In an essay for the 1776 Series at Real Clear Public Affairs, JWI Founder and Director Hadley Arkes discusses the moral axioms that pre-existed the Constitution as understood by President Abraham Lincoln. Prof. Arkes retells Lincoln’s teaching that the Constitution was made for the Union, and not the Union for the Constitution, which shows the important role for natural law reasoning in Constitutional interpretation. If one can grasp the principles that “all men are created equal” or that military operations need the constant supervision that only the Executive Branch functionally provides, the structure and processes set down in the Constitution become clear as the logical conclusions derived from the natural law and first principles of moral reasoning. Even with the “peculiar institution” of slavery, the anchoring principles well understood at the time of the Founding show that the institution could not be sustained, and would be eradicated.
Some excerpts from the piece:
“But counting back, Lincoln took the beginning of the nation to 1776 and the Declaration of Independence. It was not merely the claim of independence; it was the articulation of that ‘proposition’ as Lincoln called it, ‘the father of all moral principle’ among us: that ‘all men are created equal,’ that the only just government over human beings must draw its powers from ‘the consent of the governed.’ Lincoln reminded us that the Union, the American republic, was older than the Constitution. The Constitution was made, as it said, for ‘a more perfect Union.'”
“The Constitution was made for the Union, not the Union for the Constitution. When the Founders took up the task of framing a new Constitution, they had to draw upon those principles of law and moral truths that were there – as they had to be – before the Constitution. If those principles were not there, to tell us of the forms of government that were better or worse, how would we know of just what institutions claimed a rightful authority to put in place those “positive laws” that we were obliged to obey?”
“At the beginning of the Civil War, the novelist Richard Henry Dana defended, in the Supreme Court, the authority of President Lincoln to order a naval blockae of the South. Dana observed that a Declaration of War was an artifact, a thing created under the positive law of a Constitution. But war, he said, was a fact. And could it really be sensible to assume that an enemy would be decorous enough to hold back its attack until the Congress could be assembled to declare war? Or was it more sensible to conclude that the authority to defend the country had to fall to that one branch of government that was never ‘out of town, or out of session’: namely, the executive, charged with the ongoing administration of the laws.”
View the full article here.