
As I pointed out in my last post, I think Peacetime Abe's presidency would have been beset by a collection of difficult, mutually contradictory impulses. This boils down to three big items on his to-do list: 1) stunt slavery's growth and deny it a future, 2) preserve the Republican Party coalition, and 3) keep the slaveholding South happy, or at least in the Union.
That first item would have loomed large. Lincoln would not have foregone his antislavery convictions entirely, even in the face of Southern opposition and his own party's fragility. He was an antislavery man to the core, he wanted his legacy to be the eventual eradication of that institution, and he felt he had a mandate from the election of 1860 to do something about the imminent threat of slavery's growth. He would not have simply been able to sit idly by and allow the nation to drift on the vexing issue of slavery in the territories; his political situation and his own personal convictions would have dictated otherwise, not to mention the pressure of western migration. Kansas would become a free state in 1861, but what about the rest of the West?
Peacetime Abe had three options: 1) popular sovereignty, 2) redraw the Missouri Compromise line, or 3) enact some sort of federal law that would simply have outlawed slavery in the West.
Lincoln would not have pursued options 1 or 2. He was a loud critic of popular sovereignty, and it is unlikely the compromise line could have been re-established for a variety of political and geographic reasons. Option 3 had real problems, as well. It would have required congressional action, and this with a disgruntled Southern congressional wing that very likely would have been in no mood for conciliation, especially after losing the battle over Kansas. Can anyone really imagine the Compromises of 1820 and 1850 could have realistically been followed by a Compromise of 1861?
But then, it was all really a moot point, wasn't it, thanks to Dred Scott? That case was the Supreme Court's last word on the issue, and Taney's majority opinion held that none of the above options were constitutional. The federal government could not in any way limit slaveholders' property rights in the territories: not with a line, not with the vote, and presumably not with any legislation or executive order.
A constitutional amendment might have directly overriden Dred Scott, but the chances of ratification and passage in a Congress and a Union with a sizeable Southern presence were slim, at best. Moreover, Peacetime Abe would have felt a sense of urgency here. I think he really felt there was a proslavery conspiracy to make "slavery national, freedom local." Indeed, a case was winding its way through the federal system, Lemmon v. New York, that some scholars feel would have given the Taney court just the vehicle it needed to strike down antislavery laws in the free states. Lincoln would not have been inclined to pull a Buchanan and do nothing.
In the end, I think he would felt compelled to issue an executive order banning slavery in the territories--or, maybe in a Freeport Doctrine-esque move, used his authority as the nation's chief executive officer to block any rules or regulations in the territories that supported slavery--ordering the army, for example, to do nothing to retrieve any runaway slaves carried into the territories. Such actions would surely have provoked lawsuits, and a showdown with the Taney court.
Lincoln might even have welcomed such a confrontation. We tend to forget that, in the late 1850s, Lincoln worked out a fairly radical constitutional doctrine in response to Dred Scott, arguing that the old doctrine of judicial review could be void. He suggested that the executive branch was every bit as competent as the judiciary in deciding what was and was not constitutional--in other words, a president's opinion about slavery in the territories carried as much weight as a Chief Justice's opinion.
In the end, I think Peacetime Abe would have been forced to revisit this doctrine, thus provoking a confrontation with the Taney court. What the outcome would have been is difficult to say; stalemate, possibly, at least in the short term. A stalemate might well have worked to Lincoln's advantage; the pressure of western migration would have been more free soil than not, in places like Nebraska and the northern reaches of the Plains. Perhaps a stalemate would in the short term have allowed Americans to discover that slavery really wasn't all that compatible with the west's environment, thus rendering the whole problem moot.
As far as the long run was concerned, Lincoln might well have prevailed here, too. He was able to name two new Supreme Court justices in 1861 (when justices Peter Daniel and John McLean died), and a third when Taney himself passed away in 1864. But one wonders how the electorate would have reacted during the elections of 1862, and especially again in 1864. A president who took on the doctrine of judicial review--and the party that supported him--might well have paid a price in the court of public opinion.