The United States Constitution

Daniel Webster’s View of the Constitution

In his 1881 “Rise and Fall of the Confederate Government”, Jefferson Davis revisits the words of New England orator and statesman Daniel Webster (1782-1852) regarding the sovereignty of the American States.

Daniel Webster’s View of the Constitution

“Mr. Webster held the views which were presented in a memorial to Congress of citizens of Boston, December 15, 1819, relative to the admission of Missouri as a State, drawn up and signed by a committee of which he was chairman, and which also included among its members Mr. Josiah Quincy.

Mr. Webster speaks of the States as enjoying “the exclusive possession of sovereignty” over their own territory, calls the United States “the American Confederacy” refers to them “the only parties to the Constitution, contemplated by it originally, [and who] were the “thirteen confederated States.”

In letters written and addresses delivered during the Administration of Mr. [Millard] Fillmore, he repeatedly applies to the Constitution the term “compact” which, in 1833, he had so vehemently repudiated. In his speech at Capon Springs, Virginia, in 1851, he says:

“If the South were to violate any part of the Constitution intentionally and systematically, and persist in doing year after year, and no remedy could be had, would the North be any longer bound to the rest of it? And if the North were, deliberately habitually, and of fixed purpose, to disregard one part of it, would the South be bound any longer to observe its other obligations?

How absurd it is to suppose that, when different parties enter into a compact for certain purposes, either can disregard any one provision and expect, nevertheless, the other to observe the rest!”

“I have not hesitated to say, and I repeat that, if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which its respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain cannot be broken on one side and still bind the other side.”

(Rise and Fall of the Confederate Government, Volume I. Jefferson Davis. D. Appleton & Co., 1881, pp. 166-167)

A Common Agent Rather Than a King

Jefferson Davis mused in his magisterial Rise and Fall: “As time rolled on, the General Government gathering with both hands a mass of undelegated powers, reached that position which Mr. Jefferson had pointed out as an intolerable evil – the claim of a right to judge the extent of its own authority.”

A Common Agent Rather Than a King

“In July 1776, the Congress of the thirteen united colonies declared that “these united colonies are, and of right ought to be, free and independent States.” [England’s] denial of this asserted right and the attempted coercion made it manifest that a bond of union was necessary, for the common defense.

In November of the following year, 1777, the Articles of Confederation and perpetual union were entered into by the thirteen States under the style of “The United States of America.” Under the Articles, no amendment to them could be made except by unanimous consent, which hampered the efficient discharge of the functions entrusted to the Congress.

What is the Constitution of the United States?

The whole body of the instrument, the history of its formation and adoption, as well as the Tenth Amendment, added in an abundance of caution, clearly show it to be an instrument enumerating the powers delegated by the States to the Federal Government, their common agent. It is specifically declared that all which was not so delegated was reserved.

On this mass of reserved powers, those which the States declined to grant, the Federal Government was expressly forbidden to intrude. Of what value would this prohibition have been, if three-fourths of the States could, without the assent of a particular State, invade the domain which that State had reserved for its own exclusive use and control?

It [is, I hope], been satisfactorily demonstrated that the States were sovereigns before the formed the Union, and that they have never surrendered their sovereignty, but have only entrusted to their common agent certain functions of sovereignty to be used for their common welfare.”

(Rise and Fall of the Confederate Government, Volume I. Jefferson Davis. D. Appleton & Co., 1881, pp. 192; 195-196)

Peaceful Separation No Longer Possible

In his December 3, 1860, State of the Union address, President James Buchanan stated that all that the South desired was to be let alone to manage its domestic institutions. Regarding the personal liberty laws of the Northern States, he declared they were in direct violation of the United States Constitution.

Buchanan further noted that waging war against a State desiring withdrawal was not a valid Federal power in the Constitution, but if the power existed, exercising it would produce a fraternal conflict in which “a vast amount of blood and treasure would be expended, rendering future conciliation . . . impossible.”

Peaceful Separation No Longer Possible

“Mr. Buchanan was an able man, but a very timid one. If he had the nerve to deal with the situation [of December 20, 1860] as its gravity demanded, I doubt exceedingly whether any other State [at the] South would have followed South Carolina into secession.

Had he withdrawn the troops from Sumter, it would have been such a conspicuous act of conciliation that the other States would not, I believe, have called conventions to consider the question of secession, or if they had the ordinances [they] would not have been passed. I was not one of those who believed there could ever be a peaceful separation of the States but could not convince our people of it.

I had years before become convinced by my association with Mr. Webster, that the North would never consent to it. I knew that secession meant war, and, therefore, did my utmost to prevent it. When the war came, however, it had to be met with spirit.

The chance for peaceful separation of the States was lost years before the war. It could have succeeded when the North wanted to go [the Hartford Convention], and again when Texas was annexed [when New England voiced secession], but not after.”

(The Life and Death of Jefferson Davis. A.C. Bancroft, editor. J. S. Ogilvie Publisher, 1889, pp. 145-146)

Truman’s War Bypasses Congress

Lincoln established the unconstitutional precedent of a president waging war without congressional approval. The following is drawn from a chapter entitled “A Costly Mistake: War Without Congressional Approval.” As a note of clarification, Sen. Robert Taft was not an “isolationist” but an anti-interventionist who advocated avoidance of European or Asian wars, concentrating instead on solving its domestic problems. He advocated a strong American military as adequate protection and opposed Truman’s unconstitutional actions.

Truman’s War Bypasses Congress

“After Sen. Scott Lucas of Illinois had read to the Senate on June 27 Truman’s initial statement committing US air and naval forces and ordering the fleet to neutralize Formosa, Senator James P. Kem, Republican of Missouri, rose: “I notice that in the President’s statement he says ‘I have ordered the fleet to prevent any attack on Formosa.’ Does that mean he has arrogated to himself the authority of declaring war?”

“A state of emergency exists,” Lucas said, ignoring the fact that Truman had not legally declared one. Based on the action of the United Nations Security Council,” Lucas explained, the President of the United States has ordered action. It is a demonstration of our keeping the faith.”

Republican Senator John Bricker of Ohio interposed, “Am I correct in saying that the President’s action was taken as a result of the cease-fire order issued by the Security Council? Lucas said that Bricker was correct as far as action in Korea was concerned. Watkins declared that Truman had taken a step leading toward war.

“The Congress is now in session,” the senator said, “and unless there is power in the United Nations to order our forces into action of this kind which may result in a major world clash, then I think we should have been informed by the President in a message to Congress today. As I recall, we were told time and time again when we were considering the [North Atlantic Treaty Organization] that nothing would take us into war under that pact without action by Congress. The President could not do it . . . Now, according to the action taken, by the mere order and request of the United Nations, our troops can be sent into a fighting war without Congress saying ‘yes or no.’

Article I, Section 8 of the Constitution provides that Congress shall have the power to declare war.

The big gun went off in the Senate on June 28. In a crackling speech, Robert Taft, “an old-time isolationist” to Truman – alleged:

“a complete usurpation by the President of authority to use the armed forces of the country. His action has brought about a de facto war with the government of northern Korea. He has brought that war about without consulting Congress and without congressional approval. We have a situation in which in a far-distant part of the world one nation has attacked another, and if the President can intervene in Korea without congressional approval, he can go to war in Malaya or Indonesia or Iran or South America.” With but the slightest detour on a map Taft might have included Vietnam.

“Mr. President”, a reporter asked, “everybody is asking in this country, are we or are we not at war?”

“We are not at war,” Truman replied and later added that “the members of the United Nations are going to the relief of the Korean Republic to suppress a bandit raid . . .”

“Mr. President, would it be correct, against your explanation, to call this a police action under the United Nations?”

Truman responded, “Yes, that’s exactly what it amounts to . . .”

Again, Truman had let a reporter put words in his mouth that were later to be held against him. He did not initiate, nor volunteer, the phrase “police action” any more than he had “red herring,” but the result was to be the same as if he had.”

(Tumultuous Years: The Presidency of Harry S. Truman, 1949-1953. Robert J. Donovan. W.W. Norton & Company, 1982, pp. 219-223)

America’s 1861 Revolution

There was no “war emergency” that Lincoln faced at Fort Sumter. The US Constitution explicitly states that only Congress may declare war, with four US Supreme Court Justices holding in 1862 that a President’s authority to suppress an insurrection “is not tantamount to the power of initiating a legal state of war, and that civil war does not validly begin with an executive declaration.”

US Senator Thomas Clingman of North Carolina rightly prophesied on March 19, 1861:

“The Republicans intend . . . as soon as they collect the force to have war, to begin; and then call Congress suddenly together and say, “the honor of the country is concerned; the flag is insulted. You must come up and vote men and money.”

Lincoln intentionally bypassed Congress.

America’s 1861 Revolution

“The reaction of the Lincoln administration to the war emergency produced many unusual situations. Governmental norms were abandoned. War powers overbore the rule of law, and extra-legal procedures were initiated. Well-known distinctions of government were obscured. The line was blurred between State and federal functions, between executive, legislative, and judicial authority, and between civil and military spheres. Probably no president, not even Wilson, nor Roosevelt, carried the presidential power, independently of Congress, as far as did Lincoln. He began his administration by taking to himself the virtual declaration of the existence of a state of war, for his proclamation of insurrection (April 15, 1861) started the war regime as truly as if a declaration of war had been passed by Congress.

In issuing this proclamation Lincoln committed the government to a definite theory of the nature of the war (he commenced, but] it may be noted that in strict theory the [United States] government declined to regard the struggle as analogous to a regular war between independent nations. The American Confederacy . . . was deemed a pretender, an unsuccessful rival, and a usurper. Instead of the struggle being regarded as a clash between governments, the Southern effort was denounced as an insurrection conducted by combinations of individuals against their constituted authorities.

In contrast to this, the Southern view was analogous to that of the [British] Americans in the Revolution . . . that the Confederate States was an independent nation conducting war and entitled to the respect due a people fighting off an invader.

Lincoln’s view of his own war powers was most expansive. He believed that in time of war constitutional restraints did not fully apply, but that so far as they did apply, they restrained the Congress more than the President.”

(The Civil War and Reconstruction. J.G. Randall. D.C. Heath and Company, 1937, pp. 382-383; 385)

State’s Rights and Civil Rights

“States’ Rights are easy enough to define. The Tenth Amendment does it succinctly: “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 [of the States]”

Civil rights should be no harder. In fact, however – thanks to extravagant and shameless misuse by people who ought to know better – it is one of the most badly understood concepts in modern political usage. Civil rights [are] frequently used synonymously with “human rights” – or with “natural rights.”

As often as not, it is simply a name for describing an activity that someone deems politically or socially desirable. A sociologist writes a paper proposing to abolish some inequity, or a politician makes a speech about it – and, behold, a new “civil right” is born! The Supreme Court has displayed the same creative powers.

A civil right is a right that is asserted and is therefore protected by some valid law. It may be asserted by the common law, or by local or federal statutes, or by the Constitution; but unless a right is incorporated in the law, it is not a civil right and is not enforceable by the instruments of the civil law.

There may be some rights – “natural,” “human,” or otherwise – that should also by civil rights. But if we desire to give such rights the protection of the law, our recourse is to a legislature or to the amendment procedures of the Constitution. We must not look to politicians, or sociologists – or the courts – to correct the deficiency.

[The] federal Constitution does not require the States to maintain racially mixed schools. Despite the recent holding of the Supreme Court, I am firmly convinced – not only that integrated schools are not required – but that the Constitution does not permit any interference whatsoever by the federal government in the field of education.

It may be wise or expedient for Negro children to attend the same schools as white children, but they do not have a civil right to do so which is protected by the federal Constitution, or which is enforceable by the federal government. The intentions of the founding fathers in this matter are beyond any doubt: no powers regarding education were given to the federal government.”

(The Conscience of a Conservative, Barry Goldwater, Victor Publishing Company, 1960, pp. 31-34)

Guns Threaten an American City

During the Nullification Crisis of 1832-33, South Carolina was threatened with Federal invasion for refusing to abide by a new, protective tariff which surpassed a traditional tariff which raised funds to operate the federal government – not to protect Northern commercial interests. This was claimed to be “rebellion.”

In December 1860 and after the election of a purely sectional president and party openly hostile to South Carolina’s interests as a State within the federal union, the Governor notified Washington that his State was to resume its original powers of separate independent sovereignty. He rightly pointed out that this act was not “rebellion,” but an act of an independent State as South Carolina had been prior to consenting to the 1789 Constitution, and whose 10th Amendment stipulated that all powers not expressly delegated, were retained by each State.

Nonetheless, Article III, Section 3 of the US Constitution clearly identifies “treason” as waging war against or aiding the enemies of a constituent State.

Governor Francis W. Pickens Letter to President James Buchanan

Columbia, December 17, 1860. [strictly Confidential.] *

My Dear Sir: With a sincere desire to prevent a collision of force, I have thought proper to address you directly and truthfully on points of deep and immediate interest.

I am authentically informed that the forts in Charleston harbor are now being thoroughly prepared to turn, with effect, their guns upon the interior and the city. Jurisdiction was ceded by this State expressly for the purpose of external defense from foreign invasion, and not with any view they should be turned upon the State.

In an ordinary case of mob rebellion, perhaps it might be proper to prepare them for sudden outbreak. But when the people of the State, in sovereign convention assembled, determine to resume their original powers of separate and independent sovereignty, the whole question is changed, and it is no longer an act of rebellion.

I, therefore, most respectfully urge that all work on the forts be put a stop to for the present, and that no more force may be ordered there.

The regular Convention of the people of the State of South Carolina, legally and properly called, under our constitution, is now in session, deliberating upon the gravest and most momentous questions, and the excitement of the great masses of the people is great, under a sense of deep wrongs and a profound necessity of doing something to preserve the peace and safety of the State.

To spare the effusion of blood, which no human power may be able to prevent, I earnestly beg your immediate consideration of all the points I call your attention to. It is not improbable that, under orders from the commandant, or, perhaps, from the commander-in-chief of the army, the alteration and defenses of those posts are progressing without the knowledge of yourself or the Secretary of War.

The arsenal in the city of Charleston, with the public arms, I am informed, was turned over, very properly, to the keeping and defense of the State force at the urgent request of the Governor of South Carolina. I would most respectfully, and from a sincere devotion to the public peace, request that you would allow me to send a small force, not exceeding twenty-five men and an officer, to take possession of Fort Sumter immediately, in order to give a feeling of safety to the community. There are no United States troops in that fort whatever, or perhaps only four or five at present, besides some additional workmen or laborers, lately employed to put the guns in order.

If Fort Sumter could be given to me as Governor, under a permission similar to that by which the Governor was permitted to keep the arsenal, with the United States arms, in the city of Charleston, then I think the public mind would be quieted under a feeling of safety, and as the Convention is now in full authority, it strikes me that it could be done with perfect propriety. I need not go into particulars, for urgent reasons will force themselves readily upon your consideration. If something of the kind be not done, I cannot answer for the consequences.

I send this by a private and confidential gentleman, who is authorized to confer with Mr. Trescott fully, and receive through him any answer you may think proper to give to this.

I have the honor to be, most respectfully,

Yours truly,

(Signed.)

W. Pickens.

To the President of the United States.

* Correspondence No. 1. Governor Pickens to President Buchanan. The Record of Fort Sumter. Columbia, S. C, 1862.

SOURCE: Samuel Wylie Crawford, The Genesis of the Civil War: The Story of Sumter, 1860-1861, p. 81-3

Andrew Jackson Provokes Civil War

Opponents of Andrew Jackson’s warlike threats after South Carolina’s fierce opposition to the protective tariff labeled it the “Force Bill” or the “Bloody Bill,” which authorized using military force to collect the government revenue. He warned that he would march to South Carolina with 200,000 men to quell any and all insurrection and should the Governor of Virginia attempt to prevent the passage of regiments bound for South Carolina, “I would arrest him at the head of his troops.”

Jackson awaited congressional sanction for his war upon a State; Lincoln’s actions were his own and taken while Congress was in recess.

Andrew Jackson Provokes Civil War

Senator John Tyler of Virginia called Charleston a “beleaguered city.” Suppose, he said, this bill were to pass and “the proud spirit of South Carolina” should refuse to submit. Would we then “make war upon her, hang her Governor . . . and reduce her to the condition of a conquered province?” Mr. Tyler saw South Carolina’s towns leveled, her daughters in mourning, her men driven “into the morasses where Francis Marion found refuge.” But he did not see them conquered. Rome had her Curtis, Sparta her Leonidas – and South Carolina had John C. Calhoun. Mr. Calhoun did not repudiate the heroic part. “I proclaim it,” said he, “that should this bill pass . . . it will be resisted at every hazard – even that of death.”

Oblivious to threat and to political entreaty, Andrew Jackson refused to give an inch. He insisted on the passage of the Force Bill. Henry Clay of Kentucky, a practiced dispenser of parliamentary miracles, could not uphold nullification and he would not uphold Jackson. Clay introduced a bill which in ten years would lower tariffs by twenty percent and South Carolina accepted peace from the hands of Mr. Clay rather than those of General Jackson.

But the late crisis had ended more tamely than Jackson had reckoned on. “I thought I would have to hang some of them & I would have done it.”

(The Life of Andrew Jackson. Chapter XXX, Marquis James. Bobbs Merrill Company, 1938, pg. 619-621)

A Posse and Grenades to Overawe South Carolina

On November 24, 1832, “the tariff acts were proclaimed void and not binding upon this State or its citizens,” after February 1, 1833. South Carolina Gov. Robert Y. Hayne declared the use of federal force in an attempt to collect duties after that date would be met by the State’s secession from the 1789 constitution. This would of course make South Carolina an independent country.

In reply to South Carolina’s decision not to comply with the increased and what it believed to be an unconstitutional tariff, Andrew Jackson threatened to fill that State with 100,000 troops raised from the other States, which he referred to as “a posse.” His vice-president later said that Jackson “yearned to lead this force in person.”

A Posse and Grenades to Overawe South Carolina

New York politician and Vice President Martin Van Buren politely disagreed with Jackson’s contention that the mere raising of troops by South Carolina, i.e., State militia, constituted actual treason. Even Jackson’s close political advisor regretted this wording in the President’s proclamation, which he saw as inviting trouble. This advisor saw that the root of the issue was a high protective tariff which went above and beyond a constitutional tariff to support the expenses of the federation’s government. The latter simply advised Jackson that “a gesture toward tariff reduction might pave the way to a happy solution of everything.”

“Mr. Van Buren’s anxieties arose chiefly from the fact that, like many others, he regarded the crisis through the spectacles of partizan politics . . . who feared a break with Southern leaders, notably those of Virginia. He feared the political aftermath of a break with them now, as Jackson had thrown such considerations to the winds, placing himself militantly at the head of union sentiment of the nation, irrespective of person or party.

This man of caution had raised two points which the man of action could not ignore:

The first concerned the definition of treason of actual treason and the constitutional right of the Executive to intervene in a State’s affairs. Legally he could do so only (1.) at the request of the Governor to suppress insurrection, or (2.) on his own initiative, to enforce the laws of Congress [if the State remained as a member of the federation].

Jackson dispatched seven revenue cutters and a ship of war to Charleston harbor, anchoring off the battery with their guns commanding the fashionable waterfront lined with the homes and brick walled gardens of the city’s elite.

“No State or States,” the President wrote Joel Poinsett, leader of the State’s unionists, “has a right to secede . . . Nullification therefore means insurrection and war; and other States have a right to put it down. I will . . . have the leaders arrested and arraigned for treason . . . in forty days I can have within the limits of South Carolina fifty-thousand men, and in forty more days more another fifty thousand.”

Poinsett, a veteran of the Mexican War and eager to suppress his fellow citizens desire for political independence, wrote Jackson on November 16, 1832: “Grenades and small rockets are excellent weapons in a street fight. I would like to have some of them.”

(The Life of Andrew Jackson. Chapter XXX, Marquis James. Bobbs Merrill Company, 1938, pg. 609; 615)

A Toast to Our Federal Union

Some twenty-nine years before Abraham Lincoln threatened a State with invasion, the militaristic President Andrew Jackson flatly denied that a State within the federation could challenge laws it considered unconstitutional. Jackson believed all States to be permanently under the 1789 constitution with no right to withdraw, which surprised Rhode Island, New York and Virginia as all three had explicitly reserved this in their ratifications. All other States considered the 10^th Amendment as a clear warning to the federal agent.

Though Jackson was not the first military man elected president, his experience as a field commander with little if any civilian supervision gave him wide latitude in his decisions. His April 1818 capture and hanging of two British envoys in Florida brought him severe condemnation from Congress, which chose not to censure the popular general.

A Toast to Our Federal Union

“Toastmaster Roane introduced the President of the United States. Old Hickory stood, waiting for the cheers to subside. The President fixed his glance upon Vice President John C. Calhoun, toasting to, “Our Union: it must be Preserved.” He raised his glass, a signal that the toast was to be drunk standing.

Hayne rushed up to Jackson. Would the President consent to the insertion of one word in his toast before the text was given to the newspapers? What was the word? Asked Jackson. It was “Federal,” making the toast read, “our Federal Union.” Jackson agreed and, like many another historic epigram, the toast went forth amended to the world.

The Vice President arose slowly. “May we all remember that [the Union] can only be preserved by respecting the rights of the States and by distributing equally the benefits and burdens of the Union.”

(The Life of Andrew Jackson. Chapter XXX, Marquis James. Bobbs Merrill Company, 1938, pg. 539-540)