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.
Before 1776, their legal status was a combination of British Crown and Chartar Colonies. They were British territory, under British law and the direct rule of the British Crown. When the 2nd Continental Congress, who's members had no sanction under British law, authorized the creation of new legal entities called "states" they became different legal entities and creatures of that Congress.
That was the Revolution --- not the war, but the comming together of British subjects to reject British rule as a new nation, not a collection of colonies.
Nonsense. In April of 1861 when they fired the first shots, they had already raised an army larger than the US army. They had plotted during the Buchanan administration to transfre arms and ammo from Northern to southern facilities. They were hostile and war like from the start. In states like Tessessee and Missouri where they could not raise majority support, they resorted to violance and illegal fiat to achieve their goals. They never appealed to the Constitution, Congress or the courts for a resolution to the question of secession, they simply asserted a non existant right to unilateral action backed by armed force.
So it would seem that the USA is like the Roach Hotel. We can check in but we can never check out!
Freedom was great while it lasted. I am just glad that there is so much government waste. Can you imagine what powers the Feds would have over us if they used every penny they extorted from us wisely?
I wouldn't interpret it that way.
That's like saying the 2nd amendment is conditional. Does the first clause of the 2nd amendment limit the right of gun ownership to militias, or does it merely illuminate the spirit in which the right was enumerated? I assume you will answer the latter. It is the same in this case. The declaratory statements certainly illuminate the spirit in which the Constitution was comprehended, and the expectations this particular legislature agreed to express in writing, but it doesn't represent any special addition or change to the Constitution itself. They debated, and rejected, such a ploy.
What part of "the powers of government may be reassumed by the people, whensoever
Woops! Where did the whole phrase go? You're being dishonest AGAIN. I have caught you before. I have caught you again. The words read:
the powers...may be reassumed by the people of the United States...
This is, again, similar to the first clause of the 2nd amendment. It is adding nothing whatsoever to the legal terms of the Constitution.
There you go again. Why don't you just explain for me why you are so unwilling to refer to the actual documentation? Why do you insist on crafting your own personal arguments on why you shouldn't have to refer to actual documentation, rather than referring to it? Why not just supply supporting documents? I am sure you can find all sorts of goodies to misquotre and misattribute, forcing someone else to dig into it, find out that you are being dishonest, and demonstrate it. I don't mind doing it when I have time. I learn from it.
The sovereignty of the United States is based upon the people, not the states.
Walt
"The revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time, providing for their more domestic concerns by state conventions, and other temporary arrangements.
From the crown of Great Britain, the sovereignty of their country passed to the people of it; and it was then not an uncommon opinion, that the unappropriated lands, which belonged to that crown, passed, not to the people of the colony or states within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly; afterwards, in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States, the basis of a general Government. Experience disappointed the expectations they had formed from it; and then the people, in their collective and national capacity, established the present Constitution. It is remarkable that in establishing it, the people exercised their own rights and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, "We the people of the United States," 'do ordain and establish this Constitution." Here we see the people acting as the sovereigns of the whole country.; and in the language of sovereignty, establishing a Constitution by which it was their will, that the state governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a state to govern themeselves in a certain manner; and the Constitution of the United States is liekwise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner. By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, etc."
-- John Jay, 1793.
I'm not sure how you know better than the Chief Justice of the Supreme Court.
Walt
Who is Abel Upshur?
The Chief Justice of the Supreme Court said just the opposite in 1793.
Walt
Are you suggesting that these conditions somehow confer a right to unilateral state secession under U.S. law?
Where is that found, or implied in the ratification documents?
Walt
Not according to the evidence. It merely declared their understanding of the meaning of the Constitution, as a reassurance to those who ended up voting against it anyway (Patrick Henry, et al--but you wouldn't know that if you didn't read the actual debates and see the votes, etc.) Second, who accepted the ratifications? Hmm? Congress did. And on what basis did Congress ratify the documents? Under what criteria? Let's look and see:
And whereas the constitution so reported by the Convention and by Congress transmitted to the several legislatures has been ratified in the manner therein declared to be sufficient for the establishment of the same and such ratifications duly authenticated have been received by Congress
--From Resolution of the Congress, of September 13, 1788
Well, judging from the resolution, it appears the Congress had two questions to answer: did they assent to the Constitution, and is the document (the present, if you will) authentic (or is it a forgery drawn up by James Madison and his evil monarchist cohorts.) That's what is in writing. Did the committee even consider, discuss or debate the various declarations of the various ratfications? It is not indicated by this documentation that they did. The normal thing for someone asserting that they did consider such things to do would be to find actual documented proof, and present it. Go ahead. Let the truth be known, whatever it may be.
"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. Jaffa 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).
To Ravinson,
Thanks for the reply,
and to CajunPrince,
In the future, don't jump to conclusions, and, "I rest my case."
Best to all,
Richard F.
acknowledging with grateful hearts the goodness of the Supreme Ruler of the universe in affording the people of the United States, in the course of his providence, an opportunity, deliberately and peaceably, without fraud of surprise, of entering into an explicit and solemn compact with each other, by assenting to and ratifying a new Constitution
Well. That settles it. New Hampshire conditionally assented to the Constitution only if it was to be between the people of the United States. And Congress accepted it. So they all agreed to it. The Constitution was formed by the people, not the states. Oh well.
The Constitution has a mechanism for conflict resolution. It is called the amendment process.
The reason the Constitution binds the states permanently to the Union is because of the failures of the Articles of Confederation.
"I do not conceive we can exist long as a nation, without having lodged somewhere a power which will pervade the whole Union in as energetic a manner, as the authority of the different state governments extends over the several states. To be fearful of vesting Congress, constituted as that body is, with ample authorities for national purposes, appears to me to be the very climax of popular absurdity and madness."
George Washington to John Jay, 15 August 1786
"What stronger evidence can be given of the want of energy in our government than these disorders? If there exists not a power to check them, what security has a man of life, liberty, or property? To you, I am sure I need not add aught on this subject, the consequences of a lax or inefficient government, are too obvious to be dwelt on. Thirteen sovereignties pulling against each other, and all tugging at the federal head, will soon bring ruin to the whole; whereas a liberal, and energetic Constitution, well guarded and closely watched, to prevent encroachments, might restore us to that degree of respectability and consequence, to which we had a fair claim, and the brightest prospect of attaining..."
George Washington to James Madison November 5, 1786
The states were bound to the Union because that was the only way to secure the blessings of liberty, ensure domestic tranquility, and the rest.
Look around.
It worked.
Walt
Your point of view is based in fantasy and myth.
One loser in the CSA rant is poor old George Washington.
I mean, everything he wanted, and stood for was wrecked by secession. His words seemingly hold no sway with neo-rebs at all. It's really sort of sad that he is ignored so by you and the other neo-rebs.
Why do you so thoroughly discount everything he stood for?
Walt
“Truth, sir, is a cow that will yield such people no more milk, and so they are gone to milk the bull.”
I don't discount everything he stood for, and, as usual, your allegation that I do is utterly without basis. I applaud his famous observation:
"Government is not reason. It is not eloquence. It is a force, like fire: a dangerous servant and a terrible master."
Unfortunately, when he became president the government became, in his hands, a fearful master. He saw fit to use it as an instrument of coercion and exploitation. As in the matter of the whisky tax, for example.
I agree with you 100% right down the the past tense of "It worked".
It no longer does!
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