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The Second War on the Liberties of American Citizens

In September 1864, the New York World editorialized “for the simple reason that, after [peace candidate George B. McClellan’s] inauguration, the character of the war will have so changed that the Southern people will no longer have a sufficient motive to stand out.” Despite a critical New York press, Lincoln barely won the State’s 212 electoral votes in November 1864 against McClellan, the manipulated soldier vote assisting greatly in the .92% margin of victory. After Lincoln’s assassination in mid-April 1865, the Yonkers Herald-Gazette condemned it as “the darkest crime” but added that “it might have been a wise move at the beginning of the war during the darker days of the struggle.”

Bernhard Thuersam, www.Circa1865.org

 

The Second War on the Liberties of American Citizens

“For the Democrats of Westchester County [New York], the presidential contest of 1864 appears as the last opportunity for opposition to Lincoln, his policies, and the future course of the war. This time, they could rally around a single candidate, George B. McClellan.

For Mary Lydig Daly, having Lincoln as president once again was a repulsive thought. [She] wrote in her diary . . . “We are at present ruled by New England, which was never a gentle or tolerant mistress, and my Dutch and German obstinate blood begins to feel heated to see how arrogantly she dictates and would force her ideas down our throats, even with the bayonet.”

In 1864, McClellan made it clear he would continue the war to its successful conclusion, that is, the restoration of the Union as it was. He did not advocate “peace at any price,” in spite of the sentiments of some members of his party.

Should he have won the presidency in 1864, he would have dismantled the repressive aspects of Lincoln’s policies against civil liberties and civilians. He would have undone the Republican experiments in social engineering, especially emancipation.

When his Northern solders commented on the evils of slavery (many of them having seen the institution for the first time), what they were really seeing were the consequences and disorder of emancipation. The Reconstruction Era presented a clear picture of what that was like, resulting in “nothing but freedom” for the ex-slaves.

When Lincoln was nominated that June [1864], the Yonkers Herald-Gazette . . . commented “Another four years of “Honest old Abe” would leave nothing but the shadow of a Republic on the American continent. The Republican papers in the county, such as the rival Yonkers Statesman, trotted out their familiar epithet of “disloyalty” against this paper and other Democratic sheets . . .

The Yonkers Herald-Gazette retorted: “We confess to the smallest possible amount of respect for the Republican professions of “loyalty,” or Republican charges of “disloyalty.” The word is not American, nor Republican even – here it originally expressed the treasonable attachment of the loyal Tories to George the Third, in his wanton war against American liberty; and as now used, it general means partisan devotion to Abraham Lincoln, not in resistance to a Southern Rebellion, but in a would-be second war on the liberties of American citizens.”

(The Last Ditch of Opposition: The Election of 1864 and Beyond; Yankees & Yorkers: Opposition to Lincoln’s Policies in Westchester County, New York, and the Greater Hudson Valley, Richard T. Valentine; Northern Opposition to Mr. Lincoln’s War, D. Jonathan White, editor, Abbeville Institute Press, 2014, excerpts pp. 204-206)

Awful Sacrifices and Doomed Assaults

Northern General George Meade knew the futility of massed charges of men against a strongly entrenched opponent, the latter was his position at Gettysburg versus Lee. Though Meade was characterized as “failed, maladroit and weak-willed,” his subordinates praised their superior’s courage in ordering withdrawals in the face of strong Southern positions. They were painfully aware that “Meade had only snap his fingers” and there would have been “ten thousand wretched, mangled creatures” lying on the valley slopes. By the end of 1863, “courage” to some had become the will to renounce the charge; Lincoln and the Radicals desired relentless assaults and mass-carnage.

Bernhard Thuersam, www.Circa1865.org

 

Awful Sacrifices and Doomed Assaults

“Even before the assault at Cold Harbor, [Northern] soldiers entering their fourth year of war understood perfectly what the result would be. They knew that the Confederates had had thirty-six hours in which to prepare their positions and that by that stage of the war any attack under such circumstances was doomed.

Charles Wainwright thought it absurd that Grant should simply repeat here the order “which has been given at all such times on this campaign, viz: “to attack along the whole line.”

On the eve of battle, Union soldiers who had glimpsed some part of the Southern defenses or heard them described by the “news-gatherers” were, Wilkinson reported, depressed: “Some of the men were sad, some indifferent; some so tired of the strain on their nerves that they wished they were dead and their troubles over . . . and though they had resolved to do their best, there was no eagerness for the fray, and the impression among the intelligent soldiers was that the task cut out for them was more than men could accomplish.”

Indeed, numbers of soldiers wrote their names on small pieces of paper and pinned them to their coats, in a hope, signaling hopelessness, that their bodies would not go unidentified.

On June 15, 1864, when Grant’s army finally reached the James [River] at a cost of 60,000 casualties, a number equivalent to the size of Lee’s army at the outset of the campaign, the Union regular Augustus Meyers felt the “gloomy and depressing effect” of such “awful sacrifices without any advantages.”

When the Twenty-seventh Maine’s tour of duty was about to expire just prior to the battle of Gettysburg, President Abraham Lincoln authorized the award of the Medal of Honor to each soldier who would reenlist. Three hundred agreed to remain on duty as “emergency troops,” but medals were issued in error to all 864 members of the regiment. The Twenty-seventh Maine had seen no battle before Gettysburg; its remnant played no role at Gettysburg.

Similarly, so many brevet (i.e., honorary) promotions were awarded, Augustus Meyers complained, that they “seemed to lose dignity” and became objects of ridicule. His friends in the ranks began to refer to mules as “brevet horses” and to camp followers as “brevet soldiers.” Such awards, moreover, seemed seldom to recognize battlefield bravery.

On November 28, Meade probed Lee’s position [at Mine Run] and prepared for a large-scale assault. Meanwhile, Federal rank and file had an opportunity to judge for themselves the strength of the defense. “All felt it would be madness to assault,” Robert Carter of the Twenty-second Massachusetts said. “I felt death in my very bones all day.” George Bicknell of the Fifth Maine wrote that there was not “a man in our command who did not realize his position. Not one who . . . did not see the letters [of] death before his vision . . . [N]ever before nor since had such a universal fate seemed to hang over a command.

[Meade] canceled the assault and on December 1 ordered his army back across the Rapidan, a retreat into winter quarters.”

(Embattled Courage: The Experience of Combat in the American Civil War, Gerald F. Linderman, The Free Press, 1987, excerpts, pp. 161; 163-164)

Un-American Union of Force

The party of Seward and Lincoln fielded its first presidential candidate in 1854; in the space of another seven years this party succeeded in alienating nearly half the country, waged bloody war in Kansas, forced a State to peacefully withdraw from the Union, and plunged the country into a bloody and destructive war that led to the deaths of a million people.

Bernhard Thuersam, www.Circa1865.org

 

Un-American Union of Force

“Finally, a new party was formed, with its primary object, as professed, the exclusion of the South from the common territories that had been acquired by the common blood and the common treasure of the South and the North.

And, significantly, early in its history, or as soon (1860) as it had acquired material growth and substantial prestige, this new political party, already thus avowedly sectional in its principles, made a sectional “protective” tariff one of its demands.

And when it had elected a president (by a sectional and a minority popular vote, be it remembered), and so caused a disruption of the union of States, “protection” was a primary means employed to support the war that followed – a war of aggression and conquest waged by this party to secure both its own continued supremacy and the new consolidated and un-American union of force in place of the pristine confederated union of choice which itself had had done so much to destroy; a war in which Negro emancipation “in parts of the Southern States” was incidentally proclaimed as a “military measure,” the thirteenth amendment coming later to extend and validate this unconstitutional proceeding.

“Un-American union of force,” I said; we must remember that widespread opposition to the war of conquest against the South manifested itself in the North, and that the myriads of immigrants from centralist, “blood and iron” Germany had much to do with turning the scale in the North in support of Lincoln’s and Seward’s war.

In these aliens there had arisen “a new king which knew not Joseph,” who had no inconvenient recollections of ’76 to hold him in check.”

(Living Confederate Principles, Lloyd T. Everett, Southern Historical Society Papers, No. II, Volume XL, September 1915; Broadfoot Publishing Co., 1991, excerpts pp. 22-23)

Profiteering in Arkansas

With Lincoln’s approval, former Illinois Congressman William Kellogg advanced a cotton-trading scheme at Northern occupied Helena, Arkansas, which would reap millions for himself and provide slave-produced cotton for hungry Northern mills. Though Secretary of the Treasury Salmon Chase opposed the idea, Kellogg was later appointed chief justice of the Nebraska Territory in early 1865 for his patriotic efforts.

Bernhard Thuersam, www.Circa1865.org

 

Profiteering in Arkansas

“Upon occupying Helena, Arkansas, in mid-July 1862, Union General Samuel Curtis complained that his camp was “infested with Jews, secessionists and spies.” By issuing orders that restricted trade to a few people he could control under military law as sutlers, Curtis adopted a policy that made him vulnerable to charges of improper monopolization.

Shortly, a steady stream of rumored abuses percolated up to Chicago and the department headquarters for Curtis’s army at St. Louis. Illinois Senator Orville Browning’s diary records Chicago rumors that Curtis deposited $150,000 with a Chicago financier less than three months after occupying Helena. By October 1862, [an] officer said, Curtis had already seized several million dollars worth of [cotton] and “converted it to his own use.”

Later, Curtis wrote Lincoln directly to explain that the complaints originated out of envy from unsavory characters who were unworthy of trade privileges. Nonetheless, within a few months, the general was transferred to St. Louis to become the new department commander, and rumors of his possible fraud trailed along.

An investigating Treasury agent concluded that Helena’s trade “diverted soldiers to become agents and brokers of cotton buying [and had] thrown thousands of dollars into the hands of our enemies.” Corruption flourished at Helena, where the army had little to do during twelve months of idle occupation before invading central Arkansas in late summer of 1863.

Federal soldiers even purchased cotton from slaves with counterfeit Confederate money.

Lincoln’s military governor of Arkansas complained late in 1862 that the idle troops at Helena were principally engaged in profiting from cotton trade. They raided neighboring plantations to confiscate whatever cotton they could get. As an afterthought, they would often destroy the plantation homestead.

Helena’s steady occupation led to deplorable sanitary conditions, particularly among the freed slaves . . . [and] disease, malnutrition, and lack of clothes and shelter took a toll on the blacks who sought refuge in the town.

Before the end of 1862, the inland navy began to get involved. [Admiral David Dixon Porter’s] crews became covetous of cotton as a prize of war . . . [and] 50 percent of a captured cargo was subject to a reward for the crew of the ship making the capture. By the end of the war, Porter had become so aggressive at stealing cotton . . . [he was dubbed] “Thief of the Mississippi.”

His sailors would seize bales and stencil “C.S.A” on them, thereby falsely representing the cotton as property of the Confederate government and therefore subject to prize law.”

(Trading With the Enemy: The Covert Economy During the American Civil War, Philip Leigh, Westholme Publishing, 2014, excerpts pp. 65-66)

A Minority Party Blunders into War

William H. Seward lost the Republican presidential nomination to a political novice from Illinois, and was quietly licking his wounds while that novice was ignoring the secession crisis in Springfield. As Seward was the creation and protégé of New York newspaperman Thurlow Weed, he might have exerted party leadership to bring on a constitutional convention of the States to properly settle the issues. Weed was no friend of secession, but saw signs that the conservative South was open to negotiation – as the Crittenden Compromise offered. Seward deferred to Lincoln, and Lincoln stumbled into war.

Bernhard Thuersam, www.Circa1865.org

 

A Minority Party Blunders into War

“Aside from misconceiving the importance of the secession movement, the Republicans were also placed at a great disadvantage by their lack of experience as a majority party and their lack of a leader to chart their course for them. The crisis overtook them before they could remedy these defects.

It demanded that they produce a formula to save the Union, and made this demand at a time when they had never even borne the responsibility of appointing a postmaster. They were yet a minority party, not destined to assume office for three months to come.

They had never been anything other than a minority party, skilled in opposition tactics, steeped in opposition psychology, unused to responsibility, unaccustomed to the formulation of policy. Unprepared as they were to cope with a crisis, they clung to their nominal position as a minority group and shrank from taking affirmative action. The future belonged to them; they alone could pledge it; and consequently they alone could wield the initiative.

This handicap might have been overcome by clear-cut and decisive leadership. But in the moment when an unexpected crisis and unfamiliar responsibility fell simultaneously upon Republican congressmen, they found themselves with no unquestioned leader. Abraham Lincoln was, of course, the elected chief, but he had been silent for more than half a year.

Mr. Lincoln was, in the eyes of many simply an ex-congressman from Illinois, now President-elect . . . Certainly they gave no sincere allegiance to the unknown quantity from Springfield, and if anyone held the position of leadership it was Lincoln’s rival, William H. Seward. Seward had been the leader of the Republican party, and especially of the Republicans in Congress, for nearly six years . . . and probably the most intelligent member on the Republican side of the Senate.

The moral grandeur of “lost causes” held little appeal for him. Consequently, he became a superb politician, a master of artifice, equivocation, and silence. With Lincoln silent in Springfield, the public gaze turned upon Seward, the leader in Congress, and, as rumor had it, the next Secretary of State.

Had Seward been prepared to act vigorously at this juncture, he might have exerted an enormous influence. But he was, himself, inhibited at this critical moment by his reticence in assuming leadership so soon after his defeat for the [presidential] nomination, by his underestimate of the crisis, and by his anxiety not to take any step that would impair his prospective influence with the new administration.

Amid this welter of confusion [in Republican ranks], Congress at last convened [in] joint session [to hear President James Buchanan] set forth his belief that the States cannot legally secede, but that the Federal government could not legally restrain them; in it he recommended that Congress call a constitutional convention . . .”

(Lincoln and His Party in the Secession Crisis, David M. Potter, Yale University Press, 1942, excerpts pp. 80-82)

 

Republicans Frustrate Compromise Efforts

Well-aware of his meager claim to electoral victory with only 39% of the popular vote, Lincoln told Republican Congressman James Hale of Pennsylvania that supporting the compromise plan of Kentucky’s John J. Crittenden would mean the end of the Republican Party and of his new government. During several compromise efforts between December 1860 and March, 1861, Lincoln wrote important Republican leaders in Congress to oppose any settlement with the South, which of course ensured secession and his war upon the South. Again, it is clear that the cause of secession and war was the Republican Party, and Lincoln placing party survival over saving the Founders’ Union.

Bernhard Thuersam, www.Circa1865.org

 

Republicans Frustrate Compromise Efforts

“[Crittenden desperately] was trying to halt what he called the “madness” possessing the South and begged northerners in Congress to make the “cheap sacrifice” and “little concessions of opinions” that his pan required in order to save the country.

Crittenden directed his plea primarily to Republicans. They held the balance of power in Congress, and their reaction would decide the fate of the Crittenden program. Northern Democrats who had been traditionally more conciliatory toward the South . . . could be expected to give the program substantial support.

Some Republicans agreed with Crittenden that a few concessions to the South to preserve the union might be worthwhile, if the price was not too high. From the beginning, [Republican] antagonism doomed Crittenden’s high hopes [though] Unionists in both houses of Congress, however, fought for legislation that encompassed Crittenden’s plan.

In the lower house, on December 5 [1860], Alexander Boteler of Virginia successfully moved that a committee of one member from each State (the Committee of Thirty Three) be established to work out a plan to save the Union. Republicans cast every negative vote on the resolution, giving an early indication that they were opposed to compromise. Republicans blocked every other compromise measure suggested in the Committee of Thirteen.

Crittenden’s followers still refused to admit defeat. The Virginia legislature invited all the States to send representatives to a “Peace Conference” in Washington in February. Although none of the States that had already seceded sent delegates, twenty-one States did join the conference. Once again Republican leaders opposed compromise plans, claiming they did not want to cripple Lincoln’s freedom to deal with secession by committing him to a program before his inauguration.

An Indiana Republican delegate wrote to his governor from the conference: “We have thus done all in our power to procrastinate, and shall continue to do so, in order to remain in session until after [Lincoln’s inauguration on] the 4th of March.” The Senate voted on the original Crittenden plan and defeated it by a 20 to 19 vote. Not one Republican supported the plan.

The Republican decision to frustrate compromise efforts was one of the most significant political decisions in American history. Although it would be unreasonable to assert that had Republicans supported compromise they would definitely have ended the secession movement and prevented the Civil War, such a result was quite possible given the wide support that Crittenden’s plan attracted.

All the pro-Southern aspects of the compromise disturbed the Republicans; but their ire was raised in particular by the territorial provisions. The Republican party’s strength was contained in its antislavery wing, which was held together by opposition to any expansion of slavery [into the territories].

Had Republicans abandoned their opposition to slave expansion in 1860, they would have committed political suicide. Such a concession to the South would have constituted a repudiation of their own platform, “an admission that Southern complaints were valid,” and a confession that Lincoln’s election as president warranted secession.

Republican voters by the thousands cautioned their congressmen and leaders not to compromise with the South and agitated at home against conciliation, as when Pittsburgh Republicans broke up a unionist meeting by turning off the gas, smashing seats, and yelling “God d —-n John J. Crittenden and his compromise.”

(The Southern Dream of a Caribbean Empire: 1854-1861, Robert E. May, LSU Press, 1973, excerpts pp. 210-212; 214-217)

Sumter: The Republican Party’s Salvation

Clearly, the immediate cause of war in 1861 was the Republican Party. Rather than pursue compromise in the Peace Conference led by former President John Tyler, or follow former President James Buchanan’s [and Kentucky’s] suggestion of solving the issues in a National Convention of the States, the turbulent party of Lincoln chose “party over country” and plunged the country into a destructive war which claimed the lives of a million people, and sacrificed the Constitution to a military dictatorship.

Bernhard Thuersam, www.Circa1865.org

 

Sumter: the Republican Party’s Salvation

“After the failure of the Crittenden Compromise, Kentuckians refused to call it an ultimatum. They seemed to have felt that if an earthquake should swallow up the State it would not be more disastrous to them than disunion and civil war. They, therefore, responded with alacrity to the Virginia summons for a Peace Conference.

Unfortunately, the delegations from the northern States were made up of carefully picked “not-an-inch” Republicans, and the Peace Conference made no headway toward conciliation.

In the meantime, the Kentucky Legislature suggested the calling of a great national convention freshly elected by the American people, to deal with the subjects in controversy as became a free, intelligent and enlightened people. Kentucky did not want the Union to be broken in the “mortar of secession to be strung together on a rope of sand”, but neither did she want a higher law than the Constitution of the United States interpreted by the Supreme Court to be set up by a Republican minority.

However, the reinforcement of Fort Sumter directly brought on a so-called disturbance of the public peace and a call for 75,000 troops was thus substituted for the call of a National Convention. Of course, it was obvious after the spring elections that the non-compromising Republicans could secure only a minority of the delegates to such a Convention freshly elected by the people.

Moreover, the calling of such a convention would have been a substantial admission on the part of the Republican leaders that they, themselves, were not representative of the nation and that their argument in favor of a sectional control of the national government was invalid.

In other words, the calling of a National Convention would have amounted to an admission that the Republican party leaders were wrong in the premises – not on the slavery question, but on their advocacy of a sectional control of the national presidency. Lincoln’s statement that if [Major Robert] Anderson came out of Sumter, he, himself, would have to come out of the White House, was doubtless a correct estimate of the effect a withdrawal of troops from Sumter and the calling of a National Convention would have had on the political fortunes of the sectional Republican party.

It can be readily understood just why Republican party politicians would prefer the reinforcing of Sumter to the calling of a National Convention. An appeal to the brain of the nation meant the party’s annihilation, while an appeal to the brawn of the north meant the party’s salvation.”

(The Peaceable Americans of 1860-1861: A Study in Public Opinion, Mary Scrugham, Columbia University Press, 1921, excerpts pp. 111-113)

 

Lincoln’s Minority Government

Voter turnout in 1860 presidential election was 81.2%, the largest to that date. Lincoln won the Electoral College with only 39% of the popular vote – all in Northern States and the emerging West. Due somewhat to the split in the Democratic Party, his victory, refusal to compromise and constitutional usurpations led to a devastating war and political upheaval from which the country has yet to recover.

Bernhard Thuersam, www.Circa1865.org

 

Lincoln’s Minority Government

“In view of the fact that three-fifths of the American people voted against Lincoln, and that probably more than four-fifths of the American people preferred compromise to civil war or to a dissolution of the Union, it is important to note that Lincoln based his attack upon secession and refusal to acknowledge it as one of the rights of a State upon the fact that secessionists were not a majority, but a minority of the American people.

“If the minority,” he said, “will not acquiesce, the majority must, or the government must cease. There is no other alternative; for continuing the government is acquiescence on one side or the other. If a minority in such case secede rather than acquiesce they make a precedent which in turn will divide and ruin them: for a minority of their own will secede from them whenever a majority refuses to be controlled by such a minority.”

This is a very true statement.

A majority had voted against Lincoln and a majority had wanted compromise, while Lincoln, representing a minority, refused to accede to the wishes of the majority. It was perfectly true that the majority of the nation were opposed to secession or the breaking up of the nation, but they were in favor of preserving the national unity, not by war, but by the time-honored method of conciliation.

It is highly probable that a majority of Americans believed that Lincoln’s above statement applied to the secessionist per se minority – because a majority of American voters did not know then, and do not know now, that a man can be legally elected President when a vast majority have voted against him.”

(The Peaceable Americans of 1860-1861: A Study in Public Opinion, Mary Scrugham, Columbia University Press, 1921, excerpts pp. 85-86)

 

The Gist of the Matter

The cause of the War Between the States was the Republican Party. This party fielded its first purely sectional presidential candidate in 1856, and only five years later elected, with a bare plurality, such an objectionable president as to drive several States to independence. After launching total war against the States desiring independence, and in the face of dwindling enlistments to fight his war, Lincoln resorted to William Seward’s view of the South’s internal vulnerability. Lincoln’s proclamation mimicked Lord Dunmore’s in 1775, and Vice-Admiral Sir Alexander Cochrane’s in 1814, and for the same purpose: to emancipate slaves and to enslave free men.

Bernhard Thuersam, www.Circa1865.org

 

The Gist of the Matter

“Given secession as a fact, the gist of the matter was then: “Were the northern people willing either to sacrifice the union or to engage in civil war (accepting force as an essential principle of government for the South), for the sake of making a declaration in favor of freedom in the Territories where freedom was to exist anyway by the law of nature?”

Thus, the northern people were called upon to consider not only whether they were in favor of a declaration of freedom for the Territories, but also, to decide how badly they wanted to make such a declaration.

The Republican platform contained a “rotten plank” on the main point at issue, namely, what the party would do in case of secession. This plank consisted in a quotation from the Declaration of Independence in regard to the inalienable rights of man, and to a government’s deriving its just power from the consent of the governed.

This quotation was incorporated to gain the allegiance of the abolitionists whom Lincoln had held out hopes to in the House-Divided speech and whom Seward had catered to in his “Irrepressible Conflict” oration. It was understood to have reference to including the Negroes within the scope of the liberty mentioned among the inalienable rights of man.

Furthermore, the “rotten” planks use of the words of Andrew Jackson in regard to the preservation of the union of the States . . . [suggesting] the words “must and shall be preserved” in regard to the union of the States when South Carolina nullified the federal tariff law of 1832.

It so happened in 1860, a number of northern States had acts on their statute books, nullifying the federal fugitive slave law. Nullification and secession were both rights of a State according to the States’ Rights School of statesmen.

The references to the preservation of the union and the rights of the States in the Republican platform condoned the nullification of the northern States and at the same time condemned that of the southern States.

The Republican leaders sought to convince the northern voters that there would be no just cause for secession in the event of the election of a sectional president: that the Southern leaders were only bluffing and were trying to intimidate the northern voter into voting against the dictates of his conscience.

Seward, the author of the “Irrepressible Conflict” oration, explained that the South would never in a moment of resentment expose themselves to war with the North while they have such a great domestic population of slaves ready to embrace any opportunity to assert their freedom and inflict revenge.”

(The Peaceable Americans of 1860-1861: A Study in Public Opinion, Mary Scrugham, Columbia University Press, 1921, excerpts pp. 42-45)

A “Forbidden Journey”

New Hampshire native President Franklin Pierce was well-aware of the increasing sectionalism pushing the South toward secession, and Northern States erecting laws in conflict with federal law. He would not countenance State obstruction of constitutional obligations while they remained within the Union. He also understood, as Lincoln seemed not to, that the comity of the States was the glue binding the Union together. Without this, the Union was at an end and brute force could not save it.

Bernhard Thuersam, www.Circa1865.org

 

A “Forbidden Journey”

“President Pierce’s affinity for the rule OF law in contrast to the rule BY law explains why such scorn has been heaped upon his presidency.

President Lincoln, had he complied with the rule of law and deferred to the U.S. Constitution on the issues of secession, the writ of habeas corpus, the blockade of Southern ports, etc., may have presided over the realignment of the Union, but he also would have placed the rule of law on a constitutional pedestal that would have constrained subsequent presidents from disregarding constitutional constraints in the quest for power.

But Lincoln’s claim to fame is not that he adhered to the rule of law, but that he had the audacity to disregard it.

Lincoln’s unfortunate legacy is that he destroyed American federalism by creating a coercive indissoluble Union. Consequently, the policy prerogatives of imposition, nullification, and secession are now placed beyond the grasp of the States. Nevertheless, the ever-expanding national government’s powers continued to occupy the efforts of the courts in post-bellum America.

A case in point is Justice [George A.] Sutherland’s opinion in Carter v. Carter Coal Company (1936) a case which stemmed from FDR’s expansion of national powers vis-à-vis the States Tenth Amendment police powers. Justice Sutherland articulates the anti-Lincoln premise that “The States were before the Constitution; and consequently, their legislative powers antedated the Constitution.”

To concede otherwise is to begin a “forbidden journey” through which the national government takes over the “powers of the States” and the States “are so despoiled of their powers” that they are reduced to “little more than geographical subdivisions of the national domain. It is safe to say that when the Constitution was under consideration, it had been thought that any such danger lurked behind its plain words, it never would have been ratified.”

Justice Sutherland’s logic is just as applicable today, with the qualification that the “forbidden journey” has progressed to where the national government may be so “despoiled of its powers” that it will be reduced to “little more than geographical subdivisions” of the international domain.

In conclusion, America is in trouble. With unmanageable public debt . . . and fiscal obligations in excess of one hundred trillion dollars, not to mention the cultural and political state of the Union, Americans continue to pay homage to the villains that laid the tracks to our present sorry state of affairs.”

(President Franklin Pierce and the War for Southern Independence, Marshall DeRosa; Northern Opposition to Mr. Lincoln’s War, D. Jonathan White, editor, Abbeville Institute Press, 2014, excerpts pp. 38-40)

 

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