Posted on 10/20/2014 11:48:04 AM PDT by Publius
Introduction
Federalism, or States’ Rights, has a long and honored history. To define terms, Federalism involves the assignment of powers between the entities that make up a federation and the federal authority created by those entities to act on behalf of that federation. In the United States Constitution, the people delegated certain enumerated powers to the federal government for the sake of operating a federated union.
The 10th Amendment was put in place to insure that the federal government would never assume powers not delegated to it. It reads, “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.” It does not say, “The powers not expressly delegated...” When House Speaker James Madison introduced his proposed Bill of Rights to Congress in 1789, there was strenuous debate on the word “expressly”, and Congress rejected it.
There are two theologies of constitution interpretation: Nationalist and Federalist. Some would argue that “schools of constitutional thought” might be more accurate than “theologies”, but there is so much legal mysticism attached to both lines of thought that the term “theology” is a better descriptor.
On the Nationalist side, there is the belief that the Declaration of Independence is the immutable document establishing the Union and converting the colonies into states in the process. How did it do this? By a form of legal magic. To a Nationalist, the Treaty of Paris is irrelevant because he doesn’t care if Great Britain agreed to American independence or not. The Articles of Confederation and the Constitution are the mutable documents further refining the work of the Declaration. The Constitution establishes a contract binding upon the Whole People. This is why Madison chose to have the Constitution ratified by state ratifying conventions, not the state legislatures. He wanted to be sure it was understood that the Whole People were the parties to the contract, not the states. The states were merely the agents through which the Whole People acted.
On the Federalist side, there is the belief that the Declaration of Independence declared the independence of thirteen separate and sovereign colonies. The term “united States” appears in the Declaration with a lowercase “U”. It does not refer to a political entity called the United States, but only to those states united in opposition to the Mother Country. To a Federalist, the Treaty of Paris establishes British concurrence with the separation and independence of those thirteen different sovereign entities. The Articles of Confederation and the Constitution form the Union in two different modes.
This may sound like, “How many legal angels can dance on the head of a constitutional pin,” but it was the legal basis for Lincoln’s decision to prosecute the Civil War, not slavery.
In the Beginning
At the Constitutional Convention of 1787, there were Nationalists and States’ Men. All the leading lights of the Convention were Nationalists, like Alexander Hamilton and James Madison. When the Convention adjourned, Hamilton thought that the Constitution had an easy path to ratification, an illusion that was shattered immediately. For a month after adjournment, almost every voice that was raised spoke against ratification. The writers ranged from Samuel Bryan, who fired an artillery barrage at the Constitution, to anonymous writers like Federal Farmer and John DeWitt, who applied a lawyer’s approach and directed sniper fire at aspects of the Constitution. Hamilton realized he was about to lose, so he sat down and began writing a defense of the Constitution for the New York Ratifying Convention.
Hamilton understood that if he called it the “Nationalist Papers”, his effort would fail, so he pulled off a brilliant public relations coup. He appropriated the name “Federalist” from the true Federalists, the States’ Men, and put the true Federalists in the position of calling themselves “anti-Federalists”. Because people of the time understood that a Federalist was a person who favored greater emphasis on state authority than federal authority, Hamilton created a journalistic smokescreen that helped get the Constitution ratified.
Nationalists and Federalists have different ideas about what is going on behind the Constitution. To a Nationalist, the Constitution is a compact or contract. To a Federalist, the Constitution is a treaty. Under contract law, if a party to a contract wishes to break that contract, he requires the concurrence of the other parties to the contract. Breaking a treaty merely involves giving notice to the other parties.
While Federalists believe that only specified and enumerated powers are granted to the federal authority, Nationalists believe in the existence of implied powers that proceed logically from those enumerated powers.
Nationalists believe in loose construction of the Constitution, today known as the Living Constitution. This is the idea that the Constitution evolves over time to meet changing conditions. This is the Constitution symbolized as a Tree.
Federalists believe in strict construction, today known as Original Intent or the Constitution-in-Exile. This is the idea that the Constitution’s words mean what they said when the Founding Document was written. This is the Constitution symbolized as a Rock.
To a Nationalist, the Supremacy Clause, located in Article VI, has precedence over the Tenth Amendment.
To a Federalist, the Tenth Amendment came later, modifies the Supremacy Clause, and is superior to it.
The Fight Over the Bank
The first clash between the two competing theologies came with the creation of the first Bank of the United States in 1790. By this time, the Nationalists and States’ Men, who had taken the labels Federalist and Anti-Federalist during the debate over the Constitution, had coalesced into factions in the Cabinet and Congress, now calling themselves Federalists and Republicans respectively. To make it sufficiently confusing, Hamilton’s gambit created a Federalist faction under his control that was truly Nationalist, and a Republican faction under Thomas Jefferson that was truly Federalist.
The lack of a coin of the realm had doomed the republic created by the Articles of Confederation. Coins of the realm would be handled by the federal government at the Philadelphia Mint, but the creation of a money supply needed to be handled differently. The Constitution outlawed the states from making anything but gold and silver a means of payment for debts, but the federal government was not bound by that clause in Article I, Section 10.
As Treasury Secretary, Alexander Hamilton rolled the war debts of the states into a bonded national debt. This created a fiat money supply, monetized those worthless Continental dollars and created financial ballast for the nation. Hamilton saw a properly managed national debt as a benefit because it would encourage a basic conservatism in matters of finance. This would be a safe place for the unsophisticated investor to park his cash at a fair rate of return, rather than venture into the jungle of the New York Stock Exchange, which had also been founded by Hamilton. To manage this money supply, there had to be a central bank similar to the Bank of England. But there was no enumerated power in the Constitution giving the federal government the power to run a central bank.
No one objected to the Bank until became clear that the Bank would remain in Philadelphia while the rest of the government would move to a new site on the Potomac. The Virginians in the Cabinet and Congress feared that this was a dastardly plot by Pennsylvanians, and they suddenly discovered the Tenth Amendment, strict construction and enumerated powers.
George Washington was caught in the middle. He was a businessman, not a lawyer, so he turned to his Treasury Secretary for advice, asking Hamilton to put it in writing. Hamilton’s legal memo was a masterpiece that can be summarized in one simple equation:
Enumerated Power + the Necessary and Proper Clause from Article I, Section 8 = Implied Power
Washington signed the Bank Bill. From that day forward, the fight over enumerated versus implied powers, and strict versus loose construction, would always be based on specific issues, not high constitutional principle. A politician could take a Nationalist stance on one issue, switch to a Federalist stance on another issue, and deny the slightest possibility of hypocrisy.
The States’ Rights argument was not connected to state defiance of federal authority. Rather, the idea was to keep the federal government’s involvement with the average citizen to a bare-bones minimum, restricted to the enumerated powers listed in Article I, Section 8.
Cold War and Sedition
By the late 1790s, America had become involved in a naval cold war with Revolutionary France. The country was divided, with Hamilton’s Federalist faction, which was a Nationalist construct, supporting Great Britain because it was the nation’s top trading partner. Jefferson’s Republican faction, which was a Federalist construct, supported France for sentimental reasons connected to King Louis’s support during the Revolution. But in the intervening years, King Louis had been shortened by the length of a head, replaced by a republic, which had been replaced in turn by the Reign of Terror and the Directory. Now France was less than a year away from the military coup that would give the world Napoleon and the Empire. It did not occur to the Jeffersonians that a revolution that starts the calendar over from the Year Zero, like the French Revolution and the Cambodian Revolution under Pol Pot, was a sign of national psychosis. This struggle was fought at home with pro-British and pro-French mobs battling each other in the streets of American cities.
The revolutionary government of France funneled money to set up organizations to influence American elections. These French-front organizations, known as “democratic-republican societies”, were no different than the Communist-front organizations set up by the Soviet Union during much of the 20th Century. This had the unintended consequence of turning the words “democratic” and “democrat” into epithets; the use of either word in an argument could lead to a duel.
What happened next stretched the bounds of Federalism to the breaking point. It started in Virginia with St. George Tucker. His theology of Federalism was extremely radical. He viewed the Federalist Papers as pleadings in a case, and he rejected that case. When the federal government began military preparations, Jeffersonian Republicans from Virginia and North Carolina viewed it as a possible move against themselves for their pro-French sympathies, similar to the Washington Administration’s military move against the whiskey rebels in Pennsylvania. In the Adams Administration, there was brief consideration of an expedition against New Orleans, held by Spain, a French ally. This would involve marching the Army through Virginia and North Carolina. The Virginia Legislature voted to appropriate arms for 5000 men, not to support the Army, but to oppose it. Tucker stated that if there were a war with France, 100,000 Americans would join forces with France and fight the US Army.
The legislatures of both Virginia and North Carolina began to discuss secession, but Jefferson told them that the coalition that held the Adams presidency together would fall apart soon. They should bide their time and not do anything rash.
In the midst of all this, President John Adams and the Federalist Party responded with the Alien and Sedition Acts, four laws some of which are still on books. The Sedition Act made it illegal to make defamatory and false statements about the federal government. Thanks to the fact that the Bill of Rights had not yet been incorporated upon the states, every state had sedition laws on the books, and some even had state religions. What rankled was the fact that sedition was now a federal offense, and that explicitly violated the 1st Amendment.
Thomas Jefferson anonymously wrote the Kentucky Resolution for that state’s legislature, arguing that under the 9th and 10th Amendments, the federal government could not possess the sole right to determine the constitutionality of a law, and the states had the power to declare laws unconstitutional and nullify them. This was because the states, not the Whole People, were the parties to the contract.
James Madison’s anonymously written Virginia Resolution took a position with greater nuance, declaring the power of a state to interpose itself between its people and a tyrannical federal government that had exceeded its authorized powers. What is astonishing is that Madison now abandoned his Whole People argument from the Federalist Papers and the Nationalist theology, went over the wall and joined Jefferson in his argument born of the Federalist theology.
But every state north of Virginia condemned the two resolutions, citing the Supremacy Clause of the Constitution. The Alien and Sedition Acts had made a dent in the street fighting, and the laws were popular.
This is where Patrick Henry entered the fray. A decade earlier, Henry had fought against ratification in a series of very long speeches to the Virginia Ratifying Convention. He had argued that the Constitution was flawed from the very Preamble, which should have begun, “We the states”. But since ratification, Henry had watched George Washington do something he had thought impossible, which was to run a clean administration. The French Revolution had frightened Henry, and he had gravitated to Hamilton and the Federalist Party. Patrick Henry, now dying of stomach cancer, condemned the Virginia and Kentucky Resolutions because the legal thinking behind them could lead to secession and civil war.
In time the Sedition Act expired, and upon becoming President, Jefferson pardoned those convicted under the law.
Up to this point, America did not have true political parties because George Washington had opposed their establishment with every fiber of his being. Washington’s body was cold for no more than a few days before the Federalist and Republican factions morphed into full-fledged political parties. Older history books refer to Jefferson’s party as the Democratic-Republican Party, but this is incorrect. Jefferson called his party the Republican Party. It was the Federalist Party that called the Jeffersonians “Democratic-Republicans” in order to link them to the violence in Revolutionary France.
The Louisiana Purchase
Thomas Jefferson had seen himself as a true Federalist in principle. He reduced the Navy to a skeleton force and almost eliminated the Army, believing that the American citizen-soldier, the militiaman, was superior to the professional soldier fielded by Britain.
In the case of the Louisiana Purchase, Jefferson understood that the Constitution was silent on the matter of acquiring new territory, but Jefferson accepted Thomas Paine’s argument that the acquisition was simply a function of nationhood. That this was the argument of Alexander Hamilton, Jefferson’s archenemy, did not bother the President.
But it bothered the New England states and the Federalist Party that ruled there. It was understood that the expansion of the Union would lessen the influence of New England, and most especially that it would expand the domain of slavery. The acquisition would have such a profound effect on the nature of the Union that the New England Federalist Party took Madison’s argument about unanimous consent for the dissolution of the Union and stated that it would require the unanimous consent of the states to acquire the Louisiana Territory; an act of Congress or a constitutional amendment would not suffice. That argument went nowhere, and the New England Federalist Party retreated to proposing a constitutional amendment repealing the Three-Fifths Clause in Article I, Section 2, in order to prevent slaves from being counted in the census. This failed, and the next position of retreat was to demand a law similar to the Northwest Ordinance of 1787 that would ban slavery in the Louisiana Territory. Once that failed, the Federalist Party of New England began to mutter darkly about secession.
At this time, secession was the S-word. Not only was it a word no patriot would utter, it was a word no gentleman would utter. But there was no agreement yet that it was illegal. Here the traditional proponents of Nationalism were espousing unilateral secession, and the traditional proponents of Federalism were espousing federal supremacy. Jefferson saw no irony in this.
Publicly, Jefferson wished the New England states well if they chose to leave, but privately he sent Vice President Aaron Burr into the drawing rooms of the Federalist Party’s patroon families of New York to shut down any move toward supporting New England’s bid for secession. Burr, like Bill Clinton, understood that in politics the shortest distance between two points is often not a straight line, but a triangle. By adroit triangulation, Burr was welcomed in the houses of both Republican and Federalist patroons. Jefferson’s ploy worked, and the crisis abated.
The War of 1812
That war started from a political error. England had offered Secretary of State James Monroe a deal on the issue of the impressment of seamen. Had Madison taken the deal, the other issues could have been settled by negotiation. But accepting that offer would have splintered Madison’s party, and the men of the frontier avidly desired war. Madison was caught in a bind.
America entered that war without much of a Navy and no Army. The charter of the first Bank of the United States had expired a year earlier, and there was no way to control the money supply. While there was enthusiasm for the war in the South and on the frontier, New England regarded it as folly and wanted nothing to do with it.
When President Madison asked the states to respond to levies for troops, New England refused. Daniel Webster, later to become the very avatar of Nationalist theology, defended the response of the New England states, justifying them by arguments from Federalist theology. New England banks refused to subscribe to federal loans for the war and instead opened a thriving business in British war bonds by way of Canada. Madison reacted by imposing economic sanctions on New England, and the Federalist Party of New England countered by calling the Hartford Convention to discuss secession.
The two men who presided over the Hartford Convention were patriots and had no desire for disunion, so they used the time-honored political and bureaucratic technique of sandbagging to prevent the convention’s hotheads from precipitating a crisis. The result was that the convention passed a number of toothless resolutions, the delegates muttered at each other, and then they all went home.
Madison’s reaction was to send the Army into Hartford. It was not there to break up the convention, which would have been a violation of the 1st Amendment, but as a potential show of force. Madison understood that when enemy troops were occupying the country, it wasn’t the right time for a discussion of the legality of secession.
Thanks to the primitive state of communications, the Hartford Convention occurred after the Treaty of Ghent had been signed and the war ended. In New Orleans, Andrew Jackson’s victory had also occurred after the war’s official end. But as the news of all three events arrived simultaneously, the activities at Hartford came to be perceived as treacherous and even treasonous.
Several things came out of that war. At Henry Clay’s insistence, Madison signed the charter for the second Bank of the United States. Realizing that the American militiaman’s performance was no match for the British professional soldier, Madison authorized a standing army that would be funded every two years to keep it in compliance with Article I, Section 8.
New England is where political parties go to die, and the Federalist Party, which had holed up in New England, expired within a few years with its members entering the Jeffersonian Republican Party as the National Republican wing. A decade later, the Republican Party splintered, with the Federalist theology represented by the Democratic Party, and the Nationalist theology represented by the Whigs. Thus finally ends the confusion between parties and constructs.
The Campaign Stunt That Almost Broke the Union
Andrew Jackson was a contradictory figure. In arguments between the federal government and the states, he always took the side of the states, except for one significant incident that will be studied here. As a Democrat and an avatar of Federalist theology, he was even willing to face down the Supreme Court in support of the states. Jacksonian federalism was an extreme flavor of federalism. Yet in spite of this, the federal government grew on Jackson’s watch because he needed federal patronage jobs for Democratic Party faithful.
Jackson was the first President to state that he was the national officer elected by the people. This was not quite correct. Jackson had been elected by the Electoral College, some of whose members were chosen by the people, and some of whose members were chosen by state legislatures. Jackson was the first President to possess a cult of personality and encourage it.
The problem that almost escalated into dissolution of the Union began with a campaign stunt in the 1828 election. Jackson’s campaign manager, Martin van Buren, came up with the idea of a tariff that would generate some enthusiasm in the North but none in the South. Jackson would then condemn the tariff and ingratiate himself with the South when the tariff was defeated in Congress. But Van Buren didn’t understand the extent to which New England had industrialized, and the poison pill he inserted into the tariff bill turned out to be Viagra. The North rose as one and applauded the tariff, the South condemned it, and the Tariff of Abominations was enacted into law.
Robert Barnwell Rhett led a group of South Carolina hotheads in a discussion of immediate secession. Vice President John Calhoun, also of South Carolina, had been a Nationalist, loved the Union, and came up with a way of sandbagging his state’s hotheads by reaching back to Jefferson’s language in the Kentucky Resolution to suggest nullification as the preferred solution.
In 1830, Daniel Webster debated Robert Hayne of South Carolina on arcane matters of taxation and public land that morphed into a debate on the very nature of the Union, with Hayne taking up a defense of Calhoun’s position on nullification. This was a major event in Washington City, as it was called then. For a period of several weeks, all work in the federal government stopped – which may have been a good thing – when Webster and Hayne, two of the great orators of the age, took to the Senate floor for their daily debates.
The problem was Webster’s Second Reply to Hayne and its last line, “Liberty and Union, now and forever, one and inseparable.” That speech was memorized by a generation of schoolchildren who took it to heart. In a sense, Webster’s Second Reply had the effect of amending the Constitution without actually going through the amendatory process. Now the idea of the permanence of the Union had been etched into the American psyche.
Calhoun then stated his Theory of Concurrent Majorities:
The will of the absolute majority, as exemplified by Congress, can be vetoed by concurrent majorities of the states.
The practical effect of this went beyond simple nullification. What Calhoun was suggesting was:
If two-thirds of the states nullify a federal law, that law is repealed.
Calhoun’s thesis, known as the Fort Hill Address, was reprinted throughout the country and received approbation even in New England.
In 1832, South Carolina announced its intention to nullify the tariff and stated that if the federal government attempted to collect it, the state would secede from the Union. In similar situations, Jackson had backed the states. But now he abjured his Federalist position in favor of a Nationalist position. Historians differ on why. Jackson responded to the South Carolina threat of secession by stating two simple equations:
Nullification = Treason
Secession = Treason
Jackson saw no irony in finding himself in bed politically with his two Whig archenemies, Webster and Clay. South Carolina declared its nullification of the tariff, Jackson asked Congress for permission to send the Army into South Carolina, and he got it. The crisis ended with Henry Clay writing a smaller tariff, but the Jackson Precedent had been set:
States may neither nullify nor secede.
There was now a limit to Federalism.
When the battlefield cooled, who should check in but James Madison! The Framer was now 81 and four years away from the Sunday afternoon nap from which he would never awaken. He wrote a legal argument published in many of the nation’s newspapers that demolished Calhoun’s arguments. Madison had started as a progenitor of Nationalist theology, repudiated his earlier views to go over the hill with Jefferson as a proponent of Federalist theology, and then, after his experience as President, was safely back in the Nationalist camp, where he stayed.
The Path to the Civil War
Henry Clay had opposed a war with Mexico because he understood that the land taken as the spoils of war would have to be organized into territories. That would require renegotiation of the Missouri Compromise, and that could lead to disunion. In the aftermath of the war, Clay’s worst fears were realized when John Calhoun stated the doctrine that the territories weren’t federal in nature, but the common property of the states, merely administered by the federal government. Clay saw this as the first attack in a war over extending slavery.
Clay was the architect of the Compromise of 1850, and one of the duties he least relished was replacing the Fugitive Slave Act of 1793 with something more stringent. For decades Clay had been president of the American Colonization Society, a group dedicated to the gradual emancipation of slaves and their repatriation abroad. Clay owned a hemp plantation outside Louisville, and he owned slaves. The emancipation and colonization movement had always been part of the political mainstream, while abolitionism had been the movement’s lunatic fringe. To have a slave owner as president of the Colonization Society was a major coup. Clay understood that under the Constitution slaves were chattel, and the fact that a slave had escaped to a state where slavery was illegal did not make that slave free. The price for keeping the South in the Union would be a stricter Fugitive Slave Law that would override individual state laws.
In the negotiations over the compromise, there was a discussion between President Zachary Taylor and a number of congressional power barons, to include Alexander Stephens of Georgia. In a conversational remark made to Taylor, Stephens said that if certain items were not part of the compromise, Georgia would secede. To Stephens’ astonishment, Taylor pulled himself up to his full five-feet-six and told Stephens that if Georgia seceded, he himself would lead the Army into Georgia and hang every rebel. Taylor was from Louisiana, and his current home was Kentucky. He owned a plantation and slaves, and Stephens could not conceive of a Southerner taking the Nationalist position on secession. But Taylor felt honor bound to preserve the Jackson Precedent.
The reaction to the Compromise of 1850 in the North was immediate and approached violence. Wisconsin and other Northern states defied the Fugitive Slave Act, citing arguments out of Federalist theology, and threatened nullification and secession. The tables had neatly been turned. The South was arguing federal supremacy from the Nationalist theology, and the North was arguing States’ Rights. This irony did not go unnoticed in Congress and in the press.
The Compromise of 1850 was the last hurrah for Webster, Clay and Calhoun. Within two years, all three men would be dead, and a new generation would abjure compromise for confrontation.
Uncle Tom’s Cabin, or Life Among the Lowly by Harriet Beecher Stowe was published in 1852 and took the nation by storm. It’s not a very good book, but it totally changed the debate over slavery by putting a human face on the institution. Its effect was similar to the TV miniseries “Roots” in the 1970s. Thanks to the book, the political playing field shifted to move abolitionism into the mainstream. The book takes a more sophisticated view of the situation than one would realize today. The term “Uncle Tom” is a pejorative in the black community, but the character Uncle Tom in the book is a figure of grace, strength and dignity. Southerners are not presented as monsters, but as victims of a social and economic system not of their invention. The villain of the book, Simon Legree, is not a Southerner, but a Northerner transplanted to the South.
In 1854 the Kansas-Nebraska Act set off a guerilla war in Kansas as pro- and anti-slavery forces attempted to populate the territory in preparation for its being admitted as a state. The situation in Kansas radicalized Northerners, and for the first time abolitionists and moderates began working together.
In 1857 in Dred Scott v. Sandford, Chief Justice Roger Taney thought that a comprehensive decision upholding the Fugitive Slave Law would solve the slavery issue once and for all, but he only made it worse. His opinion went farther than the case warranted and stated that Scott should never have been heard in federal court because he was chattel, not a citizen. Taney also took Calhoun’s position that the territories were the common property of the states, and Congress could not ban slavery in them.
Then in 1859 John Brown’s raid in Virginia set the situation ablaze. Abolitionists had been pushed to terrorism to make their point, and it only got worse when it was revealed that the financial backing for Brown had come from prominent New England abolitionists.
The Whigs had attempted to have it both ways on slavery, and after holing up in New England, they were replaced by the new Republican Party, which became the party of the Nationalist theology.
In 1860, the South thought it had a way to solve the problem once and for all. The Southerners chose to splinter the Democratic Party into Northern and Southern wings, and elect a Republican as President, thus providing a pretext for secession. James Buchanan was a weak man, and the South thought that the Confederacy would be an accomplished fact by the time the Republican President was inaugurated. Lincoln was elected with barely 40% of the popular vote, and seven states seceded immediately. Lincoln understood that there could only be one President at a time, and until March, James Buchanan would have that burden. Lincoln was silent on the issue of secession, and as a result even more states seceded. Secession movements opened up in California, New Jersey and New York City.
Buchanan’s reaction was to uphold the Jackson Precedent and state that unilateral secession was treason, but he said that he lacked the authority to do anything about it. Technically, Buchanan was correct. When the powers of the presidency were debated at the Constitutional Convention, a proposal to give the President the power to call out the Army to end a threat of secession had been defeated by nine states to two. That power would reside with Congress or not at all.
The Civil War and Its Aftermath
In his inaugural address, Lincoln carefully laid out the Nationalist theology and the Jackson Precedent.
Unlike Madison, Lincoln was a practicing attorney. As a railroad lawyer, he had extensive experience litigating cases based on contract law and property law. He understood that if the Union were to be dissolved, a constitutional amendment would be the proper instrument. The first part of the amendment would dissolve the Union, the second would re-establish the Union with a list of states that chose to remain, and the third would authorize Congress to act on relevant issues. These would include the status of lands ceded to the federal entity by the states for military purposes, the settlement of debts by the states to the federal entity in gold, and the status of fugitive chattel escaping to the re-formed US. Lincoln asked the South to return its congressmen and senators to Washington to negotiate an amicable divorce. The final constitutional amendment would require the concurrence of three-fourths of the states, and Lincoln believed that would satisfy the constitutional requirements.
But when Beauregard fired on Fort Sumter, the equation changed. This was a rebellion, not a request for a divorce. The South had decided to forgo litigation in a court of law for a contest in the court of arms. Now the North’s back was up, and the time for negotiation had passed.
Lincoln’s reaction was extreme:
It’s important to understand the legal reasoning behind Lincoln’s actions. From his perspective, the secession of the Southern states had never taken place. Unilateral secession was unconstitutional, legally impermissible and thus impossible. What had happened was not the dissolution of the Union as ratified by the states but an insurrection, and he used all legal means to suppress it. As Lincoln saw it, Jefferson Davis was the pretend president of a nonexistent nation. Lincoln never permitted the word “Confederacy” to be uttered in his presence, but corrected the speaker that he must be referring to “those states in rebellion against the lawful authority of the federal government.”
In order to preserve the Union, Lincoln felt it necessary to mangle the Constitution in order to save it. Even Lincoln understood he was skating on the edge of the law.
After Lincoln’s death, Radical Republicans in Congress took the position that the South was a conquered nation, a violation of everything for which Lincoln had fought. They argued that states could be readmitted if they ratified the 13th Amendment, which abolished slavery. They went much farther with the 14th Amendment, which was worrisome even to Northern states because it was an intrusion of top-down Roman Law into a document built on English Common Law. Many Southern states simply refused to ratify, which prompted Congress to throw them out of the Union, reorganize them into military districts, and declare that they could return only if they ratified.
There were several legal problems with this. According to Lincoln, states could not leave the Union without the permission of the other parties to the contract. The Constitution makes no mention of military districts. Only states can ratify constitutional amendments, not territories, not military districts, not the District of Columbia, not Canada, not Mexico, not the United Nations – yet! In 1939, when the Supreme Court took the case of Coleman v. Miller, the Court chose to keep this can of constitutional worms welded firmly shut.
In 1869, the Supreme Court settled the basic issues of the Civil War in Texas v. White. In that decision it decided that secession was unconstitutional and the Union was both permanent and indissoluble.
John Hay, one of Lincoln’s two secretaries, who later served as Secretary of State under McKinley and Theodore Roosevelt, believed Lincoln to be the greatest of the Founders because he had cracked the Union formed by the original Framers and created a new Union in his own image. Lincoln may not have intended it, but those who followed him bequeathed the nation an early and primitive form of corporate fascism. The country was run by Big Business in general and Big Railroads in particular.
Federalism remained, as did the Democratic Party, which became the party of agrarian and small town America. But the Federalist theology was gone, a victim of the war. Federalism was no longer the defining argument. The new argument was:
Who would control that powerful federal government?
The Progressives
The Jeffersonian impulse moved from Federalism to Progressivism. The Progressive Movement had come out of the Republican Party in the Northeast, where it acquired an Episcopalian flavor, and the Midwest, where it possessed a Lutheran flavor. The Progressives took a Protestant view of the world. They wanted to achieve Jeffersonian ends by Hamiltonian means, utilizing that powerful federal government to fix the political and economic systems before genuine radicals like the Grange Movement and the Populists could nationalize everything in sight. Their agenda included:
That last one had been suggested by Andrew Jackson back in 1829 along with the abolition of the Electoral College.
Like most movements, the Progressives spent thirty years in the political wilderness before gaining power with Theodore Roosevelt.
With the Great Depression and the election of 1932, Franklin Roosevelt cracked the Union created by Lincoln and replaced it with a New Deal Union in his own image. Corporate fascism yielded to democratic socialism as Big Government replaced Big Business. Thanks to the 1942 Supreme Court decision in Wickard v. Filburn, the federal government gained unlimited power over every detail of American life via the Interstate Commerce Clause in Article I, Section 8. The Tenth Amendment had become a dead letter by an act of the Court, not via the amendatory process.
Federalism Today
After World War II, Federalism returned. Unfortunately, it returned to defend Jim Crow. That discredited Federalism and unleashed Earl Warren and the Supreme Court in a campaign to remake American society through judicial activism. Warren told his law clerks that he was less concerned with what the Constitution said than what was right or wrong. The problem is that the courts are not the proper venue for that discussion. What matters in court is:
The place for right and wrong is the legislature where the people’s representatives write the laws. Courts are not supposed to be in the business of legislating, but that’s not how Warren saw it. As he viewed it, it was the legitimate role of the courts to remedy social injustices.
With all restraints on the Supreme Court removed, activist judges issued the “One Man/One Vote” decision, took prayer out of schools, gave rights to criminals, wrote new laws governing abortion and upheld Affirmative Action. Justice William Brennan went so far as to say that the Court was not bound by the letter of the Constitution.
Beginning in 1912, the Democratic Party turned from Federalist to Nationalist. The Republicans remained Nationalist until Barry Goldwater brought the first fruits of libertarianism and Federalism into the party. The Republicans today remain divided between Nationalists and Federalists.
It is the Tea Party movement that has embraced Federalism. What has brought this about is the incompetence of the federal government in attempting to manage every aspect of American life, and the arrogance and viciousness of the federal government in preserving, protecting and defending that incompetence. By espousing a return to Federalism, the Tea Party movement has done nothing less than attack the Modern State itself.
Since the end of World War II, Americans have lived under the Modern State. The Modern State takes in vast amounts of tax money and distributes that money to certain favored constituents via the federal faucet. The Democratic and Republican parties exist today to fight over control of that faucet. The Modern State is how America projects power as the world’s policeman. The Modern State is how Americans govern and take care of each other now that the Modern State has destroyed American civil society. The Modern State is how the Union is held together, a combination of carrot and stick, pork and SWAT teams from federal alphabet agencies.
The Tea Party movement’s goal is to return to a model of Federalism closer to what America had before the Civil War, and that means the starvation of the Modern State. This is why the Mainstream Media, Wall Street and the federal government view the movement as a threat. From their perspective, there is only one way to govern in today’s world, and that’s the Modern State. They don’t believe that a return to the principles of the Founding Fathers is possible, desirable or even relevant. This is why they wish to destroy the movement. They view it not merely as a threat, not merely as subversive, but insane.
The democratic socialist paradigm is failing, and no one is quite sure what will replace it. But it will be either Federalism or Fascism.
That’s my point. Since 1913 America has had Presidents of such bad character it would rival the last days of Rome. Even before that there was Adams, who passed the sedition acts.
I find that excuse “The Bible said it was alright” weak. Christ didn’t tell us anything about voting, or dealing with tyrants either, but I dispute that the Bible advocated the evil tradition of slavery. Just because there isn’t a verse that says that slavery is evil, doesn’t mean it isn’t evil. We need to figure that out for ourselves, and unfortunately Southerners just couldn’t grasp it.
Central government’s usurpation of power began early but really got underway with the corrupt and amoral Jackson administration.
Abraham Lincoln drove the final nails into the coffin of our Constitutional Republic.
Things have only gone down hill since then.
As Publius says, this is the crux of the issue... {I am a bit sick and have just scanned the article... will read it in detail later} Whatever one may think about the issue of slavery [I think it is abominable] it is difficult for people to realize that one perhaps unintended side effect to the War Between the States was the weakening of state's rights... because of the heavy hand of Lincoln and his decision that the Union was the most important principle to be enforced. He even deported an Ohio congressman to Canada that loudly opposed him!
Washington carpetbaggers further emaciated state's rights with the Fourth Branch of government: the federal bureaucracies. By sneaking through the income tax amendment Washington began to drain wealth from the local communities, constructed the 'Agencies' and told the state's they could have their money back if they did certain things. It would appear on the surface that it is a violation of the Constitution - but it is not because the states can say 'No thanks' and not get any of their money back.
The whole system has been corrupted.
(Publius:) The democratic socialist paradigm is failing, and no one is quite sure what will replace it. But it will be either Federalism or Fascism.
We see with this ebola outrage the incompetence of the feds to deal with problems - yet the public still thinks that the answer to all their problems rests with the government... get an education, buy a house, get a raise, pay your rent, feed your children, get a job - get a promotion, etc., etc., etc. ... on and on! I do not know if we can break this dependence cum loss of freedom. It requires a mammoth educational outbreak - and the opposition holds all the popular media to carry on the fight for enslavement.
You have no brief at all against slavery at any other time or place than in America, perpetrated by whites.Doesn’t that bother you at least a little???
Either you have to condemn everyone in all of history, or you have to recognize that the people who lived prior to our time had different cultural norms and either did the best they understood at the time, or else did not. And of course none of them, Christ excepted, did the best at all times. The reason that Jefferson and Washington didn’t free all their slaves traces back to their own upbringing, what their fathers did before them, and what everyone around them took for granted.
Everyone in America, essentially, was prejudiced against blacks before Reconstruction. And after, because under the best of circumstances those attitudes don’t change on a dime. When I say, “everyone,” I certainly and specifically include Abraham Lincoln. Everyone.
Everyone was inculcated with that stuff, one way or the other - and if they weren’t directly told it, they absorbed it because the blacks themselves had such different culture from whites. And race consciousness is still with us, and if Jesse Jackson et. al. have anything to say about it, race consciousness will never go away. It is their rice bowl.
Baker had served as a senator from Illinois, which is how Lincoln came to know him. He was a welcome guest at the Lincoln home in Springfield where he was called “Uncle Ned” by the children. Baker went to Oregon when it became a state in order to make his fortune, but he found himself chosen by the legislature as Oregon’s senator because of his prior experience.
When the Civil War broke out, Baker left the Senate to accept a commission as a Brigadier General in the Union Army. Just before leaving to go to war, Baker came to dinner with the Lincoln family at the White House where he gave the President the kind of dressing down that only a close friend could give.
Baker argued that the states were the source of the whole problem, and the first thing that should be done at the war’s conclusion should be to abolish the states entirely and reorganize the country into military districts for complete governance by the federal entity. Lincoln laughed his suggestion off and privately classified Baker with the “Jacobins”, his name for the men who would later become known as the Radical Republicans.
Baker died in Virginia at the Battle of Balls Bluff in a botched retreat. Had he lived, he would have joined the most extreme of the Radicals in Congress after the war. We dodged a bullet.
Imagine if GW had followed suit! Over half of the Congress would have been deported! right on! right on! right on!
. . . And it took the South until the 1960s to get with the modern world - makes them little better than the barbarians we are fighting in Iraq.
100% of what I am saying is that if you were born in Virginia in 1840 you would have enthusiastically fought for the Confederacy, and wouldn’t have appreciated Yankees telling you that you were immoral for doing so. Yes, IMHO upbringing/culture has that much effect.And it’s not likely that you are a lot more committed to Jesus than Stonewall Jackson was, for example. If you read his biography, you will understand what I am saying. He started a Sunday School for slaves, which was controversial in Virginia. And he owned one slave, reluctantly, because the slave himself importuned him to buy him from a hard master.
As I said, there is ample evidence that Abraham Lincoln was prejudiced against blacks. Everyone was.
Look, my first interest in being a Republican was on account of the story of Lincoln. But in school, you learn things in other ways than class. And the blacks I encountered there taught me to be wary of them. Same thing, it’s how they were raised. And that doesn’t change on a dime.
Read yourself some Thomas Sowell.
Black Rednecks and White Liberals - Thomas Sowell
You are not wrong. The Federalists were for a more powerful central government, but they went to great pains to limit its power. What we have today would have terrified them, and quite rightly. The federal government DOES have a role (like securing the border, for example), and needs to be effective in that role. There are things at which the fed is more efficient and effective, and those things are few.
Hope you find it of some value and I welcome you comments. I've got stuff on my plate that may prevent immediate response but I'll do my best.
First of all, I want to congratulate you on a thorough and extensive treatment of this subject. If you included references and footnotes, this could be a Treaties or a Law Review article. And with a little tweaking, the title could be changed to, “A Case for State Nullification” (which I favor and believe can be a valid response by a state that in a good-faith finding, deems a federal act unconstitutional).
The subject of use and misuse of words to either clarify or confuse is as relevant today as it ever was. IMO, the misuse of words is a tool in the Leftist toolbox. “Liberals” are about less liberty and more government. “Feminism” is the opposite of femininity. And here, you expose the duplicity and a certain confusion in the use of the word “federalism.”
So understanding the meaning and concepts behind words and ideas are important. But my interest is more in truth behind ideas and values than in the use of certain tradition words. When a word or term has been corrupted through misuse or the use of the term itself has become an issue, I try to do a work-around by using other words that plainly describe the same thing. I am more interested in values and truths than in maintaining the traditional use of certain terms.
“Federalism” in its original meaning seems hopelessly lost in confusion, especially because our central government is formally called the Federal Government, so today, the average Joe might think “federalism” means more federal government. So I try to describe our form of government as a decentralized Constitutional Republic and the Constitution itself defines and delegates the limited powers of the federal government, all other power and right presumed to the states and people respectively.
Having said all of that, here are some of my comments and responses to your text.
Hamilton…appropriated the name “Federalist” from the true Federalists, the States’ Men, and put the true Federalists in the position of calling themselves “anti-Federalists”… To make it sufficiently confusing, Hamilton’s gambit created a Federalist faction under his control that was truly Nationalist, and a Republican faction under Thomas Jefferson that was truly Federalist.
Maybe one of the first modern records of a Leftist (proponent of big government) twisting language to further his ends. I call it Satanic, really, because Satan is the author of confusion.
To a Federalist, the Tenth Amendment came later, modifies the Supremacy Clause, and is superior to it.
Not sure I follow this. There seems to be some kind of conventional wisdom that the Supremacy Clause supports any law Congress passes as "the Law of the Land". This is actually the “positive law” theory at work: any law Congress passes is valid. But that is not how the Supremacy Clause reads. It says that to be the Law of the Land, treaties and the laws of Congress must be “IN PURSUANCE” of the Constitution. The Constitution IS the Law of the Land and is, therefore, the rule of law in the U.S. Any law Congress passes must be consistent with the Constitution to be the Law of the Land. Any law that is unconstitutional is not the Law of the Land and is not valid law in the U.S. Otherwise you have the “positive law” rule of man running the show and that is tyranny. We know the Founders were dead-set against tyranny and a basic intent of the Constitution was to establish the rule of law as the bulwark against tyranny. The text of the Supremacy Clause itself and the Tenth Amendment confirms that purpose.
[Hamilton] Enumerated Power + the Necessary and Proper Clause from Article I, Section 8 = Implied Power
[Me] Enumerated Power + the Necessary and Proper Clause from Article I, Section 8 = Laws Necessary to carry out Enumerated Power
What is astonishing is that Madison now abandoned his Whole People argument from the Federalist Papers and the Nationalist theology, went over the wall and joined Jefferson in his argument born of the Federalist theology.
IMO, Madison was never a “Hamiltonian nationalist.” Madison (and others) knew the need for a central government for the protection of the colonies. Without a solid central government, they legitimately felt vulnerable to invasion from larger, stronger foreign powers. What distinguished Madison is he understood the presumption of the Constitution as expressed in the Declaration of Independence, that man is born with God-given rights which he confirmed in the Tenth Amendment that certain of those rights are DELEGATED by the states and the people to the central government via the Constitution. Thus Madison wrote the first ten amendments, not as the popularly called “Bill of Rights” (the rights are already there – totalitarian regimes like the USSR invoke “Bills of Rights” which they can just as easily revoke) but to appease the Anti-Federalists who (justifiably) feared a run-away central government that would not abide by these Constitutional presumptions of rights.
[Under Jackson] as a Democrat and an avatar of Federalist theology…the federal government grew on Jackson’s watch because he needed federal patronage jobs for Democratic Party faithful.
Suggests personal political welfare over America’s welfare.
Calhoun then stated his Theory of Concurrent Majorities:
The will of the absolute majority, as exemplified by Congress, can be vetoed by concurrent majorities of the states.
The practical effect of this went beyond simple nullification. What Calhoun was suggesting was:
If two-thirds of the states nullify a federal law, that law is repealed.
ONLY IF states find congressional law unconstitutional. Otherwise, nullification violates the Supremacy Clause. If a federal law is in “Pursuance” of the Constitution, then it is the Law of Land.
But now [Jackson] abjured his Federalist position in favor of a Nationalist position. Historians differ on why. Jackson responded to the South Carolina threat of secession by stating two simple equations:
Nullification = Treason
Secession = Treason
Nullification does not = Treason if federal law is unconstitutional.
Secession does not = Treason if federal acts continue to unconstitutionally abridge and interfere with states’ rights.
Unconstitutional Federal Law/Acts = Treason.
It is important to note that back in the early 1800’s, states were fiscally independent and not in reliance of federal funds.
http://people.duke.edu/~ew41/Research_files/cps.03.pdf (page 478).
Today, however, states are slavishly dependent on federal funds.
South Carolina declared its nullification of the tariff, Jackson asked Congress for permission to send the Army into South Carolina, and he got it. The crisis ended with Henry Clay writing a smaller tariff, but the Jackson Precedent had been set:
States may neither nullify nor secede.
Although the reason for the tariff was alleged to be mischievous, South Carolina’s nullification lacked constitutional grounds. The nullification was, therefore, invalid. The Jackson Precedent completely misses the point which is whether nullification or secession is based on an unconstitutional act by the federal government. Since the Jackson Precedent is also without constructional grounds, it is flawed and invalid.
Madison had started as a progenitor of Nationalist theology, repudiated his earlier views to go over the hill with Jefferson as a proponent of Federalist theology, and then, after his experience as President, was safely back in the Nationalist camp, where he stayed.
As we’ve seen, “theologies” and terms move around all the time. Going from “federalism” to “nationalism” could be as much a function of the changes in the meaning and “theology” of these terms as anything. The important thing to look at what Madison’s constitutional-based reasons were for his alleged “changes.” If Madison’s reasons were consistent, then his position represented no real fundamental change.
In 1857 in Dred Scott v. Sandford, Chief Justice Roger Taney thought that a comprehensive decision upholding the Fugitive Slave Law would solve the slavery issue once and for all, but he only made it worse. His opinion went farther than the case warranted and stated that Scott should never have been heard in federal court because he was chattel, not a citizen. Taney also took Calhoun’s position that the territories were the common property of the states, and Congress could not ban slavery in them.
At the time, the Constitution did not delegate the issue of slavery to the federal government. Slavery, like abortion and marriage, was a states issue, not a federal issue.
[Lincoln] understood that if the Union were to be dissolved, a constitutional amendment would be the proper instrument.
Not sure about Lincoln’s understanding here. Constitutional authorization is required for valid federal action. Not so with state action as confirmed by the Ninth and Tenth Amendments.
State secession doesn’t “dissolve” the union. The union remains less the seceded state(s).
The South had decided to forgo litigation in a court of law for a contest in the court of arms. Now the North’s back was up, and the time for negotiation had passed. Lincoln’s reaction was extreme:
All of his foregoing acts listed were unconstitutional.
From his perspective, the secession of the Southern states had never taken place. Unilateral secession was unconstitutional, legally impermissible and thus impossible. What had happened was not the dissolution of the Union as ratified by the states but an insurrection, and he used all legal means to suppress it.
Yet if it could be shown that the federal government had acted to interfere with slavery, the southern states had a plausible constitutionally-based case for nullification/secession because the federal government had no constitutional authorization to interfere with slavery.
According to Lincoln, states could not leave the Union without the permission of the other parties to the contract.
According to Lincoln, but is his reasoning is constitutionally based? If not, then it’s just one man’s opinion and back to the tyranny of the rule of man.
In 1869, the Supreme Court settled the basic issues of the Civil War in Texas v. White. In that decision it decided that secession was unconstitutional and the Union was both permanent and indissoluble.
Nothing is “settled" when the Supreme Court makes a decision not based on the best understanding of the original understanding and text of the Constitution.
From http://www.americanthinker.com/2013/01/on_secssion.html : “Texas v. White, even if given the utmost respect, and considered binding precedent, does not stand for the proposition that no state may ever break its bonds with the Federal Government of the United States. At the same time, if it is considered the final word on the Federal Government's right to prohibit a state from seceding, then that right is far from established.”
Warren told his law clerks that he was less concerned with what the Constitution said than what was right or wrong.
The very definition of “judicial activism”: replacing the rule of law of the original intent and understanding of the text of the Constitution with a Justice’s own personal morality. Judicial activism goes hand-in-hand with “positive law”, which says a law is valid because it is a law, regardless of the Constitution. Both judicial activism and positive law are tyranny.
Thus,
The democratic socialist paradigm is failing, and no one is quite sure what will replace it. But it will be either Federalism or Fascism.
I would say the distinction and choice is between the Constitutional rule of law (which includes the decentralized power of federalism) or the Fascist rule of man.
I finally managed to find time to read this.
Thank you, very informative.
I was hoping there would be something you’d be interested in discussing from my comments on your interesting essay.
Give me some more time.
Sure, the more time the better. This stuff is not like today’s instant and shallow TV-dinner soundbites. The more time and thoughtfulness the better.
The terms “Left” and “Right” came out of the French Revolution, and it’s dangerous to pigeonhole the Framers using those terms in their modern sense. In the politics of the era immediately following the Revolution, Hamilton, Washington and Adams would have been considered conservatives. Hamilton didn’t want Big Government because that would have required a tax burden that would have been bad for business. He wanted vigorous and effective government at the federal level, but he wanted it small. If you want to declare Hamilton a “crony capitalist”, that would be closer to the mark.
It says that to be the Law of the Land, treaties and the laws of Congress must be “IN PURSUANCE” of the Constitution.
Ah, but who arbitrates that issue and decides what is or is not constitutional? John Marshall, in Marbury v Madison, gave the Supreme Court the right to make that call. About a decade ago, there was an article in National Review that went into detail on Marshall’s opinion. It said that all branches of government have the right to determine constitutionality, not just the Court, and Marshall even opened the door a crack to the states having the authority to make that decision. But it was the Warren Court in 1958 that arrogated to the Supreme Court the exclusive authority to determine constitutionality. We may believe, as our own opinion, that something is or is not constitutional, but the Supreme Court’s opinion has the force of law, and the federal government will enforce that opinion even if it means bloodshed. Take a look at what Eisenhower did in 1957 at Little Rock to see what I mean.
Enumerated Power + the Necessary and Proper Clause from Article I, Section 8 = Laws Necessary to carry out Enumerated Power
That’s a good strict constructionist reading of the equation, but the loose constructionists have carried the day since 1790. We have centuries of case law and precedent upholding loose construction. This is unfortunate.
Suggests personal political welfare over America’s welfare.
I would suggest reading States’ Rights and the Union by Forrest McDonald and The Life of Andrew Jackson by Robert Remini. With Jackson, all politics was personal, and if he perceived you as an enemy, you were fit for the hangman. The only way to get back in his good graces was to fight a duel with him, take a bullet and survive. After that, he would say, “He’s a fine fellow!” He didn’t understand the difference between business and personal.
Forrest McDonald goes into detail on the Peggy Eaton affair, the role of Mrs. Calhoun in ostracizing Peggy, Jackson’s identification of Peggy with his late wife Rachel, and Van Buren’s backroom deceit to convince Jackson that Calhoun was his enemy. Under ordinary circumstances, Jackson would have sided with South Carolina, but Van Buren convinced him that Calhoun, who was his ally, was actually his enemy. That meant that anything connected with Calhoun was bad, and that’s how Jackson reacted – personally.
Increasing the size of the federal government via patronage was simply the new populist politics of the era. It was a matter of harnessing petty corruption to the cause of the President and his party. Ironically, even Hamilton saw that as essentially harmless back in his era.
ONLY IF states find congressional law unconstitutional. Otherwise, nullification violates the Supremacy Clause. If a federal law is in “Pursuance” of the Constitution, then it is the Law of Land.
Go back to my paragraph about the Supreme Court and who gets to make that call. As of today, the states have no legal authority to declare something unconstitutional. They can protest and sue, but the final call is up to the Supreme Court.
Should it be that way? No. Earl Warren was wrong, in my opinion. This is why we need an Amendments Convention. The states should have a mechanism to nullify a federal law they believe is unconstitutional.
Nullification does not = Treason if federal law is unconstitutional.
Again, who makes that call? Our opinions as to constitutionality don’t have the force of law.
Secession does not = Treason if federal acts continue to unconstitutionally abridge and interfere with states’ rights.
According to the Civil War Precedent, unilateral secession is treason no matter what the circumstances. Madison made it clear that the Constitution was a compact, not a treaty, and thus was covered by contract law. You need the consent of the other parties to secede. Unfortunately, the Civil War Precedent has been written in stone and hallowed due to the deaths of 700,000 men on both sides.
If the federal government behaves in a tyrannous manner, the people have the right of revolution, something that goes back to Locke and Blackstone. Even Lincoln was willing to go along with that.
Unconstitutional Federal Law/Acts = Treason.
Not according to current jurisprudence. Accord to that, unconstitutional acts are simply unconstitutional acts, and the Supreme Court alone can make that call. Treason under the Constitution is carefully defined. Until the Court decides, the act is assumed to be constitutional. Should it be this way? No. But you’d need a constitutional amendment to change that.
Although the reason for the tariff was alleged to be mischievous, South Carolina’s nullification lacked constitutional grounds. The nullification was, therefore, invalid.
True.
The Jackson Precedent completely misses the point which is whether nullification or secession is based on an unconstitutional act by the federal government. Since the Jackson Precedent is also without constructional grounds, it is flawed and invalid.
Every administration from every party after Jackson upheld the Precedent and considered it valid. Lincoln fought a war based on its validity. The problem is that this has been written in stone over the centuries. Once that happens, you’d need to amend the Constitution to change it. Our opinions don’t have the force of law.
At the time, the Constitution did not delegate the issue of slavery to the federal government. Slavery, like abortion and marriage, was a states issue, not a federal issue.
True.
Not sure about Lincoln’s understanding here. Constitutional authorization is required for valid federal action. Not so with state action as confirmed by the Ninth and Tenth Amendments.
Lincoln accepted the idea that the Constitution was a contract, not a treaty. He did not see either the Ninth or Tenth Amendments as relevant to the situation. Madison had said that for even one state to secede, the Union would have to be dissolved, and this was and is still the accepted legal thinking. Thus, unilateral secession, no matter the reason, was forbidden. As Nationalists saw it, this was not among the rights the states possessed once they entered into the compact of the Constitution.
State secession doesn’t “dissolve” the union. The union remains less the seceded state(s).
Not according to Madison, and that’s how it has been interpreted ever since. Lincoln was willing to fight a war based on this principle. He won.
All of his foregoing acts listed were unconstitutional.
They were unconstitutional in the sense that only Congress had the authority to do them. Congress was not in session, so Lincoln acted on his own, citing the national emergency of a rebellion. Once Congress convened, it sprinkled holy water on Lincoln’s actions.
Yet if it could be shown that the federal government had acted to interfere with slavery, the southern states had a plausible constitutionally-based case for nullification/secession because the federal government had no constitutional authorization to interfere with slavery.
And everybody knew that except the abolitionists, who were not amenable to reason. But Lincoln and his party were only concerned with keeping slavery out of the territories. He said he had no interest in doing anything about slavery in the states where it was still in practice.
According to Lincoln, but is his reasoning is constitutionally based? If not, then it’s just one man’s opinion and back to the tyranny of the rule of man.
Again, the Constitution is assumed to be governed by contract law, not treaty law. Madison and every president after Jackson accepted that line of legal thinking.
Nothing is “settled" when the Supreme Court makes a decision not based on the best understanding of the original understanding and text of the Constitution.
That is not current jurisprudence. It is “settled” in the sense that you need to amend the Constitution to reverse it. Should it be this way? No, but that’s how it is.
...if it is considered the final word on the Federal Government's right to prohibit a state from seceding, then that right is far from established.
That is the opinion of the writer, but that is not the opinion of the federal government. Tyranny? Perhaps. Reversing legal precedent isn’t easy. Was the Chase Court’s decision in Texas illogical in parts? Certainly. But until it is reversed by the Court or the Constitution is amended, it stands.
Both judicial activism and positive law are tyranny.
Judicial activism is certainly tyranny, but it’s tyranny that is hard to reverse. The temptation for judicial tyranny is firmly seated on both sides. Many FReepers have no problem with judicial activism if it supports their pet issues. Power corrupts.
I would say the distinction and choice is between the Constitutional rule of law (which includes the decentralized power of federalism) or the Fascist rule of man.
This is one of the reasons I see an Amendments Convention as our last hope to restore what we had before the Civil War. The federal government needs to be returned to the constitutional prison that Madison built for it.
In Marbury v Madison, Justice Marshall and SCOTUS rightly claimed the constitutional power of judicial review of legislative acts. (What invalidated the ruling was that SCOTUS did not have original jurisdiction in the case and should have dismissed the case out of hand. Nevertheless, the ruling stands and is an accurate assessment of constitutional judicial power).
Marbury v. Madison, however, does not rule against the power of the states to declare a federal act unconstitutional. The ruling does not directly address this issue at all. However, the ruling, in correctly characterizing the Constitution, does give weight to the inherent power of the states to so rule against either unconstitutional federal legislation or rulings.
The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?...[T]he theory of every such government must be that an act of the Legislature repugnant to the Constitution is void…From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature. Marbury v Madison, 5 U.S. (1 Cranch) at 176, 177, 179-80.
http://www.law.cornell.edu/supremecourt/text/5/137#writing-USSC_CR_0005_0137_ZO
Courts, including the Supreme Court, and Congress, are both subject to censure from unconstitutional decisions or acts. The issue you point out is who decides what's unconstitutional. I address that further below.
I think you and I are pretty close about the problem with the unconstitutionality and threat of our $4,000,000,000,000 socialist government in our country. I believe it MUST be cut by at least 80% (that equals $800 billion, still too big, but it’s a start). And we both agree that a successful Convention of States could go far in remedying the problem. The only thing we may disagree on is how we will get to a free ship of state once again.
I find it difficult to see what kind of force would be necessary to make the government commit suicide (or at least the equivalent of self-inflicted great bodily harm). Government officials and bureaucrats have their own self interests, just like you and I. They have goals and dreams and families to feed. We who have our heads screwed on straight (relatively speaking), know that on a day-to-day basis, they’re not thinking about the wonderful, magnanimous stated goals of some socialist government program. All the government heads and workers know is that it is their means of a livelihood, and greater and faster growth means bigger paychecks, better colleges for their kids, bigger cars, bigger houses.
If somehow We the People through something like the Convention of States, can actually accomplish this, praise the Lord, I am grateful. But I see another alternative that may very well be more realistic – state nullification, which may very well lead to secession. If the federal government will not commit this self-inflicted disablement, and I find it hard to believe it will, then it’s back to the states. I would rather live in a small free state than in a large socialist state.
I think you would agree except for Supreme Court “precedent” over the last 100 years or so. But Supreme Court rulings from opinions that are not reasoned based on the Constitution, especially those that inexplicably overturn precedent from earlier Constitutional-based decisions, must be called into question and, given the chance, overturned, or even nullified if necessary. Again, even Marbury v. Madison says that the Court as well as Congress, is subject to the Constitution. Who might that body be to question constitutionality of an act by federal legislation and ratified by the Court, if not the states?
This is where we disagree, I think. I believe states have just as much Constitutional right as the feds to find a federal act unconstitutional. Again, going to the Supremacy Clause, only laws in pursuance of the Constitution are the Law of the Land. There is nothing in the Constitution disallowing states from declaring a federal act unconstitutional. And there is no Supreme Court ruling based on Constitutional reasoning that has found such prohibition in the Constitution. And the Tenth Amendment confirms that power that has not been explicitly and exclusively given to the feds or denied to the states, belong to the states and the people.
There is no constitutional prohibition or Court ruling based on constitutional reasoning that prohibits a state from nullifying an unconstitutional federal act. And to the degree the feds unconstitutionally interfere with the state, that state has a constitutional right to sever from the feds. IMO, the only thing required would be to base such action on a good-faith effort by the state legislature to find original constitutional intent and understanding from the text and relevant history as confirmed or ratified, if necessary, by the State Supreme Court.
I’m not sure I agree with the “contract versus treaty” distinction between the states and the feds via the Constitution. Somebody said the distinction is that in a contract both parties must agree to rescind the contract, whereas in a treaty, only one party is needed to void the treaty. But in a contract, if one party breaches, the other party may be discharged from performance. So, if the Constitutional agreement is a contract, if the feds fail to keep their part of the bargain – abiding by the Constitution – the states are not bound but are discharged from their part of the agreement.
Reading now.
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