The Lincoln-Douglas(s) Debates and the Problem of Constitutional Evil

Mark A. Graber

The problem of constitutional evil structured the Lincoln-Douglas(s) debates. Problems of constitutional evil occur in any moderately diverse society where people disagree strongly about justice and morality. The price of living in such a regime is a willingness to tolerate at least some level of injustice with an understanding that future and increased injustices are probable. “Hell,” Jean-Paul Sartre reminds us, “is other people.” The questions Abraham Lincoln and Stephen Douglas disputed in their famous debates during the Illinois Senate campaign of 1858 and those Lincoln and Frederick Douglass considered in their ongoing conversations during the Civil War concerned how much evil the American constitutional order should tolerate, for how long should such evils be tolerated, and what means were necessary and proper for eliminating constitutional evil.

Slavery was the evil whose tolerance for how long and by what means Lincoln-Douglas and Lincoln-Douglass debated. All three acknowledged the injustice and immorality of one person having property rights and total dominion over another person. Douglas declared slavery to be a “curse beyond computation.” Lincoln condemned “the same spirit that says, ‘You work and toil and earn bread, and I’ll eat it.’” He continued:

No matter in what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle.

Douglass asserted that slavery was a “monstrous relation” from which “there springs an unceasing stream of most revolting cruelties.” “The very accompaniments of the slave system,” he said, “stamp it as the offspring of hell itself.”

Douglas, Lincoln, and Douglass outlined three different responses to the problem of constitutional evil. Douglas insisted that permanent coexistence with evil was the price of diversity. The Illinois Democrat in his first debate with Lincoln declared:

I hold that New York had as much right to abolish slavery as Virginia has to continue it, and that each and every State of this Union is a sovereign power, with the right to do as it pleases upon this question of slavery, and upon all its domestic institutions.

Lincoln maintained that Americans should live with evil in the present while being committed to eradicate evil over time. He repeatedly insisted, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists,” and that his goal was to place slavery “where the public mind shall rest in the belief that it is in course of ultimate extinction.” Douglass had no truck for any temporizing with evil. He called on Americas to emulate John Brown and do whatever was necessary to free slaves immediately. “When John Brown stretched forth his arm the sky was cleared,” he wrote, “[t]he time for compromises was gone—the armed hosts of freedom stood face to face over the chasm of a broken Union—and the clash of arms was at hand.”

Commitments to moral diversity during the mid-twentieth century clashed with commitments to racial diversity. Douglas believed the regime committed to moral diversity was as committed to a white man’s government. “I believe this government was made on the white basis,” he declared when debating Lincoln. He went on: “[I]t was made by white men, for the benefit of white men and their posterity for ever, and I am in favour of confining citizenship to white men, men of European birth and descent, instead of conferring it upon negroes, Indians and other inferior races.” Lincoln’s call for gradually weakening moral diversity over time corresponded to his ambivalence about a racially diverse society. He responded to Douglas’s ode to white supremacy by declaring:

I agree with Judge Douglas he is not my equal in many respects—certainly not in color, perhaps not in moral or intellectual endowment. But in the right to eat the bread, without leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man.

Douglass, who vigorously opposed a regime in which diverse sentiments towards slavery were tolerated, was enthusiastic about a multi-racial regime that would exhibit different forms of diversity. He favored “immediate and unconditional emancipation in all the states,” and argued for  “invest[ing] the black man everywhere with the right to vote and to be voted for, and remov[ing] all discriminations against his rights on account of his color, whether as a citizen or as a soldier.”

The 2023 Maryland Constitutionalism Schmooze explored the problems of constitutional evil raised by the Lincoln-Douglas(s) debates. The Constitutionalism Schmooze, which last took place on March 10–11, 2023, is an annual event at the University of Maryland Carey Law School that brings together a diverse range of scholars from different disciplines and different generations to talk about central questions of constitutionalism. Past Schmoozes have been devoted to such topics as “Juristocracy,” “Executive Power,” and “An Eighteenth-Century Constitution in a Twenty-First-Century World.” This year, given the way in which polarization has structured American constitutional politics for a generation, the Schmooze topic focused on the last era of polarized politics and the political actors who most exemplified the different responses to constitutional politics in a regime riveted by powerful disagreements over the demands of justice and morality.

The essays below explore the problem of constitutional evil, the Lincoln-Douglas debates, the Lincoln-Douglass debates, and the Lincoln-Douglas-Douglass debates. Concerns range from detailing the context of those debates to outlining what those debates teach us about contemporary constitutional politics. Some authors put the problem of constitutional evil at the heart of their contribution. That problem provides the background for other contributions but is no more missing than the specter of slavery was missing from any antebellum constitutional debate. No contribution seeks to escape, none could escape, and no contemporary American can escape, some version of the problem of constitutional evil that Americans confronted during the mid-nineteenth century. When faced with neighbors who insist on policies we know to be evil, whether those practices be bans on reproductive choice or abortion on demand, race-based admissions policies or policies that ignore the history of white supremacy in the United States, each paper in different ways asks whether we should emulate Stephen Douglas by living with the evil, emulate Abraham Lincoln and risk war by ameliorating the evil, or emulate Frederick Douglass by demanding the evil be eradicated at all costs.