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.
It's highly probable that disunion might eventually have meant war over the border states and Western territories, but it wasn't inevitable. In any case, a later conflict over more limited questions would not have been so destructive. Davis gambled either that using force would not bring war or that a war in Spring 1861 would bring more advantages to his side than an uneasy peace or a later conflict. This was not a winning gamble.
Because the States created the Constitution you have to determine if a State has the right to not be bound by the Constitution. The federal government was brought about by the action of independent States. If an independent State enters into a compact with other independent States, each State presumably has the right to withdraw from the compact unless it explicitly forfiets or waives that right.
There is nothing in the Constitution which prohibits a State from peacefully withdrawing from the compact.
I've given you adult responses and you still don't understand them. You use the Act out of context,just as lincoln did. The intent of the Act covered a small section of one state. You seriously cannot believe that when that was written, Washington meant for it to be applied to one half of the nation
People certainly have a right to revolt against intolerable oppression.
"I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the British ministry, for the last ten years, to justify those hopes with which gentlemen have been pleased to solace themselves and the House. Is it that insidious smile with which our petition has lately been received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves to be so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation, --the last arguments to which kings resort.
I ask gentlemen, sir, what means this martial array, if its purpose be not to force us into submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us:
they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging.
And what have we to oppose them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon that subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty, and humble supplication? What terms shall we find which have not been already exhausted?
Let us not, I beseech you, sir, deceive ourselves longer. Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament.
Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned with contempt at the foot of the throne.
In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free; if we mean to preserve inviolate those inestimable privileges for which we have been so long contending; if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, --we must fight! I repeat it, sir, --we must fight! An appeal to arms, and to the God of hosts, is all that is left us.
They tell us, sir, that we are weak, --unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs, and hugging the delusive phantom of Hope, until our enemies shall have bound us hand and foot?
Sir, we are not weak, if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people armed in the holy cause of liberty, and in such a country as that which we posess, are invincible by any force which our enemy can send against us.
Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations, and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone: it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery. Our chains are forged. Their clanking may be heard on the plains of Boston. The war is inevitable. And let it come! I repeat it, sir, let it come!
It is in vain, sir, to extenuate the matter. Gentlemen may cry peace, peace, but there is no peace. The war is actually begun. The next gale that sweeps from the north will bring to our ears the clash of resounding arms. Our brethren are already in the field. Why stand we here idle? What is it that gentlemen wish? what would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death!"
--Patrick Henry (1736-1799),"The War Inevitable" speech to the Virginia Convention, March 23, 1775
Great stuff, huh?
Now please show me actions similar to the Brits by the federal government prior to 1860.
Walt
The Declaration formalized and stated the reasons for the Revolution against British rule, which in fact had been in progress for more than a year. It was not an act of secession, but was an act of rebellion. No one at the time even contemplated that they had a right to secede under British law. But they did claim the right to Rebel under Natural Law and the Declaration laid out their moral justification for that rebellion.
In 1861, the Confederacy laid out no such moral case for their rebellion for one simple reason --- they had no moral case to make. That is why they invented a flawed and entirely fictions legal justification called a right to secede at will. The Constitution never granted such a right, and even prominent Southerners knew it didn’t.
"Secession is nothing but revolution. The framers of our constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for "perpetual union" so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. It is idle to talk of secession. Anarchy would have been established, and not a government, by Washington, Hamilton, Jefferson, Madison, and the other patriots of the Revolution."Robert E. Lee Jan. 23, 1861
Hmm (puts on critical thinking cap) would you not expect the Supreme Court to cite this Act, thus agreeing with it, when the Union government is doing something that's legal only if this act holds up? What, do you think the SCOTUS would say, "Whoa, wait a minute, Abe, we just decided what you're doing is wrong, so apologize, make nice, and stop invading our neighbors to the south?" Could there have been a certain...pressure...to make this judgement?
The Supreme Court is not infallible, and has *gasp* even reversed itself in the past. It, like everything else, is subject to the bias of the people on it, so it is not surprising that a court might decide something that is clearly not in the Constitution, really is. Abortion anyone? Separation of Church and State?
I don't care if you would have happily run off to join the blue bellies, you'd have been on the wrong side just as much as if you'd been among the red coats in 1776.
LTS
The Supreme Court decided otherwise in 1862.
See The Prize Cases.
Walt
It's not a contradiction at all. Article I, section 10, says that a state may not make anything but gold or silver legal tender (meaning that a state may not pass a law saying that you must accept repayment of a debt in paper money if you're unwilling to accept it). Congress, on the other hand, is not placed under any such restriction; it is authorized in Art I, sec. 8,to "coin Money, [and] regulate the Value thereof," without any mention of gold or silver. Thus, the power to establish paper money was one of those powers (like the power to make treaties, raise armies, etc.) which was given to the federal government but withheld from the states.
Not to get side tracked, but would you agree to secesstion if we changed the date to 2002? Looking at where freedom is now versus 140 years ago, has it gotten bad enough, and if not, just what would make the Great Walt finally allow his countrymen the right to self-determination?
LTS
Who decides whether or not a people have a right to secede? Them? The Government? Some neutral observer? If you believe that the right to self-government is conditional upon the opinion of anyone other than the governed, then it is not a right at all.
The brillant thing (or one of them) about the Constitution is that it takes human frailty into account.
What you CSA apolgists posit is some impossible nirvana where everyone can act like small children without any consequence.
The Constitution MUST be interpreted and implemented by men. You seem to discount that. Some person or group of people MUST have the final say. And the Supreme Court ruled that the Militia Act, among other things, gave the power to the government to resist insurrection. The fact that the law was originally passed to put down a small insurection in one state doesn't change the words.
Really, the slave holders should have read the Constitution and the laws a bit more carefully and they wouldn't have had their applecarts upset so badly.
Walt
I can't say what you believe, but we do know for a fact that the men who formed the Confederate States of America did not believe those words from the Declaration above. Read the Cornerstone Speech to see Stephens actually criticize Jefferson, et. al. for penning those ‘foolish’ words and expressing the notion of equality. The Confederacy was founded on the bedrock principle of inequality. It made no bones about it.
It had no moral case.
The Supreme Court also decided the Dred Scott Case. Every time the Supreme Court reverses itself on a constitutional question, it acknowledges that its prior decision was unconstitutional.
The Supreme Court may be the final arbiter of the Constitution but they are not omnipotent.
Who decides whether or not a people have a right to secede?
Maybe this should act as a guide:
"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."
So did any of those conditions exist in 1860?
Was there a long train of abuses by the federal government prior to 1860?
Walt
I spend much of my time researching, writing about, and using the works of the Framers. Walter William's research is correct. Most of the Framers were of the view that states could as freely leave the Union as they had chosen to join it.
The legal / political premise of the Confederacy was correct, at the time they adopted it.
However, the ulimate way of losing an argument is to lose a war over the subject of that debate. So the answer to that question is now an emphatic no.
What Abraham Lincoln did in prosecuting the war to preserve the Union was quite similar to what Thomas Jefferson did in approving the Lousiana Purchase. Both actions were critical to the future of the nation. Both actions were beyond their apparent powers at the time they took them. Both actions were backed up by the Congress. Neither action was ever questioned in the Supreme Court.
Your questioning of Dr. William's assertion is off-base. He is correct. It was losing the Civil War, not any legal argument, that established that the position of the Confederacy was wrong.
Congressman Billybob
Click here to fight Shays-Meehan.
Click here for latest column: "When Billie Comes Marching Home Again."
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.