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The Independent Institute

Constitutional Con Men

During my May 7 debate with Harry Jaffa at The Independent Institute in Oakland, California, Jaffa made several statements that literally caused some jaws to drop in the audience along with looks of utter disbelief. (His supporters grinned and nodded approvingly). He stated, for instance, that “Lincoln never did anything that was unconstitutional;” that Virginia never reserved the right to withdraw from the Union when she ratified the Constitution; and that the British government never recognized the colonies or states individually in the Treaty of Paris. There was never any such thing as state sovereignty, in other words, and nothing Lincoln ever did—even unilaterally suspending the writ of habeas corpus and having the military arrest thousands of Northern citizens—violated the Constitution.

One gets a very different perspective if one reads Jonathan Elliot’s Debates in the Several State Conventions on the Adoption of the Federal Constitution, edited by James McClellan and Mel Bradford and reprinted by J. River Press in 1989—or the original ratification documents, for that matter. One finds that this is what the Virginia delegates said:

We, the delegates of the people of Virginia . . . Do, in the name and behalf of the people of Virginia, declare and make known that the powers granted under the Constitution being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them at their will . . .

New York made a similar declaration: “We, the delegates of the people of New York . . . do declare and make known that the powers of government may be reassumed by the people whenever it shall become necessary to their happiness . . .” And Rhode Island made an almost identical declaration: “We, the delegates of the people of Rhode Island and Plantations, duly elected . . . do declare and make known . . . that the powers of government may be resumed by the people whenever it shall become necessary to their happiness . . .”

Jaffa is the master of what Joe Stromberg calls the “dark art” of "reinterpreting" documents such as these to mean not what they say in plain English but what he wishes them to say in a way that is consistent with his political proclivities.

During the debate Jaffa relied on his quite substantial reputation to simply declare that the British government did not recognize the states individually in the 1783 Treaty of Paris at the conclusion of the American Revolution. I could only respond that I made it a point to re-read the treaty in preparation for the debate, and that Jaffa was wrong. I should have brought a copy of the Treaty with me, for here is what Article I says:

His Britannic Majesty acknowledges the said United States, viz. New Hampshire, Massachusetts Bay, Rhode Island, and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States; and he treats with them as such, and for himself, his heirs and successors, relinquishes all claims to the Government, proprietory and territorial rights of the same, and every part thereof. (“Treaty with Great Britain,” in Charles Eliot, ed., The Harvard Classics, vol. 43, American Historical Documents, p. 175).

This is important, for the founding documents consistently make the point that the states are sovereign and are establishing a Union to act as their agent. That’s why, whenever the phrase “United States” appears in the Constitution, it is in the plural—to signify that the individual sovereign states were voluntarily banding together to form the Union. This use of language was turned on its head by force of arms from 1861 to 1865 when, as Shelby Foote writes in his book, The Civil War, Americans quit saying “the United States are” and began saying “the United States is,” signifying the transformation from a confederacy of sovereign states to a consolidated, monolithic empire.

The one comment of Jaffa’s that drew gasps and looks of disbelief was his insistence that Lincoln never did anything that was unconstitutional. These people were obviously aware that the Constitution does not provide for a dictator but a president, and that generations of historians have referred to Lincoln as a "dictator" but a benevolent one. “Dictatorship played a decisive role in the North’s successful effort to maintain the Union by force of arms,” wrote Clinton Rossiter in Constitutional Dictatorship. Lincoln’s “amazing disregard for the Constitution was considered by nobody as legal,” Rossiter also proclaimed. “If Lincoln was a dictator, it must be admitted that he was a benevolent dictator,” wrote James Ford Rhodes in his History of the United States, a statement that was repeated almost verbatim by James G. Randall in Constitutional Problems Under Lincoln.

The main reason why generations of historians have labeled Lincoln a dictator (but also made an ends-justify-the-means defense of his dictatorial behavior) is probably the fact that on April 27, 1861, two weeks after Fort Sumter, he unilaterally suspended the writ of habeas corpus and eventually ordered the federal army to arrest between 13,000 and 38,000 Northern civilians who were suspected of opposing his administration (this is the range of estimates that exists in published literature). These people were never given any due process at all.

The chief justice of the U.S. Supreme Court, Roger B. Taney, issued an opinion that such an act was unconstitutional because only Congress has the power to do so. He cited former chief Justice John Marshall as saying that “it is for the legislature to say so” if habeas corpus is to be suspended; he cited Justice Joseph Story as concurring with that opinion, as did English and American precedents; and he pointed out that the suspension of habeas corpus appears in the Constitution under the section on legislative, not executive powers.

If an American president can unilaterally suspend habeas corpus, Taney wrote, then “the people of the United States are no longer living under a government of laws; but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.” Lincoln simply ignored Taney’s opinion.

The jaw droppers at The Independent Institute debate must have also been aware of Lincoln’s demolition of the First Amendment during his administration to have reacted with such looks of disbelief. There were hundreds of opposition newspapers in the North, and many of them were shut down and their editors and owners thrown into military prisons without any due process. For example, on May 18, 1864 Lincoln issued an order to General John Dix that read as follows: “You will take possession by military force, of the printing establishments of the New York World and Journal of Commerce . . . and prohibit any further publication thereof . . . you are therefore commanded forthwith to arrest and imprison . . . the editors, proprietors and publishers of aforesaid newspapers.” Dix complied, and hundreds of newspapers were censored (see Dean Sprague’s Freedom Under Lincoln).

The history books also discuss how federal troops were ordered to interfere with Northern elections (Lincoln won New York by 7,000 votes in 1864 “with the help of federal bayonets,” according to David Donald in Lincoln Reconsidered); all telegraph communication was censored; the railroads were nationalized; new states were created unconstitutionally; and the Tenth Amendment was all but destroyed by the war.

Even Lincoln’s own attorney general, Edward Bates, was of the opinion that Lincoln’s orchestration of the secession of western Virginia from the rest of the state was unconstitutional. Article IV, Section 3 of the U.S. Constitution reads: “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any state be formed by the Junction of two or more States, or Parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress” (emphasis added).

West Virginia was unconstitutionally carved out of Virginia, and since it did not even exist as a state, its non-existent legislature could not have consented, as required by the Constitution. A puppet government was established in Alexandria, Virginia, run by Republican Party operatives, which guaranteed a few more electoral votes for Lincoln in the 1864 election.

I’m sure Jaffa can come up with some tongue-twisting, Clintonian “spin” as to why these realities are not really realities. He’s been doing it all his life. And he absolutely must continue doing so, for the entire case against states’ rights rests on the assumption that Lincoln was only enforcing the Constitution when he launched his invasion. The Southern states were dissatisfied with the results of a duly constituted election, and that is no reason to secede. Jaffa repeated this during the debate and has done so in many of his writings. His position is that no state ever has a right to secede, for any reason, as long as the constitutional rules of elections are followed. Presumably, this would hold true if say, a Southern sectional candidate were to be elected president and, with his party in control of Congress, enacted a flat 80 percent income tax on the Northern states and a 20 percent flat tax on the Southern states, while making interstate migration illegal. That was roughly the tax situation after Lincoln was elected, with Southerners paying as much as 80 percent of all tariff revenues which, at the time, were the primary form of federal taxation.

If Lincoln was not, in fact, a devoted champion of the Constitution, the whole anti-states’ rights house of cards collapses. If he disregarded the Constitution and acted like a dictator, no matter how noble his ends might have been, then the sanctity-of-the-Constitution argument against secession goes out the window. This, in my opinion, is why Jaffa must continue to make such outrageously ahistorical statements.

Thomas J. DiLorenzo is a Research Fellow at The Independent Institute, and Professor of Economics at Loyola College in Maryland.