Lincoln s Spectacular Lie

The notion that Lincoln’s Union preceded the states is a tall tale. Author Tom DiLorenzo, in his celebrated new book, The Real Lincoln, calls it Lincoln’s spectacular lie, as so named by Emory University philosopher, Donald Livingston.

The War Between the States was fought, in Lincoln’s mind, to preserve the sanctity of centralization powered by a strong and unchecked federal government. Only through such an established order could Lincoln do his Whig friends the honor of advancing The American System, a mercantilist arrangement that spawned corporate welfare, a monetary monopoly for the Feds, and a protectionist tariff approach that stymied free traders everywhere.

This power role for the Feds, as envisioned by Lincoln, had no room for the philosophy of the earlier Jeffersonians, who in 1798, were declaring that states’ rights were supreme. Both Madison and Jefferson, in the Kentucky and Virginia Resolutions, legitimized the concept of state sovereignty via the policy of nullification, an inherent right for states to declare federal acts invalid if unconstitutional. And before that, let it be duly noted that the right to secede is, as DiLorenzo says, “not expressly prohibited by the Constitution.”

Lincoln, however, believed that secession was basically an act of treason. To him, the glory of the Union was based upon a holier-than-thou view of the core elites who would run the Washington Machine, doling out the federal largesse to its friends and political supporters, those mostly being Northern manufacturers and merchants. Therefore, the Southern secessionist movement and its claim of self-rule violated the Lincolnian principle of nationalization and coercive law in his move toward complete centralization. So what was Lincoln to do?

Lincoln had to stamp out Southern Independence, and would start with a demonization of secession as “an ingenious sophism.” DiLorenzo focuses on the two political arguments Lincoln used against secession, one being that secession inevitably meant anarchy, which therefore violated the principle of majority rule. As DiLorenzo points out, the founders of our system of government “clearly understood that political decisions under majority rule are always more to the liking of the voters in a smaller political unit.” The other Lincoln argument against peaceful secession is that allowing the Southern states to secede would lead to more secession, which in turn leads to anarchy. Clearly, that is a crass argument that would not stand the test of time.

“The advocates of secession”, says DiLorenzo, “always understood that it stood as a powerful check on the expansive proclivities of government and that even the threat of secession or nullification could modify the federal government’s inclination to overstep its constitutional bounds.”

DiLorenzo takes the reader on a summarized journey of secessionist history, from the earliest parting by colonialists from the wrath of King George, to the New England secessionists, who pre-dated the Southern movement by over a half-century. Oddly enough, it was the New England Federalists that had first threatened to dissolve the Union because of an intense hatred of Southern aristocracy. Beginning with the election of Jefferson to the Presidency, an intense battle over individual morality, immigration, trade restrictions, and regional principles sparked a division between the Puritan Northeast and a more freewheeling and influential South. In order to eliminate all political ties, the Northeasterners tried in vain to break the bonds of Union, and the movement lasted until the failed Secessionist Convention in 1814, as the War of 1812 came to a close.

As the author points out, during the entire New England ordeal, there is virtually no literature to be found that supports the view that the inherent right to secession was non-existent. It was, in fact, really never questioned.

Eventually, Lincoln needed a trump card and turned to using the institution of slavery as the emotional taffy-pull to rouse the citizenry for a long and bloody war. Though, indeed, the earliest words of Lincoln defy this purpose as he consistently reveled in the triumph of the all-powerful centralized state that would one day achieve “national greatness.” Even DiLorenzo doesn’t attempt to define what this means, but only describes those words as having some sort of “alleged mystical value.” The Lincoln war machine was thus set in motion, with the ends of an Empire run by chosen elites justifying the means of tyranny.

The states, in a Lincolnian democracy, would be forever underneath the footprint of Union hegemony.

The Constitution is the supreme law of the land and the Supreme Court is tasked by it with interpreting it. Actions taken by the court are done under the Constituion so the Constitution would be supreme.

Thank you for the answer. And now for your questions:

So what purpose do you see in the Supreme Court? What role would you have it play?

I find Mr. Madison’s analysis in his Report on the Virginia Resolutions quite reasonable:

”...(I)t is objected, that the judicial authority is to he regarded as the sole expositor of the Constitution in the last resort...

”...(T)he proper answer to the objection is, that the resolution of the General Assembly...supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another--by the judiciary as well as by the executive, or the legislature.

”However true, therefore, it may be, that the [federal] judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the [federal] government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”

John Taylor provided some additional thoughts on the matter, beginning with the records of the constitutional convention (italics in the original):

June 8th, Mr. Pinckney, seconded by Mr. Madison, moved to strike out the following words in the sixth resolution: negative all laws passed by the several states contravening, in the opinion of the national legislature, the articles of the union, or any treaties subsisting under the authority of the union," and to insert the following words in their place, namely, "to negative all laws which to them shall appear improper." This motion was rejected, only Massachusetts, Pennsylvania, and Virginia, voting in the affirmative. It comprised the precise negative over state laws now claimed by the supreme court...

June 13. It was moved by Mr. Randolph, seconded by Mr. Madison, to adopt the following resolution respecting the national judiciary, namely, "that the jurisdiction of the national judiciary shall extend to cases which respect the collection of "the national revenue, impeachments of any national officers and questions which involve the national peace and harmony." It passed in the affirmative. These resolutions ought to be kept in mind, until we come to the consideration of the Federalist, as the origin of a construction of the constitution by Mr. Madison, upon which the pretension of the federal court to a supremacy over the laws of states and the articles of the union is founded. The jurisdiction of the federal judiciary is extended by the constitution to cases of revenue, but not to cases of impeachment, or to questions which involve the national peace and harmony. It is very remarkable that the very jurisdiction now claimed was actually proposed, considered, and rejected, together with the jurisdiction proposed in cases of impeachment as appears from the absence of both in the specifick statement of federal jurisdiction.

On [June 18], Colonel Hamilton read a plan of government...It is needless to waste time in proving, that this project comprised a national government, nearly conforming to that of England...

By Colonel Hamilton's project, the states were fairly and openly to be restored to the rank of provinces, and to be made as dependent upon a supreme national government, as they had been upon a supreme British government. Their governors were to be appointed by the national government, and invested with a negative upon all state laws; and all their laws, contrary to the laws of the supreme government, were to be void. The frankness of this undisguised proposition was honourable, and illustrates the character of an attempt to obtain a power for the federal government, substantially the same, not by plain and candid language, like Colonel Hamilton's, but by equivocal and abstruse inferences from language as plain, used with the intention of excluding his plan of government entirely. A power in the supreme federal court to declare all state laws and judgments void, which that court may deem contrary to the articles of the union, or to the laws of Congress; and also to establish every power, which Congress may infer from those delegated; comes fully up to the essential principle of Colonel Hamilton's plan; except that the court will both virtually, and directly, control the legislative, executive, and judicial state departments, by a supremacy exactly the same with that exercised by the British king and his council over the same provincial departments.

The propositions of August the 18th, seem to have been the last considerable struggle for a national government...Their rejection was a necessary consequence of substituting a federal for the national government zealously contended for...The proposals for a national government and its negative over the state acts, were really made. They were opposed by the state deputies, who had a knowledge of them. They were rejected. A different form of government was promulgated. It contained no such negative. The states expounded its meaning to be federal, by a positive reservation of rights not delegated. And now they are told that the devil, thus repeatedly exorcised, still remains in the church...

John Taylor, New Views of the Constitution of the United States, 1823

I apologize for the length (there’s actually quite a lot more that is equally applicable). The record of the convention is quite clear: the delegates considered several plans for a national government, with the power to “negative” State laws – and all such plans were rejected. A federal government was adopted in its stead.

In answer to your questions, I see the high court as “supreme” over the “inferior” federal courts (both descriptive terms from Article III), and “the departments of the [federal] government.” But the suggestion that the federal government be given a “negative” over State laws was suggested - repeatedly – at the Philadelphia convention, and rejected - repeatedly – by the delegates. And as Mr. Madison, Mr. Taylor, and Mr. Jefferson noted, the States as parties to the constitutional compact reserved the right to judge “in the last resort” regarding the meaning of the Constitution.

But if the Constitution is the supreme law of the land, "..any Thing in the Constitution or Laws of any State to the Contrary notwithstanding" as Article VI says, then why shouldn't the Supreme Court have the judicial authority to overrule those state laws when they conflict with the Constitution?

Excellent questions. With regard to “the Supreme Court” and the “authority to overrule...state laws when they conflict with the Constitution,” such action would require the court (if I remember Mr. Justice Marshall’s words correctly) to ‘say what the Constitution means.’ Is that a proper function for the federal government? Thomas Jefferson thought not:

“...(T)he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers...”

James Madison thought not (as noted above); and the delegates to the Philadelphia convention thought not, having debated the issue repeatedly, and rejected it repeatedly. John Taylor made a rather pointed observation: “(i)n all treaties, the right of construction [i.e., interpretation] must be attached to the right of alteration, or the latter right would be destroyed.” If so (and his analysis is difficult to fault), then one may choose to argue that “three fourths of the several States” must agree as to any interpretation of the Constitution. But one may not consistently argue that any part of the federal government may ‘say what the Constitution means,’ because the Constitution delegates no power whatsoever to the federal government to “alter” the compact. And yet, in the end, that is precisely what we allow the high court to do today.

Otherwise you have 50 different bodies interpreting the Constitution. Fifty different interpretations of the Second Amendment. Fifty different interpretations of the 16th Amendment.

When the federal government passed into law the “palpably unconstitutional” Sedition Act, we did not see a dozen or more “different interpretations” of the Constitution: we saw two. The Northern States (the ‘base’ of the Federalist Party) tended to support the right of the federal government to arrest those who criticized the Federalist President; a minority of States (mostly Southern) opposed the unconstitutional federal action. In the meantime, at least three Supreme Court Justices were prosecuting, fining, and imprisoning Americans for criticizing the President.

In your scenario, the Northern states in 1858 were well within their rights to refuse to enforce the fugitive slave act if their interpretation of the Constitution said that they needn't. I'm not sure I see the advantage of that.

Absolutely true – and the Southern States were equally “well within their rights” when they elected to withdraw from the union. But please bear in mind: the Republic had existed for eight decades prior to the Southern secessions without the departure of a single State. And if the right of the States to judge “in the last resort” had been acknowledged by federal officials as well as the States, the matter would likely have been resolved peacefully.

I must agree with Mr. Jefferson: I see no "advantage" to allowing the federal government to be "the exclusive or final judge of the extent of the powers delegated to itself." Given the historical record of human government, that is akin to allowing the fox to guard the hen house...

;>)

Well, if you are agreeing with Who Is John Galt then the Dred Scott Decision should make you angry.

1. The Taney Court was just reading aloud from Article IV, Section 2:

[No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on the Claim of the Party to whom such Service or Labour may be due.]

2. That said, the Taney Court was inexplicit, the dictum that black people held as slaves were not people but property was gratuitous as well as doubtful legally and brutish morally, and it would have been better if the Justices, rather than wandering around all over the lot, could have rendered a simple opinion that was at the same time concise, harmonious, and less offensive to people's sensibilities.

3. That said, Dred Scott illustrates the folly of people's having acquiesced in John Marshall's power grab, which as someone's helpful quotations from John Taylor in extenso, supra (q.v., loc. cit., and all that), show clearly was just that, an unconstitutional grab that established a point that had been carefully considered and rejected twice by the Constitutional Convention in 1787. The absence of judicial review from Article III is thus explained as deliberate, and Marshall's assumption of it exposed as unconstitutional, and treasonous.

4. All of which goes back to the continuing argument, whether we are better off with the Supreme Court as the "final" arbiter (not as long as the People sign their checks, say I: the People are Sovereign) of what is and isn't constitutional throughout the Union, or whether we would be better off with the States reserving final judgment to themselves, or agreeing to an Amendment specifying how constitutional review should be accomplished.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.