Posted on 02/01/2002 1:42:15 PM PST by Jeff Smith
Are you arguing that the morality of a cause is determined by military victory? If so, that would make the communists of Vietnam "right," since they won that conflict.
Someone said it earlier, the South lost. Had the South won, we wouldn't be having this conversation.
The tariff. Yes, Lincoln and the Republicans did stand for a high tariff in order to protect American workingmen and foster American manufacturing.
A 47% tariff, if I remember correctly.
In a republic threatened domestically by slavery and by the Union's own far-flung dimensions, the tariff policy operated to reduce the comparative advantages of slave labor and to encourage the diversification and expansion of our internal market.
In other words, ‘the agricultural States were being bled to benefit the industrial States.’ How nice.
Besides, the Civil War was not fought over tariff policy, though many conservatives would like to think so, because it lets them avoid thinking about the actual political and moral issues at stake.
Tariffs were indeed an issue. One need only examine the editorials in Northern newspapers following the establishment by the Confederates of a 10% tariff – which was almost 80% lower than the newly instituted Federal tariff. It is also worth noting that one of the very few differences between the Confederate and United States constitutions related to (guess what?) tariffs.
Total war. Bovard goes so far as to compare the Union army's tactics with those of the Bosnian Serbs in their "ethnic cleansing" campaigns. Come now...A civil war is not the same as a world war, of course, but because civil wars invoke a sense of (brotherly) betrayal, they are among the nastiest.
The author seems to reverse course in mid-paragraph. Perhaps he’s not quite sure what he’s actually talking about.
The destruction of federalism. Lincoln shattered the old Union, the indictment runs, because he denied the constitutional right of the Southern states to secede. But there never was such a right.
Many have insisted that “there never was such a right” – but no one has yet identified a clear prohibition of secession within the Constitution. (It is always amusing to refer such people to the process by which the States ratified the Constitution – which involved the secession of the ratifying States from the self-proclaimed “perpetual Union” formed under the Articles of Confederation.) When the Constitution is actually examined, the clause which seems to relate most directly to State secession is found in the Tenth Amendment: “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.”
When Jefferson got the ball rolling with some loose language about "nullification" in the Kentucky Resolutions he penned in 1798, he was talking about a natural right of each state to judge the terms of the social compact for itself, and then by rallying its fellow states, by revolutionary means (if necessary) to recover the American people's freedom from tyrannical government, even as the revolutionaries of 1776 had done.
Hogwash. Mr. Jefferson referred repeatedly to States’ rights reserved under the terms of the Tenth Amendment to the United States Constitution, specifically quoting the amendment as he did so. As for “the terms of the social compact,” his arguments are difficult to refute even today:
”... the several States composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. “
Mr. Jefferson’s single reference to “revolution” was in predicting war as a possible outcome of unconstitutional federal action – specifically, that blood might finally be shed in a “venture to reclaim the constitutional rights and liberties of the States and people.”
James Madison made a similar point more clearly and carefully in the Virginia Resolutions. The goal was to save the Union, not dismember it.
Yes, the goal of ‘nullifying’ unconstitutional federal laws was indeed “to save the Union.” Mr. Madison stated that “the States who are parties [to the Constitution], have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” It subsequently became clear that the Northern States had no interest in “arresting the progress of evil:” those States were dominated by the Federalist Party, which controlled Congress, the Presidency, and the Supreme Court – and it was the Federalists who benefited from the unconstitutional Alien and Sedition Acts, which were the source of the controversy. In his Report of 1800, Mr. Madison noted:
“[The Constitution] was constantly justified and recommended on the ground that the powers not given to the government were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the [10th] amendment, now a part of the Constitution, which expressly declares, ‘that 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.’
”The other position involved in this branch of the resolution, namely, ‘that the states are parties to the Constitution,’ or compact, is, in the judgment of the committee, equally free from objection... It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority, of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
Clearly, Mr. Madison believed it was up to the individual States to “decide...such questions as may be of sufficient magnitude to require their interposition.” Secession would most certainly fall in that category.
In the Federalist Papers, he had argued that federalism created a double security for American liberty because it divided power between state and national governments...That an individual state could have a constitutional right to leave the Union was the farthest thing from his mind.
Actually, in those same Federalist Papers Mr. Madison specifically referred to the right of States to secede from a union – even a self-described “perpetual Union:”
“...(A)lthough no political relation can subsist between the assenting and dissenting States, yet...the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other.”
Indeed, he agreed with Hamilton, his co-author, that such "anarchy in the members" was the fatal disease from which most republican confederations had hitherto perished.
And let us see what Mr. Hamilton had to say:
"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here...”
And here is his discussion of “the article of taxation:”
“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States."
Needless to say, the right of deciding secession was nowhere ‘surrendered’ or "EXCLUSIVELY delegated to the United States" by the Constitution.
In his last years, in the late 1820s and early 1830s, Madison returned again and again to this argument, denying any legitimacy whatsoever to John C. Calhoun's theories of nullification and secession.
Many historians nevertheless directly link the “theories of nullification and secession” to Mr. Madison’s earlier (more detailed, impeccably argued, and very public) writings. For example:
“There is a certain irony in Madison's worries [late in life]: the states' rights strain of Jeffersonianism owed much to the actions and public writings four decades earlier of Madison himself...After his death, his intellectual heirs would rend the union asunder; the doctrine of state sovereignty under the federal constitution, which Madison had helped formulate in response to a perceived [federal] threat to republicanism, would be used to truncate the union...Despite what Madison said in his later years, the states' rights tradition was firmly based on his and Jefferson's writings in 1798.”
Lincoln mostly followed Madison on these matters.
Actually, Mr. Lincoln “mostly followed” Chancellor James Kent:
“Mr. Chairman, on the third position of...the constitutional question, I have not much to say...It is not to be denied that many great and good men [including Thomas Jefferson] have been against the power [of the federal government to undertake internal improvements not specifically authorized by the Constitution]; but it is insisted that quite as many, as great and as good, have been for it; and it is shown that, on a full survey of the whole, Chancellor Kent was of the opinion that the arguments of the latter were vastly superior...He was one of the ablest and most learned lawyers of his age, or of any age...Can the party opinion of a party president [Thomas Jefferson or James Madison], on a law question, as this purely is, be at all compared, or set in opposition to that of such a man, in such an attitude, as Chancellor Kent?”
Abraham Lincoln, June 20, 1848
Big government. In a civil war, in any war, government has a tendency to grow. Just ask the Confederates. In the course of the Civil War, the Confederacy enacted draft laws, boosted taxes to confiscatory levels, suspended the writ of habeas corpus, and in extremis, even tried to enlist slaves as soldiers. Lincoln resorted to many of the same expedients, but he did so to preserve the Union and to defend human freedom...What's remarkable about Lincoln, however, is how carefully he sought constitutional grounds for all his actions.
Mr. Lincoln may have “sought constitutional grounds” for his actions – but in certain cases he most assuredly failed to find them. His suspension of the writ, his draft legislation, and even his call for troops after Fort Sumter were constitutionally questionable at best. But perhaps he was just ‘mostly following’ James Kent:
“Notwithstanding the articles of confederation conferred upon Congress (though in a very imperfect manner, and under a most unskilful organization,) the chief rights of political supremacy, the jura summi imperii, yet they were, in fact, but a digest, and even a limitation, in the shape of a written compact, of those undefined and discretionary sovereign powers, which were delegated by the colonies to Congress in 1775, and which had been freely exercised, and implicitly obeyed. A remarkable instance of the exercise of this original, dormant, and vast discretion, appears on the Journals of Congress the latter end of the year 1776. The progress of the British arms had, at that period, excited the most alarming apprehensions for our safety, and Congress transferred to the commander in chief, for the term of six months, complete dictatorial power over the liberty and property of the citizens of the United States, in like manner as the Roman senate, in the critical times of the republic, was wont to have recourse to a dictator, ne quid respublica detrimenti capiat...”
James Kent, Commentaries on American Law, 1826
It would seem that “constitutional grounds” are unnecessary, if one can cite “undefined and discretionary...powers” as justification for “complete dictatorial power over the liberty and property of the citizens of the United States”...
Oh, give me a flippin' break! It applied BEFORE the Southern states seceeded, therefore, it was illegal for them to seceed to begin with!
Now this is what we call a Clintonian stretch.
North won. South lost. Get it? Good.
Blind Melly Jelly could see that. And the first state wouldn't have seceeded if it knew that it would be by itself (read: they knew).
And just what was the secession for? We know what part of it was for, don't we? Yet for whatever reason, that seems to be defended by the neo-confederates here.
Now where did I put that cleaning kit. . .?
In other words, 'the agricultural States slaves were being bled to benefit the industrial States agricultural States.' How nice.
There is no defense for this. NONE.
Oh, really? Guess that's why my great x4 grandpop was picking cotton, right?
There is NO defense for this, people. You're amazing me.
I was speaking of the right of secession.
I believe that clause specifically refers to treaties with foreign nations. Otherwise, every multi-state highway or environmental agency (the Port Authority of New York & New Jersey, for example) is unconstitutional.
Here's a question: If the states of Virginia, South Carolia, Georgia, etc. had known in the 1780s what would happen to them in the 1860s, does anyone think they would have ratified the U.S. Constitution in the first place?
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