Circa1865

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 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)

Duress accomplished passage of the Thirteenth Amendment to the Constitution; the people of the South who deeply understood that the States controlled their own domestic institutions were forced to submit to overwhelming military power. The Fourteenth Amendment was unconstitutionally-enacted, not ratified, and considered yet another term of the conqueror.

Bernhard Thuersam, www.Circa1865.com

Terms of the Conqueror

“Who drove the South to these extremities? The very men who accuse her of treason. When she accepted the contest, to which she was thus virtually invited in terms of contumelious threat and reproach, she was threatened with being wiped out and annihilated by the superior forces of her antagonist, with whom it was vain and foolish to contend, so unequal were the strength and resources of the two parties. It is true that the South parted in bitterness, but it was in sadness of spirit also. She did not wish it – certainly, Virginia did not desire it – if she could maintain her rights within the Union.

The South at last fell from physical exhaustion – the want of food, clothes, and the munitions of war; she yielded to no superiority of valor or of skill, but to the mere avoirdupois of numbers. Physically, she was unable to stand up under such a weight of human beings, gathered from whenever they could be called by appeals to their passions or bought by promise to supply their necessities.

It is said that after the battle of the Second Cold Harbor, where Grant so foolishly assailed Lee in his lines, and where his dead was piled in thousands after his unsuccessful attack, the northern leaders were ready to have proposed peace , but were prevented by some favorable news from the southwest.

They did not propose peace except upon terms of unconditional submission. When the South was forced to accept those terms to obtain it, the North was not afraid to avow its purposes and carry them out. Slavery was abolished without compensation, and slaves were awarded equal rights with their masters in government.

It was the fear of these results which drove the South into the war. Experience proved that this fear was reasonable. The war was alleged as the excuse for such proceedings; but can any man doubt that the North would have done the same thing if all constitutional restraints upon the power of the majority had been peaceably removed.

It is sought to be excused, I know, by assuming that these things were done with the assent of the South. That these [Thirteen and Fourteenth] constitutional amendments represent the well-considered opinion of any respectable party in the South, there is none so infatuated as to believe. They were accepted as the terms of the conqueror, and so let them be considered by all who desire to know the true history of their origin.”

(Southern Historical Society Papers, Origin of the Late War, Hon. R.M.T. Hunter, Volume I, excerpts, pp. 11-12)

David Lawrence, editor of the US News and World Report, argued in late September 1957 that the Fourteenth Amendment to the US Constitution was never ratified by the requisite number of States, and is therefore null and void. This amendment has been used since 1865 as the basis for federal intervention into the constitutionally-specified authority of the individual States, both North and South.

Bernhard Thuersam, www.Circa1865.com

The Fourteenth Amendment a Disgrace to Free Government

“A mistaken belief — that there is a valid article in the Constitution known as the “Fourteenth Amendment” — is responsible for the Supreme Court decision of 1954 and the ensuing controversy over desegregation in the public schools of America

No such amendment was ever legally ratified by three-fourths of the States of the union as required by the Constitution itself.  The so-called “Fourteenth Amendment” was dubiously proclaimed by the Secretary of State on July 20, 1868. The President shared that doubt.  There were 37 States in the union at that time, so ratification by at least 28 was necessary to make the amendment an integral part of the Constitution. Actually, only 21 States legally ratified it.

So it failed ratification.  The undisputed record, attested by official journals and the unanimous writings of historians, establishes these events as occurring in 1867 and 1868:

1. Outside the South, six States — New Jersey, Ohio, Kentucky, California, Delaware and Maryland — failed to ratify the proposed amendment.
2. In the South, ten States — Texas, Arkansas, Virginia, North Carolina, South Carolina, Georgia, Alabama, Florida, Mississippi and Louisiana — by formal action of their legislatures, rejected it under the normal processes of civil law.
3. A total of 16 legislatures out of 37 failed legally to ratify the “Fourteenth Amendment”.
4. Congress — which had deprived the Southern States of their seats in the Senate—did not lawfully pass the resolution of submission in the first instance.
5. The Southern States which had rejected the amendment were coerced by a federal statute passed in 1867 that took away the right to vote or hold office from all citizens who had served in the Confederate army. Military governors were appointed and instructed to prepare a roll of voters. All this happened in spite of the presidential proclamation of amnesty previously issued by the president. New legislatures were thereupon chosen and forced to “ratify” under penalty of continued exile from the union. In Louisiana, a General sent down from the north presided over the State legislature.
6. Abraham Lincoln had declared many times that the union was “inseparable” and “indivisible”. After his death and when the war was over, the ratification by the Southern States of the 13^th Amendment abolishing slavery had been accepted as legal. But Congress in the 1867 law imposed the specific conditions under which the Southern States would be “entitled to representation in Congress.”
7. Congress, in passing the 1867 law that declared the Southern States could not have their seats in either the Senate or House in the next session unless they ratified the “Fourteenth Amendment”, took an unprecedented step. No such right — to compel a State by an act of Congress to ratify a constitutional amendment — is to be found anywhere in the Constitution. Nor has this procedure ever been sanctioned by the Supreme Court of the United States.
8. President Andrew Johnson publicly denounced this law as unconstitutional. But it was passed over his veto.
9. Secretary of State [William] Seward was on the spot in July 1868 when the various “ratifications” of a spurious nature were placed before him. The legislatures of Ohio and New Jersey had notified him that they rescinded their earlier action of ratification. He said in his official proclamation that he was not authorized as Secretary of State “to determine and decide doubtful questions as to the authenticity of the organization of State legislatures or as to the power of State legislatures to recall a previous act or resolution of ratification”.

He added that the amendment was valid “if the resolutions of the legislatures of Ohio and New Jersey, ratifying the aforesaid amendment, are to be deemed as remaining of full force and effect, notwithstanding the subsequent resolutions of the legislatures of these States.”

This was a very big “if.” It will be noted that the real issue therefore is not only whether the forced “ratification” by the ten Southern States was lawful, but whether the withdrawal by the legislatures of Ohio and New Jersey — two northern States — was legal.

The right of a State, by action of its legislature to change its mind at any time before the final proclamation of ratification is issued by the Secretary of State has been confirmed with other constitutional amendments.

10. The Oregon Legislature in October 1868 — three months after the Secretary’s proclamation was issued—passed a rescinding resolution, which argued that the “Fourteenth Amendment” had not been ratified by three-fourths of the States and that the “ratifications” in the Southern States “were usurpations, unconstitutional, revolutionary and void” and that “until such ratification is completed, any State has a right to withdraw its assent to any proposed amendment.”

This is the tragic history of the so-called “Fourteenth Amendment” — a record that is a disgrace to free government and a “government of law.”  Isn’t the use of military force to override local government what we deplored in Hungary?

It is never too late to correct an injustice. The people of America should have an opportunity to pass on an amendment to the Constitution that sets forth the right of the federal Government to control education and regulate attendance at public schools either with federal power alone or concurrently with the States.

That’s the honest way, the just way to deal with the problem of segregation or integration in the schools. Until such an amendment is adopted, the “Fourteenth Amendment” should be considered null and void.  There is only one supreme tribunal — it is the people themselves.

Their sovereign will is expressed through the procedures set forth in the Constitution itself.”

(There Is No Fourteenth Amendment” David Lawrence, Editor, US News & World Report, September 27, 1957, inside rear cover)

Author Robert Penn Warren writes below of “The Treasury of Virtue,” the psychological heritage left to the North by the War and the irrefutable basis of its long-serving Myth of Saving the Union. With his armies victorious the Northerner was free “to write history to suit his own deep needs . . . and knows, as everybody knows, that the war saved the Union.”

Bernhard Thuersam, www.circa1865.org

The Legacy of the War 

“When one is happy in forgetfulness, facts get forgotten. In the happy contemplation of the Treasury of Virtue it is forgotten that the Republican platform of 1860 pledged protection to the institution of slavery where it existed, and that the Republicans were ready, in 1861, to guarantee slavery in the South, as bait for a return to the Union.

It is forgotten that in July, 1861, both houses of Congress, by an almost unanimous vote, affirmed that the War was waged not to interfere with the institutions of any State but only to maintain the Union.

The War, in the words of the House resolution, should cease “as soon as these objects are accomplished.” It is forgotten that the Emancipation Proclamation, issued on September 23, 1862, was limited and provisional: slavery was to be abolished only in the seceded States and only if they did not return to the Union before the first of the next January.

It is forgotten that the Proclamation was widely disapproved [in the North] and even contributed to the serious setbacks to Republican candidates for office in the subsequent election.

It is forgotten that, as Lincoln himself freely admitted, the Proclamation itself was of doubtful constitutional warrant and was forced by circumstances; that only after a bitter and prolonged struggle in Congress was the Thirteenth Amendment sent, as late as January, 1865, to the States for ratification; and that all of Lincoln’s genius as a horse trader (here the deal was Federal patronage swapped for Democratic votes) was needed to get Nevada admitted to Statehood, with its guaranteed support of the Amendment.

It is forgotten that even after the Fourteenth Amendment, not only Southern States, but Northern ones, refused to adopt Negro suffrage, and that Connecticut had formally rejected it a late as July, 1865.

It is forgotten that Sherman, and not only Sherman, was violently opposed to arming Negroes against white troops. It is forgotten that . . . racism was all too common in the liberating army. It is forgotten that only the failure of Northern volunteering overcame the powerful prejudice against accepting Negro troops, and allowed “Sambo’s Right to be Kilt,” — as the title of a contemporary song had it.

It is forgotten that racism and Abolitionism might, and often did, go hand in hand. This was true even in the most instructed circles [as James T. Ayers, clergyman, committed abolitionist and Northern recruiting officer for Negro troops confided to his diary] that freed Negroes would push North and “soon they will be in every whole and Corner, and the Bucks will be wanting to gallant our Daughters Round.” It is forgotten, in fact, that history is history.

Despite all this, the war appears, according to the doctrine of the Treasury of Virtue, as a consciously undertaken crusade so full of righteousness that there is enough oversurplus stored in Heaven, like the deeds of the saints, to take care of all small failings and oversights of the descendants of the crusaders, certainly unto the present generation. The crusaders themselves, back from the wars, seemed to feel that they had finished the work of virtue.

[Brooks Adams pronounced] “Can we look over the United States and honestly tell ourselves that all things are well within us?” [Adams] with his critical, unoptimistic mind, could not conceal it from himself, but many could; and a price was paid for the self delusion.

As Kenneth Stampp, an eminent Northern historian and the author of a corrosive interpretation of slavery, puts it: “The Yankees went to war animated by the highest ideals of the nineteenth-century middle classes . . . But what the Yankees achieved – for their generation at least – was a triumph not of middle class ideals but of middle class vices. The most striking products of their crusade were the shoddy aristocracy of the North and the ragged children of the South. Among the masses of Americans there were no victors, only the vanquished.”

(The Legacy of the Civil War, Robert Penn Warren, University of Nebraska Press, 1998, pp. 60-65)

The Fourteenth Amendment to the US Constitution in 1868 was illegally enacted without the requisite number of States ratifying it. This so-called amendment has been the source of many political and social conundrums then and today — most recently it allegedly allows children born on US soil to be instant citizens. It indeed was only a measure by the Republican party to ensure votes in the South from grateful and compensated former African slaves.

Bernhard Thuersam, www.circa1865.org

On Diversity

“How much diversity can America tolerate and still be America?

There is no question that, at the time the Declaration of Independence was signed and the Constitution was framed, an American was white and English-speaking, and a product of Western Christian civilization. Non-whites were not allowed citizenship until Republicans forced through the 14^th Amendment in 1868 partly as a way to enfranchise blacks in the South who they thought would then vote for the Grand Old Party.

Moreover, whenever non-white immigration reached any significant level, restrictions and prohibitions were enacted, e.g., the Chinese Exclusion Act of 1882, the Gentlemen’s Agreement of 1907, and the Oriental Exclusion Act of 1924.

When the Founding Fathers talked about religious freedom, they were essentially thinking of disestablishing the Anglican Church. “Freedom of worship” meant that Baptists, Presbyterians, Quakers and Catholics should no longer suffer as they had under English rule. I really don’t think the Founders were thinking about Muslims, Hindus, Buddhists, animists, and Santerians.

What is America is five or ten percent non-white, non-English-speaking, non-Christian, non-Western? No problem. A little salt and pepper is interesting, enlivens and invigorates culture, and introduces new perspectives.

But what if that number becomes 40, 60, 80 percent of the population? No, I think it is called fragmentation, separation, Balkanization. Los Angeles is an outstanding example of this.

While politicians, school officials, and other so-called community leaders mouth inane slogans such as “Diversity is Our Strength,” whites flee to far-flung suburbs as fast as their SUV’s will carry them.

There are so few whites left in the Los Angeles Unified School District that busing only means that blacks and Hispanics are bussed to schools in white neighborhoods. All the white children whose parents can afford it are in private or parochial schools, leaving the local school no more than 20 or 30 percent white. In most of the elementary schools, English is a foreign language.

It seems to me that it is perfectly natural, moral, ethical, and legal for a people to want to preserve their identity. Would Japanese allow themselves to become Russian? Would Israeli’s allow themselves to become Arab? Would Indians allow themselves to become Chinese? Why should it be our fate to lose our American identity?”

(On Diversity, Dr. Roger D. McGrath, Chronicles Magazine, June 1999,excerpts, pp. 4-5)