A peculiar notion

For those who think that a convenient liberal interpretation of our
Constituton, a 'la Justice Brenan, is a relatively recent phenomenon, I
offer:
---------------


		Rethinking Lincoln and his peculiar notion

By Joseph Sobran

War usually isn't worth the price, even when you win. A new collection of
essays, "The Costs of War: America's Pyrrhic Victories," edited by John V.
Denson (published by Transaction), takes a new look at our wars without the
mythology that portrays them as not only worthwhile but gloriOUB. The
contributors to this stimulating collection agree that most of our wars
have had the ultimate effect of strengthening government at the expense of
liberty and the rule of law.

One of the most provocative essays in the volume is the historian Richard
Gamble's essay "Rethinking Lincoln." Today Lincoln is a demigod to nearly
everyone, with intellectual celebrants on both the Left (Gerry Wills) and
the Right (Harry V. Jaffa). We seldom ask whether he was justified in
making war on the seceding states.

Yet in his own time, this was the crucial queation. The Southern states
declared their independence in emulation of the original 13 Colonies, and
many Northerners recognized their right to do ao.

On what grounda did Lincoln deny that right? On grounds that these states
permitted slavery? No, because that would have invalidated the 1776
Declaration, which Lincoln, like most Americans, held sacred. Some other
reason had to be found.

So Lincoln chose to call secession "rebellion" and "insurrection" - an
uprising against the sovereign Union. He managed thus, Mr. Gamble points
out, by subtituting for the actual early history of the Union his own
version of the American founding." Lincoln offered the. peculiar notion
that the Union had somehow pre-existed the

Constition, the Articles of Conderation, and even the Declaration of
Independence, and that no state, therefore, could withdraw from it. The
Union is older than the states," Lincoln argued; "and, in fact, it created
them as states."

But, as Jefferson Davis, the Confederate president, pointed out, the
Constitution had been "a compact between independent states." The powers
given to the federal government had been "delegated," and whatever is
delegated can be withdrawn. In fact, several states had ratified the
Cosstitution on the express condition that they could reclaim the delegated
powers and secede at any time.

Since the right of secession had been stipulated without challenge in 1789,
either the states had retained it or their ratifications had been invalid.
Lincoln simply ignored this dilemma. His argument implied that the states
had had no choice but to ratify the Censtitution, since they belonged to a
Union from which there was no exit. "In Lincoln's mind," Mr. Gamble
observes, "the Union was not only perpetual, antecedent to the
Constitution, and the creator of the very states that now sought to leave,
it was also a spiritual entity, the mystical expression of a People."

A superb lawyer, logician and rhetorician, Lincoln must have known how
feeble his argument was. Before becoming president, he had several times
affirmed the right of any people, sufficiently numerous for national
independence, to throw off, to revolutionize, their existing form of
government, and to establish such other in its stead as they may choose."
This was sound Jeffersonian doctrine, and his later sophistical attempts to
wriggle out of it must have embarrassed him.

In his prosecution of the war against the Confederacy, he claimed, with
similar sophistry, powers that, under the Constitution, properly belonged
to Congress, including the powers to raise an army and navy and to suspend
habeas corpus. He just)fied himself on grounds that Congress would have
done these things had it been in session-which Mr. Gamble calls a peculiar
defense of his behavior that conceded his guilt."

By Lincoln's wartime logic, no state can ever have the right to secede, no
matter how flagrantly the Constition is violated by the federal government.
The Civil War, waged in the name of the Declaration actually resulted in
the practical abrogation of its principle that any just government must
have "the consent of the governed."

Lincoln insisted that he was violating parts of the Constitution only to
save the whole; but the war ultimately left the interpretation of the
Constitution at the mercy of the government it is supposed to restrain.

In short, the Constitution itself was a casualty of Lincoln's war. A
Pyrrhic victory indeed.

Steve Schear wrote:

> In short, the Constitution itself was a casualty of >Lincoln's war. A Pyrrhic victory indeed.
>
	For the first time in a long time, I've read a post that actually make
me seriously consider rethinking what I have been taught. I've studied
quite a bit in regards to US law and the Consitution, (made necessary by
my being Pro-PGP), and never looked in that direction. Your post adds a
very different light to things.  I took the liberty of forwarding your
post to a few of my old teachers, and they said that even they had not
looked at history from that point. Thank you for the push.

>Steve Schear wrote:
>
>> In short, the Constitution itself was a casualty of >Lincoln's war. A
>>Pyrrhic victory indeed.
>>
>	For the first time in a long time, I've read a post that actually make
>me seriously consider rethinking what I have been taught. I've studied
>quite a bit in regards to US law and the Consitution, (made necessary by
>my being Pro-PGP), and never looked in that direction. Your post adds a
>very different light to things.  I took the liberty of forwarding your
>post to a few of my old teachers, and they said that even they had not
>looked at history from that point. Thank you for the push.

Even more disheartening is the realization that the war probably wasn't
ncesassary to free the slaves, as the South was already in decline and
slaves were leaving (via the Underground Railroad) in record numbers.  Like
the West's 'victory' over communism, there's good reason to believe that
the South would have collapsed sooner than later due to its untenable
economic structure.  It seems the war substantially fought over economic,
idiological and egotistical reasons.  Big sigh...

--Steve

May a professor of constitutional law join in?

There *are* things you might object to about Lincoln, e.g. his unilateral
suspension of the writ of habeus corpus (it was more than arguable that
this should have required a congressional act), but the arguments in this
post are not among them.

Read on.

On Sun, 10 Aug 1997, Steve Schear wrote lots including:

> But, as Jefferson Davis, the Confederate president, pointed out, the
> Constitution had been "a compact between independent states." The powers
> given to the federal government had been "delegated," and whatever is
> delegated can be withdrawn. 

The above is the historical and logical error.  In fact, as you will see
if you read Gordon Woods' magisterial account of the legal and political
history of the constitution, the dominant view (articulated in the
Federalist papers, for example) was the "dual sovereignty" thesis.  In
this view BOTH the federal government AND the states were agents of the
PEOPLE, who were the only sovereign.  This is why the federal constitution
was ratified by popular votes, not by state legislatures -- the
legislatures were not vested with the power to create the union, as this
power was outside the delegation to the states.  Naturally, rebel
Jefferson Davis glossed over all this, if he even understood it, since it
was fatal to his cause. 

It is consistent with the dual sovereignty thesis to say that "what is
delegated can be withdrawn" but the entity doing the "withdrawing" is the
people (by some democratic process, presumably, e.g. a new constitutional 
convention), not the states, for it is the people who did the delegation
in the first place.  

A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | "Cyberspace" is not a place.
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's @%#$%$# hot here.

-----BEGIN PGP SIGNED MESSAGE-----

In <Pine.SOL.3.95.970812101447.4276G-100000@viper.law.miami.edu>, on
08/12/97 
   at 10:24 AM, "Michael Froomkin - U.Miami School of Law"
<froomkin@law.miami.edu> said:

>It is consistent with the dual sovereignty thesis to say that "what is
>delegated can be withdrawn" but the entity doing the "withdrawing" is the
>people (by some democratic process, presumably, e.g. a new constitutional
> convention), not the states, for it is the people who did the delegation
>in the first place.  

But if the people of a State decide that they nolonger wish to be aligned
with the people of another state and their elected representaves act on
this what right does the people of the other state have in forcing them to
remain aligned.

Your argument seems to make some distinction between the rebel states and
the people they represented. Both were in agrement that the Union should
and must be disolved. A detailed study of the times will show that not
only did the vast majority of the people of the South support this but
that many in the North did also. If anyone was acting against the "will of
the people" it was Lincoln and the power broakers in DC (funny how little
things have changed).

- -- 
- ---------------------------------------------------------------
William H. Geiger III  http://www.amaranth.com/~whgiii
Geiger Consulting    Cooking With Warp 4.0

Author of E-Secure - PGP Front End for MR/2 Ice
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>It is consistent with the dual sovereignty thesis to say that "what is
>delegated can be withdrawn" but the entity doing the "withdrawing" is the
>people (by some democratic process, presumably, e.g. a new constitutional
>convention), not the states, for it is the people who did the delegation
>in the first place.

So, if the people (legal voters in the states which planned to withdraw)
had called a constitutional convention, whose vote was for withdrawl, it
might (in your opinion) been a legitimate undertaking with binding result?
I don't think the North would have accepted any withdrawl, not matter how
it was decided within the South.

The Feds, and indeed any government, tends to strongly oppose any move
which lessens its authority.  It is a credit to the USSR that it was able
to allow even those satellite states, forced into survitude, to peacefully
withdraw.

--Steve

On Tue, 12 Aug 1997, Steve Schear wrote:

> So, if the people (legal voters in the states which planned to withdraw)

No, "the people" is the people of the united states as a whole.  The
federalist papers deals with this somewhere, where they explain that of
course the voting had to be organized state by state, because that tracked
the reality of how everything was organized, but nonetheless it was
intended to be a national pleblecite to produce a national government.

> had called a constitutional convention, whose vote was for withdrawl, it
> might (in your opinion) been a legitimate undertaking with binding result?

No. see above.
> I don't think the North would have accepted any withdrawl, not matter how
> it was decided within the South.

right.

[...]

A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | "Cyberspace" is not a place.
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin/
Coral Gables, FL 33124 USA | It's @%#$%$# hot here.

On Wed, Aug 13, 1997 at 11:00:35AM -0400, nospam-seesignature@ceddec.com wrote:
[...]
> 
> If the southern states "didn't do it right", what is the right way to
> seceed from the united states?  And can it be done when the leadership is
> acting as tyrants?

You might find

	http://www.hawaii-nation.org

an interesting site...

-- 
Kent Crispin				"No reason to get excited",
kent@songbird.com			the thief he kindly spoke...
PGP fingerprint:   B1 8B 72 ED 55 21 5E 44  61 F4 58 0F 72 10 65 55
http://songbird.com/kent/pgp_key.html

On Tue, 12 Aug 1997, Michael Froomkin - U.Miami School of Law wrote:

> On Tue, 12 Aug 1997, Steve Schear wrote:
> 
> > So, if the people (legal voters in the states which planned to withdraw)
> 
> No, "the people" is the people of the united states as a whole.  The
> federalist papers deals with this somewhere, where they explain that of
> course the voting had to be organized state by state, because that tracked
> the reality of how everything was organized, but nonetheless it was
> intended to be a national pleblecite to produce a national government.

Someone should tell the U.K. - I don't remember "A plebecite among all
members of a political collective is necessary to sever a single member" 
as being one of the self-evident truths in the Declaration of
Independence.  After all, the parliment said they really did represent the
colonies, so their votes count, and anything that happened in Philadelphia
should have no legal force.

Jefferson suggested a new convention every 20 years with the argument that
you cannot morally bind a new generation to an old structure - they
probably would not change it much, but personal assent gives moral
authority.  Even the abolitionists considered it tyranny when the
constitution gave legal force to the fugitive slave laws.

What do you do when a piece of paper is used to justify continuing
usurpations - and that same paper created the body of an earlier document
which was the spirit of liberty and declared the ephemeral English law and
its executive no longer in force because of such usurpations?  When the
spirit leaves a body, that body is called a corpse.  And the Constitution
is a dead letter if the spirit of the Declaration is missing.  When legal
authorities crawl over it looking for loopholes to impose more federal
power, it is not merely dead, but an undead vampire seeking to devour the
spirit of liberty.  The constitution, and the law in general is alive and
in robust health only when it is acting to preserve and increase liberty.

It would have been interesting to see what would have happened if someone
actually put the issue of secession to a vote - many northerners wanted
the south to leave.  But the chances of Lincoln and the Congress calling
such a vote were less than that of King George III calling a similar vote
on our earlier situation. 

Eventually every state ratified the constitution, though they had to
threaten Rhode Island.  It would have been more interesting if a few the
larger states didn't ratify and held out after the "required" number were
met.

If the southern states "didn't do it right", what is the right way to
seceed from the united states?  And can it be done when the leadership is
acting as tyrants?

--- reply to tzeruch - at - ceddec - dot - com ---

At 10:06 PM 8/12/97 -0400, Michael Froomkin wrote:
>On Tue, 12 Aug 1997, Steve Schear wrote:
>> I don't think the North would have accepted any withdrawl, not matter 
>> how it was decided within the South.
>
>right.

The North would never have accepted the withdrawal, because it would have
meant the North's economic demise. 

'The name of our federation is not Consolidated States, but United States.
 A number of States held together by coercion, or the point of a bayonet,
would not be a Union.  Union is necessarily voluntary -- the act of
choice, free association.  Nor can this voluntary system be changed to one
of force without the destruction of "The Union"... A Union of States
necessarily implies separate sovereignties, voluntarily acting together.
And to bruise these distinct sovereignties into one mass of power is,
simply, to destroy the Union -- to overthrow our system of government.' --
Judge Abel P. Upshur in "The Federal Government: Its True Nature and
Character", 1840.

In other words, the Union characterized by free choice, voluntary
association and other libertarian concepts was replaced during the Civil
War by a subtly despotic "Union" under Lincoln.

-geoff