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.
Only elements of South Carolina fired on federal troops who had refused to leave. That was an error made in haste.
An insurrection would have been to overthrow the federal government, such as if D.C. had been invaded and Lincoln with other high officials arrested as a new extra-Constitutional regime was installed, not just leaving the Union behind.
There is no provision in the Constitution relieving seceding states from their obligations under Art. I, Sect. 10 not to confederate or engage in war.
There are quite a few states that did so among the original 13 as well as Texas later on.
Please cite what you contend constitutes any kind of a reservation of a state right to secede.
A blockade, is an Act of War. Where in the Constitution is the power to initiate war granted to the President?
So you considered JFK's bloskade of Cuba during the missile crisis to be an unconstitutional act of war? Also, please read Art. II, Section 2, which makes the President the Commander in Chief of the Army and Navy of the U.S., and Art. II, Section 1, which vests the President with the power to execute the laws (including but not limited the laws prohibiting states from confederating and waging war).
Where in the Constitution is the power to deport dissenting Congressmen granted to the President? Where in the Constitution is the suppression of the Bill of Rights granted to the President? Where in the Constitution is the arrest and imprisonment of an entire state's Congress given to the President? Where in the Constitution is the call up of militias given to the President? Where in the Constitution is the power to arbitrarily restrict Free Speech, gun ownership, and indeed since we're talking about the War of Northern Agression and at the time there *were* only 12 Amendments, Where, at that time, was the power to abolish slavery given solely to the President
If you're contending that Lincoln did any of those things, please be specific if you want me to respond. He certainly did not abolish slavery by executive order -- that was done by the 13th Amendment. Lincoln did take some unprecedented action to put down the Confederate insurection, but of course what the Confederates did in the name of preserving slavery was unprecedented as well and certainly much more aggregious and blatantly unconstitutional than anything Lincoln did.
You have 2 choices, 1) The Constitution is invalid as it establishes a majoritarian tyranny. 2) The Constitution is invalid as it does not establish a majoritarian tyranny, but has been violated in such a manner.
The Constitution is far from perfect, but to quote Thomas Jefferson:
"The framers of our constitution certainly supposed they had guarded, as well their government against destruction by treason, their citizens against oppression under pretence of it; and if these ends are not attained, it is of importance to inquire by what means, more effectual, they may be secured."
The Confederates certainly didn't come up with a better constitution. Lincoln, on the other hand, was instrumental in making a huge improvement in the Constitution by the passage of the 13th Amendment.
The Constitution isn't vague or ambiguous. It's wording is quite clear...
When you decide to escape the deep confines of fantasyland, let me know and I'll try to help you find your way back to reality.
Maybe or maybe not. I am not familiar with every philosophy that has been contrived. But there is the possiblity of a just philosophy for governing those who do not consent to be governed.
It would include elements from the following:
1. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men,...
2. The concept that Rights are constrained by other Rights (My right to swing my fist ends where your nose begins and all that.)
3. Some concept of mercy.
What this comes down to is that if you don't agree that your right to swing your fist ends with my nose, and you act upon that, I will govern you, regardless of your consent, by force of some kind if necessary, to make you stop. Or I will have the government institluted to secure my rights do it on my behalf.
Or, if you want to eliminate mercy from the above, you can be executed.
If "There is no just philosophy that empowers men to govern over those who do not consent to be governed by them," then everyone imprisoned must be freed and if they insist on infringing upon the rights of others, executed.
However, Article VI explicitly says that the individual states, and their elected officials, surrender their sovereignty to the United States.
The secession issue would seem to be decided there: can a state legally seceed once it has pledged itself to remain bound by the Constitution? No, because the Constitution is by definition superior to the anti-Constitutional act of secession.
The 9th and 10th amendments do reserve certain rights and powers to the states and people; however, those rights and powers do not extend to laws and acts that go against the supreme Law of the Land. Secession is in direct conflict with the supreme Law of the Land, and is thus not covered by those two amendments.
Oh, my. I think that if Alexander Hamilton were alive, he'd attempt to kill you in a duel over that slander.
There was no "lie." For it to be a lie, it would have to have been done in order to trick people -- it requires subterfuge and a hidden agenda.
As it happened, however, the Constitution was created and debated in convention, discussed (you've no doubt heard of the Federalist Papers?), adjusted, sent to the states, debated, voted on, and ratified.
There was no secret, and certainly no attempt to mislead. At worst, the Constitution represents a recognition of the true fact that the Articles of Confederation did not work, and could not be fixed. Rather than letting all of the states go their own ways -- which nobody wanted -- they decided to try a different approach.
Finally, no state was force to ratify it. It could have been rejected. But it was not.
It was and is a valid contract.
And just how did they lie? The Constitution was there for the states to read prior to ratification.
Their actions did constitute an attempt to blockade.
In what way? How did they interfere with shipping into and out of Charleston at any time? They were in Sumter for a little over three months. Are you saying that no ships entered or left the harbor because of Sumter? And as to Fort Moultrie, it was, in fact, a fort. The Customs House was, and still is, located on East Bay Street right near where the docks used to be. What possible sense does it make to put the Customs House miles away from where the duties would be collected? And faced with a hostile mob and in a fort like Moultrie which could not be defended from the landward side then it makes every sense to move your command to somewhere safer. Major Anderson would be derelict in his duties had he not done so.
Lincoln invaded seceded sections of North America.
How does one invade ones own country? Lincoln acted to put down a rebellion, nothing more and nothing less.
Firing first is a legitimate form of self-defense under many circumstances. Ft. Sumpter was one of them.
Firing on Sumter was also the quickest way to start the war that Jefferson Davis needed. In that he succeeded.
-- Fighting Facts With Slander by Thomas J. DiLorenzo
Read the post on DiLorenzo's article and you will see why I would have a hard time accepting him as gospel. For example, in the very quote you posted he claims that Lincoln created three states illegally. The fact that Kansas became a state on January 29, 1861, a little over a month before Lincoln was inagurated seems to have escaped DiLorenzo. The 'congressman from Ohio' was, in fact, an ex-congressman named Valandigham. Lincoln did not suspend habeas corpus illegally regardless of what DiLorenzo said. In short, the accuracy of DiLorenzo's work is so poor that it doesn't merit serious discussion. If you can provide a source other than DiLorenzo to support his crap then please do so.
He had the state legislature of Maryland arrested to prevent their secession. When it comes to actual acts, not the purported reasons behind them, history can be a stickler.
It can, especially when one looks for accuracy. Lincoln did not have the Maryland legislature arrested and I would be interested in seeing what evidence you have that he did.
And the power to decide the status of a state is clearly a power reserved to the United States. And that includes when a state ceases to become a state.
Not true. A lie, in fact. A real stinker of a lie, to be precise.
Article I, Section 9 of the Constitution states:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
The only way Lincoln's act was illegal is if the Union was not confronted with rebellion or invasion.
If the secession was illegal, then Lincoln did in fact have a rebellion on his hands.
On the other hand, if secession was legal, then the Confederate incursions into Union states represented an invasion.
Either way, Lincoln had explicit Constitutional backing for suspending the Writ of Habeas Corpus.
imprisoned without warrant or trial some 13,000 Northern citizens who opposed his policies; arrested dozens of newspaper editors and owners and, in some cases, had federal soldiers destroy their printing presses; censored all telegraph communication;
All of them nice, quiet, peace- and Union-loving folk, no doubt. In reality, these were people actively supporting the South -- which is treason, as defined in Article III, Section 3:
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.
If consent were the only basis of government, I would have the right to discard any law I didn't feel like obeying.
True, the Declaration of Independence states That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, but we are still faced with a "nebulous third party:" the God which endowed men with those rights.
Also, that "consent of the governed" clause is tricky: if we take those two words literally, no government action could ever be taken without unanimous consent of the people.
However, seeing as how rights are "secured" against people who would otherwise violate rights, it's clear that government is a necessary "nebulous third party," which is empowered to operate without unanimous consent.
"Consent of the governed" is vital, but it's not absolute.
Your entire argument is highly flawed because you missed one logical point:
Would the states have joined a union in which the central government would dictate to them the way our federal government does today by forcing rules and regulations, and huge taxes on them?
Thus, the representation of the union was different than the reality of it today.
The states entered into a union in which they expected to have great control over and states rights, but that is no longer the case.
Because the union is not working the way it was represented at the time of its establishment, the States have the natural right to remove themselves from this union, and reenter it if they so desire, with a new agreement between them and the federal government.
I offer supporting evidence from our own Congress:
This read is well worth the time it takes:
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Liberty is their primary concern. They knew what tyranny was all about. We have little real knowledge of it, today. Thus, they wanted to ensure liberty for the American people, while establishing a representative form of government that the people had great powers over.
Limited government and even the right to dump said government and start over. If the people did not have absolute power, there is no way this could be exercised. But, We the People have consented to the rule of law as exercised by our elected officials.
IF those officials who make up our federal government trample our rights, we are OBLIGATED to make a change in that government, or abolish it, and start over.
That my friends is real power.
All but one of your arguments are based on the current state of the Union, and have nothing to do with Lincoln and the Civil War.
However: Because the union is not working the way it was represented at the time of its establishment, the States have the natural right to remove themselves from this union, and reenter it if they so desire, with a new agreement between them and the federal government.
No. This is wrong.
States do not operate under "natural rights," but under the Constitution. Article VI makes clear that they cannot simply remove themselves from the Union at will.
The states explicitly do not have a right to enter (or re-enter) "if they so desire." They can petition Congress to be admitted. Congress is empowered to define the conditions of entry, and to deny re-entry on whatever grounds Congress may choose.
Finally, you quote from the Declaration of Independence, which states that the colonies could break away from the British crown for just cause. The cause for secession was primarily the South's desire to maintain slavery. Not much "just cause" there.
I note one thing, however: I don't recall ever seeing any case where the Southern states ever attempted to formally remove themselves from the Union in a legal fashion. Perhaps they did, and I'm simply unaware of the fact. Instead, they just up and left.
Unlike the Declaration, the South seems not to have exhausted all options, but instead chose to incite a war.
In closing, let me leave you with a quote and you tell me what you think of it. "The true and only test (of a law) is to enquire whether the law is intended and calculated to carry out the object...If the answer be in the affirmative, the law is constitutional."
And they even demonstrated the proper means to do so: in convention, with subsequent ratification among the states. I seem to have missed the South's attempt to behave in such a civilized manner....
Which is arguably because the States have been negligent and derelict in regard to their duty.
...the States have the natural right...
I was unaware that States have natural rights.
... to remove themselves from this union, ...
I don't see that they have a right to remove themselves from the union on the basis that the union is not working the way it is supposed to when they have contributed to that situation in regard to a Perpetual Union they agreed to form.
... and reenter it if they so desire,with a new agreement between them and the federal government.
Why would there need to be an ageement between them and the federal government? How could there be? The United States and the Federal Government are not the same thing. The Federal Government is not the first government the United States has had. If the Federal Government was to be involved (assuming it even existed at such a time) wouldn't it merely be acting as an agent and on behalf of the States united?
I offer supporting evidence from our own Congress:
"Our own Congress" is a stretch. That's from the First Continental Congress which I don't see to be the same as the Congress we have under the Federal Government. That's at least two Governmental reorganization's ago isn't it? I'm not disparaging the Declaration Of Independence though.
You seek to apply the Constitution of the United States to a state that has seceded. In other words, you are applying a law to someone or something that is not in your jurisdiction. That's like saying the laws of California apply to someone living in Georgia.
But let's look at what the Constitution really says about whether the states have a right to secede, shall we?
The 10th Amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Does the Constitution prohibit the states for seceding? No. As you point out, there are things they may not do while they are states, but there is nothing in the Constitution that says they may not secede.
Therefore, the Constitution clearly implies that states may secede.
Furthermore, as Professor Williams points out in his article, the question was discussed during the ratification process. People were repeatedly assured that the state retained the right to secede from the Union. This was the general understanding until Fort Sumter.
The problem is that you don't seem to understand the Constitution or our Constitutional form of government. The states are not creatures of the federal government. The federal government did not create the states. It was the other way around. The states are sovereign entities. The federal government is a creation of the states and of the people who live in them.
The states and the people who live in them may decide that they no longer want to be part of the United States.
Does it? The 10th Amendment speaks of powers not reserved to the United States. But it is clear that the Constitution reserves the power to make or unmake a state to the Congress. States cannot become states without a vote of Congress, they cannot join together, split apart, change their borders by a single inch without consent of Congress. Congress clearly implies that the power to unmake a state must lie with Congress as well. So for the southern acts of secession to be legal they would have required the consent of Congress.
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