison shows that through the “republican principle” of the Constitution a majority may defeat minority factions “by regular vote.”[4] Further, he argues that through the mode of representation in a republic, a chosen body of citizens (the representatives) will “refine and enlarge the public views”[5] to check and ameliorate majority factions. The second remedy is to “extend the sphere” of the republic by expanding the number of citizens and enlarging the territory so that it will be “less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”[6] He concludes that through Constitutional representation and a large republic, the people may be able to defeat the diseases of minority and majority factions.

In regard to guarding against tyranny, Madison stated in Federalist No. 47, the maxim that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”[7] Because of this danger, in Federalist No. 51 he writes that “all may admit” that the preservation of liberty requires a “separate and distinct” exercise of the different powers of government. Following this principle of separation, Madison then states that it is evident that each department (or branch) should have “a will of its own” and “as little agency as possible in the appointment of the members of the others.”[8] The fundamental assertion of Madison and the Framers of the Constitution is that when given power, men are most often influenced by ambition. The Founders had also learned from history and experience that those who are given authority almost always exercise unjust dominion, or control, over others (which may also be characterized as “arbitrary power”). As Madison observed in Federalist No. 15, “Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged.”[9] Thus, in order to “check” that rival ambition, and the inevitable arbitrary or unjust exercise of power, others in authority must be vested with an equal or offsetting “balance” of power. The end result was a Constitutional system designed to let “ambition counteract ambition,” thus restraining the tendency of human nature to exercise arbitrary power.

Another key feature of the Constitution designed to protect our rights adopted by the Convention was a bicameral legislature. The Framers acknowledged that “in a republican government, the legislative authority necessarily predominates.”[10] They had observed and experienced the “multiplicity of laws,” the “mutability of laws,” and the “injustice of the laws” enacted by the majorities in State legislatures.[11] The agreed remedy at the federal level was to “divide the legislature into different branches” and provide for “different modes of election and different principles of action.” [12] The debate over legislative powers in the Convention eventually led to the establishment of the House of Representatives and the Senate imbued with different modes and terms of representation, separately defined powers, and a right of Executive veto over legislation.

Significantly, the Framers also wisely provided for a federal government of enumerated powers. Each vesting clause and the respective powers delegated by the people to each branch of government were vigorously debated and carefully worded. James Madison stated:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce …The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people …. [13]

Madison also wrote, “The government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general.” [14] Thus, pursuant to the precepts of the Declaration, federal powers under the Constitution are “few and defined” and “confined to specific objects.” Additionally, by dividing governmental powers between the federal government and the States in a compound republic, the construct of federalism provides “a double security arises to the rights of the people.”[15]

The second proposition from the Declaration is that “Governments derive their just powers from the consent of the governed.” Following this principle as a guide, the Framers infused the Constitution with recurring methods of popular consent. Because the primary form of consent in a republic is regular elections, the Convention specified that members of the House of Representatives would be elected every two years, Senators every six years, and Presidents every four years. And, in larger sense, the Framers also provided the means by which the Constitution could be amended by the consent of the people (through Congress and the States), which resulted in the Bill of Rights and, over time, seventeen additional Constitutional amendments.

However, as an even more important and essential element of consent, the Constitution was “ordained and established” by “We, the People.” In other words, the Declaration affirms that because we each possess individual natural rights, the only proper source of governmental power is the people themselves, who are sovereign. As John Jay wrote in Federalist No. 2, “Nothing is more certain than the indispensable necessity of government; and it is equally undeniable that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers.”[16] To accomplish this, the Constitution was adopted by the people directly through ratifying conventions in the States, not through their legislatures. As Madison described in Federalist No. 39, “the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose.”[17] 

In summary, as guided by the Declaration, the Constitution’s republican forms, separation of powers, bicameral legislature, and enumerated powers secure our rights against the enemies of factions and tyranny. In all of these ways and others, the Constitution upholds the Declaration’s injunctions and serves as a fitting “frame of silver” to its principles.

____________________________________
[1] Roy P. Basler, ed., The Collected Works of Abraham Lincoln (Rutgers University Press, New Brunswick, New Jersey, 1953), 4:168 (italics in original). 

[2] Page references are to the Charles Kesler, Signet Classics paperback edition of The Federalist Papers (2003). 

[3] Ibid. p. 72. 

[4] Ibid. p. 75. 

[5] Ibid. p. 76.

[6] Ibid. p. 78. [7] Ibid. p. 298. 

[8] Ibid. p. 318. 

[9] Ibid. p. 106. 

[10] Federalist No. 51 p. 319. 

[11] James Madison, “Vices of the Political System of the United States,” April 1787, in Gordon Lloyd, ed., The Constitutional Convention: Core Documents (Ashbrook Center, 2018), pp. 41-43 (cited as Core Documents). 

[12] Federalist No. 51, p. 319. 

[13] Federalist No. 45, p. 289. 

[14] James Madison, Speech in the House of Representatives, January 10, 1794; Lance Banning, ed., Liberty and Order (Liberty Fund, Indianapolis, 2004), p. 158 (emphasis added). 

[15] Federalist No. 51, p. 320. 

[16] Federalist No. 2, p. 31. 

[17] Federalist, No. 39, p. 239.

Executive Prerogative Power under the U. S. Constitution

John Locke, in his Second Treatise on Government, defines “prerogative power” as: "The power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public …therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe." (Chapter XIV, Section 160).

    Pursuant to the doctrine of prerogative power, the President as chief executive has ostensible authority to act with discretion—sometimes without or against legislative direction or consent—for the public good, particularly during emergencies, insurrections, or war.

    The Constitutional basis for prerogative power is two-fold: First, in the view of the Founders, the Declaration of Independence and the Constitution are principally based on Lockean principles among others. As the Declaration states, the “Laws of Nature and Nature’s God” (or natural rights, inherent in all men as “endowed by their Creator” ). According to Locke, as embraced by the Founders, individuals in the state of nature possess a natural “executive power” to judge and punish violators of natural law to defend their life, liberty, and property. Upon forming a civil society, this right is delegated to the government (but retained in measure by each individual for purposes of self-defense). This natural “executive” power as invested at the government level, then extends to the defense and protection of the people and society itself. Secondly, Article II of the Constitution grants the President all “executive power” with broad authority to act in foreign affairs, national security, and emergency situations, and with implied authority to act beyond specifically enumerated powers. While often contested, prerogative power has been exercised by U.S. Presidents from George Washington to today. Again, the primary test is that this discretionary power is to be exercised for purposes of the public good and national security.

    In President Thomas Jefferson’s letter to John B. Colvin, September 20, 1810, Jefferson states that the highest obligation of a nation’s leader is not just to observe the law, but to preserve and to save the country when in danger: 

The question you propose, whether circumstances do not sometimes occur which make it a duty in officers of high trust to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.

    Jefferson continues his letter by citing several examples, including saving a ship at sea lacking provisions by force against another refusing supply, the hypothetical purchase of Florida for a reasonable sum when Congress is not in session for three weeks when the sale could be lost within days, and lastly the Aaron Burr – General Wilkinson situation in New Orleans. He concludes that: …[there is] a law of necessity and self-preservation, and rendered the salus populi supreme over the written law…. In these the example of overleaping the law is of greater evil than a strict adherence to its imperfect provisions. It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake….

    Thus, Jefferson’s constitutional justification for executive prerogative is that salus populi is supreme over the written law – that being “the safety or welfare of the people,” or when “some of its very high interests are at stake.” President Jefferson’s arguments for the exercise of prerogative power echo his own actions from a few years earlier in 1803 when he purchased the 828,000 square-mile Louisiana Territory on behalf of the United States from France for $15 million without Congressional approval (although later ratified). Despite believing it was unconstitutional because the Constitution didn't explicitly authorize acquiring new territory, Jefferson gave precedence to national security and economic advantages, such as controlling the Mississippi River and effectively blocking France and Spain from further colonization of North America. Initially, Jefferson had considered seeking a constitutional amendment as the only legitimate way to proceed, but he was advised that Napoleon Bonaparte might withdraw the offer if delayed (similar to the Florida example in his Colvin letter). As an interesting note, Alexander Hamilton supported the purchase without such an amendment.

    Jefferson had also previously exercised executive prerogative by authorizing the U.S. Navy to proceed against the Barbary pirates (1801–1805) seeking to defend U.S. shipping and Atlantic commerce from piracy and extortion without a formal congressional declaration of war. While initially ordering only defensive actions, he argued that Tripoli's attack on the American flag justified allowing U.S. ships to “chastise their insolence—by sinking, burning or destroying their ships.”

    Abraham Lincoln’s constitutional justification for his Presidential use of prerogative power was centered on his oath of office, which is set forth in the Constitution: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” In his letter to Albert Hodges, April 4, 1864 (just 10 days before his assassination), Lincoln wrote concerning his interpretation of the oath’s meaning and application to preserve the Union and the Constitution during the Civil War, while he resisted the temptation to “act in mere deference” to his personal feelings on slavery: 

It was in the oath I took that I would, to the best of my ability, preserve, protect, and defend the Constitution of the United States. I could not take the office without taking the oath. Nor was it my view that I might take an oath to get power, and break the oath in using the power… I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government---that nation---of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it.

    The ultimate example of Lincoln’s use of prerogative power may be seen in his issuance of the Emancipation Proclamation on January 1, 1863. After much deliberation, using his authority as Commander-in-Chief during wartime to seize “enemy property”—enslaved people—which he justified as a necessary military measure to preserve the Union. The proclamation, a wartime executive order, declared “that all persons held as slaves” within the rebellious states of the Confederacy “are, and henceforward shall be free.” When he issued the Proclamation, he was very concerned that he had to articulate a constitutional basis for emancipation; so, he did not free all the slaves in the United States or even in all the slave states. As commander in chief, the Proclamation freed slaves only in states where the people were “in rebellion against the United States,” and then only on the ground that it was “a fit and necessary war measure for suppressing said rebellion.”

    The inherent dangers to the exercise of executive prerogative power lie in the discretion, moral character, and wisdom of the President himself. A narrow or corrupt view of the public good may clearly lead to abuses of this power. Additionally, executive prerogative is often exercised broadly and quickly in “heated” and inherently dangerous situations, creating the opportunity for arbitrary, partisan, short-sighted, or self-interested decision-making. Greater risks may also exist in its application in foreign affairs with the threat of expanding conflicts. Challenging expected norms of transparency and democratic deliberation, reliance on executive discretion can directly contribute to weakening the checks and balances among and between the branches of government. Finally, a president’s use of prerogative powers are often viewed and ultimately judged only in hindsight –by elected representatives and the people themselves. As Jefferson reflected, “It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake…”

By: J. David Gowdy

Kindred Spirits: Abraham Lincoln and Thomas Jefferson

From his youth Abraham Lincoln greatly admired Thomas Jefferson (See: Rietveld, Ronald D., “Abraham Lincoln's Thomas Jefferson” (White House Studies, NOVA Science Publishers, Inc., New York, 2005). In his speech at Independence Hall on February 22, 1861, Lincoln said: “I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence” (Roy P. Basler, Abraham Lincoln: His Speeches and Writings (Da Capo, 2001), p. 577). He felt that Jefferson’s principles are “the definitions and axioms of free society” (Basler, p. 489) and that in the Declaration, Jefferson introduced “an abstract truth, applicable to all men and all times...” Lincoln wrote this in a letter to H. L. Pierce and others:

All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression (Basler, p. 489).

Thus, fundamental to Lincoln’s political lodestar – the Declaration of Independence – was his admiration for the Founders, but most particularly Thomas Jefferson and his doctrinal principles of liberty and equality based on natural law. It would be difficult indeed to separate Lincoln’s statesmanship from both the Declaration and Jefferson. They are welded together.

There are at least twenty references by Abraham Lincoln to Thomas Jefferson contained in the Roy P. Basler abridged compilation of his speeches and writings (Basler, Index, p. 833). This does not include other numerous references in Basler’s nine volume “Collected Works of Abraham Lincoln” published by Rutgers University Press, New Jersey, 1955. It is sufficient to say that Lincoln referred often in his speeches and writings to Jefferson, and also indirectly whenever he referenced the Declaration authored by him. To what extent was Lincoln’s interpretation of Jefferson correct? Jefferson can prove to be a complicated figure when it comes to historical analysis, particularly with respect to his actions and possible failures with respect to slavery. However, a basic review of his political principles reveals a man of strong convictions when it comes to the natural rights of all men.

So, what were Jefferson’s principles that comprise in Lincoln’s words, “the definitions and axioms of free society”? First and foremost is the language of the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Jefferson said, “The Declaration of Independence... [is the] declaratory charter of our rights, and of the rights of man” (Jefferson to Samuel Adams Wells, 1819). This became political scripture to Lincoln. 

In Lincoln’s personal meditation on Proverbs 25:11 (“A word fitly spoken is like apples of gold in pictures of silver”) recorded around 1861, he wrote that the principle of the Declaration proclaiming “Liberty to all” were the words “fitly spoken” that has “proved an ‘apple of gold’ to us” (Basler, p. 513). The frame of silver, the Constitution, was “subsequently framed around it .. to adorn, and preserve it” (Basler, p. 513). This literary analogy expresses Lincoln’s consistent view of the raison d'être of the United States (Basler, p. 514). Near the end of his second term as President in 1809, Jefferson wrote concerning blacks, “whatever may be the degree of talent it is no measure of their rights,” since no man has a natural right “to be lord over other persons.” (Jefferson to Henri Gregoire, February 25, 1809). Like Jefferson, to Lincoln, “Liberty to all” meant all men – black, white, and every other color, culture, religion, and nationality.

In addition, Jefferson’s and the Declaration’s principle of the “consent of the governed” became a critical argument in Lincoln’s debates with Stephen A. Douglas over the spread of slavery to the territories and the concept of “popular sovereignty.” As Lincoln stated in his speech at Peoria, October 16, 1854, “No man is good enough to govern another man without that other’s consent. I say this is the leading principle – the sheet anchor of American republicanism” (Basler, p. 304). Lincoln added that with respect to Douglas’ doctrine “popular sovereignty” in the territories is that: “it enables the first FEW, to deprive the succeeding MANY, of a free exercise of the right of self-government” resulting in an unjust twist on the principle of consent (Basler, p. 306).

Another of Jefferson’s principles from the Declaration is that our rights are divine, endowed on each person by our Creator, and not subject to human grants. Jefferson wrote in 1774, “The God who gave us life gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.” (Rights of British America, 1774). To Lincoln, there was no doubt as to the heavenly connection between the rights of “life, liberty, and the pursuit of happiness.” This belief was clearly reflected in his meditation of September 1862, when he wrote, “The will of God prevails” (Basler, p. 655), and in his Gettysburg Address, when he stated, “that this nation, under God, shall have a new birth of freedom ” (Basler, p. 734). To Lincoln, God was the author of liberty and the ultimate governor of the republic. They both had faith in the hand of Providence.

With respect to education, Jefferson believed in the ability of all citizens to become educated with respect to their rights in order to maintain a free government. He had faith in the “common man” and his ability to elect wise and virtuous leaders if that man were educated to do so. As a Virginia legislator, Jefferson wrote the Bill for the More General Diffusion of Knowledge, the Bill for Establishing a Public Library, and the Bill for Establishment of a System of Public Education, among others. Likewise, Lincoln believed that men should become educated, whether in public schools, or self-educated like himself. By so doing, they could advance in knowledge and skills to rise in society. In his address before the Wisconsin State Agricultural Society, Milwaukee, September 30, 1859, Lincoln said, “A capacity, and taste, for [education and] reading, gives access to whatever has already been discovered by others. It is the key, or one of the keys, to the already solved problems. And not only so. It gives a relish, and facility, for successfully pursuing the yet unsolved ones” (Basler, p. 503). He concludes that speech by saying something that could almost be credited to Jefferson: 

Let us hope, rather, that by the best cultivation of the physical world, beneath and around us; and the intellectual and moral world within us, we shall secure an individual, social, and political prosperity and happiness, whose course shall be onward and upward, and which, while the earth endures, shall not pass away (Basler, p. 504).

Similarly, Jefferson wrote to Charles Willson Peale on August 20, 1811, “no occupation is so delightful to me as the culture of the earth.” And writing later to William C. Jarvis in 1820, Jefferson stated his conviction that the people are sovereign and should be trusted when informed:

I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.

 
Lastly, of great significance are Lincoln’s and Jefferson’s views on slavery. Throughout his entire life Thomas Jefferson was a consistent opponent of slavery, calling it a “moral depravity” (Jefferson to Thomas Cooper, September 10, 1814) and a “hideous blot” (Jefferson to William Short, September 8, 1823). He also believed that slavery presented the greatest threat to the survival of the new American nation Jefferson to John Holmes, April 22, 1820). Jefferson also thought that slavery was contrary to the laws of nature, which decreed that all men had a right to personal liberty. He wrote this in his Notes on the State of Virginia, 1785:

Unhappy influence on the manners of our people produced by the existence of slavery among us. The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other … The statesman be loaded, who permitting one half of the citizens thus to trample on the rights of the other, transforms those into despots, and these into enemies, destroys the morals of the one part, and the amor patriae of the other.

And, near the end of his second term as President Jefferson wrote concerning blacks, “whatever may be the degree of talent it is no measure of their rights,” since no man has a natural right “to be lord over other persons” (Jefferson to Henri Gregoire, February 25, 1809). In this same vein, Lincoln abhorred slavery and believed in the natural rights of all men. In his Speech in Chicago July 10, 1858, he confirmed that he desired that slavery to be put on the ultimate course of extinction and stated that, “I have always hated slavery, I think as much as any Abolitionist” (Basler, p. 393). He continued by describing the language of the Declaration of Independence that “all men are created equal” as the “electric cord … that links the hearts of patriotic and liberty-loving men together” (Basler, p. 402). Later, in his debate with Douglas at Alton, October 15, 1858, Lincoln states the maxim of human equality set forth by Jefferson and the Founders: 

They meant to set up a standard maxim for free society which should be familiar to all,—constantly looked to, constantly labored for, and even, though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people, of all colors, everywhere.

Lincoln consistently and tirelessly voiced his opposition to slavery and to its spread in the growing nation. A year before his death, in a letter to Albert Hodges dated April 4, 1864, Lincoln wrote, “I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I cannot remember when I did not so think, and feel.” In his First Inaugural Address delivered March 4, 1801, Jefferson refers to America as “the world's best hope.” Lincoln reflected this same belief in his 1862 message to Congress when he said that in saving the Union and by freeing the slaves, “We shall nobly save, or meanly lose, the last best hope of earth” (Basler, p. 688).

In summary, Abraham Lincoln and Thomas Jefferson were kindred spirits – in their love of liberty, of the equal rights of all men, and in their belief in popular government. A volume could be written on the many connections between these two great men and statesmen. They are both worthy of study and emulation of their shared ideologies of truth and liberty.