Browsing "Tenth Amendment"

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)

 

Jul 30, 2018 - Jeffersonian America, Prescient Warnings, Recurring Southern Conservatism, Southern Conservatives, Southern Statesmen, Tenth Amendment, The United States Constitution    Comments Off on State Governments Must Control the Federal Government

State Governments Must Control the Federal Government

Jefferson foresaw problems between the States and the general government, and noted in an 1824 letter to John Cartwright that if a collision can “neither be avoided nor compromised, a convention of the States must be called, to ascribe the doubtful power to that department which they may think best.” He saw further that the “encroachments of State governments will tend to an excess of liberty which will correct itself, while those of the general government will tend to monarchy, which will fortify itself from day to day, instead of working its own cure. The very basis of the Tenth Amendment was to forbid the general government from assuming powers not delegated.

Bernhard Thuersam, www.Circa1865.org

 

State Governments Must Control the Federal Government

“Jefferson’s real concern was for American law, not international morality. He said he feared he had “gone beyond the Constitution” in agreeing to purchase Louisiana. Much as he believed the United States “must have the Mississippi”; much as he wanted there to be one nation on the continent, and an overland route to the Pacific coast, he was at least as much concerned for human liberty.

With respect to foreign affairs, he believed that only a strong Federal government could conduct them. But with respect to internal affairs, he believed the Federal powers were very narrowly defined, and that all other powers, including the right to secede, belonged to the States.

He utterly rejected the Federalists’ theory that the Constitution “implied” that the government could assume any powers not specifically spelled out in that document. If that we so, he felt, a future Federal government could justify almost anything on grounds that the laws it passed helping to promote the general welfare, even if their effect was to convert the republic into a monarchy.

The only protection the people had, he felt, lay in their control of their State governments. If the several States did not retain all powers not granted to the Federal government, they might as well give up any pretense of having rights of their own.

The issue of States’ rights versus Federal rights was a basic problem to the framers of the Constitution, as the vague language of the Constitution suggests; it was a basic problem to Jefferson; it became a bloody one during the Civil War, and it still to great extent plagues the United States today.”

(Eminent Domain: the Louisiana Purchase and the Making of America, John Keats, excerpts pp. 341-342)

 

New England Sets the Example for the South

Lord Acton writes that “secession is not a theory of the Constitution, but a remedy against a vicious theory of the Constitution” — the right of a minority to withdraw from a political agreement which they no longer wish to be part of, and to escape the tyranny of the majority. Even a nationalist like Hamilton saw the balance necessary between national and State governments, and that both will be prevented from trespassing on each one’s constitutional limitations. The States would be further protected by the strictly delegated, and few, powers of the general government.

Bernhard Thuersam, www.Circa1865.org

 

New England Sets the Example for the South

As a consequence of troubles between Napoleon’s Berlin decree and the British response, President Jefferson determined to lay an embargo on all American vessels – with a subsequent Bill passed December 22, 1807.

“The embargo was a heavy blow to the ship-owning States of New England . . . the others were less affected by it. “The natural situation of this country,” says Hamilton, is to divide it interests into . . . navigating and non-navigating States. This difference in situation naturally produces a dissimilarity of interests and views respecting foreign commerce.”

Accordingly the law was received in those States with a storm of indignation. Quincy, of Massachusetts, declared in the House: “It would be as unreasonable to undertake to stop the rivers from running into the sea, as to keep the people of New England from the ocean . . .”

The doctrine of State-rights, or nullification, which afterwards became so prominent in the hands of the Southern party, was distinctly enunciated on behalf of the North on this occasion.

Governor Trumbull, of Connecticut, summoned the legislature to meet, and in his opening address to them he took the ground that, in great emergencies, when the national legislature had been led to overstep its constitutional power, it became the right and the duty of the State legislatures “to interpose their protecting shield between the rights and the liberties of the people, and the assumed power of the general government.”

They went farther and prepared to secede from the Union, and thus gave the example which has been followed, on exactly analogous grounds, by the opposite party.

John Quincy Adams declared in Congress that there was a determination to secede. “He urged that a continuance of the embargo much longer would certainly be met by forcible resistance, supported by the legislature, and probably by the judiciary of the State . . . Their object was, and had been for years, a dissolution of the Union, and the establishment of a separate confederation.”

Twenty years later, when Adams was President, the truth of this statement was impugned. At that time the tables had been turned, and the South was denying the right of Congress to legislate for the exclusive benefit of the North Eastern States, whilst these were vigorously and profitably supporting the Federal authorities.

It was important that they should not be convicted out of their own mouths, and that the doctrine they were opposing should not be shown to have been inaugurated by themselves.

(The Civil War in America: Its Place in History; Selected Writings of Lord Acton, Volume I, Essays in the History of Liberty, J. Rufus Fears, editor, Liberty Fund, 1985, excerpts pp. 231-234)

 

The Problem of Sovereignty

Regarding the location of sovereignty in the American system of government, Jefferson Davis, in his postwar “Rise and Fall of the Confederate Government,” stated: “If any lingering doubt could have existed as to the reservation of their entire sovereignty by the people of the respective States when they organized the federal Union, it would have been removed by the adoption of the tenth amendment to the Constitution, which was not only one of the amendments proposed by various States when ratifying that instrument, but the particular one in which they substantially agreed, and upon which they most urgently insisted.”

Bernhard Thuersam, www.Circa1865.org

 

The Problem of Sovereignty

“The fundamental issue in the writing of the Articles of Confederation was the location of the ultimate political authority, the problem of sovereignty. Should it reside in Congress or the States?

Many conservatives in 1776-1777, as in 1787, believed that Congress should have a “superintending” power over both the States and their individual citizens. They had definite reasons for such a desire.

They feared mob action and democratic rule.

The radicals, on the other hand, were fighting centralization in their attack upon the British Empire and upon the colonial governing classes, whose interests were so closely interwoven with the imperial relationship. Furthermore, the interests of the radicals were essentially local.

To them union was merely a means to their end, the independence of the several States. Hence centralization was to be opposed. Finally, the democratic theory of the time was antagonistic to any government with pretensions toward widespread dominion. Theorists believed that democratic government was impossible except within very limited areas.

Thus the conflict between those who were essentially “nationalists” and those who were forerunners of the “States rights” school.

The real significance of this controversy was obscured during the nineteenth century by historians and politicians who sought to justify the demands of rising industrialism on the central government and the Northern attitude toward the South’s secession in 1860-61.

The Southern contention that the Union was a compact between sovereign States was opposed by the contention that the Union was older than the States. North historians insisted that the first Continental Congress was a sovereign body, and that it represented the people of the United States as a whole, not the people of the several States as represented in their State governments.

To prove their contentions the Northerners cited such documents as the Declaration of Independence and the preamble to the Constitution of 1787 . . . [and italicizing] to place undue emphasis on the portions of the documents which seemed to prove their arguments.

This is essentially the technique of argument used by small boys and would be unworthy of consideration had it not been so effective in shaping certain ideas which have profoundly influenced the interpretation of American history.”

(The Articles of Confederation, an Interpretation of the Social-Constitutional History of the American Revolution, 1774-1781, Merrill Jensen, University of Wisconsin Press, 1940, excerpts pp. 161-163)

 

The South Seeks a Convention of the States

Contrary to mainstream belief, Lincoln and his Republican Party demonstrated no interest in preserving the Union and regularly spurned peace initiatives. Those who wanted to resort to the United States Constitution for a solution to the intense sectionalism in both North and South, saw a convention of the States as the method provided by the Founders. As in the peace overture noted below, all efforts to end the bloodshed of Lincoln’s war originated in the South, and all ended in failure due to Lincoln’s intransigence.

Bernhard Thuersam, www.Circa1865.com

 

The South Seeks a Convention of the States

“As early as February, 1863, it was rumored that [South Carolina Representative William W. Boyce] had been advocating in secret session of the [Confederate] House [of Representatives] some form of conciliation with the Northwestern States.

When the Democratic convention, meeting at Chicago August 29, 1864, adopted a platform declaring that efforts should be made immediately for a cessation of hostilities and that a convention of the States be employed to restore peace “on the basis of the Federal union of the States,” Boyce addressed an open letter to President [Jefferson] Davis urging him to declare his willingness for an armistice and such a convention that Northwestern Democrats proposed.

In his letter of September 29 Boyce argued that a republic at war inevitably drifted into despotism . . . [through] conscription, illegally laid direct taxes, [issuing] vast quantities of paper money . . . suspended the writ of habeas corpus . . . in short, [giving] the President all the powers of a military dictator.

Nor would the evils necessarily end with the war; that would depend on the nature of the peace. “A peace without reconciliation carried in its bosom the seed of new wars.”   A peace without harmony would be a mere armed truce. Such a peace would cause the North to develop a great military power and the South would be forced to do likewise. There would then be two opposing military despotisms under which republican institutions would permanently perish.

To prevent such an outcome a peace of harmony must be negotiated with the United States. In bringing this to pass a successful military policy was essential but it was not enough; it must be accompanied by a political policy, a political policy which could not succeed if Lincoln, representing the fanaticism of the North, were returned to the White House.

The South’s only hope for a satisfactory peace, therefore, lay in the victory [in November 1864] of the Northern Democratic Party which should be encouraged in every possible way. [Boyce’s advice was to] . . . Assure [Northern Democrats] of the South’s willingness to cooperate in a convention of the States, and let South cooperate even if an amendment of the Constitution be necessary for that purpose. Such a convention would be the “highest acknowledgment” of State rights principles.”

(South Carolina Goes to War, Charles Edward Cauthen, University of South Carolina Press, 1950, 1860-1865, excerpts, pp. 217-218)

 

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)

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)