Posted on 04/03/2002 9:52:50 AM PST by r9etb
Last week, Walter Williams published a column called The Real Lincoln, in which he mostly quoted editorialists to support his claim that "virtually every political leader of the time and earlier believed that states had a right of secession."
If that were really true, of course, the Civil War would never have been fought. "Virtually every" political leader in Washington would have let the secessionist states go their own ways. But of course they didn't do that. Instead, they prosecuted a long, bloody war to prevent it. So that part of Williams' case simply fails.
The question remains as to the legality of secession: does the Constitution grant power to the Federal Government to prevent it? Oddly, Williams does not refer to the Constitution itself, to see whether it has something to say about the matter. Rather, Williams (quoting author Thomas DiLorenzo) only provides several quotations about the Constitution, and peoples' opinions about secession.
One can see why: the Constitution itself does not support his case.
Article 1, Section 8 gives Congress the power To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
Thus, the Constitution recognizes the possibility of rebellion (armed secession would seem to qualify), and gives Congress the power to suppress it.
The next question is: does secession represent a rebellion or insurrection? Webster's defines insurrection as "an act or instance of revolting against civil authority or an established government." So if secession is a revolt against the defined powers and authority of the Federal Government, as defined in the Constitution, then the Federal Government is granted the power to prevent it.
The rights and restrictions on the States are defined in Section 10:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The secessionist states clearly violated almost every part of Section 10 -- especially that last clause -- and would by any standard be considered in a state of insurrection.
Article III, Section 3 states that Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The actions of the people in secessionist states fit this definition of treason, and it is within the powers of the Federal Government to deal with them.
Article VI says, in part:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Section VI clearly states that, since the Constitution is the "supreme Law of the Land," the interests of individual states are inferior to those of the United States -- even if their state Constitutions say otherwise. The individual states are bound to remain part of the United States, both by their ratification of the Constitution, and also by their Oath of Affirmation to support the Constitution.
A plain reading of the Constitution not only does not support DiLorenzo's (and thus Williams's) argument, it flat-out refutes it. The powers of the Federal Government do in fact include the power to prevent secession, and Lincoln was properly discharging his duties as President when he acted against the Confederacy.
DiLorenzo's argument thus reduces to whether or not Congress and Lincoln should have allowed the seceeding states to violate the supreme Law of the Land with impunity -- which puts DiLorenzo in the awkward position of having to argue against the rule of Law.
Finally, the pro-secession case simply ignores history: a war between North and South was inevitable. It had been brewing for decades. Even had the secession been allowed to proceed, war would undoubtedly have occurred anyway, following the pattern of Kansas in the 1850s.
Williams is a smart fellow, and he says a lot of good things. But he also says some dumb things -- his "Lincoln" column being exhibit A.
In other words, they knew the South had the right........but they couldn't afford to let them go, as a practical business matter.
Thought so.
I agree.
"What stronger evidence can be given of the want of energy in our government than these disorders? If there exists not a power to check them, what security has a man of life, liberty, or property? To you, I am sure I need not add aught on this subject, the consequences of a lax or inefficient government, are too obvious to be dwelt on. Thirteen sovereignties pulling against each other, and all tugging at the federal head, will soon bring ruin to the whole; whereas a liberal, and energetic Constitution, well guarded and closely watched, to prevent encroachments, might restore us to that degree of respectability and consequence, to which we had a fair claim, and the brightest prospect of attaining..."
George Washington to James Madison November 5, 1786,
"I do not conceive we can exist long as a nation, without having lodged somewhere a power which will pervade the whole Union in as energetic a manner, as the authority of the different state governments extends over the several states. To be fearful of vesting Congress, constituted as that body is, with ample authorities for national purposes, appears to me to be the very climax of popular absurdity and madness."
George Washington to John Jay, 15 August 1786
"In all our deliberations on this subject we kept steadily to our view, that which appears to the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existance. This important consideration, seriously and deeply impressed on our minds, led each state in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected; and thus the Constitution we present is the result of a spirit of amity, and that mutual deference and concession which the peculularity of our political situation rendered indispensible....
George Washington to the Congress 9/17/87
If you are a true American -- at least by George Washington's lights, you won't have a problem with the ultimate supremacy of the federal government.
Walt
Sigh. A dignified opening, to be sure.
They meant what they meant - period. Then they provided a method to change the document if we thought ourselves wiser than they.
Fine so far. Of course, it requires all sides of the argument to abide by the result, once it's decided. Secession renders that wonderful method moot, of course -- which means that all of the hard work of the Founders was in fact pointless.
And it's important to remember that the real issue was: "Let us keep people as slaves, or we'll leave." The slavery issue was nothing new: it had been threatening the Union for decades. How ironic that those manly champions of "states rights" stated their case primarily in terms of keeping people in bondage. One might almost think that they cared very little for states rights, and very much for their own riches....
The Constitution does not prohibit secession - and the 10th Amendment reserves any rights for the States that are not implicitly stated.
However, the Constitution clearly sets out the MANY constraints that the Federal Government can place on the individual states.
Take Article VI, for example, which specifically say that the laws and constitutions of the states are INFERIOR to the Constitution. A state law that declares that state to be no longer bound by the Constitution is invalid.
It is, in fact, an act of insurrection, which the Constitution explicitly empowers the Federal Government to suppress. (This leaves you to defend a weak claim that secession was not insurrection.)
Just like the rights of the People, they are not GRANTED by the Constitution - instead the Government is limited by the Consitution - likewise the rights of the sovereign States are reserved for the States themselves unless otherwise agreed to in a previous article.
Article VI, for example....?
Be careful of the "speck in your eye, log in my eye" kind of moral equivalence.
You might convince some people with this argument, but I doubt, for example, many Black Americans would find this argument persuasive.
Glad you brought that up. Let's just talk about practical business matters for a moment.
As a practical business matter, the South could not free its slaves. To free the slaves meant bankruptcy.
Instead, the South worked very hard to ensure that a balance between the number of slave and free states was maintained when new states joined the Union. This was driven by practical business considerations: they knew that eventually the free states would outnumber the slave states to the extent that slavery would be Constitutionally abolished.
It's worth repeating: left to their own devices, most new states would have been created as free states. It is rather telling that those worthy advocates of "states rights" worked so hard to ensure that new states could be forced to be slave states -- and that they considered slavery a good enough reason to leave the union.
One is hard-pressed to defend a group of people who are willing not only to maintain slavery, but to spread it. And with that in mind, the underlying reason for this particular act of secession is a rather damnable excuse for secession, whether or not it be legal.
How do you figure? How can a document that declares independance from Britain trump the document that lays out the shape, scope, and form of our government? That's ludicrous to me.
The laws passed in pursuance to the Constitution are also the supreme law of the land. This includes the Militia Act of 1792 as amended in 1795. That act empowers the president to ensure that the laws of the United States are duly followed in all the states.
The 10th amendment never really comes into play.
Walt
Actually they don't. The Constitution 'trumps' as you say ANY law, therefore the 10th Amendment applies over any of your 'perceived' powers that lincoln might have had. And even you have to admit going back 80 years to pull up that argument is pretty weak considering the actions of the northern states during the war of 1812. Also it could be argued that the nullification of the Alien and Sedition Acts passed AFTER the Militia Act virtually nullified the teeth in that Act as well.
Actually they don't. The Constitution 'trumps' as you say ANY law, therefore the 10th Amendment applies over any of your 'perceived' powers that lincoln might have had.
The Supreme Court failed to find such logic compelling when it cited the Militia Act as empowering the president to act, or when they referred to the "So-called Confederate States" as being in rebellion.
Walt
And what you're failing to understand here is that this ruling occurred in '62? What kind of demoralizing statement would that have been to the troops, let alone the entire establishment of the government of the United States? The entire administration would have been run out on a rail. It virtually would have destroyed what little was left of the Constitution. While the Supreme Court decided lincoln had the power to do so(it's a maybe anyway, you know what I think of that sitting of the Court and their decisions), the moral decision would have been for lincoln to call the troops home at that exact point (as if he should have sent them out in the first place). He would have saved face, probably wouldn't have been hung, and maybe not even have been impeached. We would have had two nations that would have quickly become friends, slavery would have been abolished peacefully as it had in the three major empires of the world by 1860 within the next twenty years, oh but of course the US wouldn't have been as rich as it was before the war now would it?
If you want to make that argument, the flipside to that coin is that there's nothing in the Constitution that says that the Federal Government can't wage a war to return the seceeding states back to the Union.
The Union Army said otherwise.
Walt
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