Posted on 05/16/2002 11:37:00 AM PDT by Aurelius
During my May 7 debate with Harry Jaffa at the Independent Institute in Oakland, California, Jaffa made several statements that literally caused some jaws to drop in the audience along with looks of utter disbelief. (His supporters grinned and nodded approvingly). He stated, for instance, that "Lincoln never did anything that was unconstitutional;" that Virginia never reserved the right to withdraw from the Union when she ratified the Constitution; and that the British government never recognized the colonies or states individually in the Treaty of Paris. There was never any such thing as state sovereignty, in other words, and nothing Lincoln ever did – even unilaterally suspending the writ of habeas corpus and having the military arrest thousands of Northern citizens – violated the Constitution.
One gets a very different perspective if one reads Jonathan Elliot’s Debates in the Several State Conventions on the Adoption of the Federal Constitution, edited by James McClellan and Mel Bradford and reprinted by J. River Press in 1989 – or the original ratification documents, for that matter. One finds that this is what the Virginia delegates said:
We, the delegates of the people of Virginia . . . Do, in the name and behalf of the people of Virginia, declare and make known that the powers granted under the Constitution being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them at their will . . .
New York made a similar declaration: "We, the delegates of the people of New York . . . do declare and make known that the powers of government may be reassumed by the people whenever it shall become necessary to their happiness . . ." And Rhode Island made an almost identical declaration: "We, the delegates of the people of Rhode Island and Plantations, duly elected . . . do declare and make known . . . that the powers of government may be resumed by the people whenever it shall become necessary to their happiness . . ."
Jaffa is the master of what Joe Stromberg calls the "dark art" of "reinterpreting" documents such as these to mean not what they say in plain English but what he wishes them to say in a way that is consistent with his political proclivities.
During the debate Jaffa relied on his quite substantial reputation to simply declare that the British government did not recognize the states individually in the 1783 Treaty of Paris at the conclusion of the American Revolution. I could only respond that I made it a point to re-read the treaty in preparation for the debate, and that Jaffa was wrong. I should have brought a copy of the Treaty with me, for here is what Article I says:
His Britannic Majesty acknowledges the said United States, viz. New Hampshire, Massachusetts Bay, Rhode Island, and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States; and he treats with them as such, and for himself, his heirs and successors, relinquishes all claims to the Government, proprietory and territorial rights of the same, and every part thereof. ("Treaty with Great Britain," in Charles Eliot, ed., The Harvard Classics, vol. 43,
This is important, for the founding documents consistently make the point that the states are sovereign and are establishing a Union to act as their agent. That’s why, whenever the phrase "United States" appears in the Constitution, it is in the plural – to signify that the individual sovereign states were voluntarily banding together to form the Union. This use of language was turned on its head by force of arms from 1861 to 1865 when, as Shelby Foote writes in his book, The Civil War, Americans quit saying "the United States are" and began saying "the United States is," signifying the transformation from a confederacy of sovereign states to a consolidated, monolithic empire.
The one comment of Jaffa’s that drew gasps and looks of disbelief was his insistence that Lincoln never did anything that was unconstitutional. These people were obviously aware that the Constitution does not provide for a dictator but a president, and that generations of historians have referred to Lincoln as a "dictator" but a benevolent one. "Dictatorship played a decisive role in the North’s successful effort to maintain the Union by force of arms," wrote Clinton Rossiter in Constitutional Dictatorship. Lincoln’s "amazing disregard for the Constitution was considered by nobody as legal," Rossiter also proclaimed. "If Lincoln was a dictator, it must be admitted that he was a benevolent dictator," wrote James Ford Rhodes in his History of the United States, a statement that was repeated almost verbatim by James G. Randall in Constitutional Problems Under Lincoln.
The main reason why generations of historians have labeled Lincoln a dictator (but also made an ends-justify-the-means defense of his dictatorial behavior) is probably the fact that on April 27, 1861, two weeks after Fort Sumter, he unilaterally suspended the writ of habeas corpus and eventually ordered the federal army to arrest between 13,000 and 38,000 Northern civilians who were suspected of opposing his administration (this is the range of estimates that exists in published literature). These people were never given any due process at all.
The chief justice of the U.S. Supreme Court, Roger B. Taney, issued an opinion that such an act was unconstitutional because only Congress has the power to do so. He cited former chief Justice John Marshall as saying that "it is for the legislature to say so" if habeas corpus is to be suspended; he cited Justice Joseph Story as concurring with that opinion, as did English and American precedents; and he pointed out that the suspension of habeas corpus appears in the Constitution under the section on legislative, not executive powers.
If an American president can unilaterally suspend habeas corpus, Taney wrote, then "the people of the United States are no longer living under a government of laws; but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found." Lincoln simply ignored Taney’s opinion.
The jaw droppers at the Independent Institute debate must have also been aware of Lincoln’s demolition of the First Amendment during his administration to have reacted with such looks of disbelief. There were hundreds of opposition newspapers in the North, and many of them were shut down and their editors and owners thrown into military prisons without any due process. For example, on May 18, 1864 Lincoln issued an order to General John Dix that read as follows: "You will take possession by military force, of the printing establishments of the New York World and Journal of Commerce . . . and prohibit any further publication thereof . . . you are therefore commanded forthwith to arrest and imprison . . . the editors, proprietors and publishers of aforesaid newspapers." Dix complied, and hundreds of newspapers were censored (see Dean Sprague’s Freedom Under Lincoln).
The history books also discuss how federal troops were ordered to interfere with Northern elections (Lincoln won New York by 7,000 votes in 1864 "with the help of federal bayonets," according to David Donald in Lincoln Reconsidered); all telegraph communication was censored; the railroads were nationalized; new states were created unconstitutionally; and the Tenth Amendment was all but destroyed by the war.
Even Lincoln’s own attorney general, Edward Bates, was of the opinion that Lincoln’s orchestration of the secession of western Virginia from the rest of the state was unconstitutional. Article IV, Section 3 of the U.S. Constitution reads: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any state be formed by the Junction of two or more States, or Parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress" (emphasis added).
West Virginia was unconstitutionally carved out of Virginia, and since it did not even exist as a state, its non-existent legislature could not have consented, as required by the Constitution. A puppet government was established in Alexandria, Virginia, run by Republican Party operatives, which guaranteed a few more electoral votes for Lincoln in the 1864 election.
I’m sure Jaffa can come up with some tongue-twisting, Clintonian "spin" as to why these realities are not really realities. He’s been doing it all his life. And he absolutely must continue doing so, for the entire case against states’ rights rests on the assumption that Lincoln was only enforcing the Constitution when he launched his invasion. The Southern states were dissatisfied with the results of a duly constituted election, and that is no reason to secede. Jaffa repeated this during the debate and has done so in many of his writings. His position is that no state ever has a right to secede, for any reason, as long as the constitutional rules of elections are followed. Presumably, this would hold true if say, a Southern sectional candidate were to be elected president and, with his party in control of Congress, enacted a flat 80 percent income tax on the Northern states and a 20 percent flat tax on the Southern states, while making interstate migration illegal. That was roughly the tax situation after Lincoln was elected, with Southerners paying as much as 80 percent of all tariff revenues which, at the time, were the primary form of federal taxation.
If Lincoln was not, in fact, a devoted champion of the Constitution, the whole anti-states’ rights house of cards collapses. If he disregarded the Constitution and acted like a dictator, no matter how noble his ends might have been, then the sanctity-of-the-Constitution argument against secession goes out the window. This, in my opinion, is why Jaffa must continue to make such outrageously ahistorical statements.
The thing with Davis is that he said the power was IN the Constitution for Congress to coerce the states, and he acted on that.
But these jerks come on FR to blast President Lincoln for doing the same thing.
If they would just say,"okay, Davis WAS a jerk, but Lincoln was a jerk too. But they can't bring themselves to do blame Davis.
Walt
Then why didn't they make their own individual Declarations?
Why did the British name each of the colonies in the Treaty? To differentiate them for their other American processions such as Canada and the West Indies that were not part of the United States. You will note that after the war, the British only sent one ambassador to the US... not thirteen. We only sent one to London, not thirteen.
If they couldn't, then the ratifications could not legally be accepted. It's a common practice - one side makes an offer, the other parties either accept the terms or counter with changes. Three states choose to do so, among them New York, Virginia and Rhode Island.
We the Delegates of the People of the State of Rhode-Island, and Providence Plantations ... having also seriously and deliberately considered the present situation of this State, do declare and make known
In That there are certain natural rights, of which men when they form a social compact [an agreement between parties; a covenant or contract], cannot deprive or divest their posterity, among which are the enjoyment of Life and Liberty, with the means of acquiring, possessing and protecting Property, and pursuing and obtaining happiness and safety.
2d That all power is naturally vested in, and consequently derived from the People; that magistrates [public civil officers invested with authority] therefore are their trustees and agents, and at all times amenable [accountable, responsible] to them.
3d That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness ...
Under these impressions, and declaring, that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid, are consistent with the said constitution, and in confidence that the amendments hereafter mentioned, will receive an early and mature consideration, and conformably to the fifth article of said constitution, speedily become a part thereof; We the said delegates, in the name, and in the behalf of the People, of the State of Rhode-Island and Providence-Plantations, do by these Presents [this document, under these terms and conditions], assent to, and ratify the said Constitution.
These were not proposed amendments - those were noted after this ratification. Their ratification was accepted by all parties to the Constitutuon. New York's ratification is similarly constructed, as is that of Virginia.
You know better than to try common sense with the neo-rebs.
Walt
Show me, don't tell me. I am not saying you are wrong, but just you saying so doesn't make it so. Neither does the Virginia legislature saying so necessarily make it so. As for the parsing of the document, I am familiar with its stipulations. What I would like to see is something which shows what legal force these statements had or didn't have. You say that the ratification couldn't be accepted. I am just saying that that hasn't been shown. For starters, if we could see the text of the Virginia debate on the subject of the language used in their ratification, it would be helpful for this discussion, otherwise we are just going back and forth with "I think X" and "I think Z".
And what about this?
I am from their blood and I consider their fight for freedom from the tyranny of Washington to be just as important, if not more important, today than it was then
Are you saying that you now support disunion and are prepared for violent overthrow of Federal authority if necessary? If it's worse than what your "ancestors" faced, and you consider them to have done the right thing, where stand you today?
To the treaty negotiations. When that was done, we sent one, John Adams, to London.
Congress predates the States and therefore, the Nation predates the States.
I'll ask again. If the States were sovereign entities as the Lost Cause Myth claims, why didn't each state send its own diplomats and representatives to Europe? Why didn’t the CSA do that? That is what the Colonies did before 1776. Each appointed their own representatives to lobby for them, but after 1776, ony one was chosen to represent all. Where’s the “state sovereignty” in that?
Hold on, there! Common practice? What historical precedents would there have been for what you are suggesting happened here? These people were ratifying a Constitution, not haggling over a used car.
Article VII of the Constitution provided state ratifying conventions with the option to ratify the Constitution as written. And each of the states did ratify the Constitution as written.
Do you see the term "counter-offer" in any of the states' ratification documents? Did you know how hard Mr. Madison worked to make sure that the state conventions framed their ratification proposals for bills of rights as "recommendations" rather than qualifications?
And in the first Congress, Madison worked tirelessly craft and pass a Bill of Rights to address the recommendations that the states made even though he felt personally the BoR was not necessary and could possible be dangerous. He did not accomplishing all that they asked for, (New York had a list of about 20 recommendations, including term limits on the President) but he accomplished enough that no state complained.
Your position is that the founders - among them Patrick Henry, George Mason, John Marshall, George Wythe, James Madison, James Monroe, John Tyler, Edmund Randolph, Benjamin Harrison, Henry Lee and Edmund Pendleton - didn't understand the law, and wasted almost a month of their time crafting their conditional agreement if it was simply a yes/no decision and such conditions were superfluous?
Did they invent some new legal system just for the Constitution? Where is it written in the Constitution that non-traditional methods were to be employed?
Article VII of the Constitution provided state ratifying conventions with the option to ratify the Constitution as written. And each of the states did ratify the Constitution as written.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.It does? Where?
"Do by these Presents".
The only reason this looks relevant at all to the secession debate is because the rebs still deny the distinction between revolution and secession.
Not at all. My position is that we haven't established here what their position was. I provided a link. Is it too much to ask for you to provide actual evidence to support your view? You may be right. You just don't seem willing to put any work into demonstrating it.
I skimmed the pertinent part of the debate, and it appeared that they recognized that they could submit a conditional ratification, and I think they even voted on it. But at first glance it appears they voted against a conditional ratification, and chose instead to ratify the Constitution unconditionally. They drafted a resolution whereby they ratified the Constitution (I believe you quoted that portion above), and then they also passed resolutions recommending several amendments to the Constitution.
Maybe I am in error. We won't know until we look at the actual text of the debate. It would be nice if you would bother to do so, but don't worry. I intend to get around to it sooner or later. If there was a vote in the Virginia legislature on whether or not the ratification should be conditional, and if they voted it down, that would seem to be the end of that discussion, wouldn't it? But guess what, even if they voted in favor of a conditional ratification, it still remains unclear to me if such a ratification was binding on the Constitution itself. It seems to me the Virginia legislature took conditional ratificaion, but that only speaks for one state. Anyway, how about doing some research, and building some support for your argument?
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