Written in December 27, 2011 by Dan Miller, as relevant today as it was then, probably more so…
Emasculating the Constitution is bad way to preserve the nation.
The first shots in the United States Civil War were fired by the South during an attack on Fort Sumter a century and a half ago on April 12, 1861, not long after President Lincoln’s election on November 6, 1860 and about five weeks after he assumed office on March 4, 1861.
As summarized by Wikipedia,
As Lincoln’s election became evident, secessionists made clear their intent to leave the Union before he took office the next March. On December 20, 1860, South Carolina took the lead by adopting an ordinance of secession; by February 1, 1861, Florida, Mississippi, Alabama, Georgia, Louisiana, and Texas followed. Six of these states then adopted a constitution and declared themselves to be a sovereign nation, the Confederate States of America. The upper South and border states (Delaware, Maryland, Virginia, North Carolina, Tennessee, Kentucky, Missouri, and Arkansas) listened to, but initially rejected, the secessionist appeal. President Buchanan and President-elect Lincoln refused to recognize the Confederacy, declaring secession illegal. The Confederacy selected Jefferson Davis as their provisional President on February 9, 1861.
The war still stirs “a trove of memories.” Some are of glory, others of misery and despair. A few have suggested that we are now engaged in another “civil war” of sorts, although not an armed conflict. The prospect of armed conflict over various issues, including illegal immigration and infringements of the Constitutional right to bear arms, has been raised. I occasionally come across comments at various blogs contending that the reelection of President Obama could precipitate another civil war; much the same as did President Lincoln’s election. It was noted here that thought has been given to a new civil war by some on the left.
In 2010, after the 2010 election, MSNBC’s Dylan Ratigan (video) took to his show to yell fire in a crowded theater, asking viewers, “Are things in our country so bad that it might actually be time for a revolution? The answer is obviously ‘yes.’”. . . .Ratigan invites on cartoonist Ted Rall to talk about his new book The Anti-American Manifesto, and argue the case for violent overthrow of government. Quoting John Locke, Rall argues that “the people have an obligation to revolt,” and that “nothing will radicalize the American citizen more than being thrown out of their home by a bank.” Citing frustration with both parties, who he called “in bed with the duopoly,” Rall also noted that “the American left has been very peaceful since the early ’70s… and where has it gotten us?”
It seems to have been suggested here, in a piece written by Cokie Roberts in the contexts of Arizona’s then new immigration law and ObamaCare, that we need to ignore parts of the Constitution to save the rest. According to this comment about her article,
Toward the end this statement is made: “It’s hard to imagine what would happen politically if the Supreme Court sided with some states against Congress. The already severely frayed fabric of government would certainly be further torn apart. It’s far better to leave the health care debate in the arena of electoral politics — and for the losers to accept defeat. That’s the essence of democracy.”
Again, the suggestion is made to just accept the federal government’s decree even if unconstitutional. The thing that struck me here though was the “essence of democracy” concept. That may be how a democracy works, but that’s not how a Constitutional Republic works.
It seems appropriate to look at the conditions that led to and resulted from Civil War (1861 – 1865) in the context of the U.S. Constitution.
The Civil War of 1861 – 1865
In this article, I examined some of the factors leading to the Civil war and questioned whether we might have another. I contended that it would be a very bad idea even though a Rasmussen poll released on August 7th had reported that
just 17% of Likely U.S. Voters think the federal government today has the consent of the governed. Sixty-nine percent (69%) believe the government does not have that consent. Fourteen percent (14%) are undecided.
Even though the rights of the states atrophied massively with our Civil War and have continued their decline ever since, to have another would brutalize if not destroy what’s left of the most important of the many documents that have made the United States exceptional among nations. As I wrote in my earlier Civil War piece,
The United States have the best constitution ever written; we need to protect and defend it as citizens bound, as well as protected, by it. Leaving the union is not the solution; we can be more effective from within than as outsiders and the Constitution deserves and needs all of the protection and defense we can provide.
As suggested below, failures to protect and defend the Constitution “as citizens bound, as well as protected, by it” propelled the Civil War and should not propel another.
The Civil War and States’ Rights
From a common Southern perspective, the Civil War was fought to preserve states’ rights. As noted in my earlier article,
Robert E. Lee and many others of the South held their principal allegiance to their states. However, they did not wish the Union to be divided by force. According to Lee,
There is a terrible war coming, and these young men who have never seen war cannot wait for it to happen, but I tell you, I wish that I owned every slave in the South, for I would free them all to avoid this war.
Nor were they willing to have it restored by force over the objections of their states and were prepared to resist that force militarily. Shortly after Virginia had seceded on April 17, Colonel Lee — still an officer in the Army of the United States — wrote, “Virginia is my country, her I will obey, however lamentable the fate to which it may subject me.” After the war, in 1865, he declined an Englishman’s offer to escape the destruction of postwar Virginia: “I cannot desert my native state in the hour of her adversity. I must abide by her fortunes, and share her fate.” In a letter of April 20, 1861 to General Winfield Scott he asked that his resignation from the Army of the United States be accepted. The letter ended,
Save in defence of my native state, I never desire again to draw my sword. Be pleased to accept my most earnest wishes for the continuance of your happiness and prosperity, and believe me, most truly yours,
Virginia was the eighth of the eleven states to secede and was the state farthest north geographically. She became a principal battlefield during most of the Civil War.
The view that defense of states’ rights was the principal cause of the Southern Secession has been challenged, not well I think, for the reasons offered below, here and elsewhere.
Ending slavery as the reason for the Civil War
According to many, the Civil War was fought to end the scourge of slavery. Not all in the North shared this view. As noted in my earlier Civil War article, Lincoln had said on April 17, 1859,
I think Slavery is wrong, morally, and politically. I desire that it should be no further spread in these United States, and I should not object if it should gradually terminate in the whole Union.
I say that we must not interfere with the institution of slavery in the states where it exists, because the constitution forbids it, and the general welfare does not require us to do so. (emphasis added)
According to the National Endowment for the Humanities,
While the Civil War began as a war to restore the Union, not to end slavery, by 1862 President Abraham Lincoln came to believe that he could save the Union only by broadening the goals of the war. The Emancipation Proclamation [of 1863] is generally regarded as marking this sharp change in the goals of Lincoln’s war policy. (Insert added)
The United States Constitution
The U.S. Constitution should be considered as it dealt with the institution of slavery at the beginning of the Civil War in 1861 and until after the war ended with a Union victory in 1865. As soon-to-be-President Lincoln noted in 1859, the Constitution forbade interference “with the institution of slavery in the states where it exists.” Only after the Civil War was the Constitution amended, in 1865, 1868 and 1870, to eliminate slavery and its horrific consequences.
Slavery was contemplated and protected under the Constitution as ratified in 1788 and as it remained in force in 1865. Here are the pertinent articles; only one pertinent amendment, the Tenth, was in force as of the beginnings of the Civil War and, indeed, until the South was conquered.
Section 2. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
Section 9: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. (Emphasis added)
Consistently with Section 9, the importation of slaves into the United States was prohibited by Federal law enacted in 1807 and effective as of January 1, 1808.
Article IV required the return of fugitive slaves who escaped to “free” states.
Section 2: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
In 1850, the Federal Fugitive Slave Act was enacted to ensure implementation of Article IV, Section 2. It was bitterly opposed in the North and was essentially nullified when the Civil War began.
Article V, by 1861 remained a part of the Constitution but was no longer effective due to its expiration date. It provided
[N]o Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;
Hence, when the Civil War began and until after it ended, Federal efforts to eliminate the institution of slavery by force of arms against the states where slavery was lawful contravened the protections to which the institution was there entitled under the Constitution. It could be argued that it also contravened the Tenth Amendment, quoted below.
By 1861, the Constitution had been ratified by thirty-four states, including those, and the citizens of which, engaged on both sides in the Civil War. Aside from the quoted portion of Article V which was already obsolete due to the passage of time, the protections afforded the institution of slavery were countermanded by the Thirteenth, Fourteenth and Fifteenth Amendments only after the end of the Civil War. The process of Southern reconstruction impelled their ratification.
The Tenth Amendment, ratified in 1791 along with the rest of the Bill of Rights, remains in effect. It provides,
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.
The Thirteenth Amendment provides,
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Proposed on January 31, 1865, thirty states had ratified it by 1865. It “was specifically rejected by Delaware on Feb 8, 1865; by Kentucky on Feb 24, 1865; by New Jersey on Mar 16, 1865; and by Mississippi on Dec 4, 1865.” They later ratified it. Although approved by Louisiana, Tennessee, Arkansas and Virginia,
The governments of Louisiana, Tennessee, and Arkansas were those established under President Lincoln’s Reconstruction policy. In Virginia, the Thirteenth Amendment was ratified by a “rump” legislature, which had begun meeting in Alexandria shortly after the Civil War began, claiming to be the legitimate and loyal representative of the state in the Union. It had earlier approved the creation of the state’s western counties into the new state of West Virginia. The U.S. State Department accepted the ratification from those four and, later, other Southern states.
The Fourteenth Amendment provides in relevant part,
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
was specifically rejected by Texas on Oct 27, 1866; by Georgia on Nov 6, 1866; by North Carolina on Dec 14, 1866; by South Carolina on Dec 20, 1866; by Kentucky on Jan 8, 1867; by Virginia on Jan 9, 1867; by Louisiana on Feb 6, 1867; by Delaware on Feb 8, 1867; and by Maryland on Mar 23, 1867. New Jersey’s ratification was rescinded on Mar 24, 1868; Ohio rescinded its ratification on Jan 15, 1868
Virginia (in 1869), Mississippi and Texas (in 1870), Delaware (in 1901), Maryland and California (in 1959) and Kentucky (in 1976) later ratified it. However, it is noted here that
When a fair vote was taken on it in 1865 . . . it was rejected by the Southern states and all the border states. Failing to secure the necessary three-fourths of the states, the Republican party, which controlled Congress, passed the Reconstruction Act of 1867 which placed the entire South under military rule.
The purpose of this, according to one Republican congressman, was to coerce Southern legislators to vote for the amendment “at the point of a bayonet.” President Andrew Johnson called this tactic “absolute despotism,” the likes of which had not been exercised by any British monarch “for more than 500 years.” For his outspokenness Johnson was impeached by the Republican Congress.
Although impeached (the articles of impeachment are at the link) by a vote of one hundred and twenty-six to forty-seven by the House, conviction by the Senate failed by one vote (thirty-five to nineteen). In 1875, Johnson became the first former President to serve in the Senate. In 1862, President Lincoln had
appointed him military governor of Tennessee. In an effort to win votes from Democrats, Lincoln (a Republican) chose Johnson (a War Democrat) as his running mate in 1864 and they swept to victory in the presidential election.
The Fifteenth Amendment provides,
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Proposed on February 26, 1869, it was ratified by 1870, also by thirty states. It was
specifically rejected by Kentucky on Mar 12, 1869; by Delaware on Mar 18, 1869; by Ohio on Apr 30, 1869; by Tennessee on Nov 16, 1869; by California on Jan 28, 1870; by New Jersey on Feb 7, 1870; and by Maryland on Feb 26, 1870. New York rescinded its ratification on Jan 5, 1870, and rescinded the rescission on Mar 30, 1970.
California later ratified it in 1962, Maryland in 1973, Kentucky in 1976 and Tennessee in 1997.
The Thirteenth, Fourteenth and Fifteenth Amendments permitted substantial growth in racial equality in later years. Although ultimately beneficial, that does not diminish the heavy handed way in which they were proposed and ratified. Nor does it diminish the problem that in seeking to end slavery by force of arms against the Southern States, the Federal Government attempted to right wrongs by emasculating the Constitution. History offers substantial support for the Southern view that it fought the Civil War to prevent efforts by the Federal Government to exceed its powers under the Constitution and thereby to nullify rights it guaranteed to the states. The Constitutional rights of the citizens of the Southern States which permitted slavery were among those the Federal government sought to nullify by the Civil War and later, having won, to defeat through Constitutional amendments during “Reconstruction.”
That is not intended to suggest that those who felt morally compelled to oppose slavery were in the wrong, only that the ends adopted lost more than a little of their luster by virtue of the means used. For the Federal Government to oppose slavery by force of arms was inconsistent with the Constitution from which all Federal powers derived and still derives legitimacy and under which the entire nation was and is still to be governed.
The U.S. Constitution is well worth saving, but not by violating, ignoring or otherwise diminishing it. We can properly amend it, a difficult process when the states are free to ratify or reject amendments. However, it is the only viable way unlikely to lead to long lasting scars or conceivably to another Civil War. The rights of the States are the keystone of the Federal system upon which the country was founded and prospered; chipping away at them even piece by piece, a few at a time, is perverse.
To have another civil war to preserve the federal union by disregarding the Constitution would be no less destructive and no less perverse than was the former. The Constitution provides sufficient political and legislative processes, if wisely used, to implement necessary changes and enough judicial safeguards to prevent Federal overreach in doing so. The Executive is required to follow the Constitution and to usurp neither the Congressional nor the Judicial prerogatives it embodies. The individual rights it guarantees are no less crucial. To avoid civil unrest and perhaps civil war, we should give far more thought than at present to returning to these and other basics of our form of government. Governments rot when their citizens let them and can recover only when their citizens demand it.
Dan Miller Dan graduated from Yale University in 1963 and from the University of Virginia School of law, where he was the notes editor of the Virginia Law Review in 1966. He retired from the practice of law in 1996 and now lives in Panama. He has contributed to Pajamas Media and Pajamas Tatler and, in addition to his own blog, is an editor of Warsclerotic. You can find Dan on Facebook and LinkedIn.