Lincoln
versus Liberty:
A Reply to Ken Masugi
by
David Dieteman
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
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Dieteman Archives
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