During last night’s CNN-sponsored Republican presidential debate in South Carolina, Newt Gingrich alluded longingly, as he often does, to the Lincoln-Douglas debates. “I’d be quite happy to have a three-hour, Lincoln-Douglas-style debate with Barack Obama. I’d let him use a teleprompter. I’ll just rely on knowledge. We’ll do fine.”

Gingrich chafes under the modern debate format’s time constraints – not the aggregate time constraints: last night’s two-hour debate wasn’t that much shorter than the ones Lincoln and Douglas agreed to – but the time each candidate has to lay out his position before the next one speaks.

Little I’ve heard from Gingrich, though, suggests that he wishes to debate anything like the fundamental issues Lincoln and Douglas debated on seven occasions across Illinois in 1858. He just wants the uninterrupted 30-, 60-, and 90-minute time blocks the debaters enjoyed back then. (Lincoln and Douglas didn’t use moderators, either, and Gingrich always reserves his greatest invective for whoever’s unlucky enough to moderate the debates he participates in.)

Oddly, though, in the final minutes of last night’s debate, two of the candidates began to address an issue central to Lincoln – Douglas: what active role does the Declaration of Independence play in interpreting the Constitution and defining our federalism?

All four candidates were defending their pro-life bona fides.  Two of them – Rick Santorum and Ron Paul – began to draw distinctions between their views on how the right to abortion should end.  Short as the exchange was, it sketched out Lincoln’s and Douglas’s different approaches to the South’s right to slavery.

Paul wants to return abortion to a pre-Roe vs. Wade condition.  That is, he sees abortion as an act of violence and groups it with other acts of violence, such as murder, that the states have traditionally regulated through criminal codes and common law.

Santorum, on the other hand, believes that abortion is a federal and not a state issue.  Looking on his web site this morning, I found his list of a number of bills he sponsored or supported as a United States Senator that limited, or would have limited, abortion rights.

As I understand him, Santorum seeks not to simply overturn Roe v. Wade, which would leave the states free again to choose between criminalizing abortion or not. He seeks to outlaw abortion on a federal level as inconsistent with the Constitution as informed by the Declaration of Independence.

Here’s the actual exchange from this morning’s Chicago Sun-Times transcript:

MR. SANTORUM: Congressman Paul has a National Right to Life voting record of 50 percent, which is pretty much what Harry Reid’s National Right to Life voting record is. So for — to go out and say that, you know, you’re someone who stands up for the right to life, you repeatedly vote against bills on a federal level to promote the right to life, and you say that this is an individual personal decision or state decision. Life should be protected, and you should have the willingness to stand up on a federal level and any level of government and protect what our — excuse me — what our declaration protects, which is the right of our Creator to life, and that is a federal issue, not a state issue. (Applause.)

MR. KING: Quickly, sir.

REP. PAUL: Well, just — just for the record, I wasn’t even thinking about you when I was giving my statement.

MR. SANTORUM: (Off mic.)

REP. PAUL: So you are overly sensitive. (Laughter, cheers, applause.)

But it — but it is true that we have a disagreement on how we approach it. I follow what my understanding is of the Constitution, and it — it does allow for the states to deal with difficult problems. As a matter of fact, it allows the states to deal with almost all the problems, if you look at it. It is not given — these powers aren’t given to the Congress.

I see abortion as a violent act. All other violence is handled by the states: murder, burglary, violence. That’s a state issue. (Cheers, applause.) So don’t try to say that I’m less pro-life because I want to be particular about the way we do it and allow the states the prerogative.

This is the solution. This is the solution, because if we would allow the states to write their laws, take away the jurisdiction by a majority vote in the Congress, you repeal Roe versus Wade overnight instead of waiting year after year to change the court system. (Cheers, applause.)

Two things to note in Santorum’s remarks.  First, he deliberately corrected himself when he started to describe an unborn child’s right to life as something our Constitution protects.  He settled instead on describing it as something our Declaration of Independence protects.  He therefore seems to stand with Lincoln, who saw the Declaration of Independence as the soul of the Constitution.  (Lincoln, of course, never addressed abortion, but Santorum’s approach seems to model Lincoln’s from a Constitutional standpoint.) Lincoln went so far as to say that the Constitution’s primary mission was to protect the self-evident truths in the Declaration.

Lincoln’s penchant for reading the Constitution as a mix of ideals and political compromises and for using the Declaration to distinguish between the two was the backbone of his position in the debates.  Slavery could not be extended to the territories because the Constitution’s compromise with slavery should be strictly construed. Lincoln, therefore, saw slavery’s existence as solely a federal issue.

Douglas saw slavery as a state issue.  His doctrine of popular sovereignty, which had been embedded into the Kansas-Nebraska Act of 1854, would permit each territory to decide whether to permit slavery within its borders. Commensurate with his position, Douglas did not read the Declaration has having any bearing on the slavery issue.

The second significant point from Santorum’s remarks is this: Santorum not only described abortion as a federal issue, but he also specifically stated that it was not a state issue.  I doubt the ramifications of that statement sunk deeply into the ears of the debate’s audience. Santorum wants to in some manner make abortion illegal on a federal and Constitutional level.  Apparently, under Santorum’s formulation, states would have as much ability to make abortion legal as they now have to make slavery legal under the Thirteenth Amendment. (And read Paul’s brief defense of a limited role of the federal government under our Constitution in his response to Santorum.  It’s almost precisely Douglas’s position concerning the federal government and slavery.)

If Santorum’s argument (as I understand it) advances, think how it may shape our view of federalism and state’s rights.  Would abortion rights advocates become our next generation of states rights advocates? Would the pro-life advocates split over the issue of federalism? (Santorum, interestingly, got “applause.” Paul got “cheers, applause.”)

I don’t think Roe v. Wade will survive another forty years. The way the right to abortion ends, though, is important to our federalism, and perhaps echoes of that larger, future debate may reach back to last night in South Carolina, as brief and as halting as the exchange about it was.

A federal trial court judge’s clerk usually handles the prisoner petitions.  When I clerked, I would read the petitions, research them, and write an order for my judge to sign deciding the case.  Most of the research was in constitutional law because prison administrators have a lot of leeway in running their prisons with only their prisoners’ constitutional rights circumscribing their policies.

One day my judge refused to sign one of my drafts.  The inmate in question had petitioned the court for damages after debris had allegedly hit him in the head and injured him on a work site.  The prison administration was at fault, he said, because it hadn’t issued him a hard hat.  My order would have permitted the case to proceed to a hearing.

My judge smiled. “There’s no constitutional right to a hard hat,” he said.

One of my students earlier this month came up with a new inalienable right.  When I asked the class what rights he would add to (or specifically enumerate in) the Declaration of Independence or the U.S. Constitution, he included “the right to call someplace home.”

Consider the virtues of a right to call someplace home.  It’s vague, like due process or equal protection.  Everyone can pay it lip service.  A faction could read it as requiring the government to find housing for everyone.  Another faction could hold “English only” legislation unconstitutional since it infringes on a penumbral right to speak only the language of an immigrant’s homeland.  Others could weaken it, or perhaps use it in a way my student may not have intended, by discovering in it only the right to call the United States home, first holding that the government decides what “someplace” is for everyone.  Some may find the right only aspirational: we are a rather nomadic people as well as a melting pot, and perhaps we feel the need for place more acutely for our relative rootlessness.  And some may find it merely tautological.  After all, calling someplace home sounds quintessentially unalienable.

Anyway, it’s a step up from a constitutional amendment delineating the right to a hard hat.

Regional pride doesn’t make one side wish to re-prosecute the Civil War; philosophy does.  States’ rights in their politics and strict constructionist in their jurisprudence, Confederate apologists are apt to see the war’s sesquicentennial as a gift – as a megaphone for their argument in favor of a federalism based on the states’, and not the people’s, consent.

The Union side will not be as vocal.  The Unionists’ near-silence will not come from a victor’s apathy; indeed, Lincoln found the Union cause just as unarticulated as we find it today.  Slavery – the sole cause of the war – was argued vociferously by abolitionists and slaveholders alike, but Lincoln made clear that the North wasn’t fighting to free the slaves. Lincoln felt at all times that the Union cause would advance emancipation, but he never believed that the North was fighting to accomplish emancipation, as much as he favored it. The North fought to preserve the Union.

In this week’s New Yorker, Adam Gopnick reports on the results of a recent poll demonstrating New Yorkers’ ignorance about the Union statues and memorials in their midst.  He argues that the ignorance is indicative of the misconceptions over the war’s cause and aims perpetuated, at least in the first instance, by Confederate sympathizers.

While accurate in other respects, Gopnick’s The Talk of the Town essay implies that the Union cause did not long precede the Civil War.  “And Union Square is confidently identified [by those polled] as being named for the Union cause when in fact its name long predates the war.”

The Union cause, like the Confederacy’s, was based on a philosophical argument.  The Union cause is the cause of self-government, as Lincoln rightly pointed out in his Gettysburg Address and as Hamilton rightly pointed out threescore-and-some-odd years earlier in his preface to the Federalist.  Can a people govern themselves? Calhoun, who provided the philosophical framework for the South’s secessionist movement, thought mankind in general was too benighted to be trusted with government.  People weren’t born with rights, Calhoun believed; a race or nationality of people had to earn the right to govern themselves.  Madison’s view of man, on the other hand, while it was as dark as Dostoevsky’s, was based also on a hope as bright as Dostoevsky’s – a hope springing from natural law’s notion of the divine mark on, or spark in, human nature.

The Union cause is based neither on strict adherence to the Constitution’s base compromises, which is the heart of today’s strict constructionism, nor on a rejection of the Constitution as a racist document, which is the heart of today’s “living constitution.”  The Union cause was based on the values of the Declaration protected by the Constitution – Lincoln’s “apples of gold in pictures of silver.”  The Union cause was the spread of liberty and self-government.  Gopnick correctly points out that “The world saw the Union cause as a promissory note, to use Dr. King’s image, of a republican movement yet to be fully cashed.”

Would that the Union cause would be advanced with as much voice and interest as that employed by the states’ rights advocates this sesquicentennial.  It isn’t likely, but Gopnick’s thoughtful and inspiring essay this week is a start.