Posted on 09/06/2003 9:14:08 AM PDT by quidnunc
Abraham Lincoln is thought of by many as not only the greatest American statesman but as a great conservative. He was neither. Understanding this is a necessary condition for any genuinely American conservatism. When Lincoln took office, the American polity was regarded as a compact between sovereign states which had created a central government as their agent, hedging it in by a doctrine of enumerated powers. Since the compact between the states was voluntary, secession was considered an option by public leaders in every section of the Union during the antebellum period. Given this tradition — deeply rooted in the Declaration of Independence — a great statesman in 1860 would have negotiated a settlement with the disaffected states, even if it meant the withdrawal of some from the Union. But Lincoln refused even to accept Confederate commissioners, much less negotiate with them. Most of the Union could have been kept together. Virginia, North Carolina, Tennessee, and Arkansas voted to remain in the Union even after the Confederacy was formed; they reversed themselves only when Lincoln decided on a war of coercion. A great statesman does not seduce his people into a needless war; he keeps them out of it.
When the Soviet Union dissolved by peaceful secession, it was only 70 years old — the same age as the United States when it dissolved in 1860. Did Gorbachev fail as a statesman because he negotiated a peaceful dissolution of the U.S.S.R.? Likewise, if all states west of the Mississippi were to secede tomorrow, would we praise, as a great statesman, a president who refused to negotiate and launched total war against the civilian population merely to preserve the Union? The number of Southerners who died as a result of Lincoln’s invasion was greater than the total of all Americans killed by Hitler and Tojo. By the end of the war, nearly one half of the white male population of military age was either dead or mutilated. No country in World War II suffered casualties of that magnitude.
Not only would Lincoln not receive Confederate commissioners, he refused, for three crucial months, to call Congress. Alone, he illegally raised money, illegally raised troops, and started the war. To crush Northern opposition, he suspended the writ of habeas corpus for the duration of the war and rounded up some 20,000 political prisoners. (Mussolini arrested some 12,000 but convicted only 1,624.) When the chief justice of the Supreme Court declared the suspension blatantly unconstitutional and ordered the prisoners released, Lincoln ordered his arrest. This American Caesar shut down over 300 newspapers, arrested editors, and smashed presses. He broke up state legislatures; arrested Democratic candidates who urged an armistice; and used the military to elect Republicans (including himself, in 1864, by a margin of around 38,000 popular votes). He illegally created a “state” in West Virginia and imported a large army of foreign mercenaries. B.H. Liddell Hart traces the origin of modern total war to Lincoln’s decision to direct war against the civilian population. Sherman acknowledged that, by the rules of war taught at West Point, he was guilty of war crimes punishable by death. But who was to enforce those rules?
These actions are justified by nationalist historians as the energetic and extraordinary efforts of a great helmsman rising to the painful duty of preserving an indivisible Union. But Lincoln had inherited no such Union from the Framers. Rather, like Bismarck, he created one with a policy of blood and iron. What we call the “Civil War” was in fact America’s French Revolution, and Lincoln was the first Jacobin president. He claimed legitimacy for his actions with a “conservative” rhetoric, rooted in an historically false theory of the Constitution which held that the states had never been sovereign. The Union created the states, he said, not the states the Union. In time, this corrupt and corrupting doctrine would suck nearly every reserved power of the states into the central government. Lincoln seared into the American mind an ideological style of politics which, through a sort of alchemy, transmuted a federative “union” of states into a French revolutionary “nation” launched on an unending global mission of achieving equality. Lincoln’s corrupt constitutionalism and his ideological style of politics have, over time, led to the hollowing out of traditional American society and the obscene concentration of power in the central government that the Constitution was explicitly designed to prevent.
A genuinely American conservatism, then, must adopt the project of preserving and restoring the decentralized federative polity of the Framers rooted in state and local sovereignty. The central government has no constitutional authority to do most of what it does today. The first question posed by an authentic American conservative politics is not whether a policy is good or bad, but what agency (the states or the central government — if either) has the authority to enact it. This is the principle of subsidiarity: that as much as possible should be done by the smallest political unit.
The Democratic and Republican parties are Lincolnian parties. Neither honestly questions the limits of federal authority to do this or that. In 1861, the central government broke free from what Jefferson called “the chains of the Constitution,” and we have, consequently, inherited a fractured historical memory. There are now two Americanisms: pre-Lincolnian and post-Lincolnian. The latter is Jacobinism by other means. Only the former can lay claim to being the primordial American conservatism.
David W. Livingston is a professor of philosophy at Emory University and the author of Philosophical Melancholy and Delirium (University of Chicago Press).
Lincoln recieved 55% of the vote against a candidate pledging to negotiate a peaceful end to the war. And that only with help from the military suppressing Democratic votes.
The court does not issue advisory opinions. The first time the issue was presented in 1862, the Court referred to the secesionists as "traitors".
Walt
If you're out to refute all the bullsh*t in the article heading up this post, Ditto my friend, you have your work cut out for you. It's more a question of identifying what isn't BS or where to begin.
McClellan completely rejected unconditional armistice. He was willing to peacefully discuss the issues separating the country, but he required the south to end the rebellion and rejoin the Union as precondition for those discussions. All in all, McClellan's stand was little different from Lincoln's in the spring of 1861.
In dicta - it was Grier's personal opinion, not the result of any trial. Even then Greir acknowledged that the Confederacy had thrown off their allegiance to the US. Given that US law covering treason ONLY applied to those owing allegiance to the US - meaning it was impossible for the Confederates to be traitors to the US, Grier's statement is exposed as a unprofessional slur it was.
Regarding secession, the court refused to address the issue.
Back a few posts you wrote the following, "The Supreme Court said otherwise well before the war."
Again, please grace the uninformed among us where the Supreme Court ruled BEFORE the war that the states WERE chained to the union, that secession was unconstitutional.
Consider what President Lincoln said in his first inaugural:"I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government."
During the era of the Civil War, the generally accepted idea what that each branch of the government interpreted the Constitution itself. Decisions of the Supreme Court were binding only on the parties before the court. The issue of whether the president may suspend the Writ never came before the Supreme Court.
You may not like it, but that is the way it worked.
Walt
Consider that Lincoln just made that claptrap up. Cite your source supporting your assertion that this claptrap was the generally accepted idea.
Here is my source to the contrary. It is a source you, yourself, have quoted on many occasions.
Consider Lincoln's Constitution by Daniel Farber, pp. 188-9
Lincoln's action might suggest that he thought he had the general power to second-gues judicial orders. The argument in favor of such a presidential power has been pressed with great ingenuity, relying on the postulate that each coordinate branch of government is independent within its own ralm. thus, if the president may interpret the Constitution independently when he is considering whether to veto a bill, he should have the power to interpret the Constitution independently when he is exercising this duty to execute the laws. Judicial decrees azre not self-executing; they often require the intervention of an executive officer such as a marshall. The president, then, must have the power to determine whether it is part of the law he must "faithfully execute" or contrary to that law.This argument for executive nullification has not been well received, even among scholars generally hostile to judicial supremacy. Critics point out that Merryman is the only known instance where the president has actually disobeyed a court order merely because he disagreed with it. They also argue that "the available historical materials ... at least suggest that judgments are absolutely binding. . . . [J]udgments have always been thought of as final between the judicial department and the political departments." A contrary view would undermine the judiciary's position as a coordinate department, effectively reducing it to a mere adviser to the president, would would have the final say about the disposition of lawsuits. The "judicial power" would not amount to much if judgments could be overruled at will by the other branches. And the practical consequences are at least potentially chaotic, threatening a constitutional crisis any time the Court rules against the government in litigation. In this respect, executive nullification has similar vices to Calhoun's theory of state nullification.
Once again, the need to correct you takes over:
The constitution says only what the president may do in regard to the writ. Everything else he may not do. It is not 'silent' as you continually claim.
I wouldn't normally point out a typo, but given the content, perhaps a few additional "i" keys on those typewriters would help.
Where does the Constitution say the president may not suspend the Writ?
"Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in wartime. If the country itself is in mortal danger, must we enforce every provision safeguarding individual liberties even though to do so will endanger the very government which is created by the Constitution? The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police."
-- William Rehnquist, Chief Justice of the Supreme Court, November, 1999
Walt
The constitution does not indicate any executive power wrt the writ - thus none exists.
Precision bump.
Oh go ahead. Considering the tone I took I had it coming to me. I don't think that it's the lack of "i" key that was my downfall, it's the lack of a spell checker.
You see, that's the problem -- like the old Lay's Potato Chips ad.
Our philosophy is the one that Jim McDougal once expressed with respect to the Clintons: "I can keep on exposing them faster than they can lie about it!"
The Constitution doesn't say one way or the other, and it doesn't require that the power be explicitly stated for it to be legal. So a power may be assumed to be legal unless determined to be unconstitutional.
And I won't even tweak you about the typo. Wrt?
BZZZZZZZT! Channelling John Marshall again, N-S?
Other way around.
Oh really? Then where does the Constitution give Congress or the President the authority to create a cabinet, a CIA, an FAA, an Air Force or Marine Corps, a Transportation Security agency, and so on and so on?
Correct me if I'm wrong, but I thought that Jackson had done it, with respect to the removal of the Cherokees from Georgia, with his defi against Chief Justice Marshall.
The President has absolutely no business interpreting the Constitution any way he wants, so he can do anything he likes. Which is exactly what your boy Abe Lincoln did.
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