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Constitutional Con Men
LewRockwell.com ^ | May 15, 2002 | Thomas DiLorenzo

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.


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To: Aurelius
From DiLorenzo:

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).

**********

From a fine Libertarian at FR who attended the debate.

****

[DiLorenzo and others say]Lincoln has a blemished record of following the ideal of free government in his political life, as when he issued this order, on May 18, 1864:

"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 the aforementioned newspapers."

What was it in these newspapers, inquiring minds may ask, that prompted Lincoln to issue this order?

"At 4 a.m. [on May 18 1864, Joseph] Howard distributed anonymously to all the New York papers a bogus proclamation, complete with the forged signature of the President, fixing May 26 `as a day of fasting, humiliation, and prayer,' and calling for an additional draft of 400,000 men required by `the situation in Virginia, the disaster at Red River, the delay at Charleston, and the general state of the country.' ...Only two papers, the New York World and the Journal of Congress, were on the street with the story before the forgery was detected." Foote, The Civil War III, p. 376.

This was the so called "Gold Hoax" -- a criminal effort to drive up the value of gold at a very critical point in the war. Once it was established that the editors were only guilty of atrocious journalistic standards for source checking, they were released from custody and allowed to reopen their papers -- after only being held for three days. Foote, p. 376.

Nevertheless, the Lincoln bashers would no doubt argue that this instance had a chilling effect on the journalistic profession, so that no paper would dare to criticize Lincoln thereafter. But consider what was written by a Northern paper just a few short weeks later on the occasion of Lincoln's renomination (along with Andrew Johnson) during the 1864 Republican (aka National Union Party) Convention:

"The age of statesmen is gone...the age of rail-splitters and tailors, of buffoons, boors, and fanatics, has succeeded...In a crisis of the most appaling magnitude, requiring statesmanship of the highest order, the country is asked to consider the claims of two ignorant, boorish, third-rate backwoods lawyers, for the highest situations in the government. Such nominations, in such a conjecture, are an insult to the common-sense of the people. God save the Republic!" Foote, p. 379.

What brave journalist dared to so brutally insult the character of the President and his running mate? None other than the editor of the New York World.

18 posted on 5/10/02 8:03 PM Pacific by ravinson

********

Moral?

Never trust a hack.

Cheers,

Richard F.

61 posted on 05/16/2002 6:02:04 PM PDT by rdf
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To: rdf
"A codpiece for Hillary" or "Were the Clintons the Confederacy's revenge".

"If you want to make sense of the Clintons, the best way is to understand them as the revenge of the Confederacy. Nothing else makes them plausible."

I just want to assure you all that I would in no way have any part in that.

62 posted on 05/16/2002 6:22:15 PM PDT by Aurelius
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Comment #63 Removed by Moderator

To: Aurelius
Why not give credit where credit is due? DiLorenzo is the master con artist. He's got half you people snowed into thinking he is a serious historian.
64 posted on 05/16/2002 6:42:30 PM PDT by Non-Sequitur
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To: CajunPrince; ravinson
Typical paranoid raving.

Care to comment, ravinson?

65 posted on 05/16/2002 7:01:21 PM PDT by rdf
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Comment #66 Removed by Moderator

To: Ditto
You weren't there and neither was I and if your "ancestors" were in the South 140 years ago, there is anywhere from a 30%-70% chance, depending on which part of the south they were in, that they were loyal Unionists who had no use for the slaveocrat thugs.

Well in all actuality it is not 30-70%. From what I have found so far, more than a few of my relatives fought for the South(3 died, one in the non existant, never talked about, killed more prisoners than the South, northern prison camps) and only one who had any leanings to the north but apparently did not fight for the damnyankees. So, yes, I do feel direct ties to the South for men that stood up for what they believed.

As for your charge of a violent overthrow of Federal authority, no I am not in favor of that. The federal government has disappeared and has been replaced by a national government. But in either case, the South tried to secede quietly and Constitutionally. The immediate cause was abe's little foray into sovereign territory not belonging to the United States that started the war. If he would have peaceably withdrawn his troops from Fort Sumter, there would not have been a war. But admittedly Davis made a tactical error

67 posted on 05/16/2002 7:37:12 PM PDT by billbears
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To: Aurelius
Well written piece...and the Abrahtollah Jaffa gets slammed once again.
68 posted on 05/16/2002 10:14:12 PM PDT by GOPcapitalist
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To: 4ConservativeJustices
You were right to begin with - WE had the right to leave. Otherwise "We the people" are not bound to the Constitution.

Tocqueville put it best in one of those many pre-war political commentaries most Lincoln worshipers and Claremonsters like to overlook...

"However strong a government may be, it cannot easily escape from the consequences of a principle which it has once admitted as the foundation of its constitution. The Union was formed by the voluntary agreement of the states; and these, in uniting together, have not forfeited their sovereignty, nor have they been reduced to the condition of one and the same people. If one of the states chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so, and the Federal government would have no means of maintaining its claims directly, either by force or by right."

69 posted on 05/16/2002 10:34:52 PM PDT by GOPcapitalist
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To: Aurelius
Lincoln's only flaw was that he didn't kill all the slave owners...
70 posted on 05/16/2002 10:37:25 PM PDT by go star go
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To: CajunPrince
works for me...
72 posted on 05/16/2002 10:55:08 PM PDT by go star go
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To: rdf, CajunPrince
Thanks for the ping, rdf. CajunPrince is almost as amusing as DiLorenzo; I enjoyed a hearty laugh when I read CajunP state the following:

Considering that Ravinson played a part of preparing Jaffa for the debate... I'd say his opinion is biased in some way. Therefore, his opinion of what DiLorenzo said concerning the debate is flawed evidence.

Cajun, when I stated that I was going to "prepare for [the DiLorenzo-Jaffe] debate", I was referring to preparing myself for the audience Q&A period (in which I asked DiLorenzo a question about the limits of his concept of "states' rights" that he refused to answer). I had never known or communicated with Mr. Jaffe until I thanked him for coming to Oakland after the debate (and after I had done the same to DiLorenzo -- as well as helping him with the correct pronunciation of the name of a prominent Radical Republican newspaperman).

Moreover, even if you think I am biased, you can easily check the veracity of my statements (quoted above by rdf) regarding Lincoln's May 18, 1864 order closing the New York World and the Journal of Commerce, because as I noted, my source is Shelby Foote in Civil War (III), at pages 376-379. According to Foote (not me), Lincoln ordered those papers closed and the editors arrested on suspicion of involvement in a criminal gold speculating hoax, but those editors were out of jail and back printing vicious insults directed at Lincoln and his Vice Presidential running mate three short days later.

DiLorenzo's conclusion from this incident that Lincoln was a "dictator" who was guilty of "demolition of the First Amendment" is the funniest joke I've heard in a long time.

73 posted on 05/16/2002 11:31:47 PM PDT by ravinson
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Comment #74 Removed by Moderator

To: Aurelius, stainlessbanner, 4ConservativeJustices, billbears
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 . . . (Emphasis added.)

Even if the Confederate glorifiers like DiLorenzo can be allowed to ignore the ancient rule of contract law that both sides must manifest their assent to something before it becomes part of an enforceable agreement, there is no getting around this restriction (emboldened above). To my knowledge, neither the Virginia secessionists nor any other Confederates ever attempted to enforce any real or imagined Constitutional right of secession in the U.S. Courts, so they clearly waived any right to rely on anything in the U.S. Constitution, including any supposed conditions precedent. Moreover, had they asserted such a right, they would have found it difficult to prove that the Constitution had been "perverted to their injury or oppression" merely because a "Black Republican" had been elected to the Presidency.

Of course, the Confederates were not interested in proving any "states' rights" under the U.S. Constitution. They made it very clear that they were extremely dissatisfied with the U.S. Constitution because it did not sufficiently preserve and protect their cherished institution of slavery, and so they drafted their own constitution that provided as follows:

Article I... Section 9... (4) No ... law denying or impairing the right of property in negro slaves shall be passed...

Article IV ... Section 2. (1) The citizens of each State ... shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired...

(3) The Confederate States may acquire new territory... In all such territory the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected by Congress and by the Territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States...

As the Mississippi secessionists candidly admitted, the Confederates' position was "thoroughly identified with the institution of slavery", which they considered "the greatest material interest of the world." The Confederates wanted to ensure that a government of the slaveholders, by the slaveholders, and for the slaveholders would not perish.

75 posted on 05/17/2002 12:32:05 AM PDT by ravinson
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To: rdf
DiLorenzo: The one comment of Jaffa’s that drew gasps and looks of disbelief was his insistence that Lincoln never did anything that was unconstitutional.

I don't recall hearing any "gasps", but I'll have to check the tape when it arrives. My impression was that the audience was very attentive and respectful to both speakers, even when DiLorenzo was making ridiculous statements.

76 posted on 05/17/2002 12:44:41 AM PDT by ravinson
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To: CajunPrince
And your posts seem quite amusing to those of who happen to think Jaffa a complete fool...Can you defend the idiotic positions taken by Jaffa? If so, I'd love to hear them.

You'll have to explain to me what you perceive to be "idiotic positions". In sharp contrast to DiLorenzo, Jaffa seemed to be well read and have a deep understanding of the full context of historical events.

Keep in mind that DiLorenzo is an economist, not a historian. It shows. He's great at lifting quotes out of context to try to support his points, but it's obvious that he hasn't done his homework. I could tell from his errors of omission (including the example I gave above) that DiLorenzo has not read the civil war books written by Shelby Foote or James McPherson, nor has he read Alexis de Tocqueville's Democracy in America even though he quotes it (totally out of context, of course).

It seems very apparent that DiLorenzo has simply read a few poorly researched pro-Confederate materials and then cobbled them together into a absurdly biased book that he is marketing almost exclusively to rednecks (and I suppose people who enjoy a good laugh at farcical literature).

77 posted on 05/17/2002 1:10:26 AM PDT by ravinson
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To: GOPcapitalist
Tocqueville put it best in one of those many pre-war political commentaries most Lincoln worshipers and Claremonsters like to overlook...

"However strong a government may be, it cannot easily escape from the consequences of a principle which it has once admitted as the foundation of its constitution. The Union was formed by the voluntary agreement of the states; and these, in uniting together, have not forfeited their sovereignty, nor have they been reduced to the condition of one and the same people. If one of the states chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so, and "

I'm glad you brought up Tocqueville, since he's my favorite political analyst. As perceptive as he was, however, he was not infallible, and clearly he was wrong in assuming that "the Federal government would have no means of maintaining its claims directly, either by force or by right". And of course, the U.S. never had to disprove the Confederate states' right to withdraw from the Union, since the seceding states never attempted to prove any right under the Constitution to secede.

But if you're truly enamored with Tocqueville, I take it that you'd agree with some of his other assertions in Democracy in America, such as the following:

"The legislation of the Southern states with regard to slaves presents at the present day such unparalleled atrocities as suffice to show that the laws of humanity have been totally perverted...In antiquity precautions were taken to prevent the slave from breaking his chains; at the present day measures are adopted to deprive him of even the desire for freedom...the Americans of the South, who do not admit that the Negroes can ever be commingled with themselves, have forbidden them, under severe penalties, to be taught to read or write; and as they will not raise them to their own level, they sink them as nearly as possible to that of the brutes." Democracy in America (Vintage Books Ed. 1990), Vol. 2, pp. 379-380.

"The Americans have ... much more ... to fear from the states than from the Union." DIA, p. 385.

"In the South there are no families so poor as to not have slaves. The citizen of the Southern states becomes a sort of domestic dictator from infancy; the first notion he acquires in life is that he is born to command, and the fist habit which he contracts is that of ruling without resistance. His education tends, then, to give him the character of a haughty and hasty man, irascible, violent, ardent in his desires, impatient of obstacles, but easily discouraged if he cannot succeed upon his first attempt." DIA, Vol. 2, p. 394.

"The inhabitants of the Southern states are, of all Americans, those who ... would assuredly suffer most from being left to themselves; and yet they are the only ones who threaten to break the tie of confederation." DIA, Vol. 2, p. 401.

"If ever America undergoes great revolutions, they will be brought about by the presence of the black race on the soil of the United States; that is to say, they will owe their origin, not to the equality, but to the inequality of condition." DIA, Vol. 1, p. 256.

78 posted on 05/17/2002 2:38:20 AM PDT by ravinson
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To: Huck
Once again, I have provided evidence to support my argument. When will you bother to do the same? Don't tell me what you think. Show me what an expert or authoritative reference says. Then we can talk.

If you want evidence that a company wanted to build new headquarters, do you need to ask a committee what they decided, or simply look at the skyscaper?

The ratifications are in two parts - the actual ratification - with it's statement of facts - that certain terms are understood, that certain rights cannot be denied, that certain actions are reserved. It then states that these reservations and stipulations are irrevocable, and under these circumstances - as evidenced by the document in question (the ratification) the state ratifies the Constitution.

After the ratification they present a list of proposed amendments. The ratification did not amend the Constitution, it set the terms for acceptance of one party, to be accepted/rejected by the other parties.

79 posted on 05/17/2002 4:09:32 AM PDT by 4CJ
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To: Huck
The document clearly states that the Constitution is binding.

And it's conditioned. What part of "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 ... do by these Presents, assent to, and ratify the said Constitution" don't you understand?

80 posted on 05/17/2002 4:33:28 AM PDT by 4CJ
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