soldier with rifle american civil war THE
SESQUICENTENNIAL
EDITION

 

 

ISSUE

Did the Parties to the Constitution

Give the Federal Government Power to Coerce a

a State to Adhere to the Union?

ANSWER

No and Yes

I

The "No" Answer First

FACTS

President Lincoln Refuses to Recognize Secession as a "Right" Under the Constitution

"I hold," President-Elect Lincoln said, in his Inaugural Address, "that in contemplation of universal law (he means the law of self-preservation), and of the Constitution, the Union of these States (as opposed to the Government?), is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. No government ever had a provision in its organic law for its own termination. If the Union be but an association of States in the nature of contract merely, can it, as a contract be peaceably unmade, by less than all the parties who made it? (Madison said, "yes." But Lincoln says, "no.")

Note: Lincoln's logic is plainly flawed: First, we are not talking about "the fundamental law of all national governments;" we are talking about the fundamental law of our government, which is expressed in the Constitution. Second, it is a matter of indisputable fact that, before the American Revolution, the "Government" of England, nee Great Britain, had been changed several times by the people against its will—the cutting off of King Charles I's head being but one example; Third, Lincoln's language admits that, in fact, "perpetuity" is not stated, by reference to express words, in the Constitution, which means Lincoln's audience must take his word that there are words written in the Constitution from which objectively reasonable minds may imply the Union's "perpetuity." Fourth, by shifting his ground at the end, from the concept of "Union" to that of "Government," Lincoln effectively has admitted that the parties to the constitution intended it to be a compact in the nature of a contract in which reciprocal rights and duties were owed each to the other; the material breach of which would justify the injured party concluding the constitution to be violated and void.

"One party (the Free States) to a contract may violate it—break it, so to speak," Lincoln then said; "but does it not require all (the breaching parties included) to lawfully rescind it?"

Note: Lincoln, here, having shifted his ground to the reality, as opposed to the fiction, asks a hypothetical question and follows it with a lawyer's argument against a party's lawful secession, by claiming all the parties, even the breaching parties, must first consent. This is a sophist's argument, not a lawyer's that will get anywhere in court.

"I hold," Lincoln intones. In what rational, much less legalistic, sense, does the Chief Executive of the Federal Government, possess the legitimate power to declare what the law is? Simply the indisputable objective fact that might makes right? No. Lincoln would say that his constitutional oath, which he had just taken, infuses him with the power to decide what is a constitutional action and what is not; a claim presidents have been making ever since.

Note: The Constitution states, in Article I, that "The executive power shall be vested in the President," and that before "he enter on the execution of his office, he shall take the following oath: `I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.'" How from this do presidents find themselves infused with the judicial power to interpret the Constitution, escapes comprehension.

The rhetorical question Lincoln asks—"One party to a contract may violate it;" but must not all the parties agree to rescind it, before any party may treat the contract as void?—was clearly answered, in the abstract, by the framers of the Constitution. The white men of the Constitutional Convention, of 1787, recognized the "right" of the people, in convention assembled in each State, to rescind their State's allegiance to the Union framed by the Articles of Confederation—despite the fact that the Articles declare expressly that the government they frame is to be "perpetual:" and that it cannot be changed without the unanimous consent of all the States.

The right of the people that the framers recognized rescinds allegiance, if it is exercised, is the "natural" and "inalienable" right of the people, of a distinct political community, to change their allegiance to a government whenever they find it has become dangerous to their lives, liberty, and property. This right is what the Declaration of Independence expresses as the basis, the justification, if you will, for the two million subjects of the British Crown in "America" to throw the Government off and put in its place a new government, and it is this right which the framers were invoking as the basis and justification for the white people of the thirteen new "States" to throw off their allegiance to the "perpetual" Government of the Articles of Confederation; and put in its place a new government. The framers having used the "right" to establish the Constitution, it is silly now to argue that they did not reasonably expect successor generations of Americans to invoke the same right, when they found the Government dangerous to their liberties.

Because the framers recognized this right to be inherently "inalienable" no future generation can logically be bound irrevocably to its waiver, by an earlier generation. Therefore, regardless of the words of a "compact" or "contract" from which springs a government, future generations are not bound to the government, if, in their judgment, the government has abused the powers the founding generation granted to it.

Another layer of complexity exists, however, in the context of the American political experience, when it is recognized that the constitution has a dual function: it not only creates a Government, but also it establishes a political union between distinct political communities which gives rise to reciprocal rights and duties between them. The Government's constitutional function is to enforce these rights and duties. So how, then, in the duality of the relationships between the parties—the government and the states, on the one hand, and the people of the states between themselves on the other—can legitimate power be found in the Government to force a State to submit to its laws, if the people of the State have exercised their inalienable right to rescind their allegiance to it? This is the knot Lincoln was attempting, unsucessfully, to explain with his words.

A and B enter into a contract whereby A promises B that if B will stick with A, A will honor the stipulations of their agreement; for example, return to B from A's territory B's runaway slaves. According to Lincoln's logic, when A thereafter refuses to honor one of the stipulations, A has the right to force B to continue to perform his side of the bargain. This outcome turns the law on its head. The law holds that it is B, not A, who possesses the right—in the face of A's breach—to chose his remedy; he may treat the contract as materially breached and rescind it, or he may continue to perform his side of the agreement and seek damages from A. In the context of fugitive slaves, for example, B knows suing for damages in court will get him nowhere: Where is he to sue? Who is he to sue? So he reasonably decides to treat A's breach of duty as his legal justification for rescinding the contract. This conclusion, supported by the theory of government Madison based the constitution on, by the common law of contracts, and by the law of nations as it was recognized in 1861, Lincoln rejected out of hand.

President Lincoln Announces His Arbitrary Law

 "No State, upon its own mere motion," he said, "can lawfully get out of the Union—that resolves and ordinances to that effect are legally void. I therefore consider that the Union is unbroken; and I shall take care that the laws of the Union be faithfully executed in all the States. I deem this a simple duty on my part, and I shall perform it, so far as practicable, unless my rightful masters, the American people, shall withhold the requisite means, or, in some authorative manner, direct the contrary." (Italics added.)

Note: The State of South Carolina was not attempting to "get out of the Union" upon her "own mere motion." The "motion" was based on the objective fact that her sister States, in the judgment of her people, had breached the duties they owed her, under the Constitution.

Here we begin to see to the core of Lincoln's thinking. The Executive, in his constitutional role as commander-in-chief, has the power to call upon the military force of the Government, to enforce the Federal Government's control over the people within its supposed territory. Isn't this what the Communist Party, in control of the government holding sway over mainland China, does, today? doesn't it hold people under subjugation? Isn't this what Spain is doing today with the people of Catalonia? What Iraq is doing with the Kurds? What all governments by their nature are prone to do? But in Lincoln's case, he had no military force but what the States would provide. How to get at it becomes the practical question.

So, for example, to the people of South Carolina and Virginia, Lincoln's position was clear: He would wage war against a seceded State if the people of the adhering States volunteered their lives in the endeavor. But would they do this? Not on the day of his inauguration, that's for sure; but, as events evolved, would they in the future?

 John Whittier, from New England, a popular poet of the times, expressed the prevailing mood of the Northern people on Lincoln's inauguration day.

"The firmament breaks up. In black eclipse, light after light goes out.
One evil star (South Carolina), luridly glaring through the smoke of war, drags others down.

 Let us not weakly weep, nor rashly threaten. Give us grace to keep our faith and patience.
Wherefore should we leap into fratricidal fight? What fear we? Safe on freedom's vantage-ground.

 Our feet are planted: let us there remain, in unrevengeful calm, the sad spectators of a suicide!

 They break the links of Union; shall we light the fires of hell to weld anew the chain on that red anvil where each blow is pain?

 We draw now a freer breath, as from our shoulders falls a load of death. Why take up the accursed thing again? Pity, forgive, but urge them back no more. Let us press, instead, the golden cluster on our brave old flag in closer union, and, if numbering less, brighter shall shine the stars which still remain." (written January 16, 1861, as the Star of the West was being turned back from entering Charleston Harbor)

The President Is The Law

 Lincoln works towards getting it—the suport of the people—with an oblique reference to the Supreme Court's ruling in In Re Dred Scott, where a majority of the justices asserted that the Federal Government has no right to prevent slaveholders from bringing slaves into the territories of the United States.

"I do not forget the position assumed by some," he said, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit. . . At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers."

What Lincoln is saying here, is that he recognizes the ruling in Dred Scott barred Dred Scott from gaining his personal freedom as a slave, but he would not recognize the decision as barring the execution of his policy of preventing Dred Scott's master from carrying Scott into the territories. The implication of this is that the President may act without regard to Supreme Court precedents, that he may decide for himself which precedents to honor and which to ignore. However, in this instance, given the judicial principle of Stare Decisis, Lincoln legitimately can argue that the Dred Scott decision did not bar the execution of his policy, because the Court's reference to it was "dicta;" i.e., irrelevant to the holding in the case. But, his idea that a President can ignore a holding of the Supreme Court has been pushed by his modern successors to the extreme.

Since President Wilson's time, if not before, presidents have been refusing to execute sections of laws passed by Congress on the ground their oath of office gives them the inherent power to decide for themselves whether the law is constitutional or not. The concept that a president may refuse to execute a law he professes to believe unconstitutional is illustrated by President Wilson's firing of an obscure postmaster at a time when a congressional Act was on the books which required the president to obtain the consent of the Senate in such circumstance. The conflict disappeared, hwoever, when the Supreme Court found the congressional act unconstitutional. But, in the interim between the firing and the ruling, there were dueling banjos playing.

Yet, in the nature of Wilson's case, all that happened is that the aggrieved party—the postmaster—sued the United States seeking a finding that the congressional act was constitutional and he lost. Had the postmaster prevailed—the Supreme Court finding the act constitutional—the Court would have merely issued a writ of mandamus, ordering the President to reinstate the postmaster. The real test of Lincoln's position on the power of the Presidency would then have arisen, when, despite the Supreme Court's order, President Wilson had still refused to execute the law. Then what might have happened? Nothing, unless the House of Representatives sought to impeach him; and, then, under Lincoln's rule, the President might order the military he commands to drive the senators, charged by the constitution with deciding the issue of his transgressions, from the Senate Chamber—like Napoleon, as First Consul, drove the French Assembly from the legislative chamber at Saint Cloud, the tenth of November 1799.

Impossible!, you say? What is to prevent it, but the attitude of the military mind at the time? In 1940, the President, merely by pronouncing an "order," caused the military machine under his control to imprison several hundred thousand United States citizens in concentration camps in the desert. The generals saluted, and the Supreme Court turned a blind eye to it. Most recently, in several cases, the Supreme Court, with bare pluralities on single issues, has struggled with the de facto power of the President to detain United States citizens indefinitely in military prisons, and lost. See, for example, Hamdi v. Rumsfield (2004) 542 U.S. 507.) (What silliness the Democrats are engaged in, with their theater about President Trump; but thank God it is silliness and not the seriousness of Roosevelt or Lincoln.

It took President Lincoln only two months to practice what he preached on his inauguration day. The Constitution reads clearly, in Article I, Section 9, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Ignoring the fact that the power to suspend the writ is expressly given to Congress alone, by virtue of its placement in Article I, President Lincoln had ordered General Scott to throw in prison any person living in Baltimore that Scott felt might give the "enemy" aid and comfort. Merryman was such a person. When his lawyers petitioned Chief Justice Taney to issue the writ of habeas corpus, in effect ordering the government to bring Merryman before the Court for a hearing, Taney issued the writ. Lincoln ignored it and when the Congress finally came into session, on July 4, 1861, Lincoln was not impeached and Merryman remained in prison, without benefit of the Fifth Amendment's guarantee of due process of law. (Impeachment ought to be a very, very serious business; not a game among children in a sandbox.)

As Chief Justice Taney put the situation: "I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome.  I shall order [my opinion] be transmitted to the president of the United States. It will then remain for that high officer, in fulfillment of his constitutional obligation `to take care that the laws be faithfully executed,' to determine what measures he will take to cause the civil process of the United States Supreme Court to be respected and enforced." (See, Ex Parte Merriman 17 F. Cas. 144 (C.C.D. Md. 1861) at p. 153, quoting U.S. Const. art II, § 3.)

Note: Interesting contrast: Lincoln waxes poetic about enforcing the laws in a seceded state; but he ignores an order of the Chief Justice of the Supreme Court of the United States, simply to produce a person named Merryman in Court. Something's turned on its head, here.

Lincoln ignored Chief Justice Taney's opinion when it was delivered. As far as he was concerned, despite the fact the power to suspend the writ is found only within the Article of the Constitution empowering the Congress, he unilaterally decided the Executive branch of government possessed concurrent and independent authority to suspend it. The only reason he gave for his professed belief was "necessity." This is objectively the definition of tyrant.

On July 4, 1861, in his written address that he sent to the Congress, Lincoln said this:

"The whole of the laws were being resisted (Not in Baltimore). . .  Must they be allowed to fail of execution so that this single law, made in such extreme tenderness of the citizen's liberty, not be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces (hardly this was the case in Baltimore), lest that one be violated? Even in such a case, would not the [president's] official oath be broken, if. . . disregarding the single law, would tend to preserve the government?" (In other words, security of government trumps a citizen's personal liberty. So it has been ever since with presidents.

Lincoln's mouthpiece, Edward Bates, acting in the capacity of Attorney General, supported Lincoln's position with an incoherent written opinion. In it, Bates asserted this:

"I am clearly of the opinion that, in a time like the present, when the very existence of the nation is assailed, by a great and dangerous insurrection, the President has the lawful discretionary power to arrest and hold in custody persons against whom there is a suspicion of complicity. And I think this position can be maintained by a very plain argument. The Constitution requires the President to take an oath that he `will faithfully execute the office of the President and will, to the best of [his] ability, preserve, protect, and defend the Constitution.' The duties of the office comprehend all the executive power of the nation. And this constitutes him, in a peculiar manner, and above all other officers, the guardian of the Constitution―its preserver, protector, and defender. It is plainly impossible for him to perform this duty without putting down all unlawful combinations to resist the Federal Government. . . He is, therefore, necessarily thrown upon his discretion, as to the manner in which he will use his means to meet the varying exigencies as they rise. If the insurgents employ spies to gather information, to forward rebellion, he may find it prudent to arrest them and imprison them." (10 Op. Att'y Gen. 74 (1861); Italics added.)

Of course the constitutional issue was not whether the president, in the exercise of discretion in wartime, can arrest and imprison citizens; the issue was whether he could do this without producing the imprisoned person in court when a writ of habeas corpus—the ancient privilege of which not having been suspended by Congress—was issued by the Chief Justice of the United States.

 President Lincoln Closes His Address With The Threat of War

Having made himself plain, as to his intent to use the Federal Government to implement the policies of his political party, and that he would act as the sole arbiter of his own actions, Lincoln forewarned the country where he was taking it.

"In your hands, my dissatisfied countrymen," he said, and not in mine, is the momentous issue of civil war. The government will not assail you. You can have no conflict, without being yourselves the aggressors. You have no oath registered in Heaven to destroy the government, while I have the most solemn one to "preserve, protect, and defend" it. You can withhold the assault upon it; I can not shrink from the defense of it. With you and not with me, is the solemn question of, `Shall it be peace, or a sword?'" (The last sentence Seward edited out of the draft Lincoln brought to Washington; see, The Collected Works of Abraham Lincoln, Vol. IV, pp. 261-271)

All reasonable persons listening to President Lincoln speak, or reading his written words in the newspapers, could not help but understand war between the States was now inevitable. The only question that remained was, who, by the exercise of violence, would be perceived as having ignited it.

So the ultimate question becomes: As the framers wrote the constitution, can it reasonably be found that the parties to it—the thirteen distinct political communities speaking for their respective "States"—intended to give power to the Federal Government to force their States to adhere to the Union? Put another way, can it reasonably be found in the circumstances that, in ratifying the constitution, the people of South Carolina irrevocably bound their state to the Union for all future generations to come? The answer is plainly, No. The proof of this lies in the notes Madison made of the debates in the Constitutional Convention, in the language of the Constitution, and in the "universal law" Lincoln invoked.

Reasoning

At the opening of the Philadelphia Convention, according to Madison's notes, Mr. Randolph, of Virginia, had observed "that the federal government could not check the quarrels between the states, not having constitutional power nor means to interpose according to the exigency." Madison answered this with the remark that "the use of force against a state would look more like a declaration of war and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound." And then Madison moved that the issue be postponed and the motion, he reported in his notes, was agreed to. (Notes, supra, at p. 45.)

A week later, according to Madison's record, Mr. Charles Pinckney, of South Carolina, ironically it turns out, moved that "the States must be kept in due subordination to the nation; that if the States were left to act of themselves in any case, it would be impossible to defend the national prerogatives." (Note: the "nation" Pinckney was referring to, is the idea of "America;" not the idea of "Union.")

 Mr. Madison seconded Mr. Pinckney's motion. "Should no such precaution be engrafted," he said, "the only remedy would lie in an appeal to coercion." Madison paused, then continued: "Was such a remedy eligible? Was it practicable?" He asked rhetorically.

Madison stated the practical political situation frankly: "Could the national resources, if exerted to the utmost, enforce a national decree against Massachusetts abetted perhaps by several of her neighbors? A small proportion of the community, in a compact situation, acting on the defensive, and at one of the extremities might at any time bid defiance to the National authority. Yet any government of the United States formed on the supposed practicality of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of the [Articles]."

These were expressions of Madison's conflicted thoughts: he states South Carolina's situation but not exactly; his language is couched in terms of a different situation. In his example, the predicate is a "national decree," i.e., a "law of the Union" which Massachusetts, supported by several allies, refuses to recognize as operative within her borders. In South Carolina's case, in 1860, as opposed to 1833, her people have authorized her to secede from the Union, not merely refuse to recognize a particular "law of the Union;" and the consequence must necessarily be, in law and fact, that the entirety of the laws of the Union's Federal Government is no longer in force and effect within her borders.

Note: As far as the founding generation was concerned, the emphasis was on the "Union," which is a political relationship between equal political entities, and not on "America" a word that represents a "Nation;" i.e., the whole people of a territory with a common culture which, plainly, the whole white people of antibellum America did not share.

While the whole white people wanted the Africans gone, one part of them wanted nothing to do with a culture that recognized Africans as slaves. And that part constituted two-thirds of the whole white people living in the America of 1861: twenty million, half of them or more German and Irish immigrants sweeping westward into the Territories of the Union; and they wanted nothing to do with Africans, "free" or not.

Mr. Elbridge Gerry, of Massachusetts, replying to Madison's statement, "observed that the proposed negative would extend to the regulations of the Militia, a matter on which the existence of a State might depend. The National Legislature with such a power may enslave the States. Such an idea as this will never be acceded to. It has never been suggested or conceived among the people."

At this point, Mr. Roger Sherman, of Connecticut, took the floor, and said: "However novel it might appear, the principle of it is right. There is no instance in which the laws say that the individual be bound in one case, and at liberty to judge whether he will obey or disobey in another. The cases are parallel. Abuses of power over the individual person may happen as well as over individual States. If discretion must be left on one side or the other, will it not be most safely lodged on the side of the National Government?"

Note: There is a vast difference between an "individual" and a "body politic."

Mr. Sherman continued: "To correct the vices of the Articles is the business of this convention. One of its vices is the want of an effectual control in the whole over its parts. What danger is there that the whole will unnecessarily sacrifice a part? But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?" (Did not Lincoln read Madison's notes?)

To this Mr. John Dickerson, of Delaware, responded: "We must take our choice of two things. We must either subject the States to the danger of being injured by the power of the National Government, or the latter to the danger of being injured by that of the States." He thought the danger greater from the States. "To leave the power doubtful," he said, "would be opening another spring of discord." (Italics added.)

Mr. Dickerson's colleague, Gunning Bedford, continued the discussion: "Will not these large States crush the small ones whenever they stand in the way of their ambitions? But after all, if a State does not obey the law of the new system, must not force be resorted to as the only ultimate remedy, in this or in any system?"

On Saturday, June 9th, Mr. Luther Martin, of Maryland, took his seat, and Madison, after recounting what had been settled, wrote, "No other amendments were wanting than to mark the orbits of the States with due precision, and provide for the use of coercion, which was the great point." In other words, as of June 9th, the delegates had not agreed upon the choice of expressly granting power to the Federal Government to coerce the people of a State, not merely to obey the "laws of the Union" but to prevent their withdrawing their State from the Union.

 Back and forth for three months the delegates went on, debating the pros and cons of what they called the "National Plan" vs the "Federal Plan." As to the elusive issue of how the Federal Government might enforce its laws against the States, Alexander Hamilton was adamant that coercion by force of arms was impossible. "Consider what such a State as Virginia will be in a few years. How strongly will it feel its importance and self-sufficiency? It will enjoy the habitual attachment of the people. The whole force of this tie is on the side of the State government. Its sovereignty is immediate before the eyes of the people; its protection is immediately enjoyed by them. How can force be exerted on the States collectively? It is impossible. It amounts to a war between the parties."

Thus the debate went, in bits and pieces, back and forth, back and forth; until they came to the end and tendered the constitution they designed, to the people of the States to ratify or reject as each might choose.

In July 1861, speaking on the floor of the Senate, Mr. Collamer of Vermont said:

"There are gentlemen here who insist that you cannot subjugate a State; and if you go on to subjugating the people, do you not subjugate the state?

The idea stated by these gentlemen is that you cannot make war upon a State; and they argue this, by citing what was said by Hamilton, Madison and Ellsworth in the convention that framed the constitution. I do not think anyone ever more deluded with quotations than they have been. The framers used their expressions to show that, under the old confederation the general government had no power to make a law at all. When our fathers got together to form a constitution, the first question was whether to patch up the arrangement of the Articles of Confederation. Mr. Hamilton and the others used all the expressions which are now being quoted, for the purpose of showing that you could not mend the Confederation to make it practicable. Can we, they asked, constrain the states to furnish their contributions? If you do constrain them, it must be by arms; and that is civil war at once, and will be the end of the very government you are trying to carry into effect.

The expressions had their effect. Our fathers abandoned the old government and made an independent government, with power to make its own laws, and execute them upon individuals; and now those expressions are being perverted from their purpose."

Mr. Collamer is correct. The "Government" (i.e., a congress) of the Articles did not possess the power to make its own laws, and to execute them upon individuals. Its function was essentially limited to the matter of the States' collective defense and their international relations. Under the Constitution, the Federal Government was granted extensive powers beyond that of defense: it can lay and collect taxes, borrow and coin money, regulate commerce, establish post offices and roads, establish a judicial system, and "provide for the calling forth of the Militia to execute the laws of the Union, suppress insurrections and repel invasions." But, nowhere within the language of the Constitution, as it was written and ratified, can words be found which expressly grant the Federal Government the power to invade the territory of a State for the purpose of coercing her people to adhere to the Union.

Nowhere in his notes did James Madison include any proposals for specific language covering the issue of the Federal Government's power to coerce a State, by forces of arms, to adhere to the Union. Nor do his notes include any tabulations of votes on motions relating to such proposals. But, nonetheless, the framers allowed ambiguous language to be slipped into the Constitution, which men, with Lincoln's disposition, can seize upon to push the contention the States can lawfully be coerced to remain in the Union. And that language is found in Art. I, Sec. 8—"to provide for the calling forth of the Militia to execute the laws of the Union."

This General Washington must have understood, from his experience of almost thirteen years resistance to the Crown, when he put his signature to the paper—that the test of a people's independence from an established government is, always, a test of arms. As it was for him, so it would be for his generation's progeny, he must have thought; as he wrote his signature down and invited the rest to sign.

The Language of the Constitution

Under Article I, Section 8, the Constitution reads, "The Congress shall have power to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions." What does this provision mean? If you read it plainly, it means that the Federal Government may call forth the Militia to execute the laws of the Union within the territory of South Carolina, as long as the people of the State of South Carolina have not rescinded their ratification of the Constitution. Once the people have rescinded their ratification of the Constitution, their State, by the universal law, the law of nations, and the language of the Constitution, is no longer subject to the "laws of the Union."

The relevant language of the Constitution, as Madison wrote it, and the founders signed it, is found in Articles I, II, and IV:

Article I, Section 8: "The Congress shall have the power to provide for the calling forth the Milita to execute the laws of the Union, suppress insurrections and repel invasions."

Article I, Section 9: "The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

"No State shall, without the consent of Congress, . . . enter into any compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."

Article IV, Section 3: "The United States (i.e., the "Union") shall guarantee to every State in this Union a Republican form of government, and shall protect each of them against invasion, and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence." (Italics added.)

Now, giving meaning to every part, reading the whole together, as we must, what reasonably can we say was the intent of the parties—in Madison's words, the "parties" being the people of each distinct political community which ratified the constitution—as to whether they intended their ratification to be deemed by the Federal Government they were creating, an irrevocable waiver of their inalienable right to rescind their allegiance to a government that has become dangerous to their lives, liberty and property?

If you wish to argue that it was their intent to irrevocable waive their inalienable right, you must first adopt the nonsensical position that what is inalienable is alienable. Second, you must ignore the plain contradiction between the idea expressed in the language of Article IV, that the Union is to guarantee that the people of South Carolina have a republican form of government—that is, a government of their choosing—and the idea that the Federal Government can destroy that government within the meaning of the constitution. Third, you must ignore the contradiction between the idea expressed by the constitution's plain language in Article IV that the Union is duty bound to protect South Carolina from invasion, and the idea that the people, in ratifying the constitution, gave the Federal Government power to invade South Carolina when she seceded from the Union. And, last, you must adopt the inherently contradictory idea that, by virtue of the language of Article I, Section 8, the Union has "laws" to enforce within the territory of South Carolina after she has seceded from it in obedience to her people's will.

Note the absence of the word—"rebellion"—in Art. I, Sec. 8. The word—"insurrection"—contrary to Lincoln's use of the word in his Inaugural Address, is not a synonym for "rebellion." An "insurrection," within the meaning of the Constitution, is a rebellion within a State against that State. In the express language of the constitution it is "domestic violence" in a State, and, in the case of the insurrection being in South Carolina, the Federal Government may call forth the militia to suppress it, only if the Legislature of South Carolina asks for the Union's help; i.e., the militia of her sister States which the Federal Government calls forth. (Examples of this circumstance are Bacon's Rebellion, Shay's Rebellion, and the Whiskey Rebellion.)

One might argue that the word "rebellion," where it appears in Art I, Sec. 9, provides the implication that there can be a rebellion by the whole people of a state against the Federal Government but this is a specious one that rests on air and makes a mockery of the judicial interpretive process.

In conformance to the quoted language of Art I, Sec. 8, the Third Congress of the United States passed the following act, in 1795, to implement its power. At the time of the Act's passage, six of the thirty senators representing 15 states were signers of the Constitution. George Washington was in his second term as President. The language of the congressional act of 1795 reads, in its first paragraph;  "In Case of an insurrection in any State, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state. . .to call forth the militia of any other state or states, as may be applied for, as he may judge sufficient to suppress such insurrection." Plainly, the members of Congress drafted the statute to mirror their understanding of what the language of the constitution in Art I, Sec. 8 meant.

The second section of the Third Congress's Act, as it reads, also mirrors the express language of the constitution, "And be it further resolved, That whenever the laws of the United States (The constitution reads: "Laws of the Union.") shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, . . . it shall be lawful for the President of the United States to call forth the militia . . . as may be necessary to suppress such combinations and the use of militia called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress." Here is President Lincoln's supposed constitutional authority to use force of arms against the seceded States, plain and simple. But, Lincoln is assuming, without objective foundation, that the parties intended to grant power to the Federal Government to call forth the militia to force a State, whose people has authorized its secession from the Union, to nonetheless adhere to the Union. It is this broad interpretation of the constitutional language that Lincoln was referring to, in his Inaugural Address, as "by implication." But, does any one imagine that the people of South Carolina or Virginia would have ratified the Constitution, had Lincoln's interpretation by "implication" been stated expressly? Yet, the question remains: Did Madison intend the language he drafted into the constitition to contain the implication? Did the people of South Carolina, in their convention in 1788, recognize the implication buried in the language? Did the people of Virginia? Of New York?

If they did, they took special care, in the process of their ratifying the constitution, in 1788, to negate conclusively the legitimacy of the implication.

"We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon; Do in the name and in 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 and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress, by the Senate or House of Representatives, acting in any capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes. . . "

Similarly, the people of New York, in ratifyng the constitution by a vote of 30 to 27, predicated the act upon the same qualification.

We, the delegates of the people of the state of New York, duly elected and met in Convention, having maturely considered the Constitution for the United States of America — Do declare and make known: That all power is originally vested in, and consequently derived from, the people, and that government is instituted by them for their common interest, protection, and security.

That the enjoyment of life, liberty, and the pursuit of happiness, are essential rights, which every government ought to respect and preserve.

That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments. . . " (Italics added.)

Then, to nail the matter down, beyond the pale of lawyers' arguments, Virginia and New York demanded that the Constitution, as written by Madison, be amended and the following amendment negated conclusively Lincoln's implication.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Nowhere within the English Language that Madison chose for the Constitution, is the power, that is, the "right," of the white people of South Carolina, to authorize their State's secession from the Union, prohibited; and nowhere is the power of the Federal Government, to force South Carolina to adhere to the Union, expressed in the Constitution. Parties to contracts do not relinquish important rights by means of implication.

In February 1861, R.E. Lee was leaving Texas in obedience to orders received from General Scott in Washington. As he was about to leave, he encountered Charles Anderson, the brother of Major Robert Anderson who would command the garrison at Fort Sumter. In 1884, Charles Anderson published a paper titled Texas Before, and on the Eve of the Rebellion. In his paper he referred to a conversation he claimed he had with Lee as Lee was leaving San Antonio.

"We walked to the commission agent, Vance & Co., [where Lee's personal property was stored], to make arrangements. On our way, he said in substance: `I think that my loyalty to Virginia ought to take precedence over that which is due to the Federal Government. And I shall so report myself at Washington. If Virginia stands by the old Union, so will I. But, if she secedes, then I will follow her with my sword. These are my principles.'"

Anderson then wrote that he did not pretend to have stated Lee's literal words, but that his report of them were "in its spirit and very nearly in its language." (At p. 32. Parenthesis deleted) Strange conversation to have, on a walk through a dusty street, but whether it happened, or not, Anderson was but repeating what Lee said, in his letter written to General Scott, on April 20, 1861 when he tendered his resignation in the United States Army and took train for Richmond.

II

The "Yes" Answer

Lincoln had made a public pledge in his address that the government would "not assail" the seceded States, unless they "first assailed it." He would honor the form of his pledge, for the sake of appearances in the world, but not the substance. He would instigate the Confederates firing on Sumter, gambling the act would inflame Northern public opinion, and this would open the way for the Republican governors of the Northern States to call forth their militias to "defend" the Union by invading the seceded States and, by force of arms, coerce them to adhere to the Union.

The political reality, therefore, was that the only possible constitutional power Lincoln could reasonably base his calling forth the militia upon, is the power the people granted the Federal Government to make war on foreign powers deemed dangerous to the security of the Union; a power that, at the time, depended squarely upon the willingness of the adhering States to support him.

We the People of the United States, in order to. . . insure domestic tranquility [and] to provide for the common defense. . . , do ordain and establish this Constitution for the United States of America.

Art I. Sec. 8: "The Congress shall have power to declare war [and] to raise and support armies." (Constitution of the United States of America.)

Once South Carolina seceded from the Union, she became, ipso facto, a foreign power, capable of forming alliances with other States, under the Law of Nations. As such, she became an immediate threat to the security of the United States. She, in confederation with her allies, controlled the navigation of the Mississippi River. The Federal Government had made treaties with France, Spain, and Britain, establishing the principle of free navigation of the river, but would the Confederate States execute such a treaty and, even if they did, would the States through which the river ran assert the authority to regulate the traffic? Would a division of the Union's Territory be satisfactorily made? Would an adjustment be made regarding questions of debt and banking transactions between the two powers? Would there be tension on the border between the two powers? These practical questions foreshadowed the coming reality that war was inevitable between the United States and the Confederate States, and, though the Constitution expressly speaks of its purpose as that of providing for the "common defense," American military doctrine has always been that the best defense is the offense and, therefore, with the power expressly granted to raise armies and declare war, President Lincoln, with the advise and consent of Congress, might constitutionally attack South Carolina, conquer her people and make them subjects of the Federal Government and their "state" a province of the Union. And this is what he did.

Postscript

When Madison drafted the constitution, in 1787, he and his fellow Virginians, active in the framing of it, were infused with the ideas of the European philosophers of their Age: Hume; Locke, Pundedorf, Vattel and Rousseau. It was from these men that the framers got the political concepts which this piece has attempted to draw into the light. Here is an example of the concepts as developed by Jean-Jacques Rousseau, writing a piece in 1753, titled, A Discourse on the Origin of Inequality Among Men.

"For what reason, in fact, did men take to themselves superiors, if it was not in order that they might be defended from oppression, and have protection for their lives, liberties and properties? Now, in the relations between man and man, the worst that can happen is for one to find himself at the mercy of another, and it would be inconsistent with common sense to bestow on a chief the only things men wanted his help to preserve. It is therefore beyond dispute, and indeed the fundamental maxim of all political right, that people have set up chiefs to protect their liberty, and not to enslave them. . . .

The establishment of the political body, therefore, is a real contract between the people and the chiefs chosen by them: a contract by which both parties bind themselves to observe the laws therein expressed, which form the ties of their union. The people having in respect of their social relations concentrated all their wills in one, the several articles, concerning which this will is explained, become so many fundamental laws, obligatory on all the members of the State without exception.

The magistrate, on his side, binds himself to use the power he is entrusted with only in conformity with the intention of his constituents, to maintain them all in the peaceable possession of what belongs to them. The magistrate would cease to be legitimate as soon as he acted contrary to the people's intention, and they would no longer owe him obedience.

From these reflections, we see from the very nature of the contract that it cannot be irrevocable; for, if there were no superior power capable of ensuring the fidelity of the contracting parties, or compelling them to perform their reciprocal engagements, the parties would be sole judges in their own cause, and each would always have a right to renounce the contract, as soon as he found that the other had violated its terms. Here, on the ruins of the republic there is a complete return to the law of the strongest." (Edited for brevity.)

Note: In the last paragraph, Rousseau goes on to assert that, because of the problem of the parties resolving their dispute by force, the concept of a monarch was developed: "But the terrible disorders that would necessarily arise from so dangerous a privilege (the "right to renounce the magistrate's authority") show how much human government stood in need of a more solid basis than mere reason, and how expedient it was for the public tranquility that the divine will should interpose to invest the soevereign authority with a sacred and inviolate character which might deprive subjects of the fatal right of disposing of it."

Here, Rousseau means the concept of the divine right of kings to rule over subjects. The Virginians of 1787 chose instead the Republican form of government, knowing this meant it was up to the people to chose whether to invoke the right to renouce the magistrate's authority.

 

Joe Ryan