Posted on 04/03/2002 9:52:50 AM PST by r9etb
Last week, Walter Williams published a column called The Real Lincoln, in which he mostly quoted editorialists to support his claim that "virtually every political leader of the time and earlier believed that states had a right of secession."
If that were really true, of course, the Civil War would never have been fought. "Virtually every" political leader in Washington would have let the secessionist states go their own ways. But of course they didn't do that. Instead, they prosecuted a long, bloody war to prevent it. So that part of Williams' case simply fails.
The question remains as to the legality of secession: does the Constitution grant power to the Federal Government to prevent it? Oddly, Williams does not refer to the Constitution itself, to see whether it has something to say about the matter. Rather, Williams (quoting author Thomas DiLorenzo) only provides several quotations about the Constitution, and peoples' opinions about secession.
One can see why: the Constitution itself does not support his case.
Article 1, Section 8 gives Congress the power To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
Thus, the Constitution recognizes the possibility of rebellion (armed secession would seem to qualify), and gives Congress the power to suppress it.
The next question is: does secession represent a rebellion or insurrection? Webster's defines insurrection as "an act or instance of revolting against civil authority or an established government." So if secession is a revolt against the defined powers and authority of the Federal Government, as defined in the Constitution, then the Federal Government is granted the power to prevent it.
The rights and restrictions on the States are defined in Section 10:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The secessionist states clearly violated almost every part of Section 10 -- especially that last clause -- and would by any standard be considered in a state of insurrection.
Article III, Section 3 states that Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The actions of the people in secessionist states fit this definition of treason, and it is within the powers of the Federal Government to deal with them.
Article VI says, in part:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Section VI clearly states that, since the Constitution is the "supreme Law of the Land," the interests of individual states are inferior to those of the United States -- even if their state Constitutions say otherwise. The individual states are bound to remain part of the United States, both by their ratification of the Constitution, and also by their Oath of Affirmation to support the Constitution.
A plain reading of the Constitution not only does not support DiLorenzo's (and thus Williams's) argument, it flat-out refutes it. The powers of the Federal Government do in fact include the power to prevent secession, and Lincoln was properly discharging his duties as President when he acted against the Confederacy.
DiLorenzo's argument thus reduces to whether or not Congress and Lincoln should have allowed the seceeding states to violate the supreme Law of the Land with impunity -- which puts DiLorenzo in the awkward position of having to argue against the rule of Law.
Finally, the pro-secession case simply ignores history: a war between North and South was inevitable. It had been brewing for decades. Even had the secession been allowed to proceed, war would undoubtedly have occurred anyway, following the pattern of Kansas in the 1850s.
Williams is a smart fellow, and he says a lot of good things. But he also says some dumb things -- his "Lincoln" column being exhibit A.
Your comment is a little cryptic to respond to, but if you're trying to suggest that the founders considered slavery a "right" or a unassailable power of a state just because it was legal at the time the Constitution was written, you are dead wrong. At most, it appears that they viewed slavery as a legal vice that hopefully would not remain legal very long. As evidence of this, take a look at the Northwest Ordinance (of 1787), which prohibited slavery therein and required all states which were formed out of the territory to have a constitution which would be "in conformity to the principles contained in these articles."
2) If [the 9th and 10th Amendments] do not speak to individual state power, what do they speak to, pray tell?
As I stated, they were ambiguous attempts to restrain federal power. To argue, as you are, that they were therefore intended to permit a group of states to break off and form a hostile confederacy is ridiculous, since such acts are specifically prohibited by Art. I, Section 10.
3) The 9th and 10th Amendments were the strongest amendments in the Bill of Rights. They became weak only through repeated and willful violations beginning primarily with Lincoln.
History has clearly shown that the 9th and 10th Amendments had very little strength because they were so blatantly ambiguous. Thus the Supreme Court has habitually found it very easy to get away with almost totally ignoring them. And you can't hold Lincoln responsible for any Supreme Court justices he didn't appoint. In fact, Lincoln appointed the man who was arguably the most libertaian justice of all time (Stephen J. Field).
In point of fact, the United States existed prior to the Constitution and is not dependanat on the Constitution for its existence.
...it says nothing which explicity prevents states from withdrawing from that Union.
It doesn't have to any more than an agreement between you and your spouse regarding household responsibilities has to address withdrawomg from that particular union. If it does, you have a new deal in regard to your union. If it does not, the previous deal regarding the union is still good.
They averted one in 1787 by making efforts to contain/eliminate slavery. You've obviously swallowed the b.s. of the Confederate glorifiers without closely examining it. If you don't believe that secession and the Civil War were all about the slavery issue, take the word of the people of Mississippi in their declaration of secession:
"Our position is thoroughly identified with the institution of slavery -- the greatest material interest of the world."
No acts of secession are specifically or generally prohibited by Art. I, Section 10, as secession is *not* rebellion or insurrection.
Whether secession is constitutionally permissible is debatable, but there is no debating the fact that by forming a confederacy and engaging in war, the Confederates violated Art. I, Section 10, which specifically prohibits those acts.
You have just verified the claim that the Constitution was Null and Void as a contractual agreement between the states and a federal government.
Ambiguous phrases in a contract do not make it null and void. Where did you study law?
The fact is Lincoln acted in manners that violated those amendments as a matter of course, along with many other aspects and articles within the Constitution.
You need to learn to distinguish between facts and your own (poorly supported) opinions.
But not necessarily permanently. The specific issue of secession raised at the time was settled as you state. But the larger issue was not decided permanently.
A State could secede from the Perpetual Union for causes as presented in the Declaration of Independance or I suppose for any reason it felt justified doing so. If the other States agreed with such action there would be no problem. If the other States did not agree, they could with justification impose such penalty as they chose on the seceding state for the offense of breaking the agreement. The Constitution doesn't have that much to do with it since the agreement of Perpetual Union predates and is not altered by the Constitution. (The Constitution reorganized the form of Government used for the Perpetual Union.)
That's not what I said or meant. I can only deduct that you think my analogy(actually it is not an analogy) is constitutional? The purpose of it was to test your absolute faith the Federal Government, by the Federal Government, and only the Federal Government.
Are you kidding? We can't even agree on what the Constitution means and it was written in English. What translation of Hebrew, Arameic, Greek and Latin (If I'm even correct about the languages) do you propose to get us to agree to?
And you expect us to assume the existence of a Christian Nation (not one that is supposed to be, but one that is)?
The answer to the question is "yes, in some circumstances", but that is based on personal feeling, not a thought out rationale (at the moment).
I just said it was not an analogy. What is so hard to understand about that? If you want to evade the question, just say so.
"That a State or any other great portion of the people, suffering under long and intolerable oppression and having tried all constitutional remedies without the hope of redress, may have a natural right, when their happiness can be no otherwise secured, and when they can do so without greater injury to others, to absolve themselves from their obligations to the Government and appeal to the last resort, needs not on the present occasion be denied.
The existence of this right, however, must depend upon the causes which may justify its exercise. It is the ultima ratio , which presupposes that the proper appeals to all other means of redress have been made in good faith, and which can never be rightfully resorted to unless it be unavoidable. It is not the right of the State, but of the individual, and of all the individuals in the State. It is the right of mankind generally to secure by all means in their power the blessings of liberty and happiness; but when for these purposes any body of men have voluntarily associated themselves under a particular form of government, no portion of them can dissolve the association without acknowledging the correlative right in the remainder to decide whether that dissolution can be permitted consistently with the general happiness. In this view it is a right dependent upon the power to enforce it. Such a right, though it may be admitted to preexist and can not be wholly surrendered, is necessarily subjected to limitations in all free governments, and in compacts of all kinds freely and voluntarily entered into, and in which the interest and welfare of the individual become identified with those of the community of which he is a member. In compacts between individuals, however deeply they may affect their relations, these principles are acknowledged to create a sacred obligation; and in compacts of civil government, involving the liberties and happiness of millions of mankind, the obligation can not be less.
Andrew Jackson stands a as sharp rebuke to the assertion that "virtually every political leader" believed in a state's right to secession. Of course, I'm not suprised that the neo-confederates ignore him.
OK, so I think your fairy tale is ridiculous then.
And since the North made its money off the South (whose economy was most of the U.S. economy) through its manufactures and operating the ports of Philadelphia and New York, the Abolitionists' demands to the South that they manumit, amounted to a demand that the South make its tally of bricks without any straw.
On the other hand, maybe I don't like you.......so, we need to change national policy so you will go broke. Don't you agree?
Instead, the South worked very hard to ensure that a balance between the number of slave and free states was maintained when new states joined the Union.
Converse also true. Webster and John Quincy Adams opposed admitting Texas to the Union.
This was driven by practical business considerations: they knew that eventually the free states would outnumber the slave states to the extent that slavery would be Constitutionally abolished.
Someone offered the interesting arithmetic that there was no way the anti-Southern faction could admit a large enough number of anti-slavery states to the Union to guarantee passage of an abolition amendment to the Constitution.
Nevertheless, I take your point. But slavery wasn't the only issue in play; there were also the Tariffs of 1824 and 1828 (the Tariff of Abominations), which were odious to the South and West. Interesting, isn't it, how the slavery issue split the anti-tariff states? I've always thought that slavery was cultivated as a wedge issue by pro-tariff Eastern Whigs. I haven't seen the evidence yet, though, that would corroborate my suspicion.
It's worth repeating: left to their own devices, most new states would have been created as free states.
How do you know that? That certainly wasn't the case in Texas, and there was more than one side to the issue in Kansas. The slaveholders who immigrated to Kansas and participated in the Lecompton convention had just as much right to have done so as John Brown and his sons......of course, they're now wrong by teleology, and American history has taken Lincoln's view of Lecompton.
Lincoln didn't go to Kansas, but he sent money (with the proviso that it not be used to support violent protest), which tells us how strongly he felt about it, that Kansas should be a freesoil state, notwithstanding that it lay due west of Missouri, one of the fourteen or fifteen slave states.
It is rather telling that those worthy advocates of "states rights" worked so hard to ensure that new states could be forced to be slave states -- and that they considered slavery a good enough reason to leave the union. [Emphasis added]
I think you're coloring things -- "forced" how? Under "popular sovereignty", people were supposed to vote on it. "Forced", as in, John Brown?
And as far as the South's leaving the Union, that was impelled as much by the pure hatred that was pouring out of the North as by anything else, and by the suspicion that the Republicans would build a national political machine whose sole purpose would be to enable Lincoln to take back his promises not to disturb slavery in the South. He hated slavery -- and he'd have taken those promises back in a heartbeat, just as fast as he suspended habeas corpus. He couldn't get an amendment passed, but he would be bound to try anyway. How can you blame the South for not sticking around to see how their enemies planned to compass their destruction? And I emphasize the word "enemies".
One is hard-pressed to defend a group of people who are willing not only to maintain slavery, but to spread it.
Your judgement of them a posteriori would sound more reasoned if you criticized equally bitterly the industrial magnates who worked their men twelve hours a day and paid them peanuts, who wouldn't let women work, who wouldn't let women vote, and who broke unions every chance they got.
If you're going to judge people who lived in the past by the values of the present, please be consistent. Otherwise I might have to conclude that you harbor a sectional grudge against the South that has nothing to do with slavery, and everything to do with people who can't "talk right" and who consistently fail to "git thar mahnds raht!"
That movie, by the way, made as a caricature of the South, was shot in Iowa. Now there is moral courage for you.
And the people who "spread slavery" -- how did they do that? They emigrated from the Old South to Texas and New Mexico, and beyond the Indian Territory to Kansas. What were they supposed to do? Stay home? And why were they supposed to accept fewer rights than Northerners, and second-class citizenship? Why shouldn't they pick up and move if they felt like it?
They had the right to own people, and when they moved, to take them with them. It was in the Constitution. It's unfortunate that slavery makes economic sense, and that you can't make a case against it in finance; that's why it's making a comeback, now that the British Empire has receded. We need laws against slavery and union-busting to ensure that employers share the value of work products equitably: Milton Friedman himself has said that labor syndicalism is absolutely necessary to mass participation in prosperity and the growth of the American middle class. Otherwise, employers will always be able to bargain down wages -- and so they will.
But in 1860, there was indeed chattel slavery and there were no unions. And absent a national reform movement to raise up labor, I think that the abolition of slavery has to be seen for what it in effect was: a dog-in-the-manger move by Northern industrialists, acting through first the Whig and then the Republican Party, and finally the United States Army, to beggar the Southern agriculturalist leadership and crush opposition to the Millocracy's self-enrichment at the expense of the rest of the country. Which last is exactly what happened during the Gilded Age.
Whether secession is constitutionally permissible is debatable, but there is no debating the fact that by forming a confederacy and engaging in war, the Confederates violated Art. I, Section 10, which specifically prohibits those acts.
That would only be true in the Unionist view, in which the Southern states never actually left the Union -- because they couldn't -- but only "rebelled". Hence the partisan locution popular at the time, "War of the Rebellion".
But precisely because the secessionist states were no longer in the Union, they could no longer violate that Constitution to which they were no longer signatories.
The fact remains, however, that slavery was the primary issue, and secession occurred as a response to Lincoln's election, which the South interpreted (probably correctly) as the beginning of the end for slavery.
The non-slavery issues you name were not in themselves all that big a deal, and could have been dealt with politically. More than likely it was only because North/South passions were already inflamed by slavery that they assumed the magnitude they did.
As for the free-slave state controversy, let's look at the history. The Missouri Compromise basically said that after the admission of Missouri as a slave state, all states above the Mason-Dixon line (36° 30' North) would be free. A look at the map shows that virtually every state new state admitted to the Union would be free. The only non-states south of the line were the bottom halves of the desert states.
Obviously this was a problem for the South, and they aggressively opposed the Compromise. The Kansas-Nebraska Act of 1854 repealed the Missouri Compromise, and left the matter up to a vote of the settlers of each state. This not only inflamed North-South passions, and but opposition to the act fueled the creation of the Republican Party, Lincoln's election, and the subsequent secession.
(Considering the large population advantage of the North, it's quite likely that popular sovereighty would have weighed in favor of anti-slavery in most states.)
Interesting, isn't it, how the slavery issue split the anti-tariff states? I've always thought that slavery was cultivated as a wedge issue by pro-tariff Eastern Whigs. I haven't seen the evidence yet, though, that would corroborate my suspicion.
I can't fully agree with this statement. To summarize tariff issue: "the [tariff packages] catered to the benefit of states in the Mid-Atlantic, Ohio Valley, and New England. In fact, the tariff elevated the rate on manufactured goods to about 50% of their value, resulting in significantly greater protection for New England cloth manufacturers. The South, by contrast, did not benefit at all from this scheme, and stood to get soaked by higher prices on goods the region did not produce. The tariff also threatened to reduce the flow of British goods, making it difficult for the British to pay for the cotton they imported from the south."
While the far-western states may have been affected, the primary impact was felt by the cotton-producing South. The disparate impact is explained by difference in economic base. The North was becoming much more industrialized, and obviously did not depend on slavery. The South's economy was agricultural, and production of cotton (their main export) depended on slave labor. Thus, in a sense the disparate impacts of the tariffs can also be traced back to slavery.
I take exception to this:
Your judgement of them a posteriori would sound more reasoned if you criticized equally bitterly the industrial magnates who worked their men twelve hours a day and paid them peanuts, who wouldn't let women work, who wouldn't let women vote, and who broke unions every chance they got.
This was of course not the topic of discussion, so of course I did not bring it up -- nor did anybody else, including you, until just now.
Nor can you charge me with making a posteriori moral judgements in the case of slavery: by the time of the Civil War, the abolitionists had long since introduced this line of moral thought. If current thinking about slavery matches theirs, I count that as a time-honored validation of their position.
Precisely. In the view of the Union, which still bound itself to the Constitution, the states that dissolved their bond were indeed in rebellion, and the Union was thus empowered to do something about it. The force of law in such situations is given to the party obeys the law, and not to the party that breaks it.
But precisely because the secessionist states were no longer in the Union, they could no longer violate that Constitution to which they were no longer signatories.
Which is tantamount to saying that I can break any contract at will, and without penalty, because once I've broken it I am no longer bound by it. This argument just plain fails.
However, the Constitution very explicitly enumerates (in Article VI) that every single action that must be performed for a state to seceed, is illegal. (See #433).
It's a very funny sort of legality where everything required to do that legal thing is expressly prohibited.
My bad -- see #431.
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