Tag: Constitution

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You could argue that there are two basic visions for America: the Hamiltonian and the Jeffersonian. The former is nationalist, calling for centralized power and an industrial, mercantilist society characterized by banking, commercialism, and a robust military. Its early leaders had monarchical tendencies. The latter vision involves a slower, more leisurely and agrarian society, political decentralization, popular sovereignty, and local republicanism. Think farmers over factories.

Both have claimed the mantle of liberty. Both have aristocratic elements, despite today’s celebration of America as democratic. On the Hamiltonian side we can include John Adams, John Marshall, Noah Webster, Henry Clay, Joseph Story, and Abraham Lincoln. In the Jeffersonian camp we can place George Mason and Patrick Henry (who, because they were born before Jefferson, could be considered his precursors), the mature (rather than the youthful) James Madison, John Taylor of Carolina, John C. Calhoun, Abel Upshur, and Robert Y. Hayne. The Jeffersonian Republicans won out in the early nineteenth century, but since the War Between the States, the centralizing, bellicose paradigm has dominated American politics, foreign and monetary policy, and federal institutions.

Jeffersonians hold a “compact theory” of the Constitution:

“The constitution of the United States of America . . . is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several states of North-America, and ratified by the people thereof, respectively; whereby the several states, and the people thereof, respectively, have bound themselves to each other, and to the federal government of the United States; and by which the federal government is bound to the several states, and to every citizen of the United States.”

Under this model, each sovereign, independent state is contractually and consensually committed to confederacy, and the federal government possesses only limited and delegated powers—e.g., “to be the organ through which the united republics communicate with foreign nations.”

Employing the term “strict construction,” many decry what we call “activist” federal judges, insisting that “every attempt in any government to change the constitution (otherwise than in that mode which the constitution may prescribe) is in fact a subversion of the foundations of its own authority.” Strictly construing the language of the Constitution meant fidelity to the binding, basic framework of government, but it didn’t mean that the law was static. Among legitimate concerns, for instance, was how the states should incorporate, discard, or adapt the British common law that Blackstone had delineated.

We understand the common law as embedded, situated, and contextual rather than as a fixed body of definite rules or as the magnificent perfection of right reason, a grandiose conception derived from the quixotic portrayals of Sir Edward Coke. “[I]n our inquiries how far the common law and statutes of England were adopted in the British colonies,”

In other words, if you want to know what the common law is on this side of the pond, look to the operative language of governing texts before you invoke abstract theories. Doing so led Founding scholars to conclude that parts of English law were “either obsolete, or have been deemed inapplicable to our local circumstances and policy.” In this, they anticipated Justice Holmes’s claim that the law “is forever adopting new principles from life at one end” while retaining “old ones from history at the other, which have not yet been absorbed or sloughed off.”

What the several states borrowed from England was, for the Founders, a filtering mechanism that repurposed old rules for new contexts. They used other verbs to describe how states, each in their own way, revised elements of the common law in their native jurisdictions: “modified,” “abridged,” “shaken off,” “rejected,” “repealed,” “expunged,” “altered,” “changed,” “suspended,” “omitted,” “stricken out,” “substituted,” “superseded,” “introduced.” The list could go on.

The English common law, accordingly, wasn’t an exemplification of natural law or abstract rationalism; it was rather the aggregation of workable solutions to actual problems presented in concrete cases involving real people.

Having been clipped from its English roots, the common law in the United States had an organic opportunity to grow anew in the varying cultural environments of the sovereign states.

St. George Tucker, a scholar who studied Blackstone’s legal thoughts as they related to US jurisprudence

had a knack for aphorism. “[T]he ignorance of the people,” he said, “is the footstool of despotism.” More examples: “Ignorance is invariably the parent of error.” “A tyranny that governs by the sword, has few friends but men of the sword.”

Reading Tucker reminds us that for most of our country’s formative history the principal jurisprudential debates were not about natural law versus positivism, or originalism versus living constitutionalism, but about state versus federal authority, local versus national jurisdiction, the proper scale and scope of government, checks and balances, and so forth. To the extent these subjects have diminished in importance, Hamilton has prevailed over Jefferson. Remembering Tucker today can help us see the costs of that victory.

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Reposted from the Abbeyville Review

By way of prologue, let me say that all of us like the Lincoln whose face appears on the penny. He is the Lincoln of myth: kindly, hum­ble, a man of sorrows who believes in malice toward none and char­ity toward all, who simply wants to preserve the Union so that we can all live together as one people.

The Lincoln on the penny, had he lived, would have spared the South the ravages of Reconstruction and ushered in the Era of Good Feeling in 1865. The fact that this mythic Lincoln was killed is surely the ultimate tragedy in a tragic era. Indeed the most that any Southerner could say in behalf of the slayer of that Lincoln was what Sheldon Vanauken reported hearing from an old-fashioned Virginian: “Young Booth, sir, acting out of the best of motives, made a tragic blunder.”

But the Lincoln on the penny, the mythic Lincoln, did not exist. Instead a very real man, a political absolutist with enormous human weaknesses, for a time held the destiny of the nation in his oversized palm. So why do we dislike this Lincoln so much? There are many reasons, and here, just for starters, are three good ones:

I. Lincoln was the inventor of a new concept of “Union,” one that im­plied a strong centralized government and an “imperial presiden­cy.” a Union that now dominates virtually every important aspect of our corporate life as Americans.

This Union did not come about accidentally. Lincoln created it out of his own imagination and then invented a rhetoric to justify it, a grammar that has been used ever since that time. You must realize that before the War Between the States, virtually all Americans be­lieved that the nation was a loosely connected alliance of political states, each with a sovereign will of its own and a right to resist the power of central government, which, since the beginning of the Re­public, was regarded as the ultimate enemy.

“Keep it small, keep it diversified” was the view of federal author­ity held by the Founding Fathers; but Lincoln believed—and said in the Gettysburg Address—that the Founding Fathers were wrong, that they had imperfectly conceived the nation at the outset and that he, Abraham Lincoln, had a responsibility to refound it, to bring about a “new birth.” What he meant by this “new birth” was the emergence of a strong, centralized government which had the will and the power to impose a certain conformity on its membership.

If you want to know where the idea of Big Government came from in this country, it came from Lincoln.

In addition to a strong central government, the Founding Fathers also feared a chief executive who exercised absolute power. The tyrant was the ultimate villain in an increasingly diversified political order, and we must remember that, as a matter of strategy, the Dec­laration of Independence denounced the sins of George III rather than those of his duly elected Parliament despite the fact that the poor king was considerably less responsible than the people’s repre­sentatives. Indeed, it was only later, in 1861, that Abraham Lincoln finally became the imperial ruler that Thomas Jefferson denounced in the body of the Declaration.

It is also important to recall that the Constitution in Article I in­vests Congress with the authority “To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence…”; “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Capture on Land and Water”; “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years”; “To provide and maintain a Navy”; “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”; “To provide for organizing, arming, and disciplining the Militia, and for govern­ing such Part of them as may be employed in the Service of the Unit­ed States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;” etc.

All these responsibilities are conveyed to Congress in Section 8, with a catch-all clause enabling legislators to pass laws implement­ing “the foregoing Powers.” Then in Section 9, certain prohibitions are outlined which clearly qualify the powers of Congress. These in­clude a prohibition against the suspension of habeas corpus, except in “Cases of Rebellion or Invasion” and against withdrawal of funds from the Treasury except “in Consequence of Appropriations made by Law.” These qualifications, included in that portion of the Consti­tution dealing with Congress, are careful limitations imposed on the most powerful of the three branches by a cautious band of Framers. In effect they told Congress not only what they and only they could do, but they also said what they (and by implication everyone else) could not do. The caution which they here exercised becomes down­right fastidiousness when they get to Article II, which specifies the duties of the President. He is, to be sure, defined as “Commander in Chief of the Army and Navy, and of the Militia of the several States,” but only after Congress has called them up, as permitted in Article 1. After this quasi-military role, the President has precious little left to his disposal. He can require reports from members of the Executive Branch, he can grant pardons, he can make treaties which are valid only if two-thirds of the Senate agree, and he can make various ap­pointments, again with the “Advice and Consent of the Senate.”

And that’s really about it. One reading of the Constitution reveals the degree to which the Framers wished to restrict the powers of the presidency to a ceremonial minimum. Yet Abraham Lincoln, in his attempts to refound the Republic, completely transformed the nature of his office, appropriating to it not only powers specifically and ex­clusively granted to Congress but also some powers forbidden to any branch of the federal government.

First, he called up state militias on his own authority, despite the fact that no one had fired a shot or indeed intended to. To cloak these actions, he warned of an impending invasion that the South had no intention of launching and summarily began the War, despite the fact that Congress had no immediate intention of exercising its exclusive authority in this area. Lincoln also authorized recruitment of troops and the expenditure of millions of dollars—all power specifically delegated to Congress. In order to take such action with impunity he had to silence those voices who spoke in favor of the Constitution; so he suspended the right of habeas corpus and impris­oned hordes of his political enemies—according to several authori­ties almost 40,000 people. These political prisoners were not charged. They were not tried. They were simply incarcerated and held incommunicado. In some instances their closest family mem­bers did not know if they were alive or dead until the end of the War.

Among these, incidentally, were a number of newspaper editors, particularly those from such states as Kentucky and Maryland, where Southern sentiment ran high. In addition to the imprisonment of these outspoken critics, their presses were wrecked and their places of business destroyed. All in all, over 300 newspapers and journals were shut down by executive order. In an age when casual criticism of the press by the White House is often regarded as a threat to the First Amendment, it is odd that Lincoln still receives such ritual respect. No president in history held freedom of speech or freedom of the press in greater contempt.

In addition to these more obvious violations of Constitutional rights and prohibitions, Lincoln also created a state (West Virginia), imported foreign mercenaries to fight against people he still insisted were Americans, confiscated private property without due process, printed paper money, and even dispersed assembled legislatures like some American Cromwell. In all these things he acted as no other president of the United States had ever acted before or has acted since.

II. Lincoln’s skillful use of egalitarian rhetoric has given Northern and New South historians the argument that the War Between the States was fought solely over the question of slavery rather than over a number of interrelated issues, none of which in itself could have led to Secession and War.

In a sense the thing that contemporary Southerners most resent about Lincoln is the use that has been made of him by recent histori­ans who want to find in the Antebellum South and the tragic events of the War a moral exemplum for the religion of equality. To be honest, Lincoln himself did not go nearly so far, though in his debates with Douglas and in the Emancipation Proclamation he clearly took the high moral ground in an effort to win pragmatic political advantage.

Lincoln himself was not an Abolitionist nor was he particularly sympathetic with black freedmen. He came from a state whose racist laws discouraged blacks from crossing its borders. If Illinois was op­posed to the spread of slavery it was because the state’s citizens were opposed to the spread of blacks. This much is a matter of public record. In addition Abraham Lincoln probably objected to the pe­culiar institution on philosophical grounds, as had Thomas Jefferson. On the other hand, both Jefferson and Lincoln were white suprema­cists of sorts, and the latter told ex-slaves in his last year as Presi­dent that there was no place in America for free blacks, that repatriation in Africa was the only solution to the dilemma which emancipation would soon pose for both races.

Also, the Emancipation Proclamation was not, as most contempo­rary Americans now believe, a document which abolished slavery with the stroke of a pen. It did not, as a matter of policy, abolish slav­ery at all in those places under Lincoln’s rule—whether in the five Union states which still permitted the institution or in Southern terri­tory held by Union forces. It abolished slavery only in Confederate territory, and the Proclamation, by its own terms, did not go into ef­fect if the Southern states chose to return to the fold before the effec­tive date.

Of course Lincoln knew that the seceding states would not re­spond to such a proposal; but by issuing the Proclamation after the Battle of Sharpsburg he was able to send a message to Southern slaves who might be willing to rise against households without males to defend them. Then, too, Lincoln was able thereafter to say that the North was fighting to abolish slavery, a goal he had specifically dis­avowed well into the first year of the War.

Now, of course, historians of a certain stripe are able to say that this was the true cause of the North from the beginning, forgetting the myriad considerations that preoccupied nineteenth-century Americans, including tariffs, the rise of a rapacious industrial econo­my, and the political principles of the day, which included a devotion to state more than nation and a fierce commitment to the ideal of self-determination.

Too many modern commentators want to ignore everything in this case but the moral imperative of the Abolitionist, content for this one time in history to say that principles were more important than eco­nomics. Thus are Southerners forever branded as oppressors, while Union slaves are swept under the convenient rug of historical oblivion.

Because Lincoln was a formidable rhetorician (the greatest of his age) and because it is a twentieth-century failing that we believe the past is inferior to the present, the statute of limitations will never run out on our “crimes.” Fifty years after Massachusetts abolished slav­ery it was shaking an accusatory finger at Mississippi and Alabama. Fifty years after slavery had been abolished in these Southern states, Mississippians and Alabamians were still being called to account by the high caste Brahmins of Boston. And now that 120 years have passed, it is the politically prosperous grandsons of Irish immigrants who make the charges, descendants of the same brutal people who murdered literally hundreds of blacks in the draft riots of 1863.

It is Abraham Lincoln who invented this rhetoric; and we must ei­ther expose it for what it is or else continue to suffer the kind of abuse that manifests itself not only in anti-Southern cliches and stereotypes, but also in political exploitation and in such discriminatory legislation as the Voting Rights Acts of 1965 and gratuitous renewal in 1984. Those laws are bad not so much because of their severe provisions but because they assume that the integrated South deserves punitive treatment while the still-segregated North does not. And for that kind of moral abuse we can thank Abraham Lincoln.

III. Lincoln was responsible for the War Between the States, a con­flict in which more than 600,000 Americans were killed for no good purpose.

The truth of this statement should be obvious to a contemporary society preoccupied with the idea of peaceful coexistence and ob­sessed with a word like “negotiation.” The current President of the United States is routinely criticized for taking no steps during his first term to meet with his counterpart in the Soviet Union. We are told that military confrontation is wicked, that disputes between con­flicting political states should be solved through diplomatic means, that Concession is the child of Wisdom.

In 1861 Jefferson Davis made it quite clear in his resignation from the Senate and again in his inaugural address that all the Confederate States wanted was to be allowed to leave in peace. He stated this point explicitly and after so doing he took no action that would have indicated otherwise to the Union or to its president. No troops were called up. No extraordinary military appropriations requested. No belligerent rhetoric from Davis’ office or from his Cabinet. The South feared invasion, but never threatened it—not even implicitly.

Why, then, did Lincoln call for 75,000 troops “to defend the Union”? Why did he begin immediate preparations for war? Why did he insist on dispatching troops to Fort Sumter when a majority of his Cabinet advised against such a rash move and when he knew that South Carolina and the Confederacy believed the fortress to be legal­ly and Constitutionally theirs?

While Lincoln’s dispatch of troops left South Carolinians no choice but to defend their soil against an invader, Lincoln had a number of options open to him other than military action. For exam­ple, he might first have brought the whole matter of secession before the Supreme Court, seeking some legal right to Fort Sumter and in­deed to the entire Confederacy. But then there is good reason to be­lieve the Court would have ruled that Southerners had every legal justification to leave the Union. Then war would have been illegal and Lincoln’s incipient dream of a “refounding” would have gone a’glimmering.

A second choice would have been to refrain from ordering troops to relieve Fort Sumter and instead to have dispatched a diplomatic team to Montgomery, or better yet, gone himself for a “summit” with Davis. Given Lincoln’s prowess in debate, his love of discourse, his persistent appeals to “reason,” such a course of action would have seemed not only prudent but in keeping with the new president’s character—decidedly Lincolnian.

Yet apparently such an idea never occurred to the man who had been so eager as a young man to engage in amateur forensics and still later to meet Stephen Douglas in public debate. Historians can give credible reasons why Lincoln did not take his case to the High Court, but their voices trail off in weak apology when they take up the question of diplomatic negotiations. It all boils down to the supposition that, for his own reasons, Abraham Lincoln felt the situation was beyond the hope of dialogue—though no one can say exactly why he believed such a proposition.

Lincoln’s third choice—-the most likely of all—was simply to do nothing, to wait until the South made some overt move and then to react accordingly. For the sake of more than 600,000 killed on the field of battle, one wishes that he had been just a little more circum­spect, a little less sure of his own ability to read the minds of his op­ponents. Wait a month and see. Then another month. Then another. Surely the South would not have marched against the Union. Few believe that Davis would take such a drastic step. And all those young men would have grown old and wise—perhaps so wise that they would have found a way to reconcile their differences and to re­establish a Union they were born under. But, as I’ve already said, Lincoln did not approve of that Union. He wanted to found a new one. And the only way to accomplish such an end was to risk war.

Perhaps it never occurred to him that 600,000 men would die. Perhaps he was certain that the conflict would be brief and benign, a skirmish or two on the outskirts of Washington, over in the twinkling of an eye, with a few Union dead, a few Confederate dead, and everyone embracing after the show. But if that is what he believed, such an opinion constituted an inordinate pride in his own pre­science, one that we can only forgive by a supreme act of charity (provided, of course, that our forgiveness is solicited).

I will only add that despite his often quoted rhetoric of reconcilia­tion, he instituted a policy of total war—the first in our history—and saw to it that his troops burned homes, destroyed crops, and confis­cated property—all to make certain that civilians suffered the cruelest deprivations. He also refused to send needed medical supplies to the South, even when that refusal meant depriving Union soldiers of medicines needed to recover from their wounds. And finally, in the last year of the War, when Davis sent emissaries to negotiate a peace on Lincoln’s own terms, he ordered them out of Washington that the War might continue and the Republicans win re-election. As a result, 100,000 more troops were killed, North and South.

Because of Lincoln’s policies the cemeteries of the nation were sown with 600,000 premature bodies, long turned to dust now, but in their time just as open to the promise of life as any young draft dodger of the 1960s. That they fought one another, willing to risk all for their countries, is something that Lincoln counted on. Indeed you might say he staked his political future on their sacred honor, and in so doing impressed his face forever on the American penny.

Sober, reflective, a little sad as you hold him in your upturned palm, he looks perpetually rightward, gazing out of the round perimeter of his copper world at an extra dimension of existence—a visionary even now. And he is as ubiquitous as the common house­fly. If you toss him in a fountain or down a well he turns up in your pocket again, after the filling station attendant has added on the fed­eral tax and taken your twenty-dollar bill.

He can purchase nothing now, because his own grandiose dreams of Union have finally rendered him impotent. Once five of him would buy a candy bar or a coke. Now it would take a couple of squads. Tomorrow a regiment. Yet in a way he is indispensable to us as a reminder that in the ruthless expansion of government our lives are diminished with each new acquisition of power, with each digit of inflation, however small; and that such a diminution is infinite; that today, 120 years after his death, there is no conceivable end to the enormity of government and the consequent paucity of our indi­vidual lives.

And this is why we don’t like Abraham Lincoln.

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