Thursday, April 22, 2010

Lincoln hero or villain?

Many Tenth Amendment Resolutions have been passed by State legislators across the nation. These resolutions are non-binding in that they are not laws, just resolutions. The importance may be difficult for those of us who have been educated in the public school system to appreciate. The view that the States had the right, or power to nullify Federal Laws they view as unconstitutional, was a widely held belief. Thomas Jefferson's famous "Kentucky Resolution of 1798" was written in response to the "Alien & Sedition Act". This act imposed criminal penalties for criticizing government officials, and was a clear violation of the First Amendment.

The main idea is that the States created the Federal government for limited and clearly defined purposes. The first part of Jefferson's "Resolution" states:

"1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

State vs Federal power has been an ongoing debate in the history of this nation. In the USA of today most believe that the Federal Government always has the final word of what is Constitutional. But how did this happen? How did an ongoing battle over power just get laid to rest? Well most scholars will tell you something like "the states rights issue was settled at Appomattox." What they are saying in effect is "might makes right". But does it? To understand the issue facing the nation back in 1860 and for insight to the current 10th amendment movement lets look at the "Hero" honest Abe.

Take a look at Lincoln's words during his First Inaugural Address:

I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.
Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?
Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."
But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.
It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.
I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part, and I shall perform it so far as practicable unless my rightful masters, the American people, shall withhold the requisite means or in some authoritative manner direct the contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it
will constitutionally defend and maintain itself.

That "will" is important as it is can be taken by the South as a direct threat of force.

His view of contract law may be correct but what of the use of force? If you contract to have a guy build you a house and he reneges on the terms, may you legally use force against him? You may sue and be entitled to the term of the original contract, maybe even damages, but can you go to his house and steal his property as payment? At best by the legal view presented by Lincoln he would have had to settle this contract dispute in court. Not by marching troops South.

He said this at the very beginning of the his speech

" Those who nominated and elected me did so with full knowledge that I had made this and many similar declarations and had never recanted them; and more than this, they placed in the platform for my acceptance, and as a law to themselves and to me, the clear and emphatic resolution which I now read:
'Resolved, That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend; and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter what pretext, as among the gravest of crimes.'"

I do not see a line that said: "Unless i feel there are folks who are in insurrection in which case i will burn, pillage, and rape the entire south."

Lincoln goes on to say this:

"Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism."

How is this view correct in light of the fact that the Union itself was formed through secession from the British?

Then in this same speech he says:

"This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their
revolutionary right to dismember or overthrow it."

(so much for his previous statement of "It is safe to assert that no government proper ever had a provision in its organic law for its own termination")

Talk about a good word-smith lawyer politician....He ignores our history to suite his view of secession then plainly claims the people have the right to go into revolution and overthrow the Government!!!

So if they south wanted to overthrow the Union and create the Confederacy then Lincoln would be OK with that. if they wanted to create a separate nation then in Lincoln's view he had the duty to "put down the insurrection". But who would decide what acts were those of revolution which is a right Lincoln acknowledges, and those of insurrection? Would not a revolution by necessity, start as insurrection?

Lincoln's own Constitutional theories were contradictory. The south saw him (rightfully IMO) as just a lawyer who worked for the Rail Roads, that would continue the rape of the South by Northern industrialist. Here was a guy who was employed by the largest industry in the Country at that time. It would be similar if we had the leaders of the largest financial institutions elected to high positions of power and then they told us how they only needed to hurt us for the "good of the country" (wait a min, i think that is exactly what is happening!!! DOH!!).

The South had already started seceding at the time of this speech. Jefferson Davis had already been elected the President of the Confederacy. knowing that re-read this:

"I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part, and I shall perform it so far as practicable unless my rightful masters, the American people, shall withhold the requisite means or in some authoritative manner direct the contrary."

In what manner could his "rightful masters" show authority to direct him to the contrary? The North wanted no part of a war. The Norths reaction to subscription proves as much. The South was in the process of "altering or abolishing their ties to the Federal Government and laying its foundation on such principles and organizing its powers in such a form, as to them shall seem most likely to effect their Safety and Happiness". Based on these facts, what more could the "masters" do?

It is also interesting that Lincoln used the analogy of a husband and wife when referring to the Union. he said:

"A husband and wife may be divorced and go out of the presence and beyond the reach of each other, but the different parts of our country can not do this."

Well lets for a second take a look at the analogy in reverse. A union by definition is voluntary.

If a women decided to get a divorce and the husband refused to allow that, would they still be in a Union? Can a union exist when held together by force?

Lincoln changed this nation in one HUGE way, and it was not the "freeing" of the slaves. He established a precedent that no State could exercise independence without the Federal Governments approval. "The states rights issue was settled at Appomattox.", but prior to the "War of Northern Aggression" (AKA Civil War) States often nullified what they felt were unconstitutional Laws, now we have a system where all Federal power is considered "above" state authority. This has directly lead to our republic becoming an Empire that claims to be a democracy.

Now there are some out there who will tell you that States rights are nothing more then a way for racist to enact Jim Crow laws. Look into history to see if they are correct. You may find that that view is selective history. There is no disputing the fact that proponents of Jim Crow claimed states rights/ Nullification. It was also used to by certain States to nullify the "Fugitive Slave Act". Some of the most vocal abolitionist supported States rights and nullification.

Lincoln said this in that same Inaugural Address:

"I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those acts which stand unrepealed than to violate any of them trusting to find impunity in having them held to be unconstitutional."

Compare that with Jefferson's resolution.

The founders feared centralized power above all else. The idea that the States would be independent was put in place to prevent the centralizing of power. The Civil War combined with the direct election of State Senators firmly established the States as nothing more the satellites of the Federal Government. If the Federal government is allowed to determine the lengths of their power we do not have a limited Constitutional Republic as our founders intended. Today's renewed interest in States Rights is a good sign. If we ever want to return to a limited Government who's sole concern is protecting the rights of individuals we must rediscover our history.

-J. Avitabile