Was Abraham Lincoln a conservative?

Fascinating. Thank you.

He [Albert Taylor Bledsoe] is wrong, the constitution was never a compact. There were three early supreme court cases that rejected that theory. The earliest in 1793, just five years after the ratification of the constitution. I am sure if the framers of the constitution had believed this decision to be wrong they would have pushed for an amendment explicitly declaring the constitution a compact between the states.
In one of the Supreme Court’s first significant decisions, Chisholm v. Georgia (1793), Chief Justice John Jay stated that the Constitution was established directly by the people. Jay noted the language of the Preamble of the Constitution, which says that the Constitution was ordained and established by “We the people,” and stated: “Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound.”
In Martin v. Hunter’s Lessee (1816), the Supreme Court explicitly rejected the idea that the Constitution is a compact among the states, stating: “The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.’” The Court contrasted the earlier Articles of Confederation with the Constitution, characterizing the Articles of Confederation as a compact among states, while stating that the Constitution was established not by the states, but by the people.
Likewise, in McCulloch v. Maryland (1819), the Supreme Court stated that the federal Constitution proceeded directly from the people, and was not created by the states. The Court stated that the Constitution was binding on the states and could not be negated by the states. The Court again contrasted the Articles of Confederation, which was established by the states, to the Constitution, which was established by the people.

The descriptive interpretations attributed to these court opinions seems to transcend creative license.

While three cases from 1793, 1816 and 1819 are cited as holding Bledsoe was wrong, and that the compact theory was rejected by all three, Bledsoe wrote, "It was in 1833, for the first time in the history of the country, that it was solemnly asserted and argued that the Constitution of the United States was not a compact."

Chisholm v. Georgia, 2 U.S. 419, 469-71 (1793)

Jay, Chief justice.
The question we are now to decide has been accurately stated, viz., is a State suable by individual citizens of another State?
It is said that Georgia refuses to appear and answer to the plaintiff in this action because she is a sovereign State, and therefore not liable to such actions. In order to ascertain the merits of this objection, let us enquire, 1st. In what sense Georgia is a sovereign State. 2nd. Whether suability is incompatible with such sovereignty. 3rd. Whether the Constitution (to which Georgia is a party) authorises such an action against her.
"Suability" and "suable" are words not in common use, but they concisely and correctly convey the idea annexed to them.
1st. In determining the sense in which Georgia is a sovereign State, it may be useful to turn our attention to the political situation we were in prior to the Revolution, and to the political rights which emerged from the Revolution. All the country now possessed by the United States was then a part of the dominions appertaining to the Crown of Great Britain. Every acre of land in this country was then held mediately or immediately by grants from that Crown. All the people of this country were then subjects of the King of Great Britain, and owed allegiance to him; and all the civil authority then existing or exercised here, flowed from the head of the British Empire. They were in strict sense fellow subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies which subsisted between the people of Gaul, Britain, and Spain while Roman Provinces, viz., only that affinity and social connection which result from the mere circumstance of being governed by the same Prince; different ideas prevailed, and gave occasion to the Congress of 1774 and 1775.
The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the Crown of Great Britain, the sovereignty of their country passed to the people of it, and it was then not an uncommon opinion that the unappropriated lands, which belonged to that Crown, passed not to the people of the Colony or States within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly; afterwards, in the hurry of the war and in the warmth of mutual confidence, they made a Confederation of the States the basis of a general government. Experience disappointed the expectations they had formed from it, and then the people, in their collective and national capacity, established the present Constitution. It is remarkable that, in establishing it, the people exercised their own rights, and their own proper sovereignty, and, conscious of the plenitude of it, they declared with becoming dignity, "We the people of the United States, do ordain and establish this Constitution." Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner. By this great compact however, many prerogatives were transferred to the national government, such as those of making war and peace, contracting alliances, coining money, etc. etc.
[snip]

In Chism, the Court took it upon themselves to creatively interpret the Constitution to say that individuals of one State could name another State as a defendant in a case of original jurisdiction brought to the Supreme Court. The people reacted and passed the Eleventh Amendment in 1798 to reverse the holding of this decision and eliminate the jurisdiction claimed by the Court.

AMENDMENT XI (1798)
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

Martin v. Hunter's Lessee, 14 U.S. 304, 324-25

The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by "the people of the United States." There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own Constitutions, and the people of every State had the right to modify and restrain them according to their own views of the policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the State governments by their respective Constitutions remained unaltered and unimpaired except so far as they were granted to the Government of the United States.

At 373:

On this part of the case, I shall not pause long. The rules of construction, where the nature of the instrument is ascertained, are familiar to every one. To me, the Constitution appears, in every line of it, to be a contract which, in legal language, may be denominated tripartite. The parties are the people, the States, and the United States. It is returning in a circle to contend that it professes to be the exclusive act of the people, for what have the people done but to form this compact? That the States are recognised as parties to it is evident from various passages, and particularly that in which the United States guaranty to each State a republican form of Government.

McCulloch v. Maryland, 17 U.S. 316 (1819)

The convention which framed the Constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might
"be submitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification."
This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject — by assembling in convention. It is true, they assembled in their several States — and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.

That last one you posted really nails it.

“This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject — by assembling in convention. It is true, they assembled in their several States — and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.”

Clearly saying that even though the people ratified it in their state it wasn’t a state action it was the people in their sovereign capacity, in other words “We the people...”.

This makes perfect sense in light of both the preamble and the notes in the convention.(though the notes had not been published at this time).

If it was the state that ratified the constitution it would have been done through the existing state legislatures. The framers didn’t want the states to ratify the constitution, they wanted the people.

This is why there was such a debate after Ellsworth challenged Resolution 19 which proposed referring the new constitution to Assemblies to be chosen by the people for the express purpose of ratifying it.

Mr. Ellsworth disagreed and proposed it be referred to the state legislatures for ratification.

Assemblies chosen by the people=We the people ratifies
State Legislatures=The state ratifies

And as the notes record Ellsworth’s motion was voted down and resolution 19 was passed.

[woodpusher] At his last cabinet meeting, Lincoln expressed that Virginia was a special case and had to be handled differently, meaning more leniently.
[DiogenesLamp] Sounds like Lincoln was contemplating stabbing West Virginia's pretend legislature in the back, and deservedly so.

I believe Lincoln, and Gideon Welles, were observing that while it made sense to establish a military government in other Confederate states, Virginia was different in that it was held to have a fully functioning and legitimate government throughout the war. He did not see justification to eliminate that government in favor of a military governor.

Galaxy Magazine Vol. 13, No. 4, April 1972, Gideon Welles, Lincoln and Johnson, Their Plan of Reconstruction and the Resumption of National Authority, First Paper, at pp. 521-33.

At pg. 527, Welles wrote of the cabinet meeting of April 14, 1865:

Besides, Virginia occupied a different position from that of any other of those States. There had been throughout the war a skeleton organization in that commonwealth which we had recognized. We had said through the whole war that Virginia was a State in the Union—that her relations with the Government were not suspended. We had acknowledged and claimed that Pierpont was the legitimate and rightful Governor, that the organization was lawful and right under him; that the division of the State, which, required the assent of the legal State government, had been effected, and was claimed to be constitutional and correct. Were we now to ignore our own acts—to say the Pierpont Government was a farce—that the act creating the State of West Virginia was a nullity? My position on that question was different from others, for though not unfriendly to the new State, I had opposed the division of the State when it took place. The proposition to reestablish a State government in Virginia where there was already a State government with which we were acting, with Pierpont as governor, or to put it under military control, appeared to me a grave error. The President said my exceptions, some of them at least, were well taken.
[...]
The President directed Mr. Stanton to take the document and have separate plans presented for the two States. They required different treatment. “We must not,” said he, “stultify ourselves as regards Virginia, but we must help her. North Carolina was in a different condition. He requested the Secretary of War to have copies of the two plans for the two States made and furnished each member of the Cabinet by the following Tuesday—the next regular meeting.

I thank you for posting information from the Constitutional Convention and the civil tone of your response. However, it does not matter to me what they said in 1787 because, as I’ve said before, the Constitution was changed by the addition of the Bill of Rights in 1791, including particularly, as I've said, the Tenth Amendment. After the addition of the Tenth Amendment, the thus amended Constitution restored the power of states to secede like they had done in the past.

I will call upon an unusual authority to support my contention – Alexander Hamilton. Treasury Secretary Hamilton, Secretary of State Jefferson, and Attorney General Edmund Randolph were arguing about the national bank proposal in a cabinet meeting held by President Washington. Different arguments had been given by different people about whether such a bank had been discussed and dismissed by the Constitutional Convention or not. The quotations by the cabinet members below are from the book, “The Constitutional Convention, A Narrative History from the Notes of James Madison” by Edward J Larson and Michael P. Winship, copyright 2005, Modern Library Paperback Edition, page 161:

Randolph said, “Ought not the Constitution be decided on by the import of its own expressions?” Jefferson reiterated Madison’s argument “that the Constitution did not empower Congress to incorporate a national bank because the Convention had defeated a proposition granting such authority to Congress.” Hamilton replied in part, “The secretary of state will not deny that, whatever may have been the intentions of the framers of the Constitution, or of a law, that intention is to be sought for in the instrument itself,” not in the deliberation surrounding its drafting or enactment.

The phrase, “not in the deliberation surrounding its drafting or enactment.” was in the book immediately following the Hamilton quote.

Taking that Hamilton quote to heart, after 1791, the Constitution contained the Tenth Amendment, satisfying requests by four states in their ratification documents and three others who had reassume or resume governance statements. Regardless of what the intent of the Federalists was or of others who created the 1787 Constitution, the Constitution after 1791 recognized powers of the states that had not been taken away by the Constitution. The 1787 and 1791 versions of the Constitution did not prohibit secession by a state or states, nor did they give the federal government and/or non-seceding states the power to prevent a state or states from seceding. The states had seceded individually in the past, and that was a power they retained.

Republicans in Congress in 1860 and 1861 tried to pass amendments on more than one occasion that would have stopped secession or made seceding states get approval before they could secede. Why did Republicans do that, if the then present Constitution outlawed or put serious conditions on a state seceding?

With respect to your comment below about state legislatures:

For your argument to be correct that whole discussion makes no sense. Your saying it doesn’t matter if the state legislatures ratified it, or representatives of the people in assembly ratified it, it was still the states doing the ratification.

With respect to that comment: No, I said it was better that the people of each state though their ratification conventions decide whether to ratify or not rather than having the legislatures do it because the people of a state or people in a state convention were the sovereign voice of a state, not the legislature which was a creation of the people of the state. I also remember what the President of the Texas Secession Conference said to the delegates elected by the voters of Texas in 1861:

The President of the Texas Secession Convention took the chair of the meeting, turned and bowed to the delegates, and said: "I bow to the sovereignty of my State; I recognize the great truth that all political power is inherent in the people." (Feb 5, 1861, New Orleans Picayune newspaper)

Also, I do not consider ratifications by state conventions to mean the same as a vote by the whole people of the country. A majority of the initial delegates to the Virginia Ratification Convention were pledged to vote against ratification. I think the same might have been true of New York, as well. An actual vote by the people of Rhode Island turned out 10 to 1 against ratification. Based on those instances, a national vote on ratification at the time delegates to the ratification conventions were selected and before any ratification conventions were held might well have not ratified the Constitution. Can’t let the rubes vote, they don’t understand (/sarc). No, actually I believe it was better for all concerned to hash out the issues in detail in small state conventions. Those conventions pointed out the need for a bill of rights to protect the people and the states from abuses of power by the federal government.

Double jeopardy would have applied only if Oklahoma included the names of the 8 federal agents, that were listed in the Federal charges.

No, double-jeopardy simply does not apply to prosecutions by seperate sovereigns.

Criminal Law, 4th Ed., Wayne R. LaFave, West Publishing, 2003, pg. 230

Federal-State Jurisdiction and Prosecution.
Prosecution by both the state and federal governments is not barred by the constitutional protection against double jeopardy. In Bartkus v. Illinois, [359 U.S. 121 (1959)] the Supreme Court sustained a state conviction for robbery of a federally-insured bank after the defendant had been acquitted on federal charges based on the same robbery. And in the companion case of Abbate v. United States, [359 U.S. 187 (1959)] where the order of the prosecutions was reversed, the Court upheld a federal conviction for conspiracy to destroy communications facilities operated or controlled by the United States after the defendant had been convicted in the state courts for conspracy to destroy the property of another. In both cases, the rationale was that the policies underlying the double jeopardy bar against reprosecution were inapplicable because separate sovereigns were involved. The Court expressed the fear that a contrary rule would result in a state (or federal) prosecution for a minor offense barring a subsequent federal (or state) prosecution for a serious impingement upon the interests of the latter jurisdiction.

[citations added to text]

Thanks

Thank you for straightening that out. The snipped and clipped and patched and pasted version from “The London Spectator” has been cited on these threads innumerable times.

In all my years of discussing/debating/arguing this topic your argument, that there was no ability to secede until the adoption of the 10th Amendment, is a new one.

There are many reasons I believe that such an interpretation, though novel, is wrong. But let me begin with a couple definitions.
Secession-the action of withdrawing formally from membership of a federation or body, especially a political state.
Formally-officially sanctioned or recognized

For secession to be a reserved power of the state it must either have legal sanction or be recognized as a power that was exercised previously.

I find your assertion that the state’s had secede before without merit or foundation in our history. The colonies, combined together as The United States, rebelled against England in 1776. The state’s then adopted the Articles of Confederation and perpetual Union. Though the states were a party to the ratification of the AoC the fact that the Union was perpetual shows they would not be allowed to just unilaterally leave it.

Then the United States changed its method of government from the AoC to the constitution through the act of the people, in their states. The union remained, only the method of government changed and who established and ordained that government changed.

At no time under any of these circumstances did any state “secede” from the Union. All that changed was the mode of government. Much like France has had five(?) different constitutions, but has always been France.

If no state ever seceded prior to the ratification of the 10th Amendment then it cannot be a reserved power of the states.

If a state wanted to argue the case that it is a reserved power than the tribunal set up to settle such disputes is the federal courts, including the Supreme Court. This would have been a legal way for South Carolina to try to leave the Union. Or get an amendment passed setting up a method of states to depart.

If they would have brought a case before the Supreme Court in 1860-1861 I don’t believe they would have prevailed. Chief Justice Taney, no friend of Lincoln, wrote this about south’s “secession”-
“The South contends that a state has a constitutional right to secede from the Union formed with her sister states. In this I submit the South errs. No power or right is constitutional but what can be exercised in a form or mode provided for in the constitution for it’s exercise. Secession is therefore not constitutional, but revolutionary; and is only morally competent, like war, upon failure of justice.”

Though this was from his notes it gives us insight on how he most probably would have voted if such a case had reached the Supreme Court.

However, I feel the southern rebels knew secession would not have been found to be a reserved power of the 10th Amendment and this is one of the reasons they chose to resort to arms.

I respectfully disagree with you suggestion that the 10th Amendment made secession possible and agree with the Supreme Court cases and Presidential proclamation’s that this Union was formed by the whole people(acting in their respective states) and can only be abolished by the whole people.

For secession to be a reserved power of the state it must either have legal sanction or be recognized as a power that was exercised previously.

I find your assertion that the state’s had secede before without merit or foundation in our history.

From "Free, Sovereign, and Independent States, The Intended Meaning of the American Constitution," by John Remington Graham (2009). Page 117:

These colonies did not all break away at once, but began to secede from the British Empire one by one. Before the Declaration of Independence on July 4, 1776, five colonies had formally seceded, and the remainder had established provisional governments, each of them autonomous of the others. In practical effect all thirteen were free, sovereign, and independent States.[19]

Footnote 19: As recorded in 1 Elliots's Debates 63-67, New Hampshire established an independent government in December 1775, South Carolina did likewise in March 1776, Virginia also declared independence in June 1776, and New Jersey followed suite in July 1776, two days before the Declaration of American Independence. Rhode Island also became an independent nation, apart from any proceedings in the Second Continental Congress, in May 1776, as appears Staples' Rhode Island 65-67.

Notice also that all three of the resume/reassume statements in the ratification conventions said that the people have the ability to resume/reassume powers of governance. That power is supra-constitutional, a voice of the sovereigns who ratified the Constitution. People of a state are the ultimate sovereign voice of that state.

Seceding states in 1860-61 formed secession conventions much like the conventions that ratified the Constitution, and some states additionally put the question of secession directly to their voters (a step further than the ratifications of the Constitution by the original 13 states except for Rhode Island whose people voted 10 to 1 against the Constitution).

My bold on your comment below:

Though the states were a party to the ratification of the AoC the fact that the Union was perpetual shows they would not be allowed to just unilaterally leave it.

Then the United States changed its method of government from the AoC to the constitution through the act of the people, in their states. The union remained, only the method of government changed and who established and ordained that government changed.

The union remained? What took the place of the union under the AOC, was not the same union. It was a different union. Consider what George Washington said [my bold font and underlines below]:

Here's George Washington in Congress on August 22, 1789:

The President of the United States came into the Senate Chamber, attended by General Knox, and laid before the Senate the following state of facts, with the questions thereto annexed, for their advice and consent:

... "As the Cherokees reside principally within the territory claimed by North Carolina, and as that State is not a member of the present Union, it may be doubted whether any efficient measures in favor of the Cherokees could be immediately adopted by the general government ..."

From Congress on September 12, 1789:

And be it further enacted, That all rum, loaf sugar, and chocolate, manufactured or made in the states of North Carolina, or Rhode Island and Providence Plantations, and imported or brought into the United States, shall be deemed and taken to be subject to the like duties, as goods of the like kinds, imported from any foreign state, kingdom, or country are made subject to.

Somehow, North Carolina and Rhode Island apparently hadn't gotten the message that they could leave the union under the AOC like the other 11 states did.

What about other perpetual agreements that didn't turn out to be perpetual? The Treaty of Paris (1783) said there should be perpetual peace between his Brittanic Majesty and the American states and that navigation of the Mississippi River shall forever remain free and open to the subjects of Great Britain. Somehow, the War of 1812 never happened. So much for "perpetual" and "forever".

Then there was the "The Articles of Confederation of the United Colonies of New England; May 19, 1643" where participating colonies agreed to:

The said United Colonies for themselves and their posterities do jointly and severally hereby enter into a firm and perpetual league of friendship and amity for offence and defence, mutual advice and succor upon all just occasions both for preserving and propagating the truth and liberties of the Gospel and for their own mutual safety and welfare.

Gone with the Wind, if I might make a Southern reference.

I have to get ready now for a very early trip out of town in the morning. If I can dodge the coronavirus on my trip, I should be back Monday.