Posted on 09/06/2003 9:14:08 AM PDT by quidnunc
Abraham Lincoln is thought of by many as not only the greatest American statesman but as a great conservative. He was neither. Understanding this is a necessary condition for any genuinely American conservatism. When Lincoln took office, the American polity was regarded as a compact between sovereign states which had created a central government as their agent, hedging it in by a doctrine of enumerated powers. Since the compact between the states was voluntary, secession was considered an option by public leaders in every section of the Union during the antebellum period. Given this tradition — deeply rooted in the Declaration of Independence — a great statesman in 1860 would have negotiated a settlement with the disaffected states, even if it meant the withdrawal of some from the Union. But Lincoln refused even to accept Confederate commissioners, much less negotiate with them. Most of the Union could have been kept together. Virginia, North Carolina, Tennessee, and Arkansas voted to remain in the Union even after the Confederacy was formed; they reversed themselves only when Lincoln decided on a war of coercion. A great statesman does not seduce his people into a needless war; he keeps them out of it.
When the Soviet Union dissolved by peaceful secession, it was only 70 years old — the same age as the United States when it dissolved in 1860. Did Gorbachev fail as a statesman because he negotiated a peaceful dissolution of the U.S.S.R.? Likewise, if all states west of the Mississippi were to secede tomorrow, would we praise, as a great statesman, a president who refused to negotiate and launched total war against the civilian population merely to preserve the Union? The number of Southerners who died as a result of Lincoln’s invasion was greater than the total of all Americans killed by Hitler and Tojo. By the end of the war, nearly one half of the white male population of military age was either dead or mutilated. No country in World War II suffered casualties of that magnitude.
Not only would Lincoln not receive Confederate commissioners, he refused, for three crucial months, to call Congress. Alone, he illegally raised money, illegally raised troops, and started the war. To crush Northern opposition, he suspended the writ of habeas corpus for the duration of the war and rounded up some 20,000 political prisoners. (Mussolini arrested some 12,000 but convicted only 1,624.) When the chief justice of the Supreme Court declared the suspension blatantly unconstitutional and ordered the prisoners released, Lincoln ordered his arrest. This American Caesar shut down over 300 newspapers, arrested editors, and smashed presses. He broke up state legislatures; arrested Democratic candidates who urged an armistice; and used the military to elect Republicans (including himself, in 1864, by a margin of around 38,000 popular votes). He illegally created a “state” in West Virginia and imported a large army of foreign mercenaries. B.H. Liddell Hart traces the origin of modern total war to Lincoln’s decision to direct war against the civilian population. Sherman acknowledged that, by the rules of war taught at West Point, he was guilty of war crimes punishable by death. But who was to enforce those rules?
These actions are justified by nationalist historians as the energetic and extraordinary efforts of a great helmsman rising to the painful duty of preserving an indivisible Union. But Lincoln had inherited no such Union from the Framers. Rather, like Bismarck, he created one with a policy of blood and iron. What we call the “Civil War” was in fact America’s French Revolution, and Lincoln was the first Jacobin president. He claimed legitimacy for his actions with a “conservative” rhetoric, rooted in an historically false theory of the Constitution which held that the states had never been sovereign. The Union created the states, he said, not the states the Union. In time, this corrupt and corrupting doctrine would suck nearly every reserved power of the states into the central government. Lincoln seared into the American mind an ideological style of politics which, through a sort of alchemy, transmuted a federative “union” of states into a French revolutionary “nation” launched on an unending global mission of achieving equality. Lincoln’s corrupt constitutionalism and his ideological style of politics have, over time, led to the hollowing out of traditional American society and the obscene concentration of power in the central government that the Constitution was explicitly designed to prevent.
A genuinely American conservatism, then, must adopt the project of preserving and restoring the decentralized federative polity of the Framers rooted in state and local sovereignty. The central government has no constitutional authority to do most of what it does today. The first question posed by an authentic American conservative politics is not whether a policy is good or bad, but what agency (the states or the central government — if either) has the authority to enact it. This is the principle of subsidiarity: that as much as possible should be done by the smallest political unit.
The Democratic and Republican parties are Lincolnian parties. Neither honestly questions the limits of federal authority to do this or that. In 1861, the central government broke free from what Jefferson called “the chains of the Constitution,” and we have, consequently, inherited a fractured historical memory. There are now two Americanisms: pre-Lincolnian and post-Lincolnian. The latter is Jacobinism by other means. Only the former can lay claim to being the primordial American conservatism.
David W. Livingston is a professor of philosophy at Emory University and the author of Philosophical Melancholy and Delirium (University of Chicago Press).
It is truly peculiar how people who adamantly deny the concept of state nullification, which at least has some historical and scholarly merit to it in the early days of the republic, are also always the first to embrace a strange concept of "executive nullification" against the courts the second that habeas corpus ruling against Lincoln enters into the picture. Oh well. I guess consistency simply isn't your thing, Walt.
Had the whole Court supported Taney's position in Merrymanit would have changed things.
The only reason that never happened is because Lincoln, the loser, refused to appeal his loss to the full court.
But Taney had no chance of getting the majority to go along with his interpretation.
Considering that the entirity of the founding fathers, plus all the judicial rulings up until then, plus the plain reading of the constitution itself say that Taney was CORRECT in his ruling, that is unlikely.
Chief Justice Rehnquist wrote a book on this very subject.
Yes. You've quoted it many times and it is no more correct now than it was the first time. The simple fact is that, of all the qualified jurists who have ever written on that clause, the overwhelming majority of them have said the power belongs only to congress.
Southern politicians did bandy about the nonsense about abusive taxes in the south though becaue 90% of the population couldn't read or write, and on top of it, most of them were so dirt poor they couldn't have afforded to pay the miniscule tariffs, even if they wanted or needed to, which they did not. It's simply amazing though to see how many illiterate southerners bought the line.
In fact though, the North didn't need to pass the Morrill tariff if the war had not come and the southern states were let go. The 1860 tariffs could have easily been cut into half and still produced large surplusses for the north, where the tariffs were hardly felt at all by any one with an average income. Tax Freedom day under the Morrill Tariff was still about the seventh of January. January 1 if you were a poor southerner.
WRT = "With respect to"
Free Republic Constitution, Article IV Section 3.
Merryman would have rendered a service far greater to the insurgency than burning bridges if he had gotten this issue before the whole Court. Taney could have made that happen.
But he didn't. Getting the issue before the whole court was a trump card he couldn't play because his ruling in Merryman had no support in a fair reading of law and precedent.
Walt
"It may seem that Lincoln violated the rule of law in in effort to vindicate the legal order. Much of this apparent paradox dissolves on closer examination, partly because most of his action were indeed lawful, and partly because the rule of law is not an inflexible concept." [Page 196]
As we have seen, most of what Lincoln did, then and later, was in fact constitutional.... {page 196]
"That is not to say that everything he did was constitutional." {Page 196]
"Military jurisidiction was extended beyond constitutional bounds in the North...." [Page 196
"... money was spent and the military expanded without the necessary authority from Congress...." [Page 196]
"... the freedom of the press was sometimes infringed." [pp. 196-7]
"Not a perfect record, but a creditable one..." [Page 197]
"Under this analysis, Lincoln's action in Merryman would not stand for any general right to disobey judicial decrees. It would stand only for a limited right to disobey decrees when the judge lacked the sheer power to issue a binding order. If this jurisdictional analysis is rejected, however, we should concede that Lincoln's action was unlawful. It is fruitless to argue for a general power of executive nullification. Lincoln himself did not even offer this defense, and history speaks strongly against it. Instead, we are thrown back on the necessity defense that he did in fact offer." [Page 192]
"Some of Lincoln's initial acts were unconstitutional even under the relatively favorable view of his powers taken in this book." [Page 192]
"At least his unauthorized expansion of the regular army and disbursement of funds fall into this category." [Page 192]
"Disobedience of Taney's order may fall into the same category, unless that order was a nullity." [Page 192]
"... Lincoln's suspension of habeas in areas removed from any hint of insurrection arguably went beyond his emergency powers to respond to sudden attack." [Page 192]
"And of course, none of the constitutional arguments in favor of Lincoln's actions during the war are incontestable. Some would argue that nearly everything Lincoln did in those early days was unconstitutional. Thus, to a smaller or greater extent, we are forced to consider Lincoln's claim that otherwise unlawful actions were justified by necessity." [Page 192]
"It probably goes too far to say the the president can always make his own independent determination of whether a court had jurisdiction." [Page 190]
"Once an injunction is issued, it must be obeyed even if it was erroneous. A legal error in entering the injunction is no defense to a conetmpt citation. A legal error in entering the injunction is no defense to a contempt citation. This is true even if the injunction violates a constitutional right. For instance, a court order that violates the First Amendment normally must be obeyed until it is set aside on appeal. Similarly, if a judgment is entered in one state, another state must recognize that judgment as valid without inquiring into the merits of the case. Hence, even if Taney was wrong, his order was enitled to obedience. The incorrectness of Taney's view on the merits would be no defense in a contempt hearing. Similarly, if Taney had then issued a damage award to Merryman, as he might have doen in an action for false imprisonment, that judgment would have been enforceable in any other court in the Union, regardless of the underlying merits. In lawyer's jargon, the judgment is immune from collateral attack. In plainer language, it acquires a life and validity of its own, disconnected from the legal and factual claims that gave birth to it." [pp. 189-90]
"Despite the disagreement about judicial supremacy, almost everyone agrees about one point: the president must enforce the judgments of the federal courts in specific cases, right or wrong." [Page 188]
"The test would have required the prosecutor to show a clear danger that Vallandigham's speech would have directly harmed the war effort. It seems unlikely, but possible, that such a showing could have been made." [Page 172]
"These measures, whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity...." [Page 118, quoting Lincoln]
And, as Abraham Lincoln said in 1858:
Public setiment is everything -- he who moulds public sentiment is greater than he who makes statutes.
-- Abraham Lincoln, in his first debate with Stephen A. Douglas, Ottawa, Illinois, August 21, 1858.
That is incorrect. Some supporters of the act initially CLAIMED they were reinstating tariffs to their late 1840's level but they were in fact selling a bill of goods. By the time it reached the senate even the bill's proponents were starting to admit that it was in fact a protectionist tariff. It hiked average rates to around 35% and then to 47% the next year.
and that the only reason it had been altered into producing deficits by the southern cotton crowd was as part of their conspiracy to trash the Union.
That too is false. The tariff in place by 1860 had been enacted in 1857 shortly before the recession of that year. The unanticipated end to the Crimean war during that year set international markets including food staples into turmoil causing the Panic of 1857 and with it deficits. Over the next three years the federal government failed to reign in its spending and instead, led by the republicans, accelerated it through line items. Thus by 1860 they were facing a budget crisis and by 1861 after Lincoln's election, a credit crisis.
As Alexander Stephens pointed out, there was simply no reason for the South to complain of the tariffs.
Stephens was in error and made that speech at a time when he was leading the fight against secession in Georgia. At the time he had been out of congress for over a year and was not a witness to the events of the Morrill tariff like his colleague Robert Toombs. Toombs accurately and early on identified the Morrill act as a protectionist measure and exposed that fact to public light.
She only contributed 14% of the Federal income, and reaped well over half of the financial benefit.
That too is false. Tariffs, especially protectionist ones, impose economic costs that go well beyond simple revenue collection totals. In fact the overwhelming MAJORITY of costs for your average protectionist tariff are non-revenue ones reflected in (a) the loss of the consumer surplus, (b) dead weight losses abroad, (c) the dropoff in an international market, and (d) the economic pass through of revenue costs onto others than their physical payee. The entire nation's consumers stood to lose from items (a) and (b). The south stood to lose especially so though by incurring not only (a) and (b). They also incurred two items that the rest of the nation would not experience in a significant degree: (c) since their economy made up over 75% of the entire nation's trade exports and (d) since agricultural exporters are price takers who must sell at the world price and therefore cannot pass through tariff costs onto their buyers like everybody else.
An increased tariff would only have increased her annual income.
False. Just like any other tax, tariffs function on a Laffer curve relationship (which in the case of tariffs also incidentally corresponds to their use for either revenue or protection purposes). The Morrill act effectively pushed tariff rates past the curve's apex and onto the declining revenue edge. While this could indeed increase revenue collection, it also extracts a greater non-revenue cost from the economy than the previous level, thus resulting in a net economic loss.
most of them were so dirt poor they couldn't have afforded to pay the miniscule tariffs, even if they wanted or needed to, which they did not.
That is not the issue at all. Even the poorest of southern farmers were agriculture producers. As such they were also participants in the southern economy, which was overwhelmingly an export economy. Tariffs are known as trade BARRIERS for a reason - namely they kill off trade (and incidentally that is exactly what happened in the northern states right after the morrill tariff passed - within just a few months trade into the port of New York almost HALVED). When trade stops a trade-based economy dies, and when that economy dies all of its participants from the massive plantation operator to the smallest of small farmers suffers.
In fact though, the North didn't need to pass the Morrill tariff if the war had not come and the southern states were let go. The 1860 tariffs could have easily been cut into half and still produced large surplusses for the north, where the tariffs were hardly felt at all by any one with an average income.
False. The south's departure took with it a full 75% of the entire nation's export economy. Without exports, you have only credit with which to acquire imports from abroad. Credit alone is insufficient to take on that task wholly and when it is in pieces (as was the case in late 1860) the absence of any substantial exports with which to trade is nothing short of a disaster. Trade in effect stops and when trade stops, imports also stop. When imports stop, revenues collected from those imports stops and the government goes broke.
Not under the statutory process of appeals established as law in the United States. Tell me, Walt. If you WON a court case would you go out and appeal it? Not only would you lack grounds to get them to take it, but your act would serve no purpose since you had already won. The loser does have standing to appeal though and a reason to do so, that being to overturn the ruling against him. In Merryman Lincoln was the loser and therefore had the burden of appeal.
False. As Justice Curtis so succinctly noted the next year, EVERY SINGLE PRECEDENT that existed on the matter as well as the law's plain reading was against Lincoln's position. That is a matter of simple indisputable fact.
It was as much dumb luck as anything else that placed Lincoln in the White House in this critical time. To expect another Lincoln would be foolish. Nor should the legal system be designed on the assumption that all leaders will have his qualities. Even the wisest rulers must be restrained by law. But no matter how many checks and balances and protections we build into the system, we must keep in mind Hamilton's admonition. "Sir, when you have divided and nicely balanced the departments of government; when you have strongly connected the virtue of your rulers with their interest; when, in short, you have rendered.your system as perfect as human forms can be-you must place confidence; you must give power." In the end, all power can be abused, so we must take the risk of putting confidence in those who exercise power. This is as much true of generals and justices as it is of presidents. We had best take care that, like~Lincoln, they are worthy of our trust."
-- "Lincoln's Constitution", p. 200, by Daniel Farber
Walt
I believe Grant was a moral president with very bad advisors and a zealot - Sheridan - who despised indians as much as rebs.
I believe the greatest hero of the war was Stonewall Jackson. Here was a thoroughly moral and Christian man (who taught Sunday School to slaves), who was defending his home against an INVADER, and who believed that God won all his battles (and I agree with him). Let us remember that Lincoln called up 75,000 troops for an invasion long before Ft. Sumter, and it was a reaction to this planned invasion that caused Lee to also stand for Virginia.
From all I have read (I am a yankee with southern sympathies), I believe the south had a Constitutional right to secede, and I believe the southern leadership was more moral than the northern leadership in many instances.
In short, I believe the war was a judgment of God on both sides. The north was an immoral and godless society in many ways, and the destruction of the south and Reconstruction proved it.
Okay, but who appointed Sheridan?
Other than that, nice post.
By the way, the southeast and parts of the great plains are the most healthest (which doesn't say much) part of this country is the Southeast and parts of the Great Plains. The rest of the country seems to be coming apart at the seems because of the arrogance of government at all levels (local, state, federal).
And the irony is that the South forsaw this over a 130 years ago and wanted no part of it.
That, and also who appointed Schuyler Colfax, Henry Wilson and so forth. Grant ultimately had the final choice in his cabinet and running mates and they were among the most unsavory and corrupt persons to ever occupy those roles between the founding and the Clinton administration.
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