Article V through the years: The Civil War

Read part one of this series, “Article V through the years: The Founding Era,” here.

The Founding Fathers made a risky calculation: they compromised on slavery.

At the 1787 Constitutional Convention, the Framers agreed it was better to maintain the unity of the 13 states than deal a death blow to the “nefarious institution.” Slavery, they deemed, was an evil blight on the nation, but, for the time, a necessary one.

Delegates such as Gouverneur Morris from Pennsylvania argued forcefully against making concessions. The southern states, while keeping slaves in bondage, insisted on counting them toward representation, thus increasing the slaveholding states’ political power. Morris was incredulous.

“Upon what principle,” he asked, “is it that the slaves shall be computed in the representation? Are they men? Then make them citizens, and let them vote. Are they property? Why, then, is no other property included?”

In the end, however, the convention settled for the notorious three-fifths compromise, counting three out of every five slaves for purposes of representation. From the glass-half-full point of view, this could be seen as a partial win — a check on the power of the slaveholding states, ensuring they did not achieve the full representation they sought. Yet, for men like Morris, it fell far short. While curbing the southern states’ legislative influence (or did it boost it?), the three-fifths compromise acknowledged the existence of what Morris called “the curse of heaven”: slavery was here to stay. The very idea that slaves, who could not vote, should factor at all toward how much representation their masters received seemed ludicrous.

In retrospect, many criticize the Founders for not acting more decisively against slavery, with some claiming that they only viewed slaves as three-fifths of a person. But we fail to perceive the true dilemma they faced. The delegates at the 1787 convention may have cut a deal with the devil (or, as critic William Lloyd Garrison later put it, “a covenant with death and an agreement with Hell”), but if Morris and the abolitionists had had their way, most likely, the slave states simply would have split off, in which case the abolitionists’ well-meaning, uncompromising dogmatism would have been counterproductive. The country would have splintered into two — a permanent slave state and a free state, potentially in a constant state of war — and slavery would have persisted. Searching for the morally inferior middle ground must have offended many of the men at the convention. But, as statesmen, they had to look at the bigger picture: they chose to prioritize the preservation of the Union. 

Decades later, Abraham Lincoln faced a similar calculation, and he, too, prioritized the Union. Did the 16th president revile slavery? Yes. Did he wish to see it expunged? Yes. And yet, six sentences into his First Inaugural Address, Lincoln confessed, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”

America stood on the brink of war, and Lincoln, influenced by the Founders’ logic, saw it as his duty to keep the fractured pieces intact. He would make the constitutional case against secession, beg, compromise: anything to prevent “the destruction of our national fabric.”

Lincoln saw, perhaps even more clearly than the Framers, that accepting a two-state solution was unsustainable.

“A husband and wife may be divorced and go out of the presence and beyond the reach of each other, but the different parts of our country can not do this,” he said. “They can not but remain face to face, and intercourse, either amicable or hostile, must continue between them.

“Is it possible, then,” he asked, “to make that intercourse more advantageous or more satisfactory after separation than before? Can aliens make treaties easier than friends can make laws? ... Suppose you go to war, you can not fight always; and when, after much loss on both sides and no gain on either, you cease fighting, the identical old questions, as to terms of intercourse, are again upon you.”

In an attempt to avoid such an outcome, Lincoln announced his support for the growing movement to amend the Constitution, noting that, in his view, the Article V “convention method seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others, not especially chosen for the purpose, and which might not be precisely such as they would wish to either accept or refuse” [emphasis added]. 

He was articulating the Founders’ rationale for the convention mode: it allowed “the people” to propose amendments Congress might not otherwise advance. Critics have faulted Lincoln for this approach, claiming he knew a convention might result in an amendment barring the federal government from interfering with slavery. Indeed, in his speech, Lincoln acknowledged such an amendment existed, although Congress had already passed it.

Although it is purely speculative to determine what specific amendments Lincoln might have hoped for from an Article V convention, it is clear that he was striving for unity, even at the cost of compromise. Instead of criticizing him for this, though, we should ask: how, exactly, would allowing the Union to collapse have furthered the anti-slavery cause? Lincoln, shrewd as ever, knew what he was doing. It may not have been a perfect move, but it was entirely logical.

Three years later, the president was looking at a very different set of facts, which led him to make a very different calculation.

Far from demurring to interfere, the president’s 1864 party platform called for “an amendment to the Constitution, to be made by the people in conformity with its provisions, as shall terminate and forever prohibit the existence of Slavery within the limits of the jurisdiction of the United States.” Considering Lincoln’s past endorsement of the convention method as “preferable,” it seems possible the Article V convention may have been on the table.

Lincoln was not always an open champion of the future Thirteenth Amendment, passively watching as a previous version of the amendment failed. But, behind the scenes, the Great Emancipator was laying the foundation for an eventual successful vote. In his Recollections of The Civil War, Charles A. Dana, Assistant Secretary of War from 1863 to 1865, described the president’s canny ability to drive progress:

“Lincoln was a supreme politician,” Dana wrote. “I had an illustration of this in the spring of 1864. The administration had decided that the Constitution of the United States should be amended so that slavery should be prohibited. … It was believed that such an amendment to the Constitution would be equivalent to new armies in the field, that it would be worth at least a million men, that it would be an intellectual army that would tend to paralyze the enemy and break the continuity of his ideas.”

“In order thus to amend the Constitution,” he continued, “it was necessary first to have the proposed amendment approved by three fourths of the States. When that question came to be considered, the issue was seen to be so close that one State more was necessary. The State of Nevada was organized and admitted into the Union to answer that purpose. I have sometimes heard people complain of Nevada as superfluous and petty, not big enough to be a State; but when I hear that complaint, I always hear Abraham Lincoln saying, ‘It is easier to admit Nevada than to raise another million of soldiers.’”

While the nation remembers Lincoln for his grand rhetoric and modest persona, he was also one of our most brilliant politicians. How he navigated the complicated terrain of an unforgiving political era continues to stun even his most hardened critics. While individual plot points may reveal him, at times, to have been a man of his times, the whole of his life, like Theodore Parker’s moral universe, bends, in its final estimation, toward justice.

It is altogether fitting and proper, then, that Lincoln’s life is intertwined with the history of Article V. Even today, we draw inspiration from his belief that “amendments [should] originate with the people themselves.” Through Article V and the convention mode, we have joined the late, great president in his unfinished work: the completion of a more perfect Union.

Follow along for more convention history when “Article V through the years” returns. In the meantime, sign the petition below to show your support for the modern movement to use Article V to end federal tyranny.