Browsing "Lincoln’s Revolutionary Legacy"

The Anti-Government Instrument of Texas

Coke Stevenson (1888-1975) served as Speaker of the Texas House of Representatives, lieutenant-governor, and governor. In 1948, he ran for the US Senate against Lyndon Johnson and narrowly lost by what he deemed fraudulent votes. Described as an honorable statesman of the traditional Southern type, Stevenson saw little in the calculating and devious Johnson to admire.

Bernhard Thuersam, www.Circa1865.com

 

The Anti-Government Instrument of Texas

“The Constitution of Texas, drafted in 1876 by delegates (many of whom had worn the Confederate gray; several had been Confederate generals) representing a people who felt that a decade of Carpetbag rule had shown the injustices of which government was capable, was, as the Texas historian [T.R.] Fehrenbach puts it, “an anti-government instrument.”

It not only bound the Legislature within very tight limits but said the Legislature would henceforth no longer meet every year but every other year because, as one Texan said, “the more the damned Legislature meets, the more Goddamned bills and taxes it passes!”

It was no more lenient with the executive branch: the powers of the Governor were reduced to a point where he was one of the weakest in America. “If future State Governments prove burdensome or onerous, it ought not to be the fault of this Convention,” one of the delegates said, and, indeed, the convention’s handiwork made it, in Fehrenbach’s words, almost impossible for government in Texas to be burdensome or onerous in the future.”

The spirit behind the Constitution was the spirit of farmers and ranchers; however, much they believed in education, pensions or government services, the taxes fell on them and their land.

The Constitution was the embodiment of what Fehrenbach describes as “a lasting philosophy that no Legislature or Governor was to be trusted” – as a result, one analyst concludes, “everything possible was done to limit the power of all branches of government . . . None of these [limitations] was controversial; they were what the people wanted.”

The philosophy embodied in the Texas Constitution dovetailed with the philosophy of [Coke Stevenson] who studied it in the light of a predawn fire in his ranch house by the South Llano [river]; its character was his. Thrift, frugality . . . Limits on government; the devotion to individuality, to free enterprise, individual freedom – he had lived his entire life by those principles.

This man who had taught himself history, who had read in it so widely, had a love of history – in particular, the history of his State, the proud heritage of Texas – almost religious in its depth. (On his ranch, he had found an old log cabin; when he learned that it had been built by Jim Bowie not long before he rode off to his death at the Alamo, Stevenson built a shelter around the cabin to protect it from the elements so that it would stand as long as possible. He erected a flagpole in front of his ranch house, and on March 2, Texas Independence Day, and other State holidays, he would, with no one to watch but his wife and son, solemnly raise, in those lonely, empty hills, the Lone Star flag.)

Now, in the 1920s, he was coming to believe that the government of Texas was doing violence to that heritage and those principles. The inefficiency of the State government – in particular, the antics of a Legislature whose lack of responsibility must, he felt, lead to higher taxes – troubled Hill country ranchers. No one in Austin seemed interested in economy, they said – of course not, it wasn’t their own money they were spending.”

(Means of Ascent: the Years of Lyndon B. Johnson, Robert A. Caro, Vintage Books, 1991, excerpt, pp. 156-157)

Irretrievably Bad Schemes in South Carolina

In the 1876 gubernatorial election in South Carolina, incumbent carpetbag Governor Daniel H. Chamberlain “bombarded the North with lurid accounts of the [Hamburg, SC riot] based on the excited claims of Negro participants” and that this act of “atrocity and barbarism” was designed to prevent Negroes from voting, though, as a matter of fact, the riot occurred five months before the election.” A Massachusetts native and carpetbagger of dubious reputation, Chamberlain left much evidence of a willingness for making his office pay.

Bernhard Thuersam, www.Circa1865.com

 

Irretrievably Bad Schemes in South Carolina

“In an Atlantic Monthly article published twenty-five years later, ex-Governor Chamberlain stated that] “If the [election] of 1876 had resulted in the success of the Republican party, that party could not, for want of material, even when aided by the Democratic minority, have given pure or competent administration. The vast preponderance of ignorance and incapacity in that [Republican] party, aside from downright dishonesty, made it impossible . . . the flood gates of misrule would have been reopened . . . The real truth is, hard as it may be to accept it, that the elements put in combination by the reconstruction scheme of [Radical Republicans Thaddeus] Stevens and [Oliver] Morton were irretrievably bad, and could never have resulted . . . in government fit to be endured.”

While federal troops were still holding the State House in Columbia, The Nation informed its readers, “Evidently there is nothing to be done but to let the sham give way to reality . . . to see without regret . . . the blacks deprived of a supremacy as corrupting to themselves as it was dangerous to society at large.”

As Congressman S.S. Cox of New York and Ohio remarked:

“Since the world began, no parallel can be found to the unblushing knavery which a complete history of carpet-bag government in these [Southern] States would exhibit. If the entire body of penitentiary convicts could be invested with supreme power in a State, they could not present a more revolting mockery of all that is honorable and respectful in the conduct of human affairs. The knaves and their sympathizers, North and South, complain that the taxpayers, the men of character and intelligence in South Carolina and other States, finally overthrew, by unfair and violent means, the reign of scoundrelism, enthroned by ignorance. If ever revolutionary methods were justifiable for the overthrow of tyranny and robbery, assuredly the carpet-bag domination in South Carolina called for it. Only scoundrels and hypocrites will pretend to deplore the results.”

(Wade Hampton and the Negro: The Road Not Taken; Hampton M. Jarrell, USC Press, 1949, excerpt, pp. 54-55)

A Conquered and Foreign People

Most, if not all, foreign observers recognized the fiction that the Union was saved by Lincoln. Americans in the South were put under military rule and the Republican Party moved quickly to enlist and manipulate the freedmen vote to attain political dominance and ensure the election of Grant in 1868 – lest their military victory be lost with the election of New York Democrat Horatio Seymour.  Grant won a narrow victory over Seymour, by a mere 300,000 votes of the 500,000 newly enfranchised freedmen.

Bernhard Thuersam, www.Circa1865.com

 

A Conquered and Foreign People

“Not everything was settled on the day the Federal flag was raised once again over the capitol building in Richmond. The nation had to go forward resolutely to complete the revolution begun by the Civil War . . . It was needful not only to impose obedience on the conquered inhabitants but also to raise them up again after having subjugated them, to bring them back into the bosom of the Union; to rebuild the devastated countryside and enlist the people’s sincere acceptance of the great reform about to be inaugurated.

They must be made to feel the firm hand of a determined government that would not, however, be a threat to their liberties. Armed repression must give way to politics . . .

[In dealing with the Southern States, they] might be considered conquered territory and be told that when they left the Union they gave up all their rights under the Federal Constitution that they had ceased to be sovereign States.

In that case they must be treated as a conquered foreign people; their State and local governments must be destroyed or allowed to collapse and then reorganized as territories . . . Then someday, when the memory of the Civil War had been completely erased, they would be readmitted to the Union.

This procedure, the Radicals argued, would be merely the literal application of the United States Constitution, the sole method of ensuring respect for national authority. It would be the only way to restore the former Union on a solid foundation, having levelled the ground beforehand by stamping out all tendencies to rebellion . . .

It would be a good thing for the Southern States to be subjected for a time to the rigors of military rule and arbitrary power, or at least for them to be kept for a number of years under the guardianship of Congress, that is to say, under the domination of the North.

Their delegates might come, like those from the territories, and present their grievances or defend their interests; but they would only have a consultative voice in Congress and would have no share in the government. Great care must be taken not to give back to the South the preponderant influence it had exercised for so long.

The rebellion is not yet dead, the Radical orators declared; it has only been knocked down and it may get back on its feet if we are not vigilant. Never has the Union been in such danger as in this moment of victory when peace seems to prevail, but when the future depends on the decisions the people and the government now adopt.

If the [Democratic Party] is once again allowed to reorganize, if the Southerners renew their alliance with the Northern Democrats, it will be all up for national greatness and liberty. The same arrogant claims and the same quarrels will reappear . . . all this will someday or another lead to another civil war which will encompass the total destruction of America.”

(A Frenchman in Lincoln’s America, 1864-1865, Ernest Duvergier de Hauranne, Volume II, R.R. Donnelley & Sons Company, 1975 (original 1866), pp. 543-545

 

Citizens of the States

John C. Calhoun noted that the claim of supremacy by the federal government “will be scarcely denied by anyone conversant with the political history of the country.” He then asked “what limitation can possibly be placed upon the powers of a government claiming and exercising such rights.” The case of State citizenship prior to the War, which few denied and which caused Southern men to view supreme allegiance to their particular States, is one that changed in 1865. Afterward, the central government viewed all as citizens of the United States, a revolutionary legal definition with no basis in the United States Constitution. As an example of State subordination to federal domination, the word “state” is not capitalized as it once was.

Bernhard Thuersam, www.Circa1865.com

 

Citizens of the States

“The Senator from Delaware (Mr. Clayton), as well as others, has relied with great emphasis on the fact that we are citizens of the United States. I do not object to the expression, nor shall I detract from the proud and elevated feelings with which it is associated; but I trust that I may be permitted to raise the inquiry:

In what manner are we citizens of the United States without weakening the patriotic feeling with which, I trust, it will ever be uttered?

If by citizen of the United States he means a citizen at large, one whose citizenship extends to the entire geographical limits of the country, without having local citizenship in some State or territory, a sort of citizen of the world, all I have to say is, that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of our population.

Notwithstanding all the pomp and display of eloquence of the occasion, every citizen is a citizen of some State or territory, and, as such, under an express provision of the constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this, and in no other sense, that we are citizens of the United States.

The Senator from Pennsylvania (Mr. Dallas), indeed, relied upon that provision in the constitution which gives Congress the power to establish [a] uniform rule of naturalization; and the operation of the rule actually established under this authority, to prove that naturalized citizens are citizens at large, without being citizens of any of the States.

I do not deem it necessary to examine the law of Congress upon this subject . . . though I cannot doubt that he (Mr. D.] has taken an erroneous view of the subject.

It is sufficient that the power of Congress extends simply to the establishment of a uniform rule by which foreigners may be naturalized in the several states or territories, without infringing, in any other respect, in reference to naturalization, the rights of the States as they existed before the adoption of the constitution.”

(Union and Liberty: the Political Philosophy of John C. Calhoun; Ross M. Lence, editor, Liberty Fund, 1992, excerpt, pp. 443-444)

Sherman’s New Notion of Total War

There is little question that Sherman operated against American civilians in the South with the full approval of Lincoln and Grant, who must also share the responsibility for visiting total war upon defenseless men, women and children. This executive approval of war against civilians was not lost on the young Spanish attache to the Northern army, Valeriano Weyler, who became known in mid-1890s Cuba as General “Butcher” Weyler. To discourage Cuban freedom fighters, Weyler herded their women and children into concentration camps after burning their homes.

Bernhard Thuersam, www.Circa1865.com

 

Sherman’s New Notion of Total War

“Major-General [Henry W.] Halleck, Sherman’s overall commander-in-chief, was an accepted authority of his day on the rules governing the intercourse of nations and the laws of war. Sherman had attended West Point with Halleck, and certainly curiosity if not actual interest on the subject would have prompted him to look into Halleck’s “International Law.”

It was said of Sherman that he was in the habit of “starting new notions constantly in his own brain, and following them up, no matter how far or whither they led.” On October 4 [1862] he reported to General Grant that two more steamboats had been fired upon – the attacks being described by Sherman as wanton and cruel – and he informed Grant of the new notion that had occurred to him:

“I caused Randolph [Mississippi] to be destroyed, and have given notice that a repetition will justify measures of retaliation, such as loading boats with their captive guerillas as targets (I always have a lot on hand), and expelling families from the comforts of Memphis, whose husbands and brothers go to make up the guerillas. I will watch Randolph closely, and if anything occurs there again I will send a brigade by land back of Randolph and clean out the country.”

From this modest beginning – the experiments to discover the effectiveness of the practical application of his concepts of total war – the destruction of property, the holding of hostages and now the improper exposure of prisoners to the fire of their own forces, would not be enlarged on in the weeks ahead and their effects carefully noted.

Whether Sherman himself ever entertained any doubts or hesitations as to the course to which he had committed himself cannot be stated accurately, but it is noteworthy that during this period no mention is made in his correspondence of the rules of war, nor does he suggest that his actions were not in accord with them.

There are threads of justification woven into his letters and his orders for extreme severity and barbarism; and a definite impression is left that many of these were included with one eye on posterity and the hope of ultimate vindication.”

(Merchant of Terror: General Sherman and Total War; John Bennett Walters, Bobbs-Merrill Company, 1973, excerpt, pp. 68-69)

From William Sherman to William Calley

As of April 24, 1863, the Northern armies were officially guided by Francis Lieber’s General Orders 100, Instructions for the Government of Armies of the United States in the Field, which prohibited robbery, sacking, pillage rape, wounding maiming or killing of the South’s inhabitants. Observance of these instructions seemed to be the exception rather than the rule.

Bernhard Thuersam, www.Circa1865.com

 

From William Sherman to William Calley

“Paradoxically . . . Union General William Tecumseh Sherman [gradually] evolved his own personal philosophy of war along lines which were clearly at variance with the official pronouncements [of the North’s and in his practical application of that philosophy became one of the first of the modern generals to revert to the use of military force against the civilian population of the enemy.

While this represents only a part of the present concept of total war, its significance lies in Sherman’s demonstration of the effectiveness of a plan of action which would destroy the enemy’s economic system and terrify and demoralize the civilian population.

Sherman’s conduct, reflected in the actions of his men, demonstrated a strange hatred – one without parallel even in World War II. Even as brutal as the Japanese were to prisoners and to civilians who came under their bayonets, there was no demand in United States newspapers for the burning, sacking and pillaging of towns. Nor was there any public sentiment for the humiliation of civilians.

No efforts are made here to show that Sherman’s program pf terror was original with him. It is evident that he was willing to proceed in the face of official pronouncements to the contrary to apply the terrifying force of an uncontrolled soldiery against noncombatants.

It is likewise evident that he would not dared do so without the tacit approval of Abraham Lincoln and General Grant. Sherman pleaded that he could no control his troops in the face of their righteous indignation against those who would rebel against a benign government. The pages of recent history reveal that this plea was reiterated by both Japanese and German generals as the mounted the steps of scaffolds to which they were condemned by international tribunals.

There were extreme and unnecessary cruelties involving civilians in the Korean action. However, it was in the highly dramatic court martial of Lt. [William] Calley that the army undertook to point up the brutal attack upon civilians in the village of My Lai, South Vietnam.

The nation and the world was shocked at the pictures and detailed accounts of witnesses which placed upon the consciences of people everywhere the details of the massacre of the inhabitants, including women and children, of My Lai.

There can be little doubt that Sherman’s actions toward a proud and almost defenseless people left a heritage of hate which lasted far longer than it might otherwise have lasted.”

(Merchant of Terror: General Sherman and Total War; John Bennett Walters, Bobbs-Merrill Company, 1973, excerpt, pp. xxii-xxiii)

The Universal Principles of Free Societies

The framers of the Articles of Confederation, our first constitution, had no intention of re-creating in America a form of centralized government like that they were fighting to overthrow. There is no doubt that they believed in the independence and equality of the State legislatures, which were close to the people represented. The framers of the subsequent Constitution were of the same mind, and the creation of the Bill of Rights underscored their fear of centralized government – and the Tenth Amendment was inserted for a reason. That amendment in execution is as simple as its words: “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.” The destruction of Southern governments between 1861-65 was simply the overthrow of the latter Constitution by illegal usurpations by Lincoln; in supporting those usurpations, the Northern States lost their freedom and independence as well.

Bernhard Thuersam, www.Circa1865.com

 

The Universal Principle of Free Societies

“States’ rights? You can’t be serious! What do you want to do – restore Jim Crow or bring back slavery?” Any serious discussion of the American republic comes aground on this rock, and it does not matter which kind of liberal is expressing the obligatory shock and dismay . . . looking for ways to pander and slander his way, if not to fame and fortune, then at least to expense account lunches and regular appearances on C-SPAN.

Even out here on the frontier, every hicktown mayor and two-bit caporegime knows how to scream racism whenever the rubes get in the way of some vast public works project that promises an endless supply of lovely tax boodle.

In my wild youth – a period which, for Republicans, only ends in the mid-40s – I used to make historical and constitutional arguments to show the agreement with Adams and Jefferson on the limited powers of the national government. I would cite the opinion of Northern Jeffersonians and point to the example of Yankee Federalists who plotted secession (in the midst of war) at the Hartford Convention of 1814, but the argument always came back to race.

No one in American history ever did anything, apparently, without intending to dominate and degrade women, Indians and homosexuals. This reducto ad KKK is not confined to the political left; it is practiced shamelessly by right-to-lifers who equate Roe vs Wade with Dred Scott and by most of the disciples of one or another of the German gurus who tried to redefine the American conservative mind.

States’ rights, home rule, private schools, and freedom of association are all codewords for racism, and when someone aspiring to public office is discovered to be a member of a restricted or quasi-restricted country club, instead of telling the press to mind their own business, he denounces himself for right-wing deviationism, fascism, and ethnic terrorism.

He resigns immediately – thus insulting all his friends in the club who are now de facto bigots – and begs forgiveness. So long as a group is “Southern” or “Anglo” or “hetero” or even exclusively Christian, it is a target, and then the inevitable attack does come, many of the members run for cover, eager to be the first to find safety by denouncing their former allies.

The great mistake the right has made, all these years, is to go on the defensive. The federal principle that is illustrated by the traditional American insistence upon the rights of the States is not only ancient and honorable: It is, in fact, a universal principle of free societies and an expression of the most basic needs of our human nature.

To defend, for example, the Tenth Amendment is a futile gesture if we do not at the same time challenge leftists to justify the monopolization of power by a tiny oligarchy. Under “leftist” I include, in very crude terms, anyone who supports the New Deal, the welfare state, and the usurped powers of the federal courts. It is they who, as lackeys of a regime that has deprived families and communities of their responsibilities and liberties, should be in the dock explaining their record as wreckers of society and destroyers of civilization.”

(The Great American Purge, Thomas Fleming, Chronicles, April 1999, excerpts, pp. 10-11)

 

Losing the South’s Conservative Tradition

When Southern members left Congress in early 1861, nearly all conservative restraints enforced on that body were removed and the seeds of the Gilded Age were sown. The war of 1861-1865 will be forever seen as the unnecessary crime against liberty that it was, and the ending of the second experiment in government undertaken on these shores.

Bernhard Thuersam, www.Circa1865.com

 

Losing the South’s Conservative Tradition

“To those who fought and suffered during the long and fearful years of the War Between the States a tribute is always due. To the survivors of that momentous conflict – in which the South displayed unequaled bravery and marvelous determination – sincere reverence cannot too often be paid.

The young men and women who lived in the South after 1865 were tragic figures. They were the lost generation of the South, who led hard, bare and bitter lives, when young people of the South before and since were at play and in school.

That Tragic Era from 1865 to 1880 was a period when the Southern people were put to torture – so much so that our historians have shrunk from the unhappy task of telling us the truth. That was a black and bloody period – when brutality and despotism prevailed – a period which no American can point with pride. To the generation of Southerners who struggled in the years after the war in the sixties we owe the redemption of the South and the preservation of its society.

[The War and Reconstruction] cost the South heavily – but they also cost the nation. The South paid for theirs in an economic collapse and carpetbag domination extending over a period of nearly thirty years. But the nation also paid its price – it lost the powerful influence of the conservative Southern tradition.

In antebellum times the South had steadied the nation’s western expansion by its conservatism, but when the South was broken and destroyed, we saw a period of western expansion, of European immigration, of speculation, of graft, and of greed – unknown before in the annals of our history.

The nation after the war – especially the North and West – entered into an era of expansion, of worship for the new, of so-called progress, for which we still pay the price in our periodic overproduction. We should learn that economic wealth may be amassed, yet the fickle turns of business fortune can destroy it in a few years. Witness the economic collapse of our nation in the last few years after a period of unrivaled business growth.

The eternal national values are then those intangible contributions to national life such as the old South gave – not wealth, not progress, but those great qualities of tradition and conservatism and individuality which neither Depression nor hard times can destroy.

May the faith of the old South be ours, so that we can rebuild our State and Nation – and as we do so may we add the South’s contribution to American life not only its heritage of conservatism, of tradition and individuality, but also that spirit of silent strength in the hours of adversity – that spirit shown during the War and Reconstruction.”

(The Tragic Era, Dr. Julian S. Waterman, Dean, University of Arkansas Law School, Memorial Day speech at Fayetteville, Confederate Veteran Magazine, July, 1931, excerpt, pp. 275-277)

The Unspoken Significance of Fort Fisher’s Fall in 1865

Fort Fisher, January 2017

This weekend the Fort Fisher historic site near Kure Beach, North Carolina observes the 152nd anniversary of the second Northern attack that succeeded in capturing the fort after a massive bombardment of 50,000 shells which killed or wounded 500 or so mostly-North Carolinians who fought valiantly from traverse to traverse before capitulating. Those taken prisoner by the enemy were shipped northward to frigid prisons in New Jersey and New York – the latter infamously referred to as a death camp.

Many people visiting Fort Fisher note that it can be an eerie experience – like walking the fields of Appomattox and sensing the death-knell of liberty and independence it is known for.

The State employees of the historic site will hold events of blue-clad troops splashing ashore to free North Carolinians from the yoke of independence and self-government, as well as waving the US flag from the top of captured cannon traverses. The red, white and blue flags of the North Carolinians will be minimized if shown at all. Rather than note that most of the defenders were North Carolina farmers from surrounding counties, the fort and media will refer to them as merely “Confederates.”

Often noted during these observances is the enemy soldier who fell out of ranks to visit his mother’s home — as his brother was fighting to defend his country in a grey uniform.  And few seem to comprehend that this wayward North Carolinian in blue is the very definition of treason, of aiding, abetting and going over to the enemy.

Also, what is usually not discussed at events like this are the sectional differences of that era and multitude of reasons why the South was invaded, and the important aftermath of that battle for the fort. What really happened in mid-January 152 years ago was the ending of an American struggle for freedom and independence, the consent of the governed to rule themselves, and the equivalent of Washington surrendering to British forces at Yorktown.

What happened after the fort fell is very important to remember, especially as one looks at the blue-clad reenactors splashing ashore waving their flag on what was then foreign soil to them. What was their true purpose?

After the fort was overwhelmed and silenced, the 10,000-man enemy army marched toward Wilmington in two columns and after some spirited skirmishes, captured the city, imposed martial law, seized private property, and forced citizens to swear allegiance to a foreign government in order to conduct their businesses.

When the enemy departed Wilmington, they moved to join other enemy forces coming into North Carolina from South Carolina and from occupied New Bern. At Bentonville the combined enemy outnumbered Southern forces 4 to 1 — who fought them to a standstill – they then moved on to capture Raleigh, arrest and imprison the governor, and impose military rule on North Carolina. Think of the French capitulation to Germany in 1940.

After the surrender of Southern forces in May, 1865 at Bennett Place, the “reconstruction” of the South lasted until 1877 – some say it never ended — though without armies and without as much gunfire. North Carolina endured rule by a new State constitution imported by a military consul appointed from Washington, and corrupt local men who sought employment with the late enemy. The new imported constitution settled the secession issue for good by stating that North Carolina will never again seek independence or political freedom from the United States Government.

Understandably, July 4, 1865 in occupied Wilmington was a muted affair, celebrated only by locals collaborating with the enemy and newly-freed blacks who were unaware that they had only changed masters.  Blue-clad sentries still patrolled the streets to ensure the rebellion did not re-ignite; then came the vultures known as “carpetbaggers.”

Former Governor Zebulon Vance described the aftermath of war in North Carolina in 1890:

“The carnival of corruption and fraud, the trampling down of decency, the rioting in the overthrow of the traditions of a proud people, the chaos of hell on earth which took place beggars the descriptive powers of plain history . . . I believe a committee of Congress, who took some testimony on this subject, estimated in 1871 the amount of plunder which was extracted from the Southern people in about 5 short years — some $300 millions of dollars in the shape of increased debt alone, to say nothing of the indirect damage inflicted by the many ways of corruption and misrule which cannot be estimated in money.”

The fall of Fort Fisher and ultimate surrender at Bennett Place led to the carnival of corruption that Vance illuminated. We should remember what occurred at Fort Fisher in mid-January 1865 for what it was and what it led to — the ending of an American struggle for freedom and independence, the consent of the governed to rule themselves. This is the sad fact that we should observe, and be cognizant of when gazing at the great earthen fortress.

Bernhard Thuersam

 

 

Judicial Overthrow of State Governments

The framers of our second constitution in 1787, as they did in their previous Articles of Confederation, clearly intended to protect their States, and their citizens, from an oppressive central government like the one they had just freed themselves from. And in no way would they have wanted a federal agent intruding into State domains and forced compliance with regulations formulated by distant bureaucrats. With an all-powerful federal bureaucracy emerging victorious in 1865, no State – North or South – could dare challenge the federal interpretation of the Constitution or what passed for federal law.

Bernhard Thuersam, www.Circ a1865.com

 

Judicial Overthrow of State Governments

“Two hundred and eight years ago, when the Tenth Amendment to the United States Constitution was ratified, there was general agreement with its text: “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.”

Two hundred and eight years ago, Americans thought of themselves as citizens of their States first, and only secondarily as citizens of a national federation. Now it is unclear that most Americans are aware of the Tenth Amendment, let alone the principle that the federal government is supposed to be one of limited and enumerated powers.

How did we come to this pass? Is there any hope that the federal courts will once again read the Constitution and, at least to the extent implied by that document, resurrect something of the doctrine of States’ rights? [Even] Washington, Hamilton and Madison would have been astonished at present-day incursions of the central government and its courts.

Passed after the Civil War, the 14th Amendment was originally designed to allow newly freed blacks to own property and to make contracts. But it became a tool, in the hands of mid-20th century federal courts, to impose a centralized, secularized and egalitarian social system on the entire nation.

Federal judges began to read the 14th Amendment provisions that no State should be permitted to deprive any person of the “equal protection of the laws” nor to deprive any person of life, liberty, or property without “due process” as a license to turn the restrictions of the Bill of Rights against the States and to set up strict rules about which State policies were permissible and which were not.

With the scantiest evidence, and in the face of overwhelming data to the contrary, the Supreme Court declared that the 14th Amendment was designed to “incorporate” at least some, and perhaps all, of the protections of the Bill of Rights against State governments.

There is no doubt that the Bill of Rights, the first ten amendments to the Constitution, had been drafted in the late 18th century in order to reassure the proponents of strong State governments that the federal government would not infringe on the sovereignty of the States or their people. Without even acknowledging the usurpation, the federal courts turned the Bill of Rights into a tool to reduce radically the discretion of the State governments.

The First Amendment clearly provides, for example, that “Congress shall make no law abridging freedom of speech . . . or regarding an establishment of religion,” but the congressional prohibition was soon read – blatantly contrary to the intention of the frames of the Bill of Rights, if not the framers of the 14th Amendment itself – to extend to State legislatures and officials as well.

It may be too late to save State sovereignty and the original intention of the Constitution. A slew of bold supreme Court appointments by a conservative Republican president might help, but so far only Justices Thomas and Scalia, and occasionally Justice Rehnquist, have acknowledged that the Court has been operating for one or two generations in clearly unconstitutional territory.”

(Sisyphus and States’ Rights, Stephen B. Presser; Chronicles, April 1999, excerpt, pg. 13-14)