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)

President-elect Lincoln instructed his party stalwarts to either avoid what would become the Washington Peace Conference chaired by former-President John Tyler, or if in attendance to refuse any peaceful compromise as it would dissolve Republican party unity.

The Conspiracy Which Brought on War

“On February 2, 1861, Hon. Stephen A. Douglas in a letter published in the Memphis Appeal, wrote of the Republican leaders as follows:

‘They are bold, determined men. They are striving to break up the Union under the pretense of serving it. They are struggling to overthrow the Constitution while professing undying attachment to it and a willingness to make any sacrifice to maintain it They are trying to plunge the country into a cruel war as the surest means of destroying the Union upon the plea of enforcing the laws and protecting public property.’

Shortly after Douglas wrote this letter Senator Zachariah Chandler of Michigan wrote a letter to Gov. Austin Blair which proves the guilty conspiracy of the men determined on war. Virginia had solicited a conference of States to see if some plan could not be devised and agreed upon to prevent war and save the Union.

Chandler wrote Blair that he opposed the conference and that no Republican State should send a delegate. He implored the Governor to send stiff-necked delegates or none and added these sinister words: ‘Some of the manufacturing States think that a war would be awful; without a little blood-letting this Union will not be worth a curse.”

(The Conspiracy Which Brought on War, S.A. Cunningham, Confederate Veteran, Vol. XXIV, No. 10, October 1916, pg. 436)

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)

Scourging Republicans from the Temple of Freedom

As the Democratic party split into North and South factions in early 1860, it paved the way for the new, sectional Republican party — comprised of former Whigs, abolitionists, transcendentalists, and anti-Catholic Know-Nothings — to triumph in November with a 39% plurality. Aware of the extreme danger Republicans posed to the Union, rational Southern men traveled northward to alert their Democratic brethren.

One voice was William L. Yancey, born at Warren County, Georgia but educated at Williams College in northwestern Massachusetts, where he likely absorbed that State’s tradition of threatening secession from the 1789 union should that State’s equality in the federation be threatened. He relocated to Elmore County, Alabama in 1837 and eventually represented his district in the United States House of Representatives.

Aware of the extreme danger to the Union should the Democratic party fragment in 1860, he joined “Southern men of all parties who came north in an effort to arouse the masses to the danger of the situation.” He was then prevailed upon to make an extended campaign from Memphis to Boston, speaking to many audiences.

In a speech at Nashville on August 14, 1860 and published in the Nashville Union and American shortly afterward:

“Yancey denied that he was a disunionist per se; but declared that in the event of a Republican victory, “I hope to God there will be some man or set of men, whom Providence will rear in our midst . . . that there will be some great Washington [to] arise who will be able to scourge them from the temple of freedom, even if he is called a traitor – an agitator, or a rebel during the glorious process.”

(Source: The Secession Movement: 1860-1861, Dwight L. Dumond, The MacMillan
Company, 1931, pg. 110)

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)

Major Caleb Huse, a native of Massachusetts married to a lady born in New York, and friend of Stephen R. Mallory, was sent to England by President Jefferson Davis to be chief purchasing agent for the Confederate army. Captain James Bulloch credited Huse’s weapon and munitions acquisition efforts with enabling the South to check McClellan’s advance on Richmond in 1862. He named a swift, British-built blockade runner, “Harriet Pinckney” to honor his wife. Captain Robert B. Pegram (below) commanded the CSS Nashville which had just docked at Southampton, England. William Lowndes Yancey headed the South’s diplomatic mission to England and France early in the war.

A Madcap Scheme at Sea

“My object in calling on Captain Pegram was not one of courtesy alone. A most outrageous proposal had been made to me, involving the capture of a British ship bound from Hamburg to New York, loaded with a hundred thousand Austrian rifles [for the US government]. The proposal, in brief, was:

That I should deposit 10,000 [pounds] in the Bank of England subject to the draft of one of two persons. In the event of success of the scheme, one was to draw out the money; in the case of failure, the other.

The plan was to capture a British ship, then loaded with arms at Hamburg for New York. It had been proposed to me that with a tug, having a gun on board, I should intercept the ship, fire [the] gun, and demand her surrender. The captain would have orders to comply with my demand, and I was to direct him to sail for Charleston.

The scheme was not impossible for anyone holding a privateer’s commission, and I applied to Mr. Yancey for a letter of marque. On hearing my story, Mr. Yancey said he had such commissions, but that they were contrary to the spirit of the age, and he had determined not to give any of them out. However, in this instance, he would issue one if I wanted it.

I believe my land-service commission would protect me, but I asked for the letter- of-marque as an additional safeguard. Captain Pegram, after considering the matter in conference with his executive, Lieutenant Fauntleroy (formerly of the US Navy), determined not to make the attempt, and the matter was dropped. Perhaps it is well that . . . Captain Pegram declined to act; for I had the money ready to deposit, and what seems now to me a madcap scheme might have been attempted.”

(The Supplies for the Confederate Army, Caleb Huse, Ninety-Nine Cent Publishing, original published 1904, pp. 35-36)

It is said that one of the most distinguishing achievements of the American Confederacy was the ingenuity of Southern authorities and businessmen meeting the challenge of a naval blockade of its coasts. They answered the challenge with swift, light draft blockade runners fueled with quick-burning Welsh coal while utilizing two Southern-friendly islands, Bermuda and the Bahamas, for supply transshipments.

Gen. U.S. Grant, III, stated in 1961 that “if the Cambridge Modern History is correct in its allegation that between October 26, 1864 and January 1865 it was still possible for 8,632,000 lbs. of meat, 1,507,000 lbs. of lead, 1,933,000 lbs. of saltpeter, 546,000 pairs of shoes, 316,000 blankets, half a million pounds of coffee, 69,000 rifles and 43 cannons to run the blockade into the port of Wilmington alone, while cotton sufficient to pay for these purchases was exported, it is evident that the blockade runners made an important contribution to the Confederacy’s ability to carry on.” (New York History Quarterly, Vol. XLII, No. 1, January 1961, pp. 49-50).

Helot Rhett Butlers

“There were, of course, precedents for blockade evasion in the history of warfare. One striking parallel to the Southern problem occurred in 425 B.C., during the Peloponnesian War. The Athenians had succeeded in trapping a portion of the Spartan land forces on the island of Sphacteria, off the coast of Pylos, and thus, by maintaining a blockade, learned what the federal navy and government would in time come to understand: a blockade immobilized, perhaps, some of the enemy’s forces, restricted his strategy, and imposed attrition, but it did not of itself bring him to capitulation.

Thucydides records that much time was consumed in the blockade of the island because the Spartans had not stood idly by while the cream of their land forces was being starved to death.

“The fact was,” he wrote, “that the Lacedaemonians had made the advertisement for volunteers to carry into the island ground corn, wine, cheese, and any other food useful in a siege; high prices being offered, and freedom promised to any of the Helots who should succeed in doing so . . . In short, both sides tried every possible contrivance, the one to throw in provisions, the other to prevent their introduction.”

Thucydides reasoned well in considering the material inducement offered the Helots to undertake running the blockade. Those men of the Confederacy who were interested in bringing in supplies from abroad, and who were not involved in the trade officially, had rich material benefits in mind.”

(Ploughshares into Swords: Josiah Gorgas and Confederate Ordnance, Frank E. Vandiver, Texas A&M Press, 1994, excerpt pg. 85)