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In the Shadow of Our Founders - Page 4

© Brian Tubbs

This view of constitutional jurisprudence was flatly rejected by Abraham Lincoln (though some presidential scholars might credit a few of his actions as President for perpetuating it). In his First Inaugural, Lincoln declared that "the intention of the law-giver is the law." In other words, the law can only be deciphered by an analysis of "original intent" or (as some scholars refer to it today) "original understanding." (The latter is a broader variation of the former, as it acknowledges not simply the relevance of those directly associated with the drafting of a given law or statute, but also those responsible for approving it and those immediately impacted by it at the time of its passage.) Lincoln's view was not at all revolutionary at that time, and it was very consistent with the legal views of the Constitution's Framers, especially when it came to the Constitution itself.

According to James Madison, regarded by most historians as the "Father of the Constitution," anyone seeking to understand or interpret the Constitution must resort to "the sense in which the Constitution was accepted and ratified by the nation." Madison declared: "In that sense alone it is the legitimate Constitution."

This three-part article will analyze the constitutionality of secession based on the premise that the intent of the Constitution's Framers and the understanding of those states that ratified the Constitution indeed matter. Exploring the issue from this vantage poses no unfair advantage to one side or the other. There may be readers who disagree with the doctrine of original intent or understanding, but they would find themselves also in disagreement with both President Lincoln and President Davis. Both of these men justified their respective actions on the founding principles of the Republic and the Constitution.

Our next article, Part 2 of this series, will examine the Framers of the Constitution, and what they had to say on the nature of the Union and the sovereignty of the states.

Sources for this article included:

Barton, David, Original Intent: The Courts, the Constitution, & Religion, Wallbuilder Press, 1996

Grafton, John, ed. Abraham Lincoln: Great Speeches, Dover Publications, 1991

Kennedy, James Ronald & Kennedy, Walter Donald, Was Jefferson Davis Right? Pelican Publishing Company, 1998

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