II.
Musician Anthony Gregory argues, meanwhile, that union victory in the Civil War meant the “repudiat[ion]” of the “republican form of government,” which he defines as “a coalition of several states.”
This is a falsehood. First, Gregory is misusing the term “republican form of government.” A government is republican if it is representative and public oriented; a nation, a state, a federal union, all can be “republican.” But second, and more to the point, the American people repudiated “a coalition of several states” in 1788, when they ratified the Constitution and rescinded the Articles of Confederation. The Articles were promulgated in the name of “the States,” and explicitly preserved to each state “its sovereignty, freedom, and independence,” so it is correct to call it a coalition of several states. But the new Constitution radically altered the American union and in place of a confederation of sovereignties, substituted the sovereignty of a single unit: “the people of the United States” who according to the preamble “ordain and establish” the Constitution.
As James Madison explained, the Articles had been “derived from the dependent derivative authority of the legislatures of the states; whereas this [Constitution] is derived from the superior power of the people.” As Alexander Hamilton explained, the Articles were “a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY.” The Constitution of 1787 would be the latter. As John Marshall explained, the authority of the Constitution “proceeds directly from the people; is ‘ordained and established’ in the name of the people.... It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.... The government of the Union, then…is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.... [T]he government of the Union, though limited in its powers, is supreme within its sphere of action.”
Opponents of the Constitution were well aware that it represented a repudiation of the coalition model. Patrick Henry warned at the Virginia ratification convention that the Constitution would replace the treaty-style articles with a government of the whole union, and Madison agreed with that. A delegate to the South Carolina ratification complained that “[t]he [1783] treaty of peace expressly agreed to acknowledge us as free, sovereign, and independent states...[b]ut this new Constitution at once swept those privileges away, being sovereign over all,” to which Charles Cotesworth Pinckney agreed. The “Federal Farmer” wrote that “when the people [of each state] shall adopt the proposed [Constitution]…it will be adopted not by the people of New Hampshire, Massachusetts, &c., but by the people of the United States….” “Cincinnatus,” complained that the Constitution meant “the utter extinction of the state sovereignties,” and that this was manifested in “this remarkable declaration—We the People of the United States.” Robert Yates opposed ratification because “if it is ratified, [it] will not be a compact entered into by the States, in their corporate capacities, but an agreement of the people of the United States as one great body politic.... It is to be observed, it is not a union of states or bodies corporate; had this been the case the existence of the state governments might have been secured. But it is a union of the people of the United States considered as one body, who are to ratify this constitution, if it is adopted.”
Knowing full well that the Constitution would “repudiat[e]” the “coalition of several states,” the American people chose to do so in 1788, by ratifying it. Gregory misunderstands or misrepresents the most critical feature of the Constitution, indeed, the entire purpose for which it was ratified. And it was this feature that makes unilateral secession illegal, because states are not parties to the compact, and may not therefore withdraw from it.
Not content with mischaracterizing the Constitution, Gregory goes on to mischaracterize the Declaration of Independence. He reiterates the canard that union victory “abolished the very system that was supposed to come out of the revolution against the British crown, a system where smaller political units could exercise their legal and human right to overthrow or at least leave the central government that ruled them without their consent.” But that was not the system that was supposed to come out of the revolution. Nothing in the Declaration of Independence speaks of the alleged “rights” of “political units,” or suggests that “political units” have the right to government by consent or to revolution. It says that individuals have rights, and only individuals have rights—rights that arise from the more fundamental principle of equality. It says “all men are created equal…endowed by their Creator with certain unalienable Rights…. [T]o secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…. [W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.” In other words, states are mere agents of the people, who alone possess rights; political units can assert no valid rights in derogation of the rights of individuals.
Few in the revolutionary generation had any romantic attachment to the states as “political units.” Madison wrote that it was “preposterous” to complain that the Constitution “may derogate from the importance of the governments of the individual States,” because the American Revolution was not formed, or the “precious blood of thousands spilt,” simply so that “the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty.” This would be an “impious doctrine,” and “as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.”
Jefferson, too, said that “an elective despotism was not the government we fought for," and “the rights of the whole can be no more than the sum of the rights of individuals.” He recognized, as Gregory does not, the difference between individual rights—based fundamentally on the equal right of all to their freedom—and the alleged “rights” of states. No state, the founders believed, had the right to oppress—that is, to perpetuate slavery free of interference. Whatever their hypocrisy or their difficult compromises with slavery, the founders knew the difference between overthrowing an oppressive regime in defense of individual rights—what they called “throwing off” a government that reveals after “a long train of abuses” a “design to reduce” the people “under absolute despotism”—and an armed gang that rebels against the law in order to rob, rape, exploit, and oppress others. It was this latter that the Confederacy’s leaders were engaged in. The Confederacy can lay no claim to the argument articulated in the Declaration of Independence. Perhaps that’s why the Confederacy’s leaders explicitly rejected the Declaration, calling it utterly untrue, or based on outdated premises.
In a paragraph that perfectly encapsulates the shoddy pseudo-intellectualism prevalent among neo-Confederates, Gregory writes,
Slavery could have been ended peacefully, to be sure, but ending slavery was not Lincoln’s motivation in waging the war—throughout which this purely evil institution was protected by the federal government in the Union states that practiced it, and during which slaves liberated from captivity by U.S. generals were sent back to their Southern “masters.” For Lincoln, the war was about preserving the Union, first and foremost, and this preservation was consecrated upon the altar of mass death.
It’s hard to believe that slavery might have actually been ended peacefully, but assume it could have been. Who was it who wanted to end slavery peacefully? It was Abraham Lincoln, who sought not to end slavery in the states where it existed—because he recognized that he had no legal authority to do this—but to halt the spread of slavery into the west, which he did have legal authority to do. It was the south that would not tolerate Lincoln's commitment to the peaceful, eventual end of slavery, and that is why they started the war by initiating force.
Lincoln's motivation in prosecuting the war was to preserve the union, which he had the legal obligation to do (being charged with the duty of seeing that the law, including the Constitution, be faithfully executed), and not with freeing the slaves, which he had no lawful power to do. The federal government protected slavery in the Union states that practiced it because that was what the law required the Lincoln Administration to do. Union generals returned fugitive slaves because that was what the law required the Lincoln Administration to do—until the exigencies of war became such that Lincoln could order the confiscation of slaves as contraband of war, which, again, was within his lawful authority as commander in chief. In other words, Gregory goes from accusing Lincoln of lawlessness for ignoring constitutional boundaries to accusing the Lincoln Administration of immorality because it respected its constitutional boundaries!
To be clear, Lincoln sought not to abolish slavery, but to restrict its spread, hoping to find some lawful way to gradually end slavery. He did not seek to free a single slave. Call that a wicked compromise if you wish—it certainly was a moderate position, compared to the radical abolitionists—but it was the most that the law permitted the federal government to do at that time. Lincoln wanted, therefore, to find a way to end slavery peacefully—and this was what the south would not stand for. It demanded that slavery be extended and perpetuated permanently. It was the south, not the north, that initiated force, and it did so not in defense of individual rights, but because it rightly saw that Lincoln’s plan to bar slavery peacefully from the western territories would mean that the south would eventually be outvoted in Congress—that is, that a peaceful eradication of slavery would become inevitable. This was unacceptable to the slave power.
Having revealed his utter ignorance of the Constitution, the Declaration, and the history of slavery politics, Gregory proceeds to make his argument that today’s bloated government was created by union victory. He has two arguments. The first is the basic post hoc ergo propter hoc fallacy (e.g., “ever since the Civil War, the U.S. government has been king of the land.”). We are to ignore such minor figures as Franklin Roosevelt and Lyndon Johnson, apparently. The second is the complaint that the growth of federal power resulted from the eradication of “the most important revolutionary check on federal power, the threat of states leaving the country.”
There’s some superficial plausibility to the idea that, if states could leave the union, federal growth would be curbed to some extent. Even here, factors like the direct election of senators are far more closely related to the growth of federal power than is the lack of power to secede. But isn’t secession equally likely to be used in defense of tyranny as of freedom? The last time states really spoke secessionist language, it was in the service of oppression—during the Civil Rights era. When it came to actual examples of unconstitutional federal expansion, like the New Deal or Great Society, talk of seceding in defense of limited government wasn’t exactly prominent.
On the contrary, secession—based on Gregory’s gur-reat pur-rinciple of state sovereignty—that if one man wishes to enslave another, no third man may object—is rooted in the idea that “political units” have rights, and can “leave the central government that rule[] [these units] without their consent.” And that power—the power of a political unit to rule over individuals without interference from the federal government—is far more likely to result in greater oppression than in greater liberty. The entire history of American law—from the creation of the king’s prerogative writs to the ratification of the Fourteenth Amendment—teaches us that what people need is to have local political units kept in check by other political units. “Monarchy unaccountable,” wrote Milton, “is the worst sort of Tyranny.” When no such supervisory check exists is when the state governments can oppress people with impunity. And no defender of liberty should desire such an end.
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