Three Views of the Constitution
"[A]n attempt to subjugate the seceded States, even if successful, could produce nothing but evil — evil unmitigated in character and appalling in extent."
Detroit Free Press, February 19, 1861
in Thomas DiLorenzo, "Yankee Confederates,"
Secession, State and Liberty p 152
More than a few self-described conservatives and libertarians wonder why it is that other self-described conservatives and libertarians revere and defend the Old South. Virginia Postrel and David Boaz come to mind.
Put many of those who write for the Claremont Institute in the "wondering" category as well. Since I have previously addressed the writings of Ken Masugi, director of the Claremont's Center for Local Government, this article will address the arguments advanced by two other Claremont Institute writiers, Mackubin Thomas Owens and Charles Kesler. In particular, this article will compare the views of the Claremont Institute's writers with those of three prominent American legal writers: William Rawle, St. George Tucker, and Lysander Spooner.
Mackubin Thomas Owens
Mackubin Thomas Owens, an adjunct fellow of the Claremont Institute and professor of strategy and force planning at the Naval War College in Newport, RI (and a Marine infantry veteran of Vietnam), wonders why some libertarians like the South and dislike Lincoln. Despite this fact, he spends the entirety of his article "The Case Against Secession" attacking the arguments of Alexander Stephens, the vice-president of the CSA. Stephens appears to have been something of a classical liberal, and had many good things to say. To understand contemporary libertarians, however, Owens perhaps would do better to address the arguments of contemporary libertarians; he makes no references in the article to the prominent books on the topic by Charles Adams and Jeffrey Rogers Hummel.
At any rate, Professor Owens makes several arguments against secession, which will be analyzed one a time. First, Owens contends that
When the Neo-Confederates and their libertarian friends make Lincoln out to be a scoundrel who plunged America into an avoidable war, they ignore the fact that his views on Union and the nature of republican government differed not at all from those of such luminaries as Washington, Jefferson, Madison, Andrew Jackson, and Daniel Webster.
Lincoln is nothing like Jefferson, who does not belong in this group. Instead, Lincoln more closely resembles John Adams — who persecuted Jeffersonian republicans like Benjamin Franklin Bache, the grandson of Benjamin Franklin, via the Alien and Sedition Acts, just as Lincoln persecuted countless publishers and editors, as well as a U.S. Congressman from Ohio named Clement Valladigham. Andy Jackson is no help to Lincoln, since Jackson wanted to invade South Carolina over the nullification crisis, but did not; he is an early "what Lincoln might have been." Webster was a warmonger and a Northern nationalist. Maybe Washington, who put down the Whiskey Rebellion, belongs. Even so, as Aristotle notes, the argument from authority is the weakest argument. Mere name-dropping cannot decide the question of the legitimacy of secession. This argument is name-dropping (founding fathers) to support name-dropping (Lincoln as synonymous with greatness).
Second, Owens argues that
had secession been permitted to stand, the breakup of the Union would have continued. Where that dynamic would have led is suggested by the fact that in January 1861, Fernando Wood, the Democratic mayor of New York City, recommended that the city secede from the state of New York and establish itself as a "free city."
For starters, most New York State residents who live outside of the Big Apple would probably applaud such a move today. Also, what's wrong with a free city? Owens merely assumes that such independence is a bad thing.
Third, Owens claims that
For the Founders, the purpose of government was to protect the equal natural rights of all. They understood these rights to be antecedent to the creation of political society and government. The just powers of government are derived from the consent of the governed who possess the equal natural rights that republican government is supposed to protect. While the people never relinquish their right to revolution, in practice, this natural right is replaced by free elections, the outcome of which are determined by majority rule. (emphasis added)
The above sentence in bold is indefensible. If people "in practice" give up their natural right to revolt, it cannot be said that they "never relinquish" their right to revolt, for the right to revolt means nothing if it cannot be realized in practice. In writing that the natural right of revolution is replaced by free elections, Owens contradicts his other argument that "There was no such thing as a constitutional right to secede and for whatever reason, the South never invoked the right of revolution." According to Owens, the natural right of revolution is replaced by free elections — so what was the South supposed to have invoked?
Additionally, if we grant Owens' argument as true, for the sake of argument, a consideration of the essence of the argument shows its error. Essentially, Owens contends that the South would have been justified in seceding if they had "invoked the natural right of revolution," instead of claiming a constitutional right to secede. This argument is exceedingly formalistic and weak. The deaths of 620,000 Americans cannot be justified on the grounds that the South, wrongly asserting a statutory right to secede, should have asserted a natural right to secede. Furthermore, if one has a natural right to revolt, must one actually articulate that right in order to be justified in acting upon that natural right?
These arguments of Owens have been refuted by no less than three significant American legal thinkers: Lysander Spooner, William Rawle, and St. George Tucker.
The ostensible supporters of the Constitution, like the ostensible supporters of most other governments, are made up of three classes, viz.: 1. Knaves, a numerous and active class, who see in the government an instrument which they can use for their own aggrandizement or wealth. 2. Dupes — a large class, no doubt — each of whom, because he is allowed one voice out of millions in deciding what he may do with his own person and his own property, and because he is permitted to have the same voice in robbing, enslaving, and murdering others, that others have in robbing, enslaving, and murdering himself, is stupid enough to imagine that he is a "free man," a "sovereign"; that this is "a free government"; "a government of equal rights," "the best government on earth," [Suppose it be "the best government on earth," does that prove its own goodness, or only the badness of all other governments?] and such like absurdities. 3. A class who have some appreciation of the evils of government, but either do not see how to get rid of them, or do not choose to so far sacrifice their private interests as to give themselves seriously and earnestly to the work of making a change.
Spooner also hits upon the true reason for Lincoln's war, namely, the need to keep money flowing into the federal treasury via enforcement of the protective tariff:
All political power, so called, rests practically upon this matter of money. Any number of scoundrels, having money enough to start with, can establish themselves as a "government"; because, with money, they can hire soldiers, and with soldiers extort more money; and also compel general obedience to their will. It is with government, as Caesar said it was in war, that money and soldiers mutually supported each other; that with money he could hire soldiers, and with soldiers extort money. So these villains, who call themselves governments, well understand that their power rests primarily upon money. With money they can hire soldiers, and with soldiers extort money. And, when their authority is denied, the first use they always make of money, is to hire soldiers to kill or subdue all who refuse them more money.
The love of money is the root of all evil. And it is omnipotent government which is best able to carry out the evil plans of those who love money.
Spooner also explains the logical consequences of Owens' view of the constitution in No Treason:
Moreover, this supposed contract, which would not be received in any court of justice sitting under its authority, if offered to prove a debt of five dollars, owing by one man to another, is one by which — AS IT IS GENERALLY INTERPRETED BY THOSE WHO PRETEND TO ADMINISTER IT — all men, women and children throughout the country, and through all time, surrender not only all their property, but also their liberties, and even lives, into the hands of men who by this supposed contract, are expressly made wholly irresponsible for their disposal of them.
Where Spooner makes a legal and philosophical case against such a blank check for totalitarianism, the cases made by William Rawle and St. George Tucker are more purely legal.
Story's Constitution was not the first American book on the subject. Hamilton, Madison, and Jay had written the Federalist Papers, which appeared serially in newspapers in 1787-1788 and which ever since, as published in book form and republished in numerous editions, has remained an invaluable commentary. The first volume of St. George Tucker's 1803 edition of Blackstone contained, as a 237-page appendix, a "View of the Constitution of the United States." Thomas Sergeant published his Constitutional Law in Philadelphia in 1822; a second edition appeared in 1830. William Rawle published his View of the Constitution in Philadelphia in 1825. Rawle's book is now principally remembered because he expressed in it the view that any state of the Union could constitutionally secede if the unequivocal voices of the state's people so determined. Rawle's text was used for instruction at West Point when the men who came to lead the Confederate armies in 1861-1865 were cadets.
Justice Story (who had advocated secession by New England) wrote the opinion in the Amistad case, where former president John Quincy Adams (also an advocate of secession by New England) argued for the enslaved Africans (regarding the secessionism of Story and Adams, see Thomas DiLorenzo, "Yankee Confederates," in Secession, State and Liberty, ed. David Gordon).
Rawle, by the way, was George Washington's first candidate to be the first Attorney General of the United States; the Temple University Law Library has a Rawle Reading Room, and there was a Liberty Ship named after Rawle in World War Two. Rawle's Philadelphia law firm, Rawle and Henderson, founded in 1783, was recognized by the Pennsylvania Legislature (you need Adobe Acrobat for this PDF) as "the oldest law office in continuous practice in America" in 1983. William Rawle's grandfather, Francis Rawle, wrote the first book published by Benjamin Franklin. Additionally, William Rawle was the United States Attorney for the District of Pennsylvania (appointed by George Washington), and a founder of the Philadelphia Bar Association.
Discussing the nature of the union in Chapter 32, Rawle writes that
The Union is an association of the people of republics; its preservation is calculated to depend on the preservation of those republics.
If a faction should attempt to subvert the government of a state for the purpose of destroying its republican form, the paternal power of the Union could thus be called forth to subdue it.
Yet it is not to be understood, that its interposition would be justifiable, if the people of a state should determine to retire from the Union, whether they adopted another or retained the same form of government, or if they should, with the, express intention of seceding, expunge the representative system from their code, and thereby incapacitate themselves from concurring according to the mode now prescribed, in the choice of certain public officers of the United States.
The principle of representation, although certainly the wisest and best, is not essential to the being of a republic, but to continue a member of the Union, it must be preserved, and therefore the guarantee must be so construed. It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.
The states, then, may wholly withdraw from the Union, but while they continue, they must retain the character of representative republics. Governments of dissimilar forms and principles cannot long maintain a binding coalition. "Greece," says Montesquieu, "was undone as soon as the king of Macedon obtained a seat in the amphyctionic council." [Federalist No. 43] It is probable, however, that the disproportionate force as well as the monarchical form of the new confederate had its share of influence in the event. But whether the historical fact supports the theory or not, the principle in respect to ourselves is unquestionable.
In other words, states were free to become monarchies, but would have to leave the union in order to do so. As Rawle continues,
If from any other motives, or under any other pretexts, the internal peace and order of the state are disturbed, and its own powers are insufficient to suppress the commotion, it becomes the duty of its proper government to apply to the Union for protection...At the same time it is properly provided, in order that such interference may not wantonly or arbitrarily take place; that it shall only be, on the request of the state authorities: otherwise the self-government of the state might be encroached upon at the pleasure of the Union, and a small state might fear or feel the effects of a combination of larger states against it under colour of constitutional authority.
On Rawle's view, then, Lincoln's invasion of the South was wholly unconstitutional. Not only did the Southern states not ask for federal troops to "restore order," the Southern states declared themselves to have left the union.
Specifically regarding secession, Rawle writes that
The secession of a state from the Union depends on the will of the people of such state. The people alone as we have already seen, hold the power to alter their constitution. The Constitution of the United States is to a certain extent, incorporated into the constitutions or the several states by the act of the people. The state legislatures have only to perform certain organical operations in respect to it. To withdraw from the Union comes not within the general scope of their delegated authority. There must be an express pro- vision to that effect inserted in the state constitutions. This is not at present the case with any of them, and it would perhaps be impolitic to confide it to them. A matter so momentous, ought not to be entrusted to those who would have it in their power to exercise it lightly and precipitately upon sudden dissatisfaction, or causeless jealousy, perhaps against the interests and the wishes of a majority of their constituents.
But in any manner by which a secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal. The perspicuity and solemnity of the original obligation require correspondent qualities in its dissolution. The powers of the general government cannot be defeated or impaired by an ambiguous or implied secession on the part of the state, although a secession may perhaps be conditional. The people of the state may have some reasons to complain in respect to acts of the general government, they may in such cases invest some of their own officers with the power of negotiation, and may declare an absolute secession in case of their failure. Still, however, the secession must in such case be distinctly and peremptorily declared to take place on that event, and in such case — as in the case of an unconditional secession — the previous ligament with the Union, would be legitimately and fairly destroyed. But in either case the people is the only moving power.
But we may pursue the subject somewhat further.
To withdraw from the Union is a solemn, serious act. Whenever it may appear expedient to the people of a state, it must be manifested in a direct and unequivocal manner. If it is ever done indirectly, the people must refuse to elect representatives, as well as to suffer their legislature to re-appoint senators. The senator whose time had not yet expired, must be forbidden to continue in the exercise of his functions.
But without plain, decisive measures of this nature, proceeding from the only legitimate source, the people, the United States cannot consider their legislative powers over such states suspended, nor their executive or judicial powers any way impaired, and they would not be obliged to desist from the collection of revenue within such state.
As to the remaining states among themselves, there is no opening for a doubt. Secessions may reduce the number to the smallest integer admitting combination. They would remain united under the same principles and regulations among themselves that now apply to the whole. For a state cannot be compelled by other states to withdraw from the Union, and therefore, if two or more determine to remain united, although all the others desert them, nothing can be discovered in the Constitution to prevent it.
The consequences of an absolute secession cannot be mistaken, and they would be serious and afflicting.
The seceding state, whatever might be its relative magnitude, would speedily and distinctly feel the loss of the aid and countenance of the Union. The Union losing a proportion of the national revenue, would be entitled to demand from it a proportion of the national debt. It would be entitled to treat the inhabitants and the commerce of the separated state, as appertaining to a foreign country. In public treaties already made, whether commercial or political, it could claim no participation, while foreign powers would unwillingly calculate, and slowly transfer to it, any portion of the respect and confidence borne towards the United States.
Evils more alarming may readily be perceived. The destruction of the common hand would be unavoidably attended with more serious consequences than the mere disunion of the parts.
Separation would produce jealousies and discord, which in time would ripen into mutual hostilities, and while our country would be weakened by internal war, foreign enemies would be encouraged to invade with the flattering prospect of subduing in detail, those whom, collectively, they would dread to encounter.
Such in ancient times was the fate of Greece, broken into numerous independent republics. Rome, which pursued a contrary policy, and absorbed all her territorial acquisitions in one great body, attained irresistible power. But it may be objected, that Rome also has fallen. It is true; and such is the history of man. Natural life and political existence alike give way at the appointed measure of time, and the birth, decay, and extinction of empires only serve to prove the tenuity and illusion of the deepest schemes of the statesman, and the most elaborate theories of the philosopher. Yet it is always our duty to inquire into, and establish those plans and forms of civil association most conducive to present happiness and long duration: the rest we must leave to Divine Providence, which hitherto has so graciously smiled on the United States of America.
William Rawle, then, was not without feeling for the preservation of the union. As Rawle also writes in Chapter 32 of A View of the Constitution,
In every aspect therefore which this great subject presents, we feel the deepest impression of a sacred obligation to preserve the union of our country; we feel our glory, our safety, and our happiness, involved in it; we unite the interests of those who coldly calculate advantages with those who glow with what is little short of filial affection; and we must resist the attempt of its own citizens to destroy it, with the same feelings that we should avert the dagger of the parricide.
In addition to recognizing such patriotic considerations, Rawle recognized the right of secession.
St. George Tucker
St. George Tucker, in his View of the Constitution of the United States, likewise considered secession to be a genuine right. In the foreward to Tucker's View of the Constitution, Clyde Wilson explains that
Tucker is the exponent of Jeffersonian republicanism, or what has been called "South Atlantic republicanism," in contrast to the commercial republicanism of New England that has since the Civil War been taken to be the only true form of American philosophy. The political background of Tucker's work is significant. The Constitution had been ratified reluctantly and with reservations by Virginia and New York (and not at all by North Carolina and Rhode Island) only on the understanding that amendments would be made. Twelve such amendments were proposed by the First Congress, and ten of them swiftly were ratified. This "Bill of Rights" was to reassert the limited nature of the new government's powers and their dependence solely on the delegation of the people of the several sovereign states.
Hardly had the federal government gotten under way, however, than the largely Northern political faction gathered under Hamilton and Adams launched an initiative to stretch those powers as far as they would go, and to make light of the limits. Much of this expansion represented a desire to use the government in mercantilist ways — for example, a national bank, a funded national debt, a commercial treaty with Great Britain. All were policies that profited the commercial classes of the North and were burdensome to the free-trade agricultural empire of the South. (xii-xiii)
Invoking the Declaration of Independence and prefiguring (if not, perhaps, inspiring) Lysander Spooner, St. George Tucker contends as follows:
That mankind have a right to bind themselves by their own voluntary acts, can scarcely be questioned: but how far have they a right to enter into engagements to bind their posterity likewise? Are the acts of the dead binding upon their living posterity, to all generations; or has posterity the same natural rights which their ancestors have enjoyed before them? And if they have, what right have any generation of men to establish any particular form of government for succeeding generations?
The answer is not difficult: "Government," said the congress of the American States, in behalf of their constituents, "derives its just authority from the consent of the governed." This fundamental principle then may serve as a guide to direct our judgment with respect to the question. To which we may add, in the words of the author of Common Sense, a law is not binding upon posterity, merely, because it was made by their ancestors; but, because posterity have not repealed it. It is the acquiescence of posterity under the law, which continues its obligation upon them, and not any right which their ancestors had to bind them.
Until, therefore, the people of the United States, whether the present, or any future generation, shall think it necessary to alter, or revoke the present constitution of the United States, it must be received, respected, and obeyed among us, as the great and unequivocal declaration of the will of the people, and the supreme law of the land. (123)
In the same volume of commentaries, St. George Tucker also contends (correctly) that the government of the Constitution was born of secession from the Articles of Confederation. As Tucker writes,
Such was the proceeding on the part of those of the American states which first adopted the present constitution of the United States, and established a form of federal government, essentially different from that which was first established by the articles of confederation, leaving the states of Rhode Island and North Carolina, both of which, at first, rejected the new constitution, to themselves. This was an evident breach of that article of the confederation, which stipulated that those "articles should be inviolably observed by every state, and that the union should be perpetual; nor should any alteration at any time thereafter be made in any of them, unless such alteration be agreed to in the congress of the United States, and be afterwards confirmed by the legislatures of every state." Yet the seceding states, as they may be not improperly termed, did not hesitate, as soon as nine states had ratified the new constitution, to supersede the former federal government and establish a new form, more consonant to their opinion of what was necessary to the preservation and prosperity of the federal union. (84)
Here, Tucker takes what might be termed a realistic view of the situation, noting that although Rhode Island and North Carolina might have chosen to complain about the improper ratification procedures for the new constitution, such a complaint would not alter the natural right of revolution:
the seceding states were certainly justified upon that principle; and from the duty which every state is acknowledged to owe to itself, and its own citizens by doing whatsoever may best contribute to advance its own happiness and prosperity; and much more, what may be necessary to the preservation of its existence as a state. Nor must we forget that solemn declaration [note that Tucker does not use capital letters for certain documents; he refers here to the Declaration of Independence] to which every one of the confederate states [he means the American states under the Articles of Confederation]...that whenever any form of government is destructive of the ends of its institution, it is the right of the people to alter or abolish it, and to institute new government. Consequently whenever the people of any state, or number of states, discovered the inadequacy of the first form of federal government to promote or preserve their independence, happiness, and union, they only exerted that natural right in rejecting it, and adopting another...And since the seceding states [again, those nine who first ratified the Constitution], by establishing a new constitution and form of federal government among themselves, without the consent of the rest, have shown that they consider the right to do so whenever the occasion may, in their opinion require it, as unquestionable, we may infer that that right has not been diminished by any new compact which they may since have entered into, since none could be more solemn or explicit than the first, nor more binding upon the contracting parties. Their obligation, therefore, to preserve the present constitution, is not greater than their former obligations were, to adhere to the articles of confederation; each state possessing the same right of withdrawing itself from the confederacy without the consent of the rest, as any number of them do, or ever did, possess. (85-86)
Like William Rawle, Tucker also notes that secession is not a step to be taken lightly:
Prudence, indeed, will dictate, that governments established by compact should not be changed for light or transient causes; but should a long train of abuses and usurpations, pursuing invariably the same object, evince a design in any one of the confederates to usurp a dominion over the rest; or, if those who are entrusted to administer the government, which the confederates have for their mutual convenience established, should manifest a design to invade their sovereignty, and extend their own power beyond the terms of the compact, to the detriment of the states respectively, and to reduce them to a state of obedience, and finally to establish themselves in a state of permanent superiority, it then become not only the right, but the duty of the states respectively, to throw off such government, and to provide new guards for their future security. To deny this, would be to deny to sovereign and independent states, the power which, as colonies, and dependent territories, they have mutually agreed they had a right to exercise, and did actually exercise, when they shook off the government of England, first, and adopted the present constitution of the United States, in the second instance. (86)
With respect to the Articles of Confederation, St. George Tucker is exactly correct. In contrast to Tucker's logical analysis of the change from the Articles of Confederation to the Constitution, the chief contemporary scholarship on the issue is unconvincing.
Forrest McDonald, for example, perhaps unwittingly resorts to a thought-problem of international law courses known as the "McDougal hypothesis" (so-named because of a law review article by Professor Myres McDougal) by contending that, rather than view the ratification as in violation of the Articles of Confederation, one should instead take the view that the improper ratification was, in effect, an amendment of the amending process provided in the Articles of Confederation. As McDonald writes in States' Rights and the Union,
The Articles of Confederation specified a means of amendment — amendments recommended by Congress had to be ratified by the legislatures of every state — but the convention determined to get around that provision by seeking the approval of ratifying conventions especially elected for the purpose. In a manner of speaking, it did comply with the Articles by sending the Constitution to Congress with a recommendation that Congress send it to the state legislatures and that the legislatures call ratifying conventions. Inasmuch as Congress and (ultimately) the thirteen legislatures complied with the request, their actions in effect constituted an amendment to the Articles' amending process. (20)
Yale University Press advertises one of its international law textbooks as follows: "the New Haven School that views international law not as a fixed set of rules but as an ongoing process of decision making through which the members of the world community identify, clarify, and secure their common interests." In other words, there is no law, only an "ongoing process of decision making," i.e., the acquiescence in an act by all parties involved "makes it legal."
Thank you, Senator Palpatine. Once again, we see that "might makes right."
James Ostrowski provides a better account of the ratification of the Constitution: it was an illegal act, and hence a nullity:
The secession of 1788 can probably not be justified by reference to Article VI: "No two or more states shall enter into any treaty, confederation or alliance whatever between them, without the consent of the united states in congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue." The new Constitution was an "alteration" which had the effect of abolishing the previous government. Thus, such a measure required the procedure set forth in Article XIII: consent of Congress plus the unanimous consent of each of the states. (p. 163, n. 16)
However, as there was no court in which to press such a claim, even if the ratification had been challenged, it would have to stand. As St. George Tucker observes, if North Carolina and Rhode Island had not ratified the Constitution, they would have had the option of continuing to abide by the Articles of Confederation, or of going their separate ways as the independent sovereign states that they were at the time of the Revolution against England. Recall that in the Treaty of Paris, which ended the Revolutionary War, King George recognized the colonies as independent nations:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.
Ultimately, McDonald contends that 13 "political societies" ratified the Constitution. Pace McDonald, James Ostrowski notes that the preamble to the constitution was changed from "We the people of the United States, viz. New Hampsire," etc., to simply "We the people of the United States" because it was not known in advance which states would ratify the document. (p 177, citing Judge Eugene Gary, "The Constitutional Right of Secession"). This would seem to pose a problem for McDonald's "political society" argument. (Note: despite his view of the Articles of Confederation, McDonald criticizes Lincoln's "nationalist" claim that the union is older than the states).
More seriously, Ostrowski notes that the text of the Constitution does not support the argument that "the people" ratified it:
the Constitution did not "emanate from the whole people." Leaving aside the preamble for the moment [Ostrowski's argument against it appears above], the actual language of the texts of Articles VII and V is to the contrary:
The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same....Done in Convention by the Unanimous Consent of the States present.
[The Constitution may be amended] when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths, thereof....
Since the Constitution was proposed by a convention called by the states, was ratified by the states, and can only be amended by the states, any notion that "the government proceeds directly from the people," that it is "of the people" and "by the people," or that it "emanates from the whole people" can only be described as metaphysical nonsense invented by those who view the states as a mere inconvenience on the path to creating an all-powerful central government. (176-77)
The reason that allegedly impartial scholars gloss over the improper "amending" of the Articles of Confederation is that they are glad to have the Constitution instead of the allegedly disastrous Articles of Confederation (the alleged flaws of the Articles of Confederation are the subject of a separate forthcoming essay). In other words, there are scholars (I do not claim that Forrest McDonald is one of them) that reason, in effect, that "the constitution is a good thing, so that which brought it about must be good as well."
Also, the notion of a "political society" apart from the state is problematic for the Lincoln admirers, since it lends credence to the view that nation and State are separate, but equally real, entities. Disappointingly, McDonald mishandles the issue of secession in Novus Ordo Seclorum, where he writes that the question of secession "could be settled only by the arbitrament of force." As Jefferson Davis famously remarked, "A question settled by force of arms remains forever unsettled."
Despite Jeff Davis' point, I have heard more than a few law professors remark that "we fought a war over that" when questions of constitutional interpretation are raised. On the other side of the war and of political philosophy from Jefferson Davis, Ulysses S. Grant stated that "the right of a state to secede from the Union [has been] settled forever by the highest tribunal — arms — that man can resort to." (Ostrowski 185)
If presidents Lincoln and Grant thought that rifles trumped the Supreme Court, was Al Gore's legal circus in Florida really so wrong? Of course it was, and so were Lincoln and Grant, so long as one believes in the rule of law and not men.
Very much on the bright side, McDonald's work (notably Chapters 5 and 6 of E Pluribus Unum) illustrates the fact that adoption of the Constitution of 1789 was not a holy or miraculous event. Instead, it was the result of — surprise! — typical human motivations: greed, the lust for power, and a combination of foolishness and good intentions. For example, Robert Morris, who had financed the American revolution, wanted to be repaid. Since he was unable to pass appropriate measures in the Congress, as McDonald notes in States' Rights and the Union (p 13), in 1782, Morris tried to get the Continental Army to threaten a coup to scare Congress into action; George Washington closely avoided a mutiny.
The ratification of the Constitution may also have been the product of a political error on the part of those who valued limited government, namely, the republicans (also known as the Anti-Federalists, a pernicious term as it only defines these men in terms of that which they opposed, as if they had no developed political philosophy of their own; on this point, see Herbert Storing's What the Anti-Federalists Were For). As McDonald notes in States' Rights and the Union, the
radical republicans of 1776 were conspicuously absent: neither of the Adamses was there, nor was John Hancock; none of the Lees attended, nor did Patrick Henry or Thomas Jefferson or Thomas Paine. (15)
Present, however, were Robert Morris, and his political allies James Wilson, Gouverneur Morris, John Rutledge, and "ardent younger nationalists, including James Madison and Alexander Hamilton." To make a long story short: the nationalists had their way, and while in power, the Federalist party had its way, for example, effectively nullifying the First Amendment by enacting the Alien and Sedition Acts (read them here and read about them here), which made opposition political speech punishable as a crime.
Did I forget to mention that the very same Federalist party had argued against the need for the Bill of Rights? "Trust us." One hopes that most people can see where things are headed when a politician asks for trust.
The Southern states appear to have known the works of St. George Tucker very well. For example, the declarations of secession issued by South Carolina, Mississippi, Georgia and Texas, are explicitly legalistic (the documents read like complaints for breach of contract) and follow the arguments of Tucker, quoted above, very closely.
Furthermore, the messy jurisprudence of the Lincoln apologists plagues any attempt to make sense of Reconstruction. Had the Southern states actually left the union, such that they had to be readmitted, or had the Southern states only attempted to leave the union? As Hummel observes,
because most Northerners agreed that the seceding states had not legally left the Union, these states counted toward the total for ratifying the [13th] Amendment. Only their ratifications, coupled with those from the North, provided the necessary three-fourths...The reconstructed governments were...in the anomalous position of being recognized by the President but not by Congress, of being legitimate for the purpose of ratifying the Thirteenth Amendment but not for the purpose of having representation within the national government. (p 297, 299)
The Radical Republicans in Congress treated the Southern states by whim. They treated the freed slaves in the same way, unfortunately. After the War Between the States,
Racial prejudice was still quite prevalent throughout the North. Although the legal status of northern blacks had been steadily improving and Massachusetts in 1865 enacted the country's first ban on racial discrimination in public accomodations, five other loyal states rejected proposals for black suffrage soon after the fighting ceased. (Hummel 300)
Returning now to the arguments advanced by Professor Owens, it must be noted that Owens refers to the Southern secessionists as "blackmailers:"
In 1833, the minority threatened secession over the tariff. The majority gave in. In 1835, it threatened secession if Congress did not prohibit discussions of slavery during its own proceedings. The majority gave in and passed a "Gag Rule." In 1850, the minority threatened secession unless Congress forced the return of fugitive slaves without a prior jury trial. The majority agreed to pass a Fugitive Slave Act. In 1854 the minority threatened secession unless the Missouri Compromise was repealed, opening Kansas to slavery. Again, the majority acquiesced rather than see the Union smashed. But the majority could only go so far in permitting minority blackmail to override the constitutional will of the majority.
Glaringly, he neglects to mention northern threats of secession, for example, in 1803 over the Louisiana Purchase (the allegedly tolerant Northern Federalists did not want Spaniards, i.e. Roman Catholics, to alter the ethnic makeup of America), in 1809 over the embargo, and in 1814 at the Hartford Convention over the War of 1812 (see Tom DiLorenzo's chapter "Yankee Confederates" in Secession, State and Liberty). Additionally, as in Owens' previous claim that the natural right of revolution is, "in practice," replaced by elections, Owens again (I think, unwittingly) argues here for a view of government which must lead to majoritarian tyranny. In other words, I don't think that Owens actually favors majoritarian tyranny, but that is where this view logically leads.
Special Bonus Discussion: Ed Meese
Notice that Meese was not mentioned in the opening paragraph. Think of this as bonus coverage, as when the TV networks interrupt their daytime programming to show presidents testifying about sexual encounters with their young female employees.
In all seriousness, after discussing the views of William Rawle, nominated by George Washington to serve as the first Attorney General of the United States, one should consider a Claremont Institute speech delivered by Ed Meese, attorney general under Ronald Reagan. You can see where this is going:
Lincoln, as we know, serves as the sixteenth President of the United States. As we look back today, that's a point at which our nation had accomplished one-third of its history, as it pertains to where we are today. And, under his leadership, and largely because of it, the United States completed the implementation of the promise that was contained in the Declaration of Independence, that all men are created equal, and fulfilled the potential of the Constitution, which is the commitment to equality under the law.
Meese might be interested to learn that the CSA enjoyed the support of three former American presidents, John Tyler, Franklin Pierce and James Buchanan. The notion of secession, furthermore, was also endorsed by Thomas Jefferson and John Quincy Adams. That's five — five! — former presidents who supported the right of secession. Hopefully, the historical debate begins to resemble a close call for those otherwise inclined to view secessionists as nut cases.
Tyler, the tenth president, of "Tippecanoe and Tyler Too" fame, was a member of the Confederate House of Representatives (as noted on the White House site). Secretary of War William Seward, meanwhile, is reported by Hummel to have taken steps to arrest former President Franklin Pierce (the 14th president) because of Pierce's criticism of Abe Lincoln for provoking the war and for violating the constitution in waging the war. James Buchanan, the 15th president, who peacefully allowed the Confederates to seize federal properties in the South — for which the CSA had offered to compensate the USA — blamed the Republicans for provoking the South to fight the war.
Perhaps most problematic of all the Claremont works on Lincoln which I have read is "Getting Right with Lincoln" by Charles Kesler (you may see it as a close contest between Kesler and Owens).
On the bright side, Kesler understands libertarian views of the South where Virginia Postrel and David Boaz do not: "Libertarians think [Lincoln] right about slavery but wrong about secession and war policy."
Sadly, it is mostly down hill from there. First, Kesler writes:
Yes, Lincoln and the Republicans did stand for a high tariff...to protect American workingmen and foster American manufacturing. This sounds today like bad economic policy, but Alexander Hamilton, who originally recommended it in the 1780s, knew his Adam Smith quite well and realized that all economics is political economy.
What Kesler ignores is that this "protection" to Northern manufacturing interests was paid by Southerners, since the South had to pay higher prices for imported goods (or buy inferior Northern goods) as a result of the tariff. Also, Kesler is a relativist with respect to economics. He may appreciate "the higher law," but he does not appear to appreciate economic law, otherwise the claim that protectionism merely "sounds today like bad economic policy" is untenable. Worse, Kesler's claim that "all economics is political economy" perpetuates the myth that government can somehow undo the laws of economics by fiat legislation. This is, of course, nonsense. The government can no more repeal the laws of supply and demand than it can repeal the law of gravity.
Next, Kesler argues that
Lincoln shattered the old Union, the indictment runs, because he denied the constitutional right of the Southern states to secede. But there never was such a right.
As James Ostrowski points out (pp 166-67), the 9th and 10th Amendments must be interpreted to include the right to secede. The 9th Amendment provides that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The idea for the 9th Amendment stemmed from the Federalists, who contended that the Bill of Rights was unnecessary since the federal government could only have those powers explicitly granted to it in the Constitution. The 9th Amendment captures this notion, namely, the fact that some rights are specifically mentioned in the Constitution does not mean that those are the only rights possessed by the citizens.
The 10th Amendment, meanwhile, provides that "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." Again, the 10th Amendment reinforces the fact that the federal government was created by the pieces of paper called the Constitution, and that it has no other powers besides those given to it by the Constitution. Logically, in the federal system, somebody else has those powers, either the states or the people.
The alternative view to reading these Amendments (which, again, are part of the Bill of Rights) to mean what they say by their plain language is the view taught by the Leftists who control American law schools today — the wholly implausible view that the 9th Amendment "does not mean anything" and the 10th Amendment does not mean anything "because it is a tautology." They're just extra words to fill up some space!
Kesler, however, not only dismisses the 9th and 10th Amendments, but contends that
When Jefferson got the ball rolling with some loose language about "nullification" in the Kentucky Resolutions he penned in 1798, he was talking about a natural right of each state to judge the terms of the social compact for itself, and then by rallying its fellow states, by revolutionary means (if necessary) to recover the American people's freedom from tyrannical government, even as the revolution of 1776 had done.
First, it does violence to Jefferson's thought and writing to dismiss the Kentucky Resolutions as merely "loose language." Like the drafters of the constitution's 9th and 10th Amendments, was Jefferson was just blathering without purpose in the Kentucky Resolutions?
In a word, no. The Kentucky Resolutions were drafted in response to the federal government's nullification of the First Amendment via the Alien and Sedition Acts (read the Kentucky Resolutions here), a mere 9 years after the ratification of the Constitution. They should not be treated lightly. Second, what does Kesler mean by a state "rallying its fellow states, by revolutionary means," if not some sort of military action? If anything, such a description of the Kentucky Resolutions is precisely the Southern case for secession and independence.
Finally, Kesler claims that "the slave states did not, because they could not, secede in the name of human liberty." If Kesler is correct, then the colonies could not secede in the name of human liberty (Thomas G. West's weak arguments to the contrary notwithstanding) because they were slave-holding colonies. Here, Kesler and Masugi do not agree with each other (not that they are required to do so — no groupthink, please — but Masugi nicely refutes Kesler), since Masugi writes in "Flunking out of the Limbaugh" that "One cannot advocate limited government without renouncing the unlimited government of slavery." Since the colonies and the North did not renounce slavery until 1863, the only conclusion can be that the colonies and the North did not advocate limited government until 1863...at which time, the Northern states appear to have been advocating unlimited government.
Also, Kesler ignores the fact that the Southern states did not all secede at one time and for the same causes, as well as the fact that the causes of secession are not necessarily the same as the causes of the war. Although South Carolina, Alabama, Mississippi, and Texas might be charged with having seceded over slavery, "as Lincoln took the oath of office, the Union still contained eight slave states, more than had left." (Hummel, 137) The other states seceded over the issue of whether the union was voluntary or forced. After Lincoln called for troops to invade the four states which had seceded, Virginia, North Carolina, Tennessee, and Arkansas seceded — over the issue of the voluntary nature of the American union.
Had Lincoln not arrested 31 Maryland legislators, the mayor of Baltimore (the nation's 3rd-largest city at the time), a Maryland Congressman, as well as numerous publishers and editors, Maryland might very well also have seceded. For good measure, Lincoln had Union troops arrest secessionists who tried to vote in the election of 1861. He also gave three-day furloughs to Union troops so that they could return to Maryland to vote.
In another border state, Kentucky, troops also interfered with elections; they also broke up the Democratic convention at bayonet point.
The war did not begin until Lincoln's call for troops — making it abundantly clear that even if the first four states to secede seceded over slavery (say that out loud four times quickly), the war itself was fought over the voluntary nature of the union.
Perhaps worst of all, Kesler contends a) that Lincoln "carefully sought constitutional grounds for all his actions, and b) that Lincoln did not increase the size of government (at least not beyond the inherent tendency of governments to grow in war time).
Contrary to Kesler's claims, noted Lincoln scholar Mark Neely writes in The Last Best Hope of Earth: Abraham Lincoln and the Promise of America that Lincoln's actions, including the arrest of 31 Maryland legislators, the mayor of Baltimore, and a U.S. Congressman from Maryland, were taken "without much agonizing over their constitutionality." (p 133) At the very least, this puts the facts in dispute, such that Kesler has the burden of proving his case for Lincoln's alleged constitutional scruples.
Additionally, Jeffrey Rogers Hummel, in Chapter 13 of Emancipating Slaves, Enslaving Free Men, makes a strong demonstration of the fact that Lincoln's actions ballooned the government to a size from which it has never shrunk:
The national government that emerged victorious from the conflict dwarfed in power and size the minimal Jacksonian State that had commenced the war. The number of civilians in federal employ swelled almost fivefold. A distant administration that had little contact with its citizens had been transformed into an overbearing bureaucracy that intruded into daily life with taxes, drafts, surveillance, subsidies, and regulations. Central government spending had soared from less than 2 percent of the economy's total output to well over 20 percent in 1865, approximately what the central government spends today. It is hard to decide from which angle that statistic is more astounding: that government spending rose from such infinitesimal lows to today's heights in four years, or that today federal authorities regularly spend during peacetime as much as they did during the country's most devastating war. (328)
Among other evils, Lincoln's war led to forced attendance at tax-funded schools ("public schools"), destroyed the free market in money through legal tender and national currency (national banking) laws, and spawned activist governments at the state and local levels. (On these points, see also Tom DiLorenzo's "Birth of an Empire."
The Republican governor of Lincoln's adopted home state, Richard Yates of Illinois, stated in 1865 that "The war has tended, more than any other event in the history of the country to militate against the Jeffersonian idea, that ‘the best government is that which governs least.'" (Hummel 332)
Contrary to Lincoln's statements that the war involved "the question whether your children and my children shall enjoy the privileges we have enjoyed," Lincoln's war drowned American liberty in an ocean of blood. As Hummel relates,
George Ticknor of Harvard could not help but marvel at the magnitude of all these transformations. "The civil war of ‘61 has made a great gulf between what happened before it in our century and what has happened since, or what is likely to happen hereafter," he mused. "It does not seem to me as if I were living in the country in which I was born, or in which I received whatever I got of political education and principles." (333)
It did not seem that way to Ticknor precisely because he was not living in the same country as he inhabited in 1861. Americans living today are certainly not living under the same government and in the same country as were Americans in 1861. Where were the EPA, HUD, OSHA and the IRS before the time of Lincoln? Who told Abe Lincoln's parents how well-done they had to cook their meat, or whether they could smoke indoors? These matters cannot, of course, simply be blamed on Lincoln, but Hummel strongly argues that it was Lincoln, the great centralizer of American government, who got the ball rolling.
Also, if Lincoln was so concerned that future Americans continue to enjoy the privileges of their ancestors, why did he seize privately-owned muskets in the border states? One supposes that if the First, Fourth, Fifth, Sixth, Ninth, and Tenth Amendments were meaningless (and perhaps others as well) — because secession was an "emergency" — then the Second Amendment must have been meaningless as well.
Utilitarian defenses of Lincoln — which argue that the end (preserve the Union) justified the means (total war and disregard of the rule of law) — suffer the flaw of all such utilitarian theories, namely, they provide no means for selecting the proper time-frame for evaluating the utility of the act in question. Should Lincoln be judged on the consequences of the war 10 years after the war, or 100 years after the war? How about 200? And is Lincoln to be judged only on the war's effects on the United States, or on human beings in other countries who might copy his example as well?
T.S. Eliot wrote in 1949 that
The real revolution in that country was not what is called the Revolution, but is a consequence of the Civil War; after which arose a plutocratic elite; after which the expansion and material development of the country was accelerated; after which was swollen that stream of mixed immigration, bringing (or rather multiplying) the danger of development into a caste system which has not yet been quite dispelled. For the sociologist, the evidence from America is not yet ripe. (quoted in Marshall DeRosa, The Confederate Constitution of 1861: An Inquiry into American Constitutionalism)
Today, 140 years after the war began, American legal scholars continue to maintain that the union is "indivisible" and "permanent," and to ridicule the right of self-determination for the South, while they support worldwide bombing to enforce the right of self-determination for Taiwan, Bosnia, and Albania (East Timor...well, they're apparently stuck with Indonesia).
Lincoln's legacy is the despotism of the present days. As Ludwig von Mises writes in Theory and History,
The foremost aim of despotic government is to prevent any innovations that could endanger its own supremacy. Its very nature pushes it toward extreme conservatism, the tendency to retain what is, no matter how desirable for the welfare of the people a change might be. It is opposed to new ideas and to any spontaneity on the part of the subjects. (p 372)
Despite the tomes written about Lincoln as the saviour of human freedom, consider the fruits of Lincoln's war:
- China has cited Lincoln's war as a justification for its desire to forcibly reunite Taiwan to the mainland (Chinese premier Zhu Rongii at a news conference with President Clinton, April 8, 1999; cited in When in the Course of Human Events 109)
- President Clinton cited Lincoln's war as a justification for the Russian war on Chechnya and called Boris Yeltsin "Russia's Abraham Lincoln."
At some point, those who praise Lincoln's war ought to be given pause by the arguments of their fellow Lincoln cheerleaders in Beijing and Moscow.
Two final criticisms of the Claremont Institute's approach to Lincoln and the U.S. Constitution, then, are in order.
First, the Claremont's writers exhibit a tendency to treat the Constitution of 1789 as something akin to sacred scripture, and its adoption as the seeming pinnacle of human existence. This is problematic, to say the least. If Ken Masugi is serious about God and "the higher law," then Easter is a far greater event than the signing of a mere piece of government paperwork. As Joseph Sobran remarks,
As Jaffa tells it, the modestly educated Lincoln somehow thought in perfect harmony with the deepest political thinkers in world history — and, moreover, governed with the wisdom of a philosopher-king. He was not only philosophically right but virtually flawless in the practical business of applying his principles to ruling an unruly country in the midst of an enormous war. Furthermore, he managed not only to win the war and save the Union, but to induce "a new birth of freedom" in the process! With this record of accomplishment, you almost wonder why Lincoln stopped short of rising from the dead.
So how about a celebration of the life of Christ? Alas, that would be politically incorrect in this anti-Christian age.
Second, the Claremont writers are too willing to condone the deaths of 620,000 Americans, and the destruction of property and lives — including rapes, starvation, and dislocation of families — that went along with the war and its aftermath. The devastation of the South parallels the devastation of World War I and World War II. Southern losses were roughly equal to the horrific French losses in World War I, and to the German and Russian losses in World War II.
As Lysander Spooner writes,
Their pretenses that they have "Saved the Country," and "Preserved our Glorious Union," are frauds like all the rest of their pretenses. By them they mean simply that they have subjugated, and maintained their power over, an unwilling people. This they call "Saving the Country"; as if an enslaved and subjugated people — or as if any people kept in subjection by the sword (as it is intended that all of us shall be hereafter) — could be said to have any country. This, too, they call "Preserving our Glorious Union"; as if there could be said to be any Union, glorious or inglorious, that was not voluntary. Or as if there could be said to be any union between masters and slaves; between those who conquer, and those who are subjugated.
All these cries of having "abolished slavery," of having "saved the country," of having "preserved the union," of establishing "a government of consent," and of "maintaining the national honor," are all gross, shameless, transparent cheats — so transparent that they ought to deceive no one — when uttered as justifications for the war, or for the government that has suceeded the war, or for now compelling the people to pay the cost of the war, or for compelling anybody to support a government that he does not want.
The lesson taught by all these facts is this: As long as mankind continue to pay "national debts," so-called — that is, so long as they are such dupes and cowards as to pay for being cheated, plundered, enslaved, and murdered — so long there will be enough to lend the money for those purposes; and with that money a plenty of tools, called soldiers, can be hired to keep them in subjection. But when they refuse any longer to pay for being thus cheated, plundered, enslaved, and murdered, they will cease to have cheats, and usurpers, and robbers, and murderers and blood-money loan-mongers for masters.
If the truth about Lincoln is unpleasant, so be it, for the truth is the truth.
Perhaps the Claremont Institute's writers would agree with Garet Garrett and myself that the United States is no longer a republic, but an empire. Well, maybe they wouldn't call it an empire, but the Claremont's writers appear to desire the restoration of the republic. That being said, they are going about it all wrong. I do not contend that American liberty cannot be restored; it can. I contend, however, that creating secular gods like Abraham Lincoln is the wrong way to do it.
In closing, allow me to reiterate that I am descended from a member of the 83rd Regiment of Pennsylvania Volunteers (the Erie Regiment). The 83rd Pennsylvania, under the leadership of Col. Strong Vincent (my grandmother was in the first graduating class at the local high school which bears his name) held Little Round Top at Gettysburg. So don't blather to me about honoring those who fought.
And don't blather that I "reject a higher law," or that I'm a racist, or that I am "still fighting the war," or that I "defend slavery," or any other such nonsense.
I am a practicing Roman Catholic, and a Thomist; I very much believe in "higher law." I am not a racist, nor do I approve of racism or any other such stupidity. I greatly admire Stonewall Jackson and Robert E. Lee, but I also admire Thomas Sowell, Walter Williams, Booker T. Washington, Jackie Robinson (whose private accomplishments and perseverence did more to improve American race relations than any government program), Richard Wright, John Coltrane, Thelonious Monk, Charlie Parker, Sam Jethroe, Hank Aaron, Dave Winfield, Willie Randolph, Satchell Paige and Willie Mays (who wore his hat loosely so that it would fly off easily to excite the crowds), James Earl Jones and Morgan Freeman (this list is not intended to be comprehensive), and the men of the 54th Massachusetts regiment of the Union Army; I admire these men for their talents, courage, and accomplishments.
In high school, I volunteered as a tutor at the Booker T. Washington Center. My family includes blacks, Chinese, and Filipinos. I do not say this because such facts matter to me in any sense beyond the normal way in which family matters to one; I merely state these facts to pre-empt the sort of foolishness which I expect to greet this attempt at a reasoned discussion of the legacy of Abraham Lincoln (not that I expect the Claremont writers to reply by ad hominem attacks; it is simply that I will not be surprised if someone resorts to smearing my name in lieu of arguing the merits of the cases for and against Lincoln according to history, philosophy and law). Also, the Civil War ended at Appomatox Courthouse. That being said, I am yet engaged in a struggle, namely, the struggle to restore Western civilization and American liberty to something not resembling a cess pool. Finally, as if there could be any question, slavery is a moral evil. The ownership of another human being is the ultimate denial of that liberty to which all human beings are entitled by virtue of their God-given human nature.
Ultimately, there are answers to the question of why Abraham Lincoln has been deified. There appears to be a natural human tendency to lionize public figures who die unexpectedly, whether by criminal endeavor (Lincoln and JFK) or by accident (Princess Diana). But there is more to the deification of Abraham Lincoln. Where Lincoln is concerned, godhood is the only alternative to regarding him as a dictator, and it is a way to manipulate the masses for present political gain.
Perhaps the most perceptive account of the need to deify murdering politicians is provided in the outstanding novel by Robert Graves, I, Claudius. (It is No. 14 on the Modern Library Top 100 books of the 20th century). Near the end of the book, Claudius meets with his grandmother, Livia. Throughout the novel, Claudius sees her as a calculating murderer. He suspects that she has murdered a great many friends and relatives, including Claudius' own father. Their meeting, in part, goes as follows:
"Claudius, let me explain. I quite agree about the ignorant rabble. It's not so much my fame on earth that I'm thinking about as the position I am to occupy in Heaven. I have done many impious things — no great ruler can do otherwise. I have put the good of the Empire before all human considerations. To keep the Empire free from factions I have had to commit many crimes. Augustus did his best to wreck the Empire by his ridiculous favouritism: Marcellus against Agrippa, Gaius against Tiberius. Who saved Rome from renewed Civil War? I did. The unpleasant and difficult task of removing Marcellus and Gaius [Caligula] fell on me. Yes, don't pretend you haven't ever suspected me of poisoning them. And what is the proper reward for a ruler who commits such crimes for the good of his subjects? The proper reward, obviously, is to be deified. Do you believe that the souls of criminals are eternally tormented?"
"I have always been taught to believe that they are."
"But the Immortal Gods are free from any fear of punishment, however many crimes they commit?"
"Well, Jove deposed his father and killed one of his grandsons and incestuously married his sister, and...yes, I agree....They none of them have a good moral reputation. And certainly the Judges of the Mortal Dead have no jurisdiction over them."
"Exactly. You see now why it's all-important for me to become a Goddess. And this, if you must know, is the reason why I tolerate Caligula. He has sworn that if I keep his secret he will make a Goddess of me as soon as he's Emperor. And I want you to swear that you'll do all in your power to see that I become a Goddess as soon as possible, because — oh, don't you see? — until he makes me a Goddess I'll be in Hell, suffering the most frightful torments, the most exquisite ineluctable torments." (pp 337-39)
Think of Lincoln as Livia. He did not ask for himself to be deified like Livia, but the Radical Republicans who controlled the North and South after the war had a tremendous stake in painting Lincoln as a hero. If Lincoln was a demon, then they themselves were demons, and that simply could not be conceived. The victors, after all, write the history.
Additionally, there are those unscrupulous persons (and perhaps some who are well-intentioned; one knows where good intentions lead, however) who wish to short-circuit rational thought and play on the emotions. Such persons are known in political philosophy as demagogues. Why short-circuit rational thought? It makes it easier to manipulate the unthinking masses and get your way.
Demagogues need Lincoln to justify the state. If Lincoln and FDR go down to ignominy like Lenin and Stalin, the governing class will need to work that much harder to justify everything it does. Very likely the Claremont Institute seeks not to create illusions about Lincoln, but merely to cure the disillusionment of Americans. If that is the Claremont Institute's task, however, they are going about it the wrong way. Citizenship is not hero worship, and so hero worship cannot be the proper cure for apathy in a free republic.
It is better to inculcate the proper virtues of free citizens — such as honesty, industry and thrift, to name but a few — rather than to acquiesce in the transformation of political life into something akin to rooting for sports teams. The reason for this is that such a grounding in the virtues of free citizens addresses the cause of the disease, namely, a slavish mentality, rather than attacking the symptoms, namely, apathy.
Similarly, if the Claremont Institute wishes to study statesmanship, there are American statesmen worthy of study who are not named Lincoln, such as John C. Breckinridge, Patrick Henry, Sam Adams, Benjamin Franklin, Thomas Paine, Thomas Jefferson, and Martin van Buren.
Some Frenchmen revere Napoleon as a saint. Some Americans, it seems, can do no less for Lincoln.
May 11, 2001
Mr. Dieteman [send him mail] is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America.
© 2001 David Dieteman