Lincoln versus Liberty:
A Reply to Ken Masugi
Allow me to begin by thanking Ken Masugi, Director of the Center for Local Government at the Claremont Institute, for something which is entirely too rare today: a civilized reply on a hotly contested issue.
This article seeks to clarify a few points in response to criticisms made by Masugi, as well as to advance the arguments made in my earlier articles "Contra Claremont," "Three Views of the Constitution," and "Getting Lincoln Right."
First, in terms of importance, I must respond to Masugi's claim that
Dieteman's omission of natural rights arguments on his behalf betrays him. Indeed, his failure to quote the Declaration of Independence itself indicates a distance from the natural law root of free government and all the other principles of the American Founding that Lincoln sought to preserve and the South abandoned.
I did not omit the natural rights arguments for Southern secession. I left them to William Rawle and St. George Tucker in "Three Views of the Constitution," which was a separate essay from "Contra Claremont." In that regard, I am not certain that Ken Masugi read and sought to respond to "Three Views of the Constitution." Rather than restate the argument of "Three Views of the Constitution" in toto, I will summarize the views of St. George Tucker and William Rawle once again.
As Arthur Sutherland observes of Rawle and Tucker in the 1968 introduction to Joseph Story's Commentaries on the Constitution,
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.
In other words, before Abraham Lincoln's war, the federal government officially taught its military officers at West Point that states had the right to secede. This historical fact is of considerable significance. Does this cast not even the slightest degree of doubt upon Lincoln's assertion that secession was equivalent to anarchy?
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).
William Rawle 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 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.
In Chapter 32 of A View of the Constitution, published in 1825, Rawle writes that
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.
In other words, the "natural right of revolution" is identical with the principle that government is based upon the consent of the governed. Note that for Rawle, "it depends on itself whether [a state] will continue a member of the Union." The states are free to go at any time, based on the principle of consent. According to Rawle, 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.
In 1825, Rawle described the possibility of precisely the actions taken by Lincoln 40 years later, namely, the self-government of the Southern states was destroyed at the pleasure of the Union, "under colour of constitutional authority." Lincoln's invasion of the South was wholly unconstitutional. There is no enumerated power which authorized Lincoln's war. 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.
Again, Rawle was George Washington's first choice to be the first Attorney General of the United States. Rawle's view of the Constitution, then, is very persuasive authority in favor of the existence of both a constitutional and natural right to secede.
St. George Tucker, in his View of the Constitution of the United States, published in 1803, takes the view that states could secede from the Constitution just as they had previously seceded from England and the Articles of Confederation. As Tucker writes,
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 to which every one of the confederate states...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, 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)
Note that in the quotation above, Tucker does not use capital letters for certain documents; he refers here to the Declaration of Independence as "the declaration." Note also that, as Tucker is writing in 1803, his reference to "the confederate states" is a reference to the American states under the Articles of Confederation, from which the states later seceded. In other words, if the states had the right to secede from England and from the Articles of Confederation, St. George Tucker contends, they had the right to secede from the Constitution.
Tucker's view is supported by the Constitution itself. The Constitution, in Article I, Section 8, enumerates the delegated powers of the federal government; there is no enumerated power to prohibit secession. Also, as James Ostrowski points out in Secession, State and Liberty (edited by David Gordon; see 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 states the corollary of 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 piece 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!
Despite his recognition of the natural and constitutional right to secession, St. George 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)
As Tucker observes, the government of the Constitution was born of secession from the Articles of Confederation (again, this argument is developed at greater length in "Three Views of the Constitution"). 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)
For St. George Tucker, then, one of the leading American figures in constitutional law in the 19th century, it was precisely the rights expressed in the Declaration of Independence which not only gave states the natural right, but the duty, to secede from a federal government which had usurped its enumerated powers.
Finally, there remains one difficulty with Masugi's work that I have not been able to reconcile, namely, the apparent insistence that if the Southern states did not "invoke" the natural right of revolution, then secession was somehow unjustified. Such an argument, if it is indeed what Masugi intends to argue, is untenable. If such an argument were true, a man would only be justified in self-defense if he told the robber, while shooting the robber, "I am exercising my natural right of self-defense." If a right is natural, and that right is acted upon, then the action justified by reference to that right is justified, whether or not the right is verbally invoked.
Similarly, suppose that the Southern states more carefully drafted their ordinances of secession to articulate both a natural right to secede and a constitutional right to secede. This would not have been difficult. To which court should they have taken their complaint for secession, for breach of the contract known as the constitution? Of course, there was and is no such court. One must be careful, then, to avoid excessive legalism in analyzing the manner in which the Southern states exercised their natural and constitutional right to secede.
By way of clarification, human government is grounded in the natural law. For St. Thomas Aquinas, human government is a participation in the divine governance of creation. In the Summa Theologica, Aquinas contends that there are four types of law: the eternal law (God Himself), the divine positive law (e.g., the Ten Commandments), the natural law, and human positive law. For Aquinas, the natural law is God's essence as encountered through the exercise of our human nature. Merely by living our lives as human beings, we discover certain actions to be good, and others to be evil. Murder, for example, is recognized as bad, whether or not there are human laws making it illegal.
In that regard, despite the fact that Mencken was an atheist, I have no trouble quoting Mencken on issues about which he is correct. (As an aside, Masugi has no trouble quoting Lincoln, who belonged to no organized Christian church). Mencken made fun of Southerners with regularity, and yet he saw the Northern war on the South for what it was, namely, a denial of self-determination.
Which brings me to another charge to be rebutted. Masugi wonders
What is the "self" in the South's notion of "self-determination"? Dieteman appears to being [sic] saying that slavery did not shape the Southern character, at least not adversely, and he even maintains that "Lincoln's only claim to have acted for liberty is that he freed the slaves." What would the Southerner do with his hard-fought liberty? Would he, for example, join with Europeans in a war against the North? What implications would that have had for the long-term future of liberty in North America?
With respect to his question about the "self" in Southern "self-determination," does Masugi contend that only those territories populated by morally perfect men and women possess the natural right of revolution? If not, I find his question puzzling. Meanwhile, as some of the above questions are counter-factuals (i.e., they ask about historical events that might have happened, but did not happen), they are impossible to answer. That being said, I do not think that the South would have had any desire to join a European war against the North. The Southerners, after all, were just as much Americans, standing outside of Europe, as were the Northerners. The states of both regions united for the purpose of winning freedom from England. I am inclined to believe, however, that the long-term implications for liberty in America would have been better on a continent divided between USA and CSA.
Counter-factuals aside, we know what the federal government has done to American liberty after Lincoln. As Jeffrey Rogers Hummel and Thomas DiLorenzo convincingly argue, Lincoln is the great centralizer in American politics. The war ratcheted federal power (as well as governmental power against civil society generally) up to unprecedented levels from which it has never retreated. Thus, Richard Yates, the Republican governor from Illinois, stated in 1865 that the war had done more than anything to undermine the notion of limited government, i.e. the notion that the best government is the government which governs least.
We also know that Lincoln, and the union he preserved, are emphatically not "a fulfillment of the Holy Mother Church." The war on the South meets none of the criteria of a just war, especially when one considers a feature of the war which Masugi claims that I have ignored, namely, Lincoln's "war strategy," also known as a total war against women, children, and undefended homes. Sheman's March, anyone? Such barbarism aside, here's a counter-factual worth debating: would there be abortion in a modern-day CSA?
Second, it is not enough for Masugi to quote Lincoln to the effect that "the central idea of secession, is the essence of anarchy." What Abraham Lincoln himself thought about secession does not settle the question of either the nature or the legality of secession. Certainly William Rawle and St. George Tucker did not view secession as anarchy. Also, if Lincoln is correct to view secession everywhere and always as equivalent to anarchy, then the Constitution is a very bad thing, as it represents the fruits of secession from the Articles of Confederation, which are themselves very bad, resulting from secession from England.
I agree with Masugi and Pope John Paul II that "democracy cannot be sustained without a shared commitment to certain moral truths about the human person and human community." That being said, what determines the composition of the democracy which shares such a commitment to moral truths? The trouble with Lincoln is that he stands for the view that the force of arms determines the composition of the democracy; U.S. Grant actually stated that arms are the highest tribunal available to man (see my earlier articles for references). After the population of the Southern states determined that it did not share certain moral truths with the population of the North, the Southern states constitutionally and lawfully acted to leave the political union known as the United States. They only returned to the "union" at the point of a gun. That's a good thing?
Similarly, Masugi responds to my contention that Lincoln turned the Declaration of Independence against itself, so that "all men are created equal" absolutely trumps "the consent of the governed," by arguing that "Lincoln would not have freed all the slaves without having a constitutional amendment" if he thought equality to absolutely trump government by consent. The difficulty with this argument is that Lincoln's constitutional amendment only came after a war which forced the Southern states back into the union. As secession was constitutional and the federal war on the Southern states was unconstitutional, this argument does not succeed.
Masugi writes that
If anything, Dieteman's discursive discourse affirms what I have long suspected about the "paleoconservatives." Often clever, typically patriotic, they nonetheless speak of "states' rights" in an empty, categorical way.
I must take exception with that remark. First, I do not adhere to the vision of states' rights in "an empty, categorical way." The slaves within the CSA certainly had the natural right to revolt against their masters. Even if the CSA had seceded, and existed as a separate nation, its citizens would have had the right to in turn abolish the CSA for its despotic acts. In part, Southern support for the CSA evaporated precisely because of official CSA suppression of civil liberties during the war. States' rights, then, should not be treated in an empty or categorical way. Instead, as Lord Acton observes,
I saw in States Rights the only availing check upon the absolutism of the sovereign will, and secession filled me with hope, not as the destruction but as the redemption of Democracy.... I deemed that you were fighting the battles of our liberty, our progress, and our civilization; and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo.
I put myself beside Acton. I approve of secession and the CSA precisely because secession is a check upon despotism.
Second, it is a thinly-veiled smear to refer to paleocons as "typically patriotic," as if some paleocons are traitors for daring to think differently than neocons. And besides, I am more of a paleolibertarian than a paleocon. As Masugi concludes,
The willfulness of the secessionists reveals that it is the Jean-Jacques Rousseau of the general will who is the patron saint of this confused faction of American conservatism. Rousseau of course was the guiding spirit of the French Revolution. This radicalism explains Dieteman's Machiavellianism ("there is no truth besides cynical truth in politics"), his romanticism, willfulness, regionalism, and the bizarre attempt to make slavery and limited government compatible.
For the record, Rousseau explains nothing about either myself or the CSA. Personally, Rousseau is perhaps the philosopher whom I most despise (Descartes is a close second; where to put Hegel?). I admit to being something of a romantic, but I do not take that from Rousseau. The only thing I ever took from Rousseau is a dislike for Rousseau and a strong desire to vomit (that, and a recognition that in Rousseau are the deep roots of Marxism).
Also, I am neither a Machiavellian nor a conservative. With respect to Machiavelli, although I do contend that there is no truth besides cynical truth in politics, that statement is only true where politicians are immoral and base. It is not a natural feature of politics, it is merely an accidentally true claim, but it is true of the United States today. For Aquinas, the greatest human government was the ancient Hebrew state, because it was the closest to the divine governance of creation (having the Ark of the Covenant on hand helped with that). America, under Lincoln and under Bush the Second, is very far from such a state of affairs. With respect to conservatism, I am a classical liberal or libertarian. I seek not to conserve any particular state of affairs, but to explain and defend the God-given human liberty of all against those who would treat their fellow human beings like cattle for the slaughter.
Additionally, I make (and made) no attempt to render slavery compatible with limited government. I agree with Masugi's point "that slavery distorts the master at least as much as the slave." These bare facts, however, are not sufficient to justify Lincoln's actions, nor do they appear to indicate a consistency in Masugi's view of American government. Since there was slavery in the colonies at the time of their secession from England, and there was slavery in the USA until 1865 (even in the North until roughly 1830), on Masugi's own view, the USA did not stand for limited government because such government is incompatible with slavery. If Masugi contends that the USA did stand for limited government, even with slaves and Fugitive Slave Laws, how did it do so? If the USA could allow slavery and yet stand for limited government, then so could the CSA.
Such arguments aside, I am of the opinion that slavery was on its way to a natural death in the South. Besides being immoral, slavery is economically inefficient, since it denies self-ownership. Free labor will outproduce slave labor. Over time, then, I suspect that slavery in the CSA would have died as a matter of economics, if not of a growing recognition of the sinfulness and immorality of the peculiar institution.
In closing, I am not an intractable opponent of Lincoln. I am open to reasoned arguments. So far, however, I have not seen my concerns addressed in such a way as to convince me to change my view of Lincoln as a usurper of the constitution and the instigator of an avoidable, unjust, and nationalistic war.
May 26, 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