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THE ELECTION OF 1864:
LINCOLN’S LEGACY OF RESOLVE AND INTEGRITY
Elizabeth Farrington
I. Introduction
Speaking at the College of Law last fall, Akhil Reed Amar explained why, contrary to
most Originalist scholars, Americans are not the children of Thomas Jefferson or James Madison
or even George Washington; rather, we are all children of Abraham Lincoln. We are children of
Lincoln because, prior to his administration, the Constitution failed to provide the guarantees of
liberty and equality that define our country today. 1 Though he was assassinated before the
Reconstruction Amendments were enacted and, in fact, before the Fourteenth and Fifteenth were
even drafted, Abraham Lincoln was much more than the Great Emancipator.2 He “did more than
preserve the Union. He also redefined it. In a deeper way than ever before, the nation after and
because of Lincoln became ‘dedicated to the proposition that all men [and women] are created
equal.’”3
As if it were not enough to preserve the Union, and to lay the groundwork so that the
Thirty-Ninth Congress could make it more perfect, 4 President Lincoln’s domestic policies
advanced equality and economic stability to ensure a thriving country was left to preserve
following the Civil War. For example, he supported and signed the first Homestead Act in 1862,
allowing “any person . . . who has never borne arms against the United States Government” to
obtain a federal land grant.5 The grant was available to “any person,” which meant that “farmers
from nearby Midwestern states, landless farmers from the East, immigrants just off the boat,
single women, and even former slaves were eligible.”6 Further, the occupants were required to
1
See AKHIL REED AMAR, THE LAW OF THE LAND: A GRAND TOUR OF OUR CONSTITUTIONAL REPUBLIC 28 (2015)
(“In this largest sense, all Americans, whether or not they have ever set foot in Illinois, are living in the land of
Lincoln.”).
2
This title often refers to his Emancipation Proclamation, but also to his part in passing the Thirteenth Amendment.
3
AMAR, THE LAW OF THE LAND, supra note 1, at 28.
4
See generally Richard L. Aynes, The 39th Congress and the Fourteenth Amendment, 42 AKRON L. REV. 1019
(2009).
5
An Act to secure Homesteads to actual Settlers on the Public Domain, Pub. L. 37-64, 12 Stat. 392, 37 Cong. Ch. 75
(1862).
6
Roger D. Billings, The Homestead Act, Pacific Railroad Act and Morrill Act, 39 N. KY. L. REV. 700, 714 (2012).
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make improvements on the land, thus providing a land ownership opportunity for those
otherwise unable to do so and rapidly settling the West in one fell swoop.7
That same year, President Lincoln also signed the Morrill Act,8 which aided states in
establishing agricultural and mechanical colleges and eventually gave rise to the vast majority of
state flagship universities, including our own University of Illinois.9 These newly established
“land grant colleges were to equalize opportunity for education and branch out from the liberal
arts, while not altogether leaving them behind.”10 Today, every state has at least one university
originally established through the Morrill Act11 and more Americans are able to pursue a college
education than ever before.
Yet, all of the above notwithstanding, to me, the most lasting aspect of President
Lincoln’s remarkable legacy was neither the legislation he helped enact nor the war he won.
Even as a law student, it is not the fact that he is often regarded as one of, if not the single
greatest lawyer in American history.12 Rather, the actions that I try to employ as guiding tenets in
my own life, and the reason I believe President Lincoln is the father of the Constitution as we
know it today, was the election of 1864, both his candidacy and the fact that an election even
took place.
II. The Election of 1864
America had not voted for a President during wartime since 1812 and many assumed
President Lincoln would postpone the November 1864 election until the war was over.13 After
all, “no American President had been reelected since Andrew Jackson” 14 and the incumbent
President could easily justify delaying the election on account of the seemingly endless Civil
7
Id. at 721 (“As it is a blessed thing for the poor and landless to receive, substantially as a gift, a farm from the
Government, where they and their children may till their own soil, and enjoy competence, freedom, and free
schools, let them never forget, that this was the act of the North, and opposed by the South.”) (citation omitted). See
also 4 COLLECTED WORKS OF ABRAHAM LINCOLN 203 (1953) (“An allusion has been made to the Homestead Law. I
think it worthy of consideration, and that the wild lands of the country should be distributed so that every man
should have the means and opportunity of benefitting his condition.”).
8
Morrill Act, 12 Stat. 503, 37 Cong. Ch. 130 (1862) (codified as amended at 7 U.S.C. § 301).
9
Billings, The Homestead Act, supra note 6, at 731.
10
Id. at 729.
11
Id. at 730. As a recipient of the College of Law’s Morrill Scholarship and a graduate of two other public
universities, I am particularly grateful for this initiative.
12
See generally BRIAN DIRCK, LINCOLN THE LAWYER (2008).
13
WILLIAM LEE MILLER, PRESIDENT LINCOLN: THE DUTY OF A STATESMAN (2008); DAN RYAN, THE GENERAL: THE
CALDWELL SERIES 309 (2011).
14
JENNIFER WEBER, COPPERHEADS: THE RISE AND FALL OF LINCOLN’S OPPONENTS IN THE NORTH (2008).
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War.15 Instead, he insisted and ensured that the election was held as scheduled. This is even more
astonishing because President Lincoln was convinced of the probability, or at least the very real
possibility, that he would lose. In addition to holding the election as scheduled, President Lincoln
also insisted on proceeding with “the deeply unpopular call for [500,000] troops” just months
before the election, believing these troops were necessary for a Union Victory, even at the cost of
his reelection.16 In August 1864, he told Schuyler Hamilton: “You think I don't know I am going
to be beaten, but I do, and unless some great change takes place, badly beaten.”17
Less than three months before the election, Lincoln wrote, signed, and dated what he
believed would be his last political statement, and asked his Cabinet members to ratify the sealed
document by “signing the outside, sight unseen.”18 In it he wrote:
This morning, as for some days past, it seems exceedingly probable that this
Administration will not be re-elected. Then it will be my duty to so co-operate
with the President-elect as to save the Union between the election and the
inauguration; as he will have secured his election on such ground that he can not
possibly save it afterwards.19
It was not self-doubt that drove Lincoln to draft this statement; he had been advised throughout
his campaign that there was virtually no chance he could win if he insisted on abolishing slavery,
and “would be drubbed even in his home state of Illinois.”20
Of course no politician would submit to losing an election if he or she could avoid it, but
a loss meant much more to President Lincoln than simply vacating the oval office. A McClellan
presidency would likely lead to “compromise with the Confederacy and a negotiated dissolution
of the Union that Lincoln loved.” 21 Yet rather than postpone the election, and rather than
15
For an account of how noteworthy that decision was, see Akhil Reed Amar, Abraham Lincoln and the American
Union, 2001 U. ILL. L. REV. 1109, 1118 n.26 (“In marked contrast, England held no general Parliamentary elections
between November, 1935, and July, 1945.”) (citing WINSTON S. CHURCHILL, TRIUMPH AND TRAGEDY 586–87
(1953)). This address was delivered on October 26, 1999 as the Fall 1999 David C. Baum Memorial Lecture on
Civil Rights and Civil Liberties. See also Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During
the Second Half-Century, 26 HARV. J.L. & PUB. POL'Y 667, 728 (2003) (“Notably, in the middle of the greatest war
in the nation's history, Lincoln held the 1862 and1864 elections right on schedule, something no tyrant or dictator
would ever do. In fact, although at several points in his 1864 re-election campaign it appeared that Lincoln could
lose and the war end in stalemate, Lincoln nevertheless refused to cancel the presidential election.”).
16
Id. (“‘What is the presidency to me,’ Lincoln said to a protesting Ohio committee, ‘if I have no country?’”).
17
MICHAEL R. BESCHLOSS, PRESIDENTIAL COURAGE: BRAVE LEADERS AND HOW THEY CHANGED AMERICA 1789–
1989, 96 (2008).
18
Id. at 97.
19
Lincoln’s Secret Memorandum Concerning His Probable Failure of Re-election (Aug, 23, 1864), in 7 COLLECTED
WORKS OF ABRAHAM LINCOLN 514 (1953).
20
BESCHLOSS, PRESIDENTIAL COURAGE, supra note 17, at 96.
21
Amar, Abraham Lincoln, supra note 15, at 1118.
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compromise on the issue of abolition or yield to calls for peace, the President drew courage of
his own conviction from what he later called the “chief gem of [his] character”—his celebrated
resolve.22 He later explained: “We cannot have free government without elections, and if the
rebellion could force us to forego or postpone a national election, it might fairly claim to have
already conquered and ruined us.”23 Thus, despite the fact that Lincoln eventually comfortably
won reelection (due in large part to General Sherman’s military victory in Atlanta that
September24), we know that Lincoln had insisted on staying the course despite full recognition of
the consequences. As Amar explained in a separate address here at the College of Law:
Like Washington's decision in 1792-93 to walk away from power after two terms,
and Adams's decision in 1800-01 to accept the people's verdict and yield the
presidency to his bitterest political foe, Lincoln's decision in 1864 to submit
himself and his platform to the judgment of the supreme tribunal of the American
people deserves our highest praise. . . . Together, these three examples have given
the rest of the world a stunning illustration of the true meaning of constitutional
democracy – government of, by, and for the people.25
This essay is a brief attempt to contribute to that praise. More specifically, I aim to examine how
President Lincoln’s celebrated resolve and unwavering integrity as illustrated by the 1864
presidential election can serve to guide both law students and practicing attorneys in the pursuit
of a successful and honorable career.
A. Resolve
As noted above, President Lincoln’s political advisors were convinced that his
commitment to abolition was dragging him down politically and that if the North were to lose the
war, it would be lost on the back of the Emancipation Proclamation.26 His call for troops at the
behest of Union military leadership was rejected by the Northern public and Republican
politicians “who urged the president to modify or postpone it. But he would not do it.” 27
Thankfully, the “chief gem of [his] character”—the “ability to keep [his] resolves when they are
made”28 guided his decision to stand fast in his belief that slavery must be abolished and that the
22
BESCHLOSS, PRESIDENTIAL COURAGE, supra note 17, at 102.
MILLER, PRESIDENT LINCOLN, supra note 13.
24
See GARY W. GALLAGHER ET. AL., CIVIL WAR: FORT SUMTER TO APPOMATTOX 269 (2014).
25
Amar, Abraham Lincoln, supra note 15, at 1118.
26
BESCHLOSS, PRESIDENTIAL COURAGE, supra note 17, at 96.
27
MILLER, PRESIDENT LINCOLN, supra note 13.
28
Id. at 102.
23
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war was the proper vehicle to end it.29 President Lincoln later said he “could not recall a single
time he had erred as President by following his own judgment. By contrast, when he ‘yielded to
the views of others,’ he usually regretted it.” 30 The election of 1864 was no exception; his
resolve helped abolish slavery, win the war, and preserve the Union.
I did not know about the election of 1864 when I decided to come to law school. Truth be
told, I knew embarrassingly little about President Lincoln at all at that time. But I, and the rest of
my peers, came to law school at a time when it seemed as though everyone tried to tell us it was
a mistake. Nearly every popular media outlet wrote some version of “Why You Shouldn’t Go to
Law School.”31 As proof positive for their career advice, these authors often cited the recession,
unemployment rates of recent grads, overwhelming debt, and the possibility that “the boom
times [of the legal market pre-2008] might be over for good.”32 These articles may not have
caused the decline in application and matriculation that followed, but it seems they at least
contributed to the general feeling that law school may not be a safe bet anymore.
I cannot speak for my classmates, but I believe that many others shared my experience.
That is, well meaning friends and family, with my best interests at heart, tried to echo these
articles with personal anecdotes about why it would be a better decision to either remain at my
current job (as a Lieutenant in the Navy) or to pursue a different post-graduate degree. At a job
fair for service academy graduates, recruiters consistently offered opportunities in management
that would remove the risk of entering a struggling legal market and would eliminate the
opportunity costs of law school. One concerned friend went so far as submitting my name and
address for business school mailers from seven different universities.
Thankfully, I am writing this essay because I am lucky enough to share one characteristic
with President Lincoln: the ability to keep my resolve. My colleagues and I enrolled, and—
contrary to those media outlets—not because our condemned liberal arts degrees left us out of
options. Rather, we came to law school because we knew that there was something here we were
looking for, both individually and collectively, that we would not find elsewhere. For me, it was
the opportunity to serve our Constitution even after I removed my Navy uniform and to remain
29
See generally WEBER, COPPERHEADS, supra note 14.
BESCHLOSS, PRESIDENTIAL COURAGE, supra note 17, at 102.
31
See, e.g., David Segal, Is Law School a Losing Game?, N.Y. TIMES (Jan. 8, 2011), available at
http://www.nytimes.com/2011/01/09/business/09law.html?_r=0.
32
Jordan Weissmann, Law School Applications Are Collapsing (as They Should Be), ATLANTIC (Jan. 31, 2013),
available at http://www.theatlantic.com/business/archive/2013/01/law-school-applications-are-collapsing-as-theyshould-be/272729/.
30
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intellectually challenged long after I finished my degree. The law is a noble profession, one that
we hope to enter with pride, and one that we could not enter without steeling our resolve in
getting to and getting through law school.
B. Integrity
President Lincoln would have been justified in yielding to popular demand. His friends
and advisors urged, even begged the President to yield on any or all issues of contention.33 As
noted above, likely the easiest action would have been to delay the election until after he had
secured a Union victory, but he refused. His call for troops was incredibly unpopular; “although
it sought volunteers, the bottom of the barrel had been scraped, and in fact volunteers were going
to be few”34 and a draft just months before an election seemed to seal the President’s fate. To
many, ending slavery seemed a foregone conclusion, so the President’s actions to abolish it
immediately had worn thin: “[M]illions of Northerners were willing to shed blood to restore the
American Union, but not to abolish slavery.”35 In light of all this, we know it was much more
than resolve that kept the President steadfast. It was also his sincere belief that the election was
essential for the preservation of democracy and that his actions were ethically sound and morally
required. Although integrity is most often understood as doing the right thing when no one is
watching, it seems even more imperative to do the right thing when everyone is watching—and
disagreeing with you.
President Lincoln’s integrity goes far beyond the simplistic “honest Abe” moniker.
Believing he would lose the election, if proceeding on resolve alone, the President could have
postponed the election or altered his policies to ensure he would remain in office long enough to
accomplish his goals. Combined with his integrity, however, he found himself morally obligated
to stand strong in the face of overwhelming odds. As a result, President Lincoln was able to
abolish slavery, preserve the Union, and ensure democracy prevailed. I cannot think of a more
poignant message to carry throughout and after law school: decide what is right and just, and
stand fast to it. In President Lincoln’s own words: “Determine that the thing can and shall be
done, and then we shall find the way.”36
33
See MILLER, PRESIDENT LINCOLN, supra note 13.
Id.
35
BESCHLOSS, PRESIDENTIAL COURAGE, supra note 17, at 96.
36
1 COLLECTED WORKS OF ABRAHAM LINCOLN 480 (1953).
34
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In Canada, law graduates are “called to the bar,” 37 and perhaps that is a more apt
description than the American analog, “sit for the bar.” As Abraham Lincoln (the lawyer) knew,
this career is more than a job, it truly is a calling that requires more than intelligent reasoning and
incredible work ethic; it requires infallible integrity. In notes he prepared for a law lecture a
decade prior to his presidency, Lincoln noted with disdain the “vague popular belief that lawyers
are necessarily dishonest.”38 While it is quite clear that Lincoln did not believe lawyers were the
only citizens with the duty to live with integrity, he plead for all those studying law to take the
requirements of the calling to heart: “[R]esolve to be honest at all events; and if in your own
judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose
some other occupation, rather than one in the choosing of which you do, in advance, consent to
be a knave.”39
As law students, our integrity is tested even when we are not consciously aware of it. We
do not collaborate on individual assignments or exams, we do not plagiarize our work, and we do
not use outside assistance when forbidden from doing so. To me, and I believe to my classmates,
it is not a fear of repercussion that keeps us on the straight and narrow. Instead, we took an oath
upon entering the College of Law, and took that oath to heart, in which we “acknowledge[d] and
accept[ed] the privileges and responsibilities inherent in becoming a lawyer, and the high
standards and ideals that accompany such an undertaking.” 40 We committed ourselves to
“integrity without compromise” 41 and, without a doubt, this commitment in law school is
practice for more difficult tests carrying higher stakes in our legal careers.
For President
Lincoln, if he was unable to remain in office without sacrificing his integrity, the office was no
longer worth having. There are occupations that may encourage dishonesty or reward those who
cut corners; the law is not one of them. As attorneys, if we are unable to sway a judge, close a
deal, secure a job, or convince a jury without without sacrificing our integrity, we should heed
the President’s advice and “choose some other occupation.”42
37
Call to the Bar, Law Society of Upper Canada, http://www.lsuc.on.ca/CalltoBar/ (last visited Jan. 17, 2016).
Fragment, Notes for a Law Lecture (July 1, 1850), in 2 COLLECTED WORKS OF ABRAHAM LINCOLN 82 (1853).
39
Id.
40
Pledge of Professionalism, Illinois College of Law, http://www.law.illinois.edu/pdf/orientation/2012-Pledge-ofProfessionalism.pdf (last visited Jan. 19, 2015).
41
Id.
42
Notes of a Law Lecture, supra note 38.
38
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III. Conclusion
If law students can emulate any part of Abraham Lincoln’s presidential triumphs or take a
fraction of the skill of Abraham Lincoln’s advocacy with us, we should be grateful beyond
measure. For brevity’s sake this essay focused on President Lincoln’s actions concerning the
election of 1864, as I believe it illustrates those characteristics most vital for success as an
attorney and as an American. To conclude, however, I borrow a more personal account of
President Lincoln’s legacy, as told by his personal friend and pastor (and the Senate Chaplain),
Phineas Densmore Gurley:
We admired and loved him on many accounts, for strong and various reasons. We
admired . . . his staunch and sterling integrity . . . his persistent, self-sacrificing
devotion to all the duties of his eminent position, from the least to the greatest; his
readiness to hear and consider the cause of the poor and humble, the suffering and
the oppressed . . . his true and enlarged philanthropy, that knew no distinction of
color or race, but regarded all men as brethren . . . his inflexible purpose that what
freedom had gained in our terrible civil strife should never be lost, and that the
end of the war should be the end of slavery, and, as a consequence, of rebellion;
his readiness to spend and be spent for the attainment of such a triumph, a
triumph, the blessed fruits of which shall be as wide-spreading as the earth and as
enduring as the sun, all these things commanded and fixed our admiration and the
admiration of the world, and stamped upon his character and life the unmistakable
impress of greatness.43
The “blessed fruits” of President Lincoln’s legacy are indeed wide spread and enduring, and
should continue to influence the study and practice of law into perpetuity. If we are to believe
popular media, it seems as though the profession Abraham Lincoln so loved has become no more
than a business, and one that encourages moral ambiguity and dishonesty. But it is not and need
not be so. Law students and lawyers can and do succeed by remaining loyal to their own
informed judgments and by ensuring truthful advocacy and faithful devotion to the law. And if
we do, I believe we will have served to preserve President Lincoln’s incredible legacy.
43
The Funeral Sermon, N.Y. TIMES, Apr. 20, 1865.
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