Circa1865

What Congress Is Doing to Curb the Supreme Court

“Bills to counter recent Supreme Court rulings are starting to make their way through Congress. How much further will Congress go? Everything about the Court – how it operates, terms of judges, scope of rulings – is about to get a thorough review, the first in decades.

US News & World Report – July 12, 1957 – Congress is starting to strike back at the Supreme Court. A score of bills have been introduced to curb the Court’s power and to sidestep the effects of controversial decisions. It is clear that a growing number of Congressmen are convinced that new laws must be passed to overcome the effects of these decisions. Other Congressmen propose to go much further and trim the powers of the Court itself.

Senator Herman Talmadge (Dem.) of Georgia, for example, proposes to amend the code of laws to remove public schools from the jurisdiction of federal courts. Others have offered amendments to the Constitution giving States the exclusive power to regulate schools and all other matters relating to health and morals.

Limits on Tenure? Court decisions during the recent term have produced a rash of bills to make Supreme Court Justices less safe in their lifetime jobs. Senator Russell Long (Dem.) of Louisiana, offered a constitutional amendment to require reconfirmation of a justice by the Senate after 12 years on the bench.  Senators Olin D. Johnston (Dem.) of South Carolina, and James O. Eastland (Dem.) of Mississippi propose amendments to require reconfirmation every 4 years.

Behind all the proposals affecting the appointment of Justices is the objection in Congress that recent decisions have been more political than judicial in purpose and in effect.

To promote full debate, Senator Talmadge also is sponsoring a bill to require the Court to give a full hearing, with oral argument, on any case it decides. His contention is that the Court acted in at least ten cases during the recent term without hearing arguments.

All of these bills, in effect, are telling the Court that it is asserting too much power over Congress, the President and the States.”

Democrat US Congressman Graham A. Barden of northeastern North Carolina first took his seat in November 1934 and served initially on the Library Committee. His positions were usually conservative and often differed with the Truman administration. He was wary of the administration’s Palestine policy in 1948 characterizing it as “terribly dangerous” and one that “would arouse the whole Moslem world.” He charged that Truman was being influenced by American Zionists and bought UN support with Marshall Plan funds. He predicted that the US would be called upon to aid the new Israeli government with both men and money.

Barden was wary of federal aid to education while firmly stating that “the prime responsibility for financing education was in the hands of State and local government,” and that any federal aid must not bring with it any federal control. He rightly feared what the federal bureaucracy might do in interpreting the bill.

North Befogged by Bitterness and Prejudice

“Barden’s opportunity to appear as a champion of the American South occurred when a delegation of the Women’s Auxiliary of the Grand Army of the Republic appeared before the Library Committee to oppose a resolution to erect a memorial to Robert E. Lee near the Lee Mansion in Arlington. Barden sat quietly and uncomfortably until the ladies’ attack upon Southern generals and the Confederacy turned into a tirade against the South and all Southerners.

As the only Southerner present on the committee, Barden came to the defense of not only Robert E. Lee, but of the South’s heritage. The congressman declared that he had “never heard such sectional bitterness expressed.” Answering the women’s insistence that Arlington National Cemetery was a “Union and not a Confederate graveyard” and that even though a few Confederate dead were buried there, Arlington was not a place to honor Confederates, Barden pointed out that in his hometown of New Bern, North Carolina a thousand Union soldiers were buried with honor in a beautiful cemetery.

He continued “We of the South do not propose to keep our brains and characters befogged by bitterness and prejudice. The hospitality of the South has never been questioned, not even by a dead Union soldier.”

The effectiveness of Barden’s position was apparent when the committee voted to report the Robert E. Lee Memorial bill favorably.”

(Graham A. Barden: Conservative Carolina Congressman. Elmer L. Puryear, Campbell University Press, 1979, pp. 22-23; 55; 82)

In mid-April 1861, President Abraham Lincoln himself raised an army – which only Congress may accomplish – for the purpose of waging war against South Carolina. The United States Constitution, Article III, Section 3 states that “Treason against the United States shall consist only in levying war against them, or in adhering to their Enemies, giving the Aid and Comfort.” Lincoln had sworn to defend and uphold the Constitution, a document better understood by the North Carolina governor.

No Troops from North Carolina

“Mr. Lincoln took his seat as President on March 4, 1861. He did not receive an electoral vote in any Southern State and out of a popular vote of 2,804,560 only 1,857,610 were cast for those electors favorable to him. He carried but 16 of the 33 States then in the Union. He was inaugurated as president without having received a majority of the popular vote either of the States or the people.

An attempt by President Lincoln to reinforce the US garrison at Fort Sumter in the harbor of Charleston, South Carolina, was resisted by the Confederate forces under General Beauregard, and on April 14, 1861, after a bombardment lasting thirty-six hours, the fort surrendered.

On the next day, April 15, President Lincoln issued his proclamation calling on the several States to finish their quota of 75,000 troops “to suppress combinations too powerful for the law to contend with.”  The same day, Secretary of War Simon Cameron of Pennsylvania, telegraphed North Carolina Governor John W. Ellis: “Call made on you tonight for two regiments of militia for immediate service.”

Reclining on his couch in the executive office, a mortal disease robbing him of his life’s blood, Governor Ellis received the dispatch and at one replied:

“Sir: I regard the levy of troops made by the Administration for the purpose of subjecting the States of the South, as in violation of the Constitution and a gross usurpation of power. I can be no party to this wicked war upon the liberties of a free people. You can get no troops from North Carolina.”

Governor Ellis at once issued his proclamation calling the Legislature to meet in special session. On its assembling, the Legislature issued a call for a convention of the people and authorize the enrollment of 20,000 volunteers.”

(An Address on the Services of General Matt W. Ransom, William H.S. Burgwyn, delivered in the North Carolina Senate Chamber before the Ladies Memorial Association and citizens, May 10, 1906)

Prior to 1861 the American union was a federation of member States which jealously guarded their own territory and sovereignty to decide upon their own internal affairs. This also included determining whether or not to continue membership in that federation and departing it for another as was done in 1789. Also, by 1861 the North had become a far different region that the American South through industrialization and the relentless immigration of foreigners lacking an understanding of American republicanism.

The Triumph of Industrialism

“The ordeal which beset the United States in 1861 was related to the upheaval on the continent in 1848, and to the spasm which shook England in 1832. In a veiled and confused yet crucial way it, too, was a test of strength between the industrial way of life and the agrarian.

When the Machine first reached this country it took root in the North, and there alone it was able to make even slow headway. The ruling elements in the South were inclined to despise the innovation, for they had black slaves to do their hard labor. In this they were merely repeating history.

The slave owners in ancient Greece had had a similar attitude toward machinery; so had the slave owners in ancient Rome and China and Mexico. These, it must be realized had not lacked the cunning to invent mechanical devices. A Greek mathematician named Hero who lived in the First Century actually built a working steam engine. But did it occur to him to put the contraption to practical use? It did not.  Instead, he installed it in a temple to amaze the worshippers by the way it worked the doors.

That was typical. The clock and the compass, gunpowder and the printing press – these were all invented in relatively ancient times. Yet until relatively modern times they were kept as mere playthings. Ingenious patricians with time on their hands were continually thinking up cunning devices; but never with the idea of applying them to save toil. They themselves did not toil, neither did any of their friends. They had slaves for that. So why bother? And that was precisely the attitude of the white gentry of the South and in their eyes an interest in machinery was vulgar.

In the North, however, the very opposite held true. Bondage had long since been outlawed in that section in part for climatic and other reasons it had too obviously failed to pay. Having no slave labor, the Northerners had naturally been forced to try to save labor. Since this could be done more easily in industry than agriculture, there had been an equally natural compulsion to favor the factory over the farm. The great boom of the 1850s was almost entirely confined to the North and it equipped that region with so much new machinery that it was able to manufacture six times as much merchandise as the South. As a result, the interests of the North, especially New England, became increasingly wrapped up in the fortunes of industrialism.

But as the collapse of that boom had revealed, those fortunes were increasingly insecure. When the Panic of 1857 finally waned and the Yankee industrialists began to pick themselves up from the dust, there was blood in their eyes.

They felt they had been betrayed. For years the industrialists had been complaining that their foreign rivals had them at a disadvantage and pleaded with Congress to come to their aid. They demanded these things: higher tariff walls to keep out cheap foreign merchandise; lowered immigration standards to admit cheap foreign labor; increase subsidies to shippers carrying Northern merchandise overseas; advance more generous loans to railroad companies; create one currency to replace the various State bank notes; and lastly, change the African slave into a free consumer who would spend his money buying Northern products.

But the Southerners had opposed that program to a man. Moreover, being superior politicians, they had always been able to make Congress vote their way. Now, however, the Northerners had their dander up and forged a political alliance with the radical farmers of the West and elected a cagey frontier lawyer named Abraham Lincoln to the presidency. Whereupon, there was war.

The South decided to secede from the 1789 Union. They decided they would rather have half a continent of their own than a whole one run by damn Yankees. Like agrarians everywhere else, their outlook on life had remained essentially provincial. They believed that a citizen’s first loyalty belonged not so much to his country as to his immediate countryside.

Rather than let the South gain independence, the North was ready to lay it to waste. With the Government furnishing the capital, and patriotism the incentive, they rushed to lay hold of more and more machinery. At the time it was called the “Civil War,” and later this somewhat sinister name was softened to the “War Between the States.” In effect, however, it was the “Second American Revolution.” The first had secured the triumph of republicanism on these shores; the second insured the triumph of industrialism.”

(Something Went Wrong: A Summation of Modern History, Lewis Browne, MacMillan Company, 1942, excerpts pp. 113-116)

In April 1878, former-President Jefferson Davis prepared a letter to be read at the laying of the cornerstone of the Macon, Georgia monument to Southern dead. He wrote “Should it be asked why, then, build this monument? The answer is, they [the veterans] do not need it, but posterity may. It is not their reward, but our debt. Let the monument teach . . . that man is born for duty, not for expediency; that when an attack is made on the community to which he belongs, by which he is protected, and to which his allegiance is due, his first obligation is to defend that community . . . Let this monument teach that heroism derives its luster from the justice of the cause in which it is displayed, and let it mark the difference between a war waged for the robber-like purpose of conquest and one to repel invasion — to defend a people’s hearths and altars, and to maintain their laws and liberties.”

“Who Owns These Monuments?”

“An address on “Who Owns These Monuments?” delivered by Dr. Joseph Grier of Chester, South Carolina at the dedication of the Richburg monument on May 7, 1939, best sums up the issue of responsibility.

“Whose monument is this? He said, “It is the United Daughters of the Confederacy’s because it is their labor of love, representing a long period of loyalty, devotion and sacrifice, culminating in the erection of the splendid memorial.

Secondly, it is the community’s, because it will stand by the roadside for centuries in the same place and all may see it and draw inspiration from it.

Thirdly, it belongs to the Confederate soldiers whose names ate inscribed on it, because it is erected in their honor.

And Fourthly, to God, because patriotism and devotion to duty and willingness to sacrifice are a vital part of religion, and as we feel the impact of these things, we are swept toward God.”

(A Guide to Confederate Monuments in South Carolina . . . Passing the Silent Cup, Robert S. Seigler, SC Department of Archives and History, 1997, pg. 21)

When the Articles of Confederation were put to the States for ratification in November, 1776, the preparatory debates revealed very strong warnings of sectionalism. These clear and distinct divisions eventually produced threats of New England secession in 1814, economic fissures by the 1820s, talk of Southern secession by 1850, and eventually an all-out shooting-war in 1861 which ended the experiment in free government.

The South Delivered Up to the Care of the North

“The Congress debated the Articles throughout the summer of 1776. There were three main arguments. One was on whether each colony should have a single vote, and issue of large versus small States. The second was States’ rights, whether the confederation had authority to limit territorial expansion of individual States. Third was the method of apportioning taxation. The North wanted to tax according to total population. The South was opposed to taxing slaves.

The latter issue began one of the enduring sectional debates of the first American century. Were slaves part of the general population? Or were they property? The South held for property and Rutledge of South Carolina said that if ownership of slaves was to be taxed, then so should the ownership of the Northern ships that carried the slaves.

There were several strictly sectional votes on the subject with the bloc of seven Northern States lined up against the six-State Southern bloc. It was finally compromised that taxes would be apportioned according to the private ownership of land and the improvements thereon.

In November 1776 the Articles were sent to the States for ratification. The hottest opposition came from the Southern States (with the exception of Virginia) . . . The reaction of William Henry Drayton, chief justice of South Carolina, was typical of the eighteenth-century South. Drayton felt the Articles gave too much power to the central government and States’ rights would be run over roughshod. He observed that there was a natural North-South division among the States, arising “from the nature of the climate, soil and produce.”

He felt the South’s opportunities for growth would be crippled by the Articles because “the honor, interest and sovereignty of the South, are in effect delivered up to the care of the North.”

(The Natural Superiority of Southern Politicians, David Leon Chandler, Doubleday and Company, 1977, pg. 74)

“Daniel Webster has said, and very justly as far as these United States are concerned: “The sovereignty of government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our governments are limited. But with us all power is with the people. They alone are sovereign, and they erect what governments they please, and confer on them such powers as they please.” Jefferson Davis

The Pursuit of Liberty

“If any lingering doubt could have existed as to the reservation of their entire sovereignty by the people of the several States when they organized the federal Union, it would have been removed by the Tenth Amendment . . . the particular one in which they substantially agreed, and upon which they most urgently insisted. Indeed, it is quite certain that Constitution would never have received the assent and ratification of Massachusetts, New Hampshire, New York, North Carolina and perhaps other States, but for a well-grounded assurance that the substance of the Tenth Amendment would be adopted. The amendment is in these 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.”

To have transferred sovereignty from the people to a Government would have been to have fought the battles of the Revolution in vain – not for the freedom and independence of the States, but for a mere change of masters. Such a thought or purpose could not have been in the heads or hearts of those who molded the Union.

The men who had won at great cost the independence of their respective States were deeply impressed with the value of union, but they could never have consented, like “the base Judean,” to fling away the priceless pearl of State sovereignty for any possible alliance.”

(Rise and Fall of the Confederate Government, Jefferson Davis, D. Appleton and Company, 1881, pp. 146; 156)

President Jefferson Davis’ message to the Third Session of the Provisional Congress of the Confederate States at Richmond, Virginia, July 20, 1861 (excerpts):

“Commencing in March last, with an affectation of ignoring the secession of the seven States which first organized this Government; persisting in April in the idle and absurd assumption of the existence of a riot which was to be dispersed by a posse comitatus; continuing in successive months the false representation that these States intended offensive war, in spite of conclusive evidence to the contrary . . . the President of the United States and his advisors have succeeded in deceiving the people of those States into the belief that the purpose of [the Confederate] Government was not peace at home, but conquest abroad; not the defense of its own liberties, but the subversion of those of the people of the United States.”

Under cover of [an] unfounded pretense that the Confederate States are the assailants, that high functionary, after expressing his concern that some foreign nations “had so shaped their action as if they supposed the early destruction of our National Union was probable,” abandons all further disguise, and proposes “to make this conflict a short and decisive one,” by placing at the control of the Government for the work at least 400,000 men and $400,000,000. The Congress, concurring in the doubt thus intimated as to the sufficiency of the force demanded, has increased it to a half a million of men.

These enormous preparations in men and money, for the conduct of a war on a scale more gigantic than any which the world has ever witnessed, is a distinct avowal, in the eyes of civilized man, that the United States are engaged in a conflict with a great and powerful nation; they are at last compelled to abandon the pretense of being engaged in dispersing rioters and suppressing insurrections . . . and are driven to the acknowledgement that the ancient Union has been dissolved.

In 1781 Great Britain, when invading her revolted colonies, took possession of the very district of country near Fortress Monroe, now occupied by troops of the United States. The houses then inhabited by the people, after being respected and protected by avowed invaders, are now pillaged and destroyed by men who pretend that the victims are their fellow-citizens.

Mankind will shudder to hear the tales of outrage committed on defenseless females by soldiers of the United States now invading our homes; yet these outrages are prompted by inflamed passions and the madness of intoxication. But who shall depict the horror with which they will regard the cool and deliberate malignity which, under pretext of suppressing an insurrection, said by themselves to be upheld by a minority only of our people, makes special war on the sick, including the women and the children, by carefully devised measures to prevent their obtaining the medicines necessary for their cure.

The sacred claims of humanity, respected even during the fury of actual battle, by careful diversion of attack from the hospitals containing wounded enemies, are outraged in cold blood by a government and people that pretend to desire a continuance of fraternal connections . . . The humanity of our [Southern] people would shrink instinctively from the bare idea of waging a like war upon the sick, the women, and the children of the enemy.”

(Messages and Papers of the Confederacy, 1861-1865, Volume I, James D. Richardson, editor, US Publishing Company, 1906, excerpts, pp. 118-120)

Northern General John Pope was a veteran of Missouri fighting and as commander of Lincoln’s army in Virginia in mid-1862, with Lincoln’s approval, issued orders for his men to confiscate from Virginia citizens “whatever food, forage, animals and other supplies they might require; to exile behind federal lines all male citizens who refuse to swear allegiance to the United States; to execute all persons who fire upon federal troops; to destroy the property of all such persons; to force local residents to repair any railroads, wagon roads, or telegraphs destroyed in their neighborhoods; and to deny guards for the homes of citizens who seek protection.” These were orders unprecedented in warfare, and directed against Americans.

As Virginia Patriots Did Before Them

“January 6, 1862: “Today Governor Letcher issued a proclamation designed to stir the passions of Virginians. The murderous and barbaric actions of the United States government during nine months of war have more than justified Virginia’s decision to secede, avers its chief executive.

Abraham Lincoln’s government, by its “unnatural” and “wicked” behavior, has “violated” and “annulled” the old compact between the States. More than that, Lincoln’s personal conduct has served to remind Southerners of another tyrannical and oppressive monarch who sought to enslave a free people some four score years ago. In another summer, in another century, that free and irrepressible people had risen up, joined together, cast off self-doubt, shoved aside its sunshine patriots, defied the penalty for failure, and declared its independence.

That, “our first revolution,” proclaims Letcher, can only serve to inspire Virginians and all Southerners in the unfinished task ahead. “We must be content with nothing less than the unqualified recognition of the independence of the Southern Confederacy and its nationality,” he continues; “and to this end we must meet the issue . . . with spirit, energy and determination.”

[In July, 1862, Culpepper, Virginia] has reacted as best it can. Some citizens take to the woods to plague detachments of federal troops as guerillas. Staccato exchanges of pistol and rifle fire vibrate across the country for the first time in the war. “The horrid Yankees have arrived,” reports one young lady. “There is skirmishing every day about the Rapidan River.”

The county makes so bold because they have heard rumors that Stonewall Jackson is rushing to the rescue. [No] one doubts that Stonewall will press on to liberate Culpepper [and that] includes the Union troops. It is as Pope has feared. Whatever confidence his address [to his troops] may have momentarily inspired is being corroded by the sniping and dreaded name of Jackson.”

(Seasons of War: The Ordeal of a Confederate Community, 1861-1865, Daniel E. Sutherland, excerpt, pp. 87-88; 117-119)

Before the war, Senator Judah P. Benjamin of Louisiana was insulted by a Boston newspaper which wrote: “We ask whether the Jews, having no country of their own, desire to put other nations in the same unhappy condition.”  He shrugged off anti-Semitic comments of other Northern critics as he did a reference to him as one of the “Israelites with Egyptian principles.”

Senator G.G. Vest of Kentucky quoted Benjamin’s response to a Senate opponent: “It is true that I am a Jew and when my ancestors were receiving their Ten Commandments from the immediate hand of the Deity, amidst the thunderings and lightning of Mount Sinai, the ancestors of the distinguished gentleman who is opposed to me were herding swine in the forest of Scandinavia.”

No Indissoluble Union

“Benjamin’s reasoning, with that of most of the other conservatives who saw no alternative but secession, was that upon the North American continent were two peoples, one building an industrial empire and the other content to remain a race of planters and staple producers.

Each could best work out its own destiny . . . And as long as the two were bound into one country, there would be strife. Since they had so little in common, the sensible solution to the impasse they had reached would be the severance of political ties. Certainly he felt he was not without precedent in holding the federal compact to be terminable at the will of its member States. He saw scarcely any evidence that it was intended by those who wrote it to be anything more.

The simple truth is that he aligned himself against the North at least partly because he felt he could not subscribe to the principle of an indissoluble Union. The North embraced the principle of nationality – the South sought, in Benjamin’s words, divorcement “from a compact all the obligations of which she is expected scrupulously to fulfill, from the benefits of which she is ignominiously excluded.” It was as simple as that to him.”

(Judah Benjamin: Mystery Man of the Confederacy, S.I. Neiman, Bobbs-Merrill Company, 1963, excerpt pp. 92-93)