Circa1865

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)

Author John Keats argues that “the American Revolution was neither wholly American nor revolutionary,” and “represented the transatlantic evolution of European ideas whose origins were as old as Europe itself” – and territorial expansion. Add to this a poisonous mix of sharp-trading Puritans, pacifist Quakers and self-reliant Southern planters – “too many lumps of self-interest that simply would not melt” — and Jefferson’s borrowing and modifying phrases from Locke and Rousseau.

Bernhard Thuersam, www.Circa1865.org

The Revolution and the Rights of Man

“The American Revolution was particularly dangerous to America and the world because the ostensible reason for fighting was to proclaim and protect the rights of man. Since these were seen to be natural and universal, the American Revolution was implicitly designed for export.

The Revolutionary veterans began to export it without waiting for their government’s approval. Within nine years after the war ended, there were no less than two hundred thousand Americans – one tenth of the national population – settled in the eastern Mississippi valley lands claimed by Spain.

To the Spanish, the newcomers were violent, armed revolutionary republicans. Worse, they were heretics who belonged to a race long inimical and dangerous to the Spanish one.

But the pursuit of [westward expansion] policies could not be undertaken by anything so weak and vague as the [Articles of Confederation]. Worse, the confederation was unable to exert any effective control over the scores of thousands of Americans who were taking land for themselves in the west.

Some of these self-reliant and self-confident, people, very much afire with Revolutionary ardor, were entertaining ideas of capturing New Orleans, invading Mexico, liberating people there from Spanish rule, and so extending the blessings of republican liberties to a people tyrannously denied their natural human rights.

The soberest of the leaders of the confederation were well-aware that the military power of the United States was non-existent, and that its political power were nearly so. [It was time] to weld thirteen separate republican States into a single military power that could control and protect its property.

The delegates succeeded in producing a powerful legal instrument to this end, but two years after the Constitution was adopted, a popular concern to protect the gains of the Revolution demanded that the other shoe be dropped: A Bill of Rights was tacked on. Once this was done, the Revolution was now legally ready for export, because the ostensible reason for going to Valley Forge was built into the law of the land. In defending [the Bill of Rights], the Americans would always be on the side of humanity.

The Revolutionary Americans, caught in the mystique of their own ardent rhetoric, believed this at the time, and many Americans have believed it ever since: what is good for Americans is good for anyone in the world; the world must be made safe for republican democracy whether the world liked it or not.

So the Constitution, as amended, was a document that first created a military power, and then in the names of God, natural law and human rights gave the people of the United States a sacred and legal command to use. It is not, therefore, a historical accident that in its 193-year history, the United States of American has engaged in more wars with more different people in more parts of the world than any other nation in the long history of man on earth.”

(Eminent Domain: the Louisiana Purchase and the Making of America, John Keats, Charterhouse, 1973, excerpts pp. 215; 217-218)

The American Revolution involved two groups fighting the British: the conservatives, who reluctantly left British control as it guaranteed their power and wealth; and the radicals who wanted to overturn the aristocratic colonial structure as well as British rule from afar. The latter desired sovereign States with a weak central government, the former desired the reverse.

The author below notes “the writing and ratification of the Articles of Confederation is merely the first chapter in the constitutional history of the United States. In the years to come, section was to be arrayed against section, class against class, and party against party in an effort to determine the province of the central government and that of the States.”

Bernhard Thuersam, www.Circa1865.org

Hostile Colonies and States United

“The fundamental difference between the Articles of Confederation and the Constitution of 1787 lies in the apportionment of power between the States and the central government. In the first the balance of power was to the States, and in the second to the central government. The first constitution was one of a federal organization; the second was in essence that of a national government, although political realities demanded the retention of federal features.

The difference between the two was the result of the shifting balances of political power within the thirteen States, which enabled first one party and then the other to write its desires, its beliefs, and its interests into the colorless language of a constitution.

Hence it was the nature of union, and not its desirability, that was the major issue between the parties in 1776. The conservatives wished for the recreation, as nearly as might be, of the system that had existed before the Revolution.

The radicals tended to desire a union chiefly for the purpose of carrying on the war, but a union that would not infringe upon the sovereign authority of the individual States. They believed profoundly that only under such a system was democracy possible.

The greatest obstacle to a union of almost any kind was the States’ independence of one another. The colonies had been founded individually and had developed different traditions and attitudes in spite of a common heritage of language, law, and government.

Their relations with each other were often unfriendly, especially after the middle of the eighteenth century, as a result of rival land claims. Actual warfare had been prevented only by the external power of Britain, which subdued them but did not eliminate their animosity toward one another.

Above all, the radicals believed that the independence of the States was the guarantee of the kind of government they desired. Speaking broadly, it was democracy they wanted, and they knew full well that the kind of democracy they wanted was incompatible with centralization. Their experience with the British Empire had taught them that much, and they were not soon to forget the lesson.”

(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. 109-110; 116-117)

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)

It is erroneously believed today that the United States Constitution followed the Declaration of Independence, though the Articles of Confederation were the first “Constitution.” It is recalled that the Articles were deemed by all parties to it as perpetual and a majority of States were required to approve any changes therein. Nonetheless, eleven States unconstitutionally seceded from the Articles in 1789 and inaugurated a new union – leaving North Carolina and Rhode Island as unaffiliated and independent States.

Bernhard Thuersam, www.Circa1865.com

Sovereign Political Communities, Not One People

“We have seen that the united colonies, when they declared their independence, formed a league or alliance with one another as the “United States.” This title antedated the adoption of the Articles of Confederation.

It was assumed immediately after the Declaration of Independence, and was continued under the Articles of Confederation; the first of which declared that “the style of this confederacy shall be “The United States of America”, and this style was retained – without question – in the formation of the present Constitution.

It has been fully shown that the States thus became and continued to be “united,” and whatever form their union assumed, acted and continued to act as distinct and sovereign political communities. The monstrous fiction that they acted as one people “in their sovereign capacity” has not an atom of fact to serve as a basis. To go back to the very beginning, the British colonies never constituted one people.

The [loose expressions employed in debate in the British Parliament about the time of the American Revolution – such as “that people . . . etc., and] who made use of this colloquial phraseology concerning the inhabitants of a distant continent . . . could little have foreseen the extraordinary use to be made of their expression nearly a century afterward, in sustaining a theory contradictory to history as well as to common sense.

It is as if the familiar expressions often employed in our own time, such as “the people of Africa,” or “the people of South America,” should be cited, by some ingenious theorist of a future generation . . . or that the Peruvians and Patagonians belonged to the same political community.

When the colonies united in sending representatives to a Congress in Philadelphia, there was no purpose – no suggestion of a purpose – to merge their separate individuality in one consolidated mass. No such idea existed, or with their known opinions, could have existed. They did not assume to become a united colony or province, but styled themselves “united colonies” – colonies united for purposes of mutual counsel and defense . . .

As “United States” they adopted the Articles of Confederation, in which the separate sovereignty, freedom and independence of each was distinctly asserted. It was without any change of title – still as “United States” – without any sacrifice of individuality – without any compromise of sovereignty – that the same parties entered into a new and amended compact with one another under the present Constitution.”

(State Sovereignty Being the Constitution, Part II of the Rise and Fall of the Confederate Government, Jefferson Davis, Volume I, D. Appleton & Company, 1881, excerpts, pp. 114; 117-119)

The Original Confederacy

The original governing document after the British colonies seceded from England was titled the Articles of Confederation, adopted on November 15, 1777, but not formally ratified by all thirteen States until March, 1781. Hence, the original American government was “Confederated,” the people (and their military arm) referred to as “Confederates,” and the flag they flew was a Confederate flag.

Interestingly, many of the Revolutionary leaders who formed this confederated government were not advocates of what they then knew as “democracy,” and they were unwilling to accept the idea that the Articles of Confederation were an expression of any eighteenth century democratic philosophy.

These leaders and creators of the Articles created a “separation of powers” which is often equated with today’s view of democracy and liberty. To James Madison and John Adams the purpose of such an instrument was to give both men of property and those without a voice in government as well as a check upon one another. Their fear was, that without this check, society could not prevent the exploitation which would probably ensue if either one got control of the government.

Also, the Articles were considered to be the constitutional expression of the philosophy of Jefferson’s Declaration of Independence, and what was considered to be “democracy” was written into the revolutionary State constitutions regarding legislative supremacy, governors and the judiciary subservient to legislatures, and churches losing their past privileges.

John Adams wrote in 1817 of those romanticizing the Revolution and forgetting the mighty political battles that took place then and afterward. “There is,” he wrote, “an overweening fondness for representing this country as the scene of liberty, equality, fraternity, union, harmony and benevolence. But let not your sons or mine deceive themselves. This country, like all others, has been a theater of parties and feuds for near two hundred years.”

That Revolutionary generation of English colonists had experienced the rule of the Mother Country for all their lives, and the newspapers of 1775-76 were rife with essays distrusting office-holders, insisting on annual elections, rotation in office and constitutional restrictions on holding political office. Americans of that time were lectured upon that men in power naturally lusted for more power and that restraints were needed on officeholders lest the peoples’ liberties be put in danger.

In 1787’s convention Edmund Randolph pointed out that the authors of the Articles of Confederation were wise and great men, but that “human rights were the chief knowledge of the time.” He followed this by stating that our chief danger arises from the democratic parts of our constitutions . . . that the powers of government exercised by the people swallows up the other branches . . . [and that none] of the [State] constitutions have provided sufficient checks against the democracy.”

As the governing document, or “constitution” of the United States from 1781 to 1789, the Articles simply dissolved (though deemed “perpetual” when ratified) in the latter year as 11 States then bound to it voluntarily seceded and formed a more perfect union – but initially without Rhode Island and North Carolina whose people were suspicious of the new constitution’s grant of additional power to the central government in Washington.

After those two States withdrew from the Articles and joined the other eleven, this new Constitution passed through serious ruptures such as New England’s threats of secession in 1814 and serious tariff crises, until finally collapsing in war between North and South in 1861.”

Bernhard Thuersam

Several attempts were made to revise or replace the original founding document, the Articles of Confederation, after their ratification in 1781. By the fall of 1786, a majority of Congress thought an amendment necessary to grant Congress the power to regulate trade, though members warned that a proposed constitutional convention might grant unlimited powers to a national government, and that such a convention would be dangerous to the liberties of the people. Two of New York’s three delegates to the convention were selected because of their opposition to any fundamental reform of the Articles; Virginia included in its delegation Richard Henry Lee (father of Robert E. Lee) and Patrick Henry, both of whom were outspoken opponents of centralized political power.  The nine States (of 13) that ratified the new Constitution seceded from the Articles of Confederation.

Bernhard Thuersam, www.Circa1865.com

The Revolution of 1787 Ends the Founders’ Union

“In proposing a second constitutional convention, [Elbridge] Gerry, [George] Mason and [Edmund] Randolph embraced the revolutionary decision of the convention to bypass the amendment procedures of the Article of Confederation. The convention delegates merely asked the members of the Confederation Congress to forward the Constitution to the States with a recommendation that the State legislatures call special conventions to assent to and ratify the Constitution. As soon as nine States had ratified the Constitution it would become operable among those [nine] States.

Gerry, Mason and Randolph accepted the basic outlines of that plan but wanted to allow the States to propose amendments to “be submitted to and finally decided on by another general convention” before the Constitution would finally become the law of the land [in nine States].

Under both proposals the Confederation Congress was being asked to act as an agent in its own destruction and the State legislatures, hitherto bastions of hostility to centralized power, to vest State conventions with the authority to adopt a new form of government that materially restricted their own powers.

Despite the enormity of these requests there was a considerable likelihood they would be approved . . . In addition, the membership of the [constitutional] convention and Congress overlapped significantly. Richard Henry Lee complained that this overlap was so great that “it is easy to see that Congress could have little opinion [of its own] upon the subject.”

Finally, the Federalists, as the proponents of the new Constitution chose to call themselves, seized the initiative. They had a concrete proposal and a clear-cut plan of action. The revolution of 1787 was well underway.

(The Politics of Opposition, Antifederalists and the Acceptance of the Constitution, Stephen R. Boyd, KTO Press, 1979, excerpt, pg. 15)

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)

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 14^th 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-20^th century federal courts, to impose a centralized, secularized and egalitarian social system on the entire nation.

Federal judges began to read the 14^th 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 14^th 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 18^th 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 14^th 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)

The invitation to appoint delegates to the Constitutional Convention in 1787 was specific in mentioning only revisions to the existing Articles of Confederation that governed the United States. The delegates from New York, Yates and Lansing, returned to their State and reported to Governor Clinton that some in the Convention wished to abolish the Articles and adopt a new document, something they were not sent there to accomplish.

Bernhard Thuersam, www.Circa1865.com

Very Clear Instructions, Difficult to Misunderstand

“Office of the Secretary of Congress

February 21st, 1787

(Circular)

Sir, I have the honor to transmit to your Excellency herewith enclosed an Act of the United States in Congress Assembled, and am, With great respect, Your Excellency’s Most Obedient and Most Humble Servant,

Chas. Thomson

Resolves of Congress (From Executive Letter Book)

“Whereas, there is provision in the Articles of Confederation and perpetual Union for making alterations therein by the assent of a Congress of the United States and of the Legislature of the several States;

And Whereas, experience hath evinced that there are defects in the present Confederation, as a means to Remedy which several of the States, and particular the State of New York, by Express Instructions to their Delegates in Congress have suggested a Convention for the purposes expressed in the following Resolution, and such Convention appearing to be the most probable means of establishing in these States a firm National Government.

Resolved, That in the opinion of Congress, it is expedient that on the second Monday in May next a Convention of Delegates who shall have been appointed by the several States, be held in Philadelphia, for the sole and express purpose of revising the Articles of Confederation and Reporting to Congress and the several Legislatures such alterations and provisions therein, as shall when Agreed to in Congress and Confirmed by the States under the Federal Constitution, be adequate to the Exigencies of Government and the preservation of the Union.

Chas. Thomson”