Browsing "Tenth Amendment"

Exercising All the War Powers of Congress

The Founders were wary of a standing army and gave only to Congress the power to raise troops and declare war. Should a sitting president venture to call for troops at his whim, as did Lincoln, the republic of those Founders was at an end.

Lincoln and the governors of Pennsylvania, Massachusetts and New York who supplied him with troops for the purpose of waging war against other States and adhering to their enemies, were all were guilty of treason according to Article III, Section 3 of the United States Constitution.

There was a peaceful alternative which was not pursued by Lincoln and his party, and Southern Unionists pleas for peaceful diplomacy and compromise were ignored in favor of intentional duplicity at Charleston.

Exercising All the War Powers of Congress

“The day after Fort Sumter surrendered President Lincoln called on the several States for seventy-five thousand militia for ninety days service. The troops were to suppress “combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law, a curiously legalistic phraseology probably adopted in an attempt to bring the proclamation under the Acts of 1795 and 1807 governing the calling out of the posse comitatus.

Amid immense enthusiasm, the established militia regiments in the eastern cities moved at once. Pennsylvania troops, a few companies, reached Washington the next day; Massachusetts troops came within four days, in spite of the violent resistance to the transfer of the regiment across Baltimore between the railroad stations; New York’s first regiment was but a day behind Massachusetts.

The Governors of Maryland, Virginia, North Carolina, Kentucky, Tennessee, Arkansas and Missouri sharply declined to honor the President’s requisition for troops to be used against the seven States of the Confederacy. The Governor of Delaware reported that he had no authority for raising troops.

Neither, for that matter, had President Lincoln, under strict construction of the laws. In his first proclamation he called Congress into special session, but not to meet until the Fourth of July, more than two and a half months later.

In the meanwhile, free from interference, he drove ahead to organize his war, making laws or breaking them as he had need to, creating armies, enlarging the Navy, declaring blockades, exercising all the war powers of Congress.

Before the guns spoke at Sumter and the President answered with his call for troops, there was everywhere, in the North, in the Border States unhappily torn between loyalties, and even in those States which had seceded, a strong party for peace. The fire of Sumter swept away all that in the North; the call of Lincoln for troops, in the South.

The New Orleans True Delta, which had opposed secession and sought peace, “spurned the compact with them who would enforce its free conditions with blood” — an attitude that was general among those who were not original secessionists.”

(The Story of the Confederacy, Robert Selph Henry, Bobbs-Merrill Company, 1931, excerpts pp. 34-35)

Saddled with Another Absolutist Regime

Alexander Hamilton was no friend of the Articles of Confederation and the decentralized republic it represented, but he did know the limits of newly-created federal power within the new constitution. His view was that States retained any authority not specifically delegated, and that State troops, as in 1861-1865, would constitutionally resist any invasion to preserve their independence and sovereignty.

James Madison wrote of this as well, stating that more than one State might band together, as in the later Confederate States of America, to resist any and all encroachments on State sovereignty by the federal agent created by the States.

Alexis de Toqueville, the French traveler in the America of 1831-32, saw firsthand the powers of “this strange new democratic monster” that would within thirty years gain control of the federal government and consolidate all, by force, into one common mass.

Saddled with Another Absolutist Regime

“In Toqueville’s opinion, the many levels of responsibility acted as buffers against the tyranny of the majority that ordinarily characterized democracy. Then United States possessed a centralized government but not a centralized administration.

To what extent American self-government was an outgrowth of the federal constitution, or merely a by-product of their habits and experiences, remains to be seen. This much, however, is clear: no subject so agitated the founding fathers as the possible loss of local responsibility under a federal government. The new constitution had to be designed in a way that maximized State autonomy.

As Hamilton put it in Federalist 62, “The equal vote allowed to each State [i.e. in the Senate] is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residual sovereignty.”

Although Hamilton favored a centralized economic authority, he argued that the federal government could not legitimately use the taxing power as an excuse to interfere in the internal government of the States. In Federalist 28, he argued that State militias would be called out to resist invasions of sovereignty.

[James] Madison concurred, and in Federalist 46 suggested that the States would band together to prevent such encroachments. Even the arch-federalist John Marshall declared (in McCulloch v. Maryland) that “no political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.”

Interference in the life of local communities had been one of the complaints against the royal government. The anti-Federalists were afraid that, by adopting the Federal Constitution, they were saddling themselves with another absolutist regime. Mass democracy, as Toqueville realized, was dangerous.”

(The Politics of Human Nature, Thomas Fleming, Transaction Publishers, 1988, excerpts pg. 200)

The American Right of Revolution

The northeastern United States of the late 1820s were sufficiently prosperous to have a large group of “substantial citizens” . . . manufacturers and journalists interested in the cause of domestic industry, and their purpose was to influence the passage of a new tariff act.” For the most part these men were industrialists and focused on increased profits, not national stability.

The South was in economic distress at the time and the new, higher tariff “seemed to end once and for all any prospect of relief, and many [Southerners] were ready for outright rebellion, even as New England had been in 1814.”

For South Carolina to nullify a federal law it viewed as obnoxious and injurious to its citizens, was a full expression of the Tenth Amendment — inserted into the Constitution for an obvious purpose. The next logical step of an injured State would be peacefully withdrawing from a political union which no longer fulfilled the purposes for which it was formed. And if withdrawal was met with violence, revolution was next.

The American Right of Revolution

“Controversial as Nullification was in the absence of original records before 1828-1833, Americans still continued to believe in federalism and States’ rights. In the words of Alexander Johnston, “Almost every State in the Union in turn declared its own sovereignty and denounced as almost treasonable similar declarations by other States.”

Herman V. Ames in fact compiled a “collection of documents on the relation of the States to the Federal Government” in 1911. They were “selected especially,” he observed, “with a view to illustrate the development of the “compact theory” of the Constitution and the doctrine of “State Rights,’ State opposition to the Federal Judiciary, and the different phases of the slavery controversy, culminating in the secession movement.”

That we believe otherwise today, in Nullification’s unconstitutionality and [John C.] Calhoun’s and the South’s apostasy from the beliefs of the founders and framers, is explained by another and longer era of historical amnesia by which original intentions as described herein in length were not so much forgotten as between 1789 and 1819, but purposely misinterpreted both to nullify the Nullifiers of South Carolina and to establish a mythical history for a new nation in the making that was the central development of the years after the War of 1812 and until the Civil War.

While this more liberal-democratic-egalitarian-nationalist America was yet inchoate as the confused politics of the 1820s and 1830s inform us, it was there nonetheless in Jacksonian Democracy and nationalism and radical abolitionism which were, it is forgotten, minority movements. The union of the States persisted with the 18th century Whig-republican ideology still extant as the core set of beliefs within the misnamed Democratic party that was really republican with a small “r.”

The liberal-in-a-neo-Hamiltonian sense-Whigs of the 19th century co-existed long enough to make party politics interesting and popular and the preserve the old union of the States. If not republicans, most Americans before the Civil War remained at least federalists. Nullification may have come and gone, but the “right of revolution” continued to be accepted as an original intention and the ultimate means to preserve liberty.”

(Nullification, A Constitutional History, 1776-1833, Volume II: James Madison and the Constitutionality of Nullification, 1787-1828, W. Kirk Wood, University Press of America, 2009, excerpts pg. 105)

North Carolina’s State Flag

The original North Carolina Republic flag of 1861 was altered in 1885 with only the red and blue colors rearranged, and the lower date announcing the date of secession changed to “May 20th, 1775,” the date of the Halifax Resolutions.

This mattered little as both dates, 1775 and 1861, “places the Old North State in the very front rank, both in point of time and in spirit, among those that demanded unconditional freedom and absolute independence from foreign power. This document stands out as one of the great landmarks in the annals of North Carolina history.”

Militarily invaded and conquered in 1865, North Carolinians were forced to forever renounce political independence, and thus written in a new State constitution imported from Ohio.

North Carolina’s State Flag

“The flag is an emblem of great antiquity and has commanded respect and reverence from practically all nations from earliest times. History traces it to divine origin, the early peoples of the earth attributing to it strange, mysterious, and supernatural powers.

Indeed, our first recorded references to the standard and the banner, of which our present flag is but a modified form, are from sacred rather than from secular sources. We are told that it was around the banner that the prophets of old rallied their armies and under which the hosts of Israel were led to war, believing, as they did, that it carried with it divine favor and protection.

Since that time all nations and all peoples have had their flags and emblems, though the ancient superstition regarding their divine merits and supernatural powers has disappeared from among civilized peoples. The flag now, the world over, possesses the same meaning and has a uniform significance to all nations wherever found.

It stands as a symbol of strength and unity, representing the national spirit and patriotism of the people over whom it floats. In both lord and subject, the ruler and the ruled, it commands respect, inspires patriotism, and instills loyalty both in peace and in war.

[In the United States], each of the different States in the Union has a “State flag” symbolic of its own individuality and domestic ideals. Every State in the American Union has a flag of some kind, each expressive of some particular trait, or commemorative of some historical event, of the people over which it floats.

The constitutional convention of 1861, which declared for [North Carolina’s] secession from the Union, adopted what it termed a State flag. On May 20, 1861, the Convention adopted the resolution of secession which declared the State out of the Union.

This State flag, adopted in 1861, is said to have been issued to the first ten regiments of State troops during the summer of that year and was borne by them throughout the war, being the only flag, except the National and Confederate colors, used by the North Carolina troops during the Civil War. The first date [on the red union and within a gilt scroll in semi-circular form], “May 20th, 1775” refers to the Mecklenburg Declaration of Independence . . . The second date appearing on the State flag is that of “May 20th 1861 . . .”

(The North Carolina State Flag, W.R. Edmonds, Edwards & Broughton Company, 1913, excerpts pp. 5-7)

Believing the Cheerful Myth

“Nearly everyone believes the cheerful myth that nothing has changed since 1789.”

“As for the Electoral College, it is indeed an anachronism that serves no real purpose. It certainly doesn’t do what is was supposed to do: elect presidents who are, in Alexander Hamilton’s words, “pre-eminent for ability and virtue.” So wrote Hamilton, as “Publius,” in Federalist No. 68.

For what it’s worth, the Framers of the Constitution didn’t want the president elected by direct popular vote. Simple majority rule was alien and abhorrent to them, as the present two-party duopoly and the popular election of senators would have been; as Hamilton put it, direct election of presidents would produce “tumult and disorder.”

They prescribed that the people of each State should elect a body of presumably incorrupt and disinterested electors, men who possessed the requisite “information and discernment” to choose among candidates for the presidency. Those electors, in Hamilton’s words, should be “men most capable of analyzing the qualities adapted to the station [of the presidency]. They should not be officeholders, who might have “too great [a] devotion” to the incumbent president; their number would be a safeguard against corruption.” But if no winner emerged, the election would fall to the House of Representatives, where each State delegation would cast a single vote.

Subsequent generations, missing its inner spirit, have ruined it, like a vain fool daubing new streaks on an old masterpiece in the conviction he is improving it when it’s no longer even recognizable. Modern democracy has destroyed the essence of the thing; yet it flatters itself that it has preserved the Constitution, only because it has preserved its words while ignoring, or willfully forgetting, their import.

[The] original Senate no longer exists. The Seventeenth Amendment virtually abolished it by requiring the popular election of senators; before that, senators were chosen by State legislatures, because the Senate was supposed to represent the interests of State governments and to prevent usurpation of their powers. The House was to speak for the people, the Senate for the States.

When the Senate was converted to a popular body too, it lost its rationale and became as superfluous as the Electoral College now is, imperfectly duplicating functions better performed by the House: instead of representing the States equally, it represents the people unequally. The States, meanwhile, have been reduced to mere administrative subdivisions of a monolithic nation-state. They have lost the defining mark of a true State, which is sovereignty, and such powers that they retain are held not by right, but by the sufferance of the federal government.

But not one American in a hundred (and perhaps not one senator in a hundred) understands all this. Nearly everyone believes the cheerful myth that nothing has changed since 1789.

But everything has changed. No American should read the Constitution without a sense of loss. We would all be much freer if the US government played by its own rules. But there is no way to force it to do so as long as Americans remain ignorant of their own political heritage.”

(A Weird Election, Joseph Sobran, Sobran’s Real News of the Month, March 2001, Volume 8, Number 3, excerpts pp. 3-4)

Lincoln’s Counterrevolution to the Revolution

In truth, New England led the secession movement from Britain with its revolt against British Navigation Acts. In contrast, the Southern colonies were exporters and did well as British Americans, though they had formed a provincial identity of independence, or, “States’ Rights.” This of course preceded the Articles of Confederation and 1787 Constitution.

Regarding the counterrevolution of the 1860’s and its result, the author quoted below writes: “the revolution of the 1860’s ended up devastating New England almost as much as it did the South. What emerged in the late 19th century, as John Quincy’s grandson Henry described it, was a country ruled by speculators, stockjobbers and imperialists. Boston rule would have been infinitely preferable to rule by the set of gangsters who engineered the election of Grant, Arthur, McKinley, and Harding and their spiritual descendants who control both parties today.”

Lincoln’s Counterrevolution to the Revolution

“Lincoln did not initiate the political revolution that destroyed the American republic. The bandwagon was hurtling along in its course long before he leaped aboard and seized the reins. The effect of his presidency and of the war he either brought on deliberately or blundered into was to annul the American Revolution, which might be more accurately described as a counterrevolution. But if we are going to stick to conventional language, we can say that Mr. Lincoln’s project in national democracy as the counterrevolution to the revolution of 1776.

To understand why some Americans – and not just in the South – opposed the Lincolnian counterrevolution, we have to first understand why so many Americans had been willing to go to war in the 1770’s.

In Massachusetts, of course, one can find sound economic reasons. The British government was eager to find ways to make the colonies pay for the wars that had been undertaken on their behalf, and taxation and regulation of industry and commerce seemed to be – and indeed was – a solution that was both reasonable and just. New Englanders, feeling the pinch of mercantilist policies, were understandably annoyed, and when the insult of constitutional innovation (the suspension of charters and the so-called Intolerable Acts) was added to the injury inflicted on their economic life, they were ripe for revolution.

The planters and merchants of Charleston and the South Carolina Lowcountry, by contrast, were making out rather well within the [British] empire. In the 1770’s, Charelston was one of the wealthiest and by far the most civilized city in North America. By the outbreak of the Revolution, Charleston merchants and Lowcountry planters formed an American aristocracy.

While most historians and political ideologues have claimed, over and over, that the American rebels were devotees of John Locke’s theory of natural rights and the social contract, there is very little evidence of this. Every important statement and virtually all the little manifestos of church parishes and small townships stake their claim on the Common Law rights of Englishmen.

A key word was equality, not of all human beings, but the equality of Americans in possessing the rights of the English. Patrick Henry put it succinctly: The colonists are entitled “to all the liberties, privileges, franchises that have at any time been held, enjoyed, and possessed by the people of Great Britain.” Provincials resented the fact that Parliament denied them the benefits of several significant statutes, such as the Habeas Corpus Act, the Act of Settlement, and the Bill of Rights.”

(Why They Fought, Thomas Fleming, Chronicles, April 2015, excerpts pp. 8-9) www.chroniclesmagazine.org

The South Forced to Obey the New Union

The war of 1861-1865 created a new union of the North and a forced South, with the mercantile former dictating terms, policies and allegiance to the latter as an economic colony. The Republican party oligarchy then ushered in the Gilded Age of political bosses, bought politicians and a vote-rigging press. The Founders’ Union of equal and sovereign States was but a distant memory.

The South Forced to Obey the New Union

“Remember money breeds money, which in turn brings more,” said Benjamin Franklin. “Those who labor in the earth are the chosen people of God,” wrote Thomas Jefferson.

If these two attitudes may be considered the respective mainstream philosophies of the North and the South, then it becomes obvious there can be no way to blend the two into a single national spirit ant more than Cain could live by Abel’s side. “We the people,” as famous a phrase as it may be, is a dupery.

Understanding it as such seems to me the key to the history of the United States both before and after 1865.

When the American colonists started debating their merging into a single political unit, the obviously central issue was that of States’ rights – i.e., what sovereignty would be left to the States once a federal power, endowed with a sovereignty of its own, had been established.

Since none of their representatives appears to have called for the States to forfeit their sovereignty entirely, it seems obvious that the new union, it tighter than the one obtaining under the Articles of Confederation, was nevertheless to be that of a federation in which the federal power was rigorously construed, strictly limited, and States’ rights sternly asserted. Such a view was never unanimous.

The Federalists, men of the North already, opposed it immediately, (hence the Tenth Amendment) and never relented until they overcame at the price of open war. In between they had constantly waged one by other means, kindling the fires of conflict with self-interested issues (internal improvements, tariffs, a central bank), the last of which was the rather contrived issue of slavery. (The South ended up fighting as one man while the only a fourth of Southern households actually owned slaves . . . As for the Yankees, once victorious they abandoned the freed slaves to a rather dubious fate.)

So the fateful war was fought, and union proclaimed to have been restored.

A scurrilous claim: It is symbolic that the South could be reinstated as a member of the Union only after a team of Northern generals had razed it. The new union, instead of resulting from the regulated intercourse of political bodies, was forced down the throats of half of them, and the unity prevailing between Americans became that which obtains between colonizers and colonized.

Lincoln showed himself to be a faithful disciple of Jean-Jacques Rousseau’s method for regenerating France: “to prevent the union from being an empty word, it must be disposed that whoever is rebellious to the people’s will must be forced to obey it, which only means forcing him to be free. From such deviousness was born a new type of nation, indeed.”

(1865: The True American Revolution, Claude Polin, Chronicles, April 2015, excerpts pg. 14; www.chroniclesmagazine.org)

An Understanding of Eighteenth Century Government

The author below writes that the Founders, to include men such as John Adams and James Madison, saw the purpose of a separation of powers in the new government as necessary to give both “property” and “the people” – the aristocracy and the workers – a voice in government with a check upon one another. He adds that those who think of government as a science and formal political structures have difficulty understanding the men of long ago who looked upon government as an instrument for resolving tensions among social classes, or “interests,” which was the term commonly used in the eighteenth century. The social interests remain today, as well as the social tensions.

Eighteenth Century Understanding of Government

“Those who bent their efforts, and a considerable amount of history along with them, to prove the constitutionality of the New Deal denied the fact of “State sovereignty” under the Article of Confederation. They asserted the old doctrine that the union came before the States and was therefore all-powerful: State sovereignty never existed. From this doctrine they deduced that New Deal measures could not be invalidated by the Supreme Court, which turned to “States’ rights” notions and a strict interpretation of the Constitution of 1787.

In doing so it was obvious the majority of the Court were motivated by political and economic predilections rather than concern for the true nature of the Constitution. The opponents of the Court, likewise, in their fervor to attain necessary ends, cited many analogies, the falsity of which they did not recognize. To them the argument of States’ rights used to defeat national regulation of business enterprise was specious and unfounded in history.

What they did not see was that the eighteenth-century counterparts of nineteenth-century vested interests likewise rejected the doctrine of State sovereignty. For them the only escape from a democracy which found expression in unchecked State governments was the creation of a national government which would limit if not destroy the sovereignty of the States. Despite the theorizing of later days, the fact remains that State sovereignty was a grim reality for those who objected to majority rule.

[Those] . . . who say or imply that democracy was not an issue in the Revolutionary era . . . do not face the fact that some of the Revolutionary leaders who became the folk heroes of later generations were actually opposed to what they believed to be, and what they called, “democracy.” Therefore they are unwilling to accept the idea that the Articles of Confederation were an expression of the democratic philosophy of the eighteenth century and that the Constitution of 1787 was the culmination of an anti-democratic crusade.

(The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774-1781, Merrill Jensen, University of Wisconsin Press, 1963, excerpts pp. viii-ix)

“Thou Wicked Servant”

Though opposed to Lincoln’s violations of the Constitution in his war against the American South, Northern Democrats saw the need to crush secession, which was a manifestation of the Tenth Amendment and inherent right of the people of a State to withdraw from a federal compact to which they conditionally assented. Those Northern Democrats did not see that due to the vast differences between the sections by 1861, peaceful separation was the only logical solution for the Southern people to pursue free, representative government. Connecticut Senator William C. Fowler (below) was born in 1793, during Washington’s presidency – living long enough to see the end of Washington’s Union.

“Thou Wicked Servant”

“Expressing opposition to secession, [Northerners Clement] Vallandigham, [Samuel S.] Cox, [Stephen D.] Carpenter, and Fowler maintained that they desired not an independent Confederacy but simply a restoration of the “Constitution as it is” and the “Union as it was.” They declared they were in favor of a constitutional war to crush secession, but they charged that Lincoln was waging a battle for the conquest and subjugation of the South and that he was conducting it in a despotic fashion, subverting the constitutional liberties of individuals and the rights of States.

Opposing military conscription, they also criticized the suspension of the writ of habeas corpus and declared that freedom of speech had been abolished in the Union.

In particular, they attacked Lincoln’s policy of emancipation. Spurning the argument that emancipation was a legitimate measure adopted to aid the prosecution of the war, they pictured it as an unconstitutional act by which the President had changed the war aims of the North from the preservation of the Union to abolition of slavery.

“If,” said Fowler in the Connecticut State Senate in 1864, “the President should avow the fact that he has violated the Constitution, in order to save the Union, as the President did in a letter to Mr. Hodge, let us say to him “out of thine own mouth will I judge thee, thou wicked servant.”

The peace advocates placed special blame for war upon the abolitionists of the North, stating repeatedly that it was not the institution of slavery but the agitation of the slavery question by the abolitionists that had caused hostilities.

For the immediate outbreak of fighting, the three Midwesterners placed responsibility upon Lincoln and the Republicans because of their refusal to compromise with Southerners in the crisis of 1860-1861.”

(Americans Interpret Their Civil War, Thomas J. Pressly, 1954, Princeton University Press, excerpts pp. 131-133)

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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