The Unreal Lincoln: Loyola College Professor Flunks Out

A war of unkind words has afflicted the WorldNetDaily website over a forthcoming book by Loyola College economics professor Thomas DiLorenzo entitled The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War. The controversy began when a friend of DiLorenzo’s, Ilana Mercer, wrote a glowing review of the yet to be released book claiming that, if anything, Lincoln left a legacy of corruption. Richard Ferrier and David Quackenbush of the Declaration Foundation responded to the review (since the book was not released) with all smoke, no gun. DiLorenzo then jumped into the fray with more ad hominem which prompted Quackenbush to write apparent inaccuracies. The debate seemed to have ended with DiLorenzo’s let the ad hominem begin. According to WorldNetDaily, both DiLorenzo and Quackenbush will get one more chance to respond to each other after the book officially releases.

Most of the unkind words happen to come from DiLorenzo who tries to turn the tables claiming that all the ad hominem attacks emanate from his critics. This does not preclude him from bellowing Ferrier and Quackenbush are "irrational," hysterical, ill-mannered, "ideologically blind zealots," etc., at the same time he faults them for personal smears. But that is the preferred tactic when a professor’s peers find his "scholarly research" wanting. Charming indeed.

In the WorldNetDaily correspondence it is evident that DiLorenzo has not considered in a dispassionate manner the meaning of the words that Ferrier and Quackenbush utilize: statesmanship, reason, prudence, natural right, compact. Ferrier and Quackenbush use these words deliberately and purposely; they must be understood before one can comprehend the Founding as well its fulfillment in Lincoln. DiLorenzo glosses over these words as if they had no meaning and at one point irrationally invokes the word reason to discredit his detractors. This is modern rationalism on display. Despite DiLorenzo’s lucubration, I will address those points not covered by Declaration Foundation representatives since they did an ample job of refuting Dilorenzo on that which they chose to address. Since I too have not read the book (though I have requested a review copy from the publisher) I will devote myself to what Dilorenzo wrote in response to his critics. Ultimately, DiLorenzo has not uncovered anything new about Lincoln, but is parroting tired and old arguments which emanated many years ago from Paleo-cons and Libertarians.

As with most scholars who attack Lincoln, they do not base their research on primary sources but on secondary. When they refer to primary material they take it out of context. Let us first consider his use of secondary sources. He invokes Roy Basler (the editor of The Collected Works of Abraham Lincoln), Pulitzer Prize winning Lincoln biographer David Donald, H.L. Mencken, 1000 northern newspapers, Clinton Rossiter, and finally abolitionist William Lloyd Garrison. This list is curious and lends credence to the impression that DiLorenzo has not considered the totality of the evidence, or that he understands the differences between abolitionism and the Founding itself. In other words, DiLorenzo seems to understand Lincoln better than Lincoln understood himself. We ought to be wary of such arrogance.

Against his secondary sources, there are a cloud of witnesses. To name a few: David Potter, Don Fehrenbacher, Lord Charnwood, Charles Kesler, Thomas G. West, and ultimately, the foremost scholar on Lincoln alive today, Harry V. Jaffa. It appears that DiLorenzo has not weighed anything written by Jaffa (or anyone else in the forgoing list) for he answers most every objection DiLorenzo raises, and did so almost 50 years ago.

DiLorenzo claims Lincoln was not sincere about slavery before 1854 and barely mentioned it before that time. He enlists Garrison’s opinion to emphasize that Lincoln was opportunistic and cared not a wit about slavery before 1854. Garrison said that Lincoln had not a drop of anti-slavery blood in him. However, Lord Charnwood (to name but one biographer) describes a different Lincoln when the future president and some friends happened upon a New Orleans slave auction in 1831. Charnwood writes that they viewed that event with disdain and that the people viewed slavery with "horror" in the "home circle." Fehrenbacher is just one scholar who catalogues the fact that the southern opinion of slavery changed from a necessary evil to a positive good. By the 1850s the issue of slavery was a consuming topic not only for Lincoln, but the entire Union. Still, we do not hear from the Loyola professor of any opportunistic slavery proponents. If it was not a consuming topic there would not have been an increase in proslavery literature prior to Lincoln’s entry into national politics. Proslavery William and Mary professor, Thomas Roderick Dew, would not have seen fit to write treatises defending the institution beginning in the 1830s. Similarly, John C. Calhoun declared in the late 1830s-40s that the Founding was defective and that blacks deserved enslavement. This proliferation of pro-slavery opinion is what forced Lincoln to address the subject increasingly as the 1850s approached.

Like the secessionists, abolitionists rejected the Revolution. They believed that there was something inherently racist, so to speak, about the Founding. In principle, both the slave-holding states and the abolitionists thought it defective. In this sense they were on the same side. Garrison faulted Lincoln because he wanted to keep the Union together; Lincoln emphasized that the Union could only last if it adhered to the principles of the Founding. Abolitionists wished to throw out slavery via unconstitutional means and the South wished to secede via the same. Therefore, to invoke Garrison as a witness to Lincoln’s lack of dedication to emancipation is faulty and a stretch at best. It only demonstrates DiLorenzo’s lack of understanding about the era. The abolitionists wanted to effect their ends, republic be damned (and incidentally, this is the major problem with the abolitionist movement for their desire would have done more to entrench slavery). These undercurrents underscore the Lyceum Speech which (contrary to Dilorenzo’s ebullient assertions) gives insight into Lincoln’s political thought, and by extension, slavery, way before 1854. The year was 1838.

Like his 1842 Temperance Address, in the speech before the Young Men’s Lyceum, slavery does not hold the predominant position that it does in his later speeches. According to Jaffa, Lincoln is more concerned with the overarching problem of evil passions of which slavery is but one. In other words, the evils of slavery are no less addressed in these speeches than in his later utterances. The passions, if left to rule, are ultimately destructive:

...if the laws be continually despised and disregarded, if their rights to be secure in their persons and property, are held by no better tenure than the caprice of a mob, the alienation of their affections from the Government is the natural consequence; and to that, sooner or later, it must come.

The question recurs "how shall we fortify against it?" The answer is simple. Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor; – let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap – let it be taught in schools, in seminaries, and in colleges; – let it be written in Primmers, spelling books, and in Almanacs; – let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars."

The rule of law, not mob law, is the counteracting agent to arbitrary rule. The rule of law in the union points to an abstract truth without which it would mean nothing and would be mutable. Lincoln detected Americans were straying from that abstract truth articulated by the Founders when he said in the same speech that that the Founding principles "are [now] decayed, and crumbled away." America needs to be re-baptized, if you will, in the abstract truth of the Founding. This consistency is evident in the 1859 letter to Henry Pierce:

But soberly, it is now no child's play to save the principles of Jefferson from total overthrow in this nation. One would start with great confidence that he could convince any sane child that the simpler propositions of Euclid are true; but, nevertheless, he would fail, utterly, with one who should deny the definitions and axioms. The principles of Jefferson are the definitions and axioms of free society. And yet they are denied, and evaded, with no small show of success. One dashingly calls them ‘glittering generalities’; another bluntly calls them ‘self evident lies’; and still others insidiously argue that they apply only to "superior races."

What is the self-evident truth that Calhoun thought was a lie? All men are created equal. Despite DiLorenzo’s "discovery" that slavery had little to do with the Civil War, primary documents contradict him. Alexander Stephens, the vice-president of the Confederacy, confirmed the predominance of the slavery issue in his Cornerstone speech:

But not to be tedious in enumerating the numerous changes for the better, allow me to allude to one other – though last, not least. The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution – African slavery as it exists amongst us – the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the "rock upon which the old Union would split." He was right. What was conjecture with him, is now a realized fact. But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted. The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time. The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day. Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the "storm came and the wind blew."

Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery – subordination to the superior race – is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth. This truth has been slow in the process of its development, like all other truths in the various departments of science. It has been so even amongst us. Many who hear me, perhaps, can recollect well, that this truth was not generally admitted, even within their day. The errors of the past generation still clung to many as late as twenty years ago.

So much for slavery not being the central issue of the war. It is clear from the above speech that southern opinion of the equality of human beings changed. Slavery was not a necessary evil, but was now a positive good that God had sanctioned. DiLorenzo fails to even acknowledge this fact and this makes his entire work questionable. He goes further and falsifies Lincoln’s record in so many instances that this response would be more prolix if I addressed every point he misconstrued. In the face of the preponderance of the evidence, it appears DiLorenzo’s political agenda is clouding his judgment. Ultimately, we have to wonder whether this professor considered everything before he wrote the book, or even if he understands complex political thought. In the end, what was in Lincoln’s heart? Only he and God know. What we do have before us are Lincoln’s words and his actions. Each is consistent with the other provided we keep his words in context. This Dilorenzo refuses to do, and that makes his work apocryphal.

Root is Local Government Editor for Carolina Journal, the monthly newspaper of the John Locke Foundation, also available on-line at CarolinaJournal.com.

Please accept some friendly advice from Vice-President Jefferson. "Scission" is not the solution that you're really looking for:

"Mr. New shewed me your letter on the subject of the patent, which gave me an opportunity of observing what you said as to the effect with you of public proceedings, and that it was not unusual now to estimate the separate mass of Virginia and N. Carolina with a view to their separate existence. It is true that we are compleatly under the saddle of Massachusets & Connecticut, and that they ride us very hard, cruelly insulting our feelings as well as exhausting our strength and substance. Their natural friends, the three other eastern States, join them from a sort of family pride, and they have the art to divide certain other parts of the Union so as to make use of them to govern the whole. This is not new. It is the old practice of despots to use a part of the people to keep the rest in order, and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages. But our present situation is not a natural one. The body of our countrymen is substantially republican through every part of the Union. It was the irresistable influence & popularity of Gen'1 Washington, played off by the cunning of Hamilton, which turned the government over to anti-republican hands, or turned the republican members, chosen by the people, into an ti-republicans. He delivered it over to his successor in this state, and very untoward events, since improved with great artifice, have produced on the public mind the impression we see; but still, I repeat it, this is not the natural state. Time alone would bring round an order of things more correspondent to the sentiments of our constituents; but are there not events impending which will do it within a few months? The invasion of England, the public and authentic avowal of sentiments hostile to the leading principles of our Constitution, the prospect of a war in which we shall stand alone, land-tax, stamp-tax, increase of public debt, &c. Be this as it may, in every free & deliberating society there must, from the nature of man, be opposite parties & violent dissensions & discords; and one of these, for the most part, must prevail over the other for a longer or shorter time. Perhaps this party division is necessary to induce each to watch & delate to the people the proceedings of the other. But if on a temporary superiority of the one party, the other is to resort to a scission of the Union, no federal government can ever exist. If to rid ourselves of the present rule of Massachusets & Connecticut we break the Union, will the evil stop there? Suppose the N. England States alone cut off, will our natures be changed? are we not men still to the south of that, & with all the passions of men? Immediately we shall see a Pennsylvania & a Virginia party arise in the residuary confederacy , and the public mind will be distracted with the same party spirit. What a game, too, will the one party have in their hands by eternally threatening the other that unless they do so & so, they will join their Northern neighbors. If we reduce our Union to Virginia & N. Carolina , immediately the conflict will be established between the representatives of these two States, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry, seeing that we must have somebody to quarrel with, I had rather keep our New England associates for that purpose than to see our bickerings transferred to others. They are circumscribed within such narrow limits, & their population so full, that their numbers will ever be the minority, and they are marked, like the Jews, with such a peculiarity of character as to constitute from that circumstance the natural division of our parties. A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to it's true principles. It is true that in the mean time we are suffering deeply in spirit, and incurring the horrors of a war & long oppressions of enormous public debt. But who can say what would be the evils of a scission, and when & where they would end? Better keep together as we are, hawl off from Europe as soon as we can, & from all attachments to any portions of it. And if we feel their power just sufficiently to hoop us together, it will be the happiest situation in which we can exist. If the game runs sometimes against us at home we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are the stake. Better luck, therefore, to us all; and health, happiness, & friendly salutations to yourself. Adieu." - Thomas Jefferson, June 4, 1798

We're all in this together now. Forever. And I'm glad that we have you on our side.

Thanks for the link, but it seemed a bit too Rockwell heavy for me.

This looked interesting, though:

International Mount Rushmore Constest: Washington, Jefferson, Lincoln and T. Roosevelt. "If they could speak today, what might they say?" Free. All ages. $500 U.S. Savings Bonds or Mt. Rushmore Coins and Stamps among the prizes.

I can't wait to see how Di Lorenzo, Sobran and Dietemann would answer the question. Unfortunately, one can't expect admirable past historical figures to correspond exactly to 21st century libertarian dogmas. Nor is it the case that pursuing a narrow, undeviating Misean course would have benefited the country.

But the problem with these debates is that they take separate issues which may have separate answers and combine them into a single indictment. Was Lincoln's economic policy wise or just or in the American tradition? The parts of the question may have very different answers which reflect differently on Lincoln. Was it at the center of his thinking in the Fifties and Sixties? Highly unlikely. Was there some indisputable constitutional right to secession? Also unlikely. Was there a right by White Southerners to self-determination? Did Lincoln have a right to oppose their rebellion? And regardless of rights, what ought they and he to have done? Was Lincoln justified in taking extraordinary measures to preserve the Union? Were those measures worse than what was done in the rebel states? Would any American political leader have acted differently? Was there some deeper connection between those measures and Lincoln's political or economic philosophy?

There are so many questions involved that it's only passion and willfulness that keeps the answers together to form an solid indictment. The more we think about the different questions involved, the harder it is to argue that things were all black and white or cut and dried.

Also, we can never say with any certainty what things would have been like had the other side won. Therefore we can never say with certitude whether Lincoln's path was better or worse than what would otherwise have happened.

Dogmatists will say that self-determination should always be respected or that any violation of civil liberties makes a government a tyranny. One might consider the present situation in the Middle East, though. It seems impossible to fully grant self-determination for all or to fully respect everyone's civil liberties in a situation like that of Israel/Palestine today. In theory, our own national crisis ought to have been easier to resolve than the present Middle East conflict. That it wasn't easily resolved was the fault of more than just one man. Nor was violence introduced by just one man.

Anyway, here is a good response to the "Lincoln the tyrant" school, and here's a new critical review of Di Lorenzo.

Thanks for the links. I asked Krannawitter yesterday about the following portion of his review:

Of course Lincoln and his Republican party supported tariffs, as had many Federalists, Democrats, and Whigs before them. They understood, as DiLorenzo does not, that all economics is political economics, and that in a world dominated by monarchs it made sense to encourage the expansion of American manufacturing power through tariffs. According to DiLorenzo's libertarian-public choice analysis, Alexander Hamilton and his Whig followers -- Daniel Webster, Henry Clay, and Lincoln above all -- were arch-villain "statists" for supporting tariffs, while Thomas Jefferson, James Madison, and John C. Calhoun were defenders of "free trade." DiLorenzo seems not to know that the first protective tariff in American history (1816) was introduced by Calhoun and supported by Madison and Jefferson, and opposed by Webster. DiLorenzo is so blinded by his commitment to purely theoretical free trade that he is oblivious to the real growing division between pro-slavery and pro-freedom forces in America in the 1850s. He cannot see that tariffs were in the service of free trade because they were in the service of freedom: tariffs advantaged free labor and put the squeeze on slave-labor economies.

The answer he gave is equivalent to the following piece from the Kessler piece you also link to:

The tariff. Yes, Lincoln and the Republicans did stand for a high tariff in order to protect American workingmen and foster American manufacturing. This sounds today like bad economic policy, but Alexander Hamilton, who originally recommended it in the 1780s, knew his Adam Smith quite well and realized that all economics is political economy. In a world dominated by powerful monarchies, the success of America's republican experiment depended on achieving a certain measure of national power, including manufacturing capacity, quickly. In a republic threatened domestically by slavery and by the Union's own far-flung dimensions, the tariff policy operated to reduce the comparative advantages of slave labor and to encourage the diversification and expansion of our internal market. Under these circumstances, the principle of free trade made no sense as a comprehensive policy, any more than free trade in all goods and technologies would have made sense with the Soviet Union during the Cold War, or makes sense with Communist China today. Free trade, in the first place, must serve freedom.

I also asked Krannawitter whether "longtime friend and colleague Henry Clay" was accurate -- I don't know that Lincoln was a longtime friend or longtime colleague of Clay. Krannawitter agreed that something like "hero" would be better, or, in Lincoln's own words, "beaux ideal of a statesman."

Although I'm still a little uncomfortable about the "Cornerstone Speech," (if Stephens actually made it as it has been presented), I'm becoming a Stephens fan on the question of "secession." He seems to have been another of the more capable southern politicians who could see that the effort to overthrow the U.S. Government was a prescription for doom:

EXTRACT FROM A SPEECH ALEXANDER H. STEPHENS
Delivered in the Secession Convention of Georgia, January, 1861

"This step, [the secession of Georgia,] once taken, can never be recalled and all the baleful and withering consequences that must follow, (as you will see,) will rest on the Convention for all coming time. When we and our posterity shall see our lovely South desolated by the demon of war which this act of yours will inevitably invite and call forth; when our green fields of waving harvests shall be trodden down by the murderous soldiery and fiery car of war sweeping over our land; our temples of justice laid in ashes; all the horrors and desolations of war upon us-who but this Convention will be held responsible for it? and who but him who shall have given his vote for this unwise and ill-timed measure (as I honestly think and believe) shall be held to strict account for this suicidal act, by the present generation, and probably cursed and ex eerated(?) by posterity for all coming time, for the wide and desolating ruin that will inevitably follow this act you now propose to perpetrate. Pause, I entreat you, and consider for a momnet what reasons you can give that will even satisty yourselves in calmer moments-what reasons you can give to your fellow-sufferers in the calamity that it will bring upon,us? What reason can you give to the nations of the earth to justify it? They will be the calm and deliberate judges in the case; and to what cause or one overt act can you name or point, on which to rest the plea of justification? What right has the North assailed? What interest of the South has been invaded? What justice has been denied? and what claim founded in justice and right has been withheld? Can either of you to-day name one governmental act of wrong, deliberately and purposely done by the government of Washington, of which the South has a right to complain? I challenge the answer! While, on the other hand, let me show the facts, (and believe me, gentlemen, I am not here the advocate of the North; hut I am here the friend, the firm friend and lover of the South and her institutions, and for this reason I speak thus plainly and faithfully, for yours, mine, and every other man's interest, the words of truth and soberness, of which I wish you to judge, and I will only state facts which are clear and undeniable, and which now stand as records authentic in the history of our country. When we of the South demanded the slave trade, or the importation of Africans for the cultivation of our lands, did they not yield the right for twenty years? When we asked a three-fifths representation in Congress for our slaves, was it not granted? When we asked and demanded the return of any fugitive from justice, or the recovery of those persons owing labor or allegiance, was it not incorporated in the Constitution? and again ratified and strengthened in the Fugitive Slave Law of 1850? But do you reply, that in many instances they have violated this compact, and have not been faithful to their engagements? As individuals and local communities they may have done so; but not by the sanction of government; for that has always been true to Southern interests. Again, gentlemen, look at another fact: when we have asked that more territory should be added, that we might spread the institution of slavery, have they not yielded to our demands in giving us Louisiana, Florida and Texas, out of which four States have been carved, and ample territory for four more to be added in due time, if you by this unwise and impolitic act do not destroy this hope, and, perhaps, by it lose all, and have your last slave wrenched from you by stern military rule, as South America and Mexico were; or by the vindictive decree of a universal emancipation, which may reasonably be expected to follow? But, again, gentlenmen, what have we to gain by this proposed change of our relation to the general government? We have always had the control of it, and can yet, if we remain in it, and are as united as we have been. We have had a majority of the Presidents chosen from the South; as well as the control and management of most of those chosen from the North. We have had sixty years of Southern Presidents to their twenty-four, thus controlling the Executive department. So of the judges of the Supreme Court, we have had eighteen from the South, and but eleven from the North; although nearly four-fifths of the judicial business has arisen in the Free States, yet a majority of the Court has always been from the South. This we have required so as to guard against any interpretation of the Constitution unfavorable to us. In like manner we have been equally watchful to guard our interests in the Legislative branch of government. In choosing the presiding Presidents (pro tem.) of the Senate, we have had twenty-four to their eleven. Speakers of the House, we have had twenty-three, and they twelve. While the majority of the Representatives, from their greater population, have always been from the North, yet we have so generally secured the Speaker, because he, to a great extent, shapes and controls the legislation of the country. Nor have we had less control in every other department of the general government. Attorneys Generals we have had fourteen, while the North have had but five. Foreign ministers we have had eighty-six, and they but fifty-four. While three-fourths of the business which demands diplomatic agents abroad is clearly from the Free States, from their greater comnmercial interests, yet we have had the principal embassies, so as to secure the world markets for our cotton, tobacco and sugar on the best possible terms. We have had a vast majority of the higher offices of both army and navy, while a larger proportion of the soldiers and sailors were drawn from the North. Equally so of Clerks, Auditors and Comptrollers filling the Executive department; the records show for the last fifty years, that of the three thousand thus employed, we have had more than two-thirds of the same, while we have but one-third of the white population of the Republic. Again, look at another item, and one, be assured, in which we have a great and vital interest; it is that of revenue, or means of supporting government. From official documents, we learn that a fraction over thlree-fourths of the revenue collected for the support of government has uniformly been raised from the North. Pause, now, while you can, gentlemen, and contemplate carefully and candidly these important items. Look at another necessary branch of government, and learn from stern statistical facts how matters stand in that department. I mean the mail and post-office privileges that we now enjoy under the general government, as it has been for years past. The expense for the transportation of the mail in the Free States was, by the report of the Postmaster General for the year 1860, a little over $13,000,004, while the income was $19,000,000. But in the Slave States, the transportation of the mail was $14,716,000, while the revenue from the same was $8,001,026, leaving a deficit of $6,115,735, to be supplied by the North for our accommodation, and without it we must have been entirely cut off from this most essential branch of government. Leaving out of view, for the present, the countless millions of dollars you must expend in a war with the North; with tens of thousands of your sons and brothers slain in battle, and offered up as sacrifices upon the altar of your ambition, and for what, we ask again? Is it for the overthrow of the American government, established by our conmmon ancestry, cemented and built up by their sweat and blood, and founded on the broad principles of Riqht, justice, and Humanity? And, as such, I must declare here, as I have often done before, and which has been repeated by the greatest and wisest of statesmen and patriots in this and other lands, that it is the best and freest gqovernment-the most equal in its riqhts-the most just in its decisions-the most lenient in its measures, and the most inspiring in its principles to elevate the race of men, that the sun of heaven ever shone upon. Now, for you to attempt to overthrow such a government as this, under which we have lived for more than three quarters of a century -in which we have gained our wealth, our standing as a nation, our domestic safety while the elements of peril are around us, with peace and tranquillity accompanied with unbounded prosperity and rights unassailed-is the height of madness, folly and wickedness, to which I can neither lend my sanction nor my vote."

WIJG: Allow me to suggest that we are not ‘contemplating’ a “universe of ‘powers.’” We have been discussing secession: not murder, and not cannibalism. Would you suggest that secession (formal withdrawal from membership in an association) is somehow comparable to murder or cannibalism (illegal homicide)? Previously, you suggested (without constitutional grounds) that secession was equivalent to ‘revolution:’ do you have any better basis for your comparison this time around?

DQ: ...regarding this first paragraph by you which I quote above:
I really don't understand why my question isn't clear. You surely don't believe that the 10th Amendment reserves all "abilities" whatsoever.

Again, we are not contemplating “all ‘abilities’ whatsoever.” We have been discussing State secession.

Surely you do believe that it reserves something we might call "legitimate political powers" or some such thing.

Actually, I believe the Constitution means precisely what it says. I don’t recall any mention of reserved powers being limited to “legitimate political powers.”

You think it is obvious, I take it, that unilateral withdrawal is a "power" the states have. Certainly a big enough, strong enough, state would have the military "power" to do so. But states with excellent internal security apparatus would also have the "power" to order the offering of every first-born to Moloch -- according to due process of law, of course. Please offer your own example, if you don't like this one, of a "power" that states have that is excluded from the meaning of "power" in the 10th Amendment.

Thank you for providing an excellent example – a State requiring “the offering of every first-born to Moloch...according to due process of law.” A few points:

* At the time of the ratification of the Constitution, several States had ‘official’ religions;
* Prior to ratification of the Fourteenth Amendment, the federal government had no power to interfere with such State establishments of religion: the First Amendment applied only to the federal government; and
* The State governments were bound by constitutions as well, and – being ‘closer’ to the people – were more likely than the federal government to safeguard their citizens rights.

In fact, your hypothetical seems to betray a certain ‘pro-federal, anti-State’ bias. Such a bias (if it exists) would hardly be representative of those of the Founders. As one scholar notes:

“As white, male, propertied Virginians, Madison, Jefferson, and Henry belonged to an ongoing republic that had been practicing self-government for 150 years before the Constitution came along. Thus the Virginia House of Burgesses was already older for them than the Fourteenth Amendment is for us today. In a deep sense, the Virginia Declaration of Rights was for them prior to the federal Bill of Rights. Chronologically and perhaps emotionally, Virginia came first, before the Union...

”...(M)any Americans in the 1780s associated a strong central government with tyranny and a strong state government with freedom. This association was of course strengthened by the events in the following decade, with the Virginia and Kentucky legislatures leading the charge against the federal Sedition Act.”
Akhil Reed Amar, Southmayd Professor of Law at Yale University, The Bill of Rights, 1998

With that in mind, are you suggesting that, under the terms of the Constitution as it existed in 1860, the federal government was empowered to intervene if a State established ‘Moloch-worship?’ If so, on what grounds? The President’s ‘sense’ of morality?

If there is no "power" of any sort excluded from the Amendment's meaning, then please let me know if you think that the Constitution is really affirming the state government's lawful authority to do anything it can.

“The state government's lawful authority” has the same foundation as does ‘the federal government's lawful authority:’ in the words of James Madison, “the supreme authority in each State - the authority of the people themselves.” The reserved powers stand on equal footing with those delegated, with a few exceptions – for example:

* "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite;” and
* The people of the several States remain “the supreme authority,” as evidenced by “the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,’” and by the specific terms of Article V.

Please keep in mind: the federal government may be 'annihilated' by the States if they should so desire. The ‘powers’ reserved to the States and their people are, if anything, greater than those delegated to the federal government.

If we agree that some such definition of power is necessary to understand the definition, then we have a two step argument for secession:
1. "Power" in the 10th Amendment means, say, "legitimate political power."
2. Unilateral withdrawal from the Union is a legitimate political power.

Who would you suggest must judge whether a “power” is a “legitimate political power?" History suggests that the people of each State must judge – would you suggest otherwise?

1. Justice Thomas refers to "Federal Government." Do you believe that "government" implies, in its normal, political meaning, sovereign power?

I have previously quoted a portion of John Taylor’s analysis of ‘sovereignty’ – it is well worth re-reading. This may be of interest as well:

[The Constitution that] was ratified at the end of the 18th Century was a fairly simple text, long on procedure and short on moral theory – something suited to being read narrowly, like a contract, rather than as "a charter of learning," as Robert Hutchins once grandly put it. There was little need for creative writing by judges and lawyers, who might imagine they were reinventing the common law or breaking new ground in social theory.

Alas, the Supreme Court took up creative writing rather early. John Taylor of Caroline (that is, of Caroline County, Virginia), the most hard-core theorist of Jeffersonian republicanism, emerged as a very perceptive critic of John Marshall's jurisprudence. In Construction Construed and Constitutions Vindicated (1820), Taylor got to the heart of the matter.

Taylor utterly rejected the European, international lawyers' notion of "sovereignty," on which so much of Marshall's deductive structure rested. Sovereignty was an attribute of God, "sacrilegiously stolen" and "impiously assumed by kings" (p. 26). The American Revolution had specifically "endeavored to eradicate [this idea] by establishing governments invested with specified and limited powers" (p. 28).

Thus Taylor rejected the notion that there is some thing called "sovereignty" which is an inherent attribute of states, a thing whose "powers must be boundless" (p. 31), as a source of endless mischief. American constitutions reflected a belief in "self-government" rather than sovereignty (p. 37).”
Joseph Stromberg, 2001

In other words, I do not believe that the federal government is necessarily any more ‘sovereign’ than is the United Nations...

2. Justice Thomas refers to the "Nation" and "the people of the Nation as a whole." Do you think he is assuming that a "nation" and a "people of the nation as a whole" exist? Do either of these notions imply sovereignty? And are either of these the ways one would reasonably refer to a political community purely composed of states, rather than of citizens?

Let’s review Mr. Justice Thomas’ comments:

”To be sure, when the Tenth Amendment uses the phrase -the people,- it does not specify whether it is referring to the people of each State or the people of the Nation as a whole. But the latter interpretation would make the Amendment pointless: there would have been no reason to provide that where the Constitution is silent about whether a particular power resides at the state level, it might or might not do so. In addition, it would make no sense to speak of powers as being reserved to the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation.”

If a "people of the nation as a whole" exists, it does not exist as a political entity: “the Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation.” Any ‘implication’ of sovereignty to such a “people” must be made in the face of Mr. Justice Thomas’ observation that “the Constitution does not contemplate that those people will either exercise power or delegate it.” And if "the people of the Nation as a whole" can neither exercise power or delegate it, what would that suggest regarding your ‘implied’ national sovereignty?

Finally, with regard to “a political community purely composed of states, rather than of citizens,” you may wish to consider the effect of constitutional amendments ratified since 1865 – amendments which would be completely irrelevant to any discussion of Southern secession...

;>)

Why do suppose Jefferson used the words "attempt to secede" if it was clearly understood by all at that time that states possessed a constitutional right to unilaterally secede at any time that they wished.

Better yet, why do you ignore the sentence which follows?

”Certain States from local and occasional discontents might attempt to secede from the Union. This is certainly possible; and would be befriended by this regular organization [of the Union into States].”

“Why do suppose Jefferson used the words ‘this is certainly possible; and would be befriended by this regular organization [of the Union into States]’ if it was clearly understood by all at that time that states” could NOT secede?

;>)

WIJG: “It certainly appears that Mr. Jefferson never conceived of the idea of maintaining the union by force of arms.”

ned: I don't draw that inference from any of the quotes that you provided.

Not “from any of the quotes...provided?” Here’s one example:

"Should... schism be pushed to separation, it will be for a short term only; two or three years' trial will bring them back, like quarreling lovers, to renewed embraces and increased affections. The experiment of separation would soon prove to both that they had mutually miscalculated their best interests..."

Are you married? Do you really associate “quarreling lovers” with “force of arms?” Or perhaps you thought Mr. Jefferson said:

‘"Should... schism be pushed to separation, it will be for a short term only; two or three years' OF BLOODY INTERNECINE WARFARE will bring them back, like CONQUERED PROVINCES, to renewed SUBJUGATION and increased POLITICAL DOMINATION. The UNCONSTITUTIONAL ACT of separation would soon prove to THE DEFEATED STATES that they had UNILATERALLY miscalculated their best interests..."

Given your biases, the mistake is certainly understandable...

;>)

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