Seth Leibsohn, director of a political action committee called Empower America (emphasis added), wrote recently in response to Joe Sobran’s criticisms of Abraham Lincoln. I write, to use Leibsohn’s terms, as one of Joe’s "minions" and as an "illegitimate scholar" who believes secession was a state right in 1861.
Leibsohn writes, "I know of no legitimate scholar who believes Lincoln acted illegally in defending the Union." That may be because any legal scholar who so concluded in print would take himself out of the job market at 99.9 percent of all law schools in the country. Somehow I think that my essay attacking Lincoln’s invasion of the South as unconstitutional has hurt my chances of being hired at the local state university law school. Also, such writings would not enhance one’s chances of being appointed to the United States Court of Appeals or Supreme Court. The term "legitimate scholar" thus becomes a self-fulfilling prophecy since neither Mr. Leibsohn nor the legal establishment would define a Civil War critic as "legitimate."
That being said, I don’t recall seeing too many "legitimate legal scholars" who have, after detailed analysis, concluded that Lincoln acted legally. If you know of any, please let me know because I would love to read their work. This is not to say that "legitimate scholars" do not think Lincoln acted lawfully, merely that few have attempted to prove it by conventional legal analysis.
Moving on, Leibsohn seeks to portray Lincoln as a pro-life hero. He must have missed the body count from the war — over 600,000 killed. Lincoln used those bodies; he used those lives, as tools, as resources, for what? The preservation of an abstraction — "the union". And not even the abstraction the framers intended to create. No, this union was not a voluntary union of free states, but a sentence of perpetual imprisonment of the small and weaker states by the larger and more numerous ones. This union was Abe’s own megalomaniac invention. Abe was a very smart man, and he knew it, and he wanted to leave a legacy and he did, the almighty federal government which has killed 2,523,625 people in the last 150 years and which now controls virtually every aspect of our lives. "Every tree is known by his own fruit." (Luke 6:43)
Leibsohn’s discussion of the cause of the war shows how of out touch with reality the Lincoln-worshippers are: "If Lincoln launched a war, he did so merely by being elected President." The "proximate cause" of the war–as we "illegitimate" trial lawyers like to call the immediate cause of an event — cannot really be a subject of dispute. The proximate cause of the war was one thing and one thing only — Lincoln’s ordering the federal army to invade Virginia on May 27, 1861. No invasion, no war. Lincoln’s order to invade the South caused the war. Sometimes the truth is so simple that we miss it.
Why are so many confused about the proximate cause of the war? Again, since Lincoln-worship has risen to the level of a religion, the war is viewed through Yankee, Lincolnian, and Northern eyes only. We forget that Lincoln could have chosen not to invade Virginia. Thus, to determine the cause of the war, we erroneously focus on why the South seceded. Since Lincoln could have decided not to invade the South, the South’s secession cannot be the sufficient cause of the war. Why the Southern states seceded is an interesting and important question, but more important is why Lincoln ordered the invasion. Unless he is a damnable liar about the most important thing he ever did, it is beyond question that his legal justification for the invasion was the preservation of the union, a union that did not forbid slavery. That the union was thereby destroyed, not preserved, is a truth that will apparently forever elude members of the Church of Lincoln.
Lest you think I exaggerate, let me point to an example that may be compelling even for Leibsohn who attacks Roe v. Wade in his article. That decision was based on the Fourteenth Amendment, which makes the federal government the guarantor of the due process rights of citizens against the encroachments of their state governments. To quote from that opinion:
The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause * * * This right of privacy [is] . . . founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action. . .
I have news for Mr. Leibsohn. The Fourteenth Amendment was forced upon the South at gunpoint by Lincoln’s troops who way overstayed their welcome. Actually, they weren’t welcome at all in Virginia in May of ’61.
As for my views on how slavery should have been ended, I cannot do better than to quote from Romans, 12-21: "Be not overcome by evil, but overcome evil with good."
August 13, 2001
James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.