A Copperhead Loves the South

CONFEDERATE MEMORIAL DAY ADDRESS  22 April 2019

American by birth — Southern by the grace of God!  I come from a true Southern state, South Dakota, and I am honored to be probably the first Dakotan to give the Memorial Day address at the capital of the Confederacy.

Last week I had a conference call with a man from Michigan, another from Massachusetts, and another from Connecticut.  I told them I couldn’t do a follow-up call Monday because of Confederate Memorial Day.  When they asked what I was talking about I asked, “Don’t y’all celebrate Confederate Memorial Day in New England?   You should!  We celebrate Yankee Memorial Day in Alabama!”

I first visited Alabama in January 1972 for Air Force Judge Advocate training at Maxwell AFB.  I loved it, returned many times for Reserve duty and training, and in 1990 we decided to make Alabama our home.  One reason I’m proud of the Air Force is, we are the only branch of the United States military that never took up arms against the Confederacy!  Maybe that’s why Montgomery and Maxwell Air Force Base have always had a great relationship.

Some come to Alabama because they hate the South and want to change it.  I came to Alabama because I love the South, see much good in it, and want to preserve it.  As much of America is degenerating into lawlessness, irreverence, idleness, and immorality, in the stability of the South, in the cradle of the Confederacy, may lie our last hope for the preservation of this nation.

But my Southern sympathies began much earlier in life.  As a child growing up in the 50s, I remember one of my elementary school history texts explaining the factors leading up to the War.  It told of Daniel Webster of New England, who believed the Union should endure forever, and I thought, that’s a noble idea.  But then it said John C. Calhoun of South Carolina was for state’s rights; he believed a state had the right to leave the Union if it wanted to — and I thought, Calhoun’s right; states should be able to leave if they want to.  Looking back, I guess, on that day in an elementary school classroom, this kid became a Confederate.

In later years I would study Calhoun in greater depth and would realize what a great constitutional thinker he was.  He wrestled with one of the thorniest problems of representative government:  How do we give voice to the will of the majority, while protecting the rights of the minority?   In his Disquisition on Government and his Disquisition on the Constitution, Calhoun explains his theory of concurrent majorities.  The majority in Ohio may favor one policy, while the majority in Massachusetts may favor another.  Decentralized government, in which most decisions are made at the state and local level rather than at the federal level, is a key part of Calhoun’s solution.  But suppose we need a national policy, and the majority of the nation favors Ohio’s policy?  That’s where Calhoun’s doctrine of nullification comes into play:  The majority can enact a law that is policy for the nation, but the majority in Massachusetts may opt out by nullifying that law.  The law then applies across the nation, but not in Massachusetts.  Calhoun saw nullification, not as divisive, but as the safety valve that could keep the nation from falling apart.  By giving the States the freedom to be different, the majority could have its way, the minority could be different, factions could get along,  and the nation could stay together.

I use Massachusetts as an example, because nullification actually began in the North! Daniel Webster himself, opposing conscription for the War of 1812, called upon the New England states to interpose against it, saying it is “the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power.” 

A few years earlier, in 1809 Governor Jonathan Trumbull convened the Connecticut Legislature because President Jefferson had commenced an unconstitutional embargo, saying the Legislature should “cast a watchful eye towards the general government, with a view, candidly to consider, and judiciously discern, whether the powers delegated to the United States are not exceeded…..”  The Legislature responded with a resolution declaring it their duty to “vigilantly watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people,” approving Governor Trumbull’s refusal to “designate persons to carry into effect, by the aid of military power, the act of the United States, enforcing the Embargo…,” and restraining Connecticut officials from “affording any official aid or co-operation in the execution of the act aforesaid.”  

In the infamous Dred Scott decision of 1857, the U.S. Supreme Court ordered state officials to comply with the Fugitive Slave Act of 1850, requiring officials of non-slave states to deliver escaped slaves back to their masters.  The Wisconsin Supreme Court refused to comply, declaring the Act and null and void in Wisconsin, though they were reversed by the US. Supreme Court in Ableman v. Booth.  But in 1859 the  Wisconsin Legislature declared the Dred Scott decision  “without authority, void, and of no force” in Wisconsin.  Again: Nullification began in the North!

Things have changed.  Northern state Justices who in 1858 resisted federal judicial tyranny are hailed as constitutional heroes.  But today, if a Southern State Judge criticizes the U.S. Supreme Court, we remove him from office!  What has happened?  Our Alabama State Motto is Audemus jura nostra defendere, “We dare defend our rights.”  Or at least it was.  Today our motto seems to be “We dare defend our rights unless a federal judge tells us we shouldn’t,” or “unless we’d lose a federal subsidy.”

Does the principle of nullification apply to secession as well?  Thomas Jefferson thought so.  In the Kentucky Resolutions of 1798, he declared that the Constitution creates a compact among the states, and that “in all cases of compact between parties having no common judge, each party has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress.”  The Virginia Resolutions of the same period expressed a similar position.  And Gouverneur Morris of Pennsylvania, who chaired the Committee on Style that wrote the final draft of the Constitution, later in life urged the New England states and New York to secede and form a separate confederacy. 

But was, is secession a constitutional right?  Notice I didn’t ask whether secession is a good idea; I asked whether it is a constitutional right.  Robert E. Lee personally opposed secession.  But he believed it was Virginia’s right to secede, and when Virginia left the Union he declared, “How can I draw my sword upon Virginia, my native State?”  He refused the offer of command of of the Union armies, and took up the sword to defend his beloved home and his beloved state.

Lee carrned on correspondence with Lord Acton of England, who admired the Confederate Constitution as a means of protecting majority rule and minority rights.  Lord Acton wrote to General Lee in 1866,

I saw in States’ rights the only availing check upon the absolutism of the sovereign will, and secession filled me with hope, not as the destruction but as the redemption of Democracy. … I deemed that you were fighting the battles of our liberty, our progress, and our civilization; and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo.

Jefferson Davis also opposed secession, but he believed it was a constitutional right retained by the States.  He stated, “Secession belongs to a different class of remedies.  It is to be justified on the basis that the States are Sovereign.  There was a time when none denied it.  I hope that time may come again….”  And when his state seceded, he did his duty and served with his state.

One benefit of the right of secession is that it places the power where it belongs – with the states, or the people.  Many of you belong to the Sons of Confederate Veterans, the United Daughters of the Confederacy, the Order of Confederate Rose, or other organizations.  But you don’t have to continue your membership; you could quit, you could secede, at any time.  That means the power is in your hands.  The SCV or the UDC have to make your membership worthwhile and give you your money’s worth, or you’ll stop giving them your time and your membership dues.  In the same way, the power of secession makes the federal government the servant of the states, not their master.

But doesn’t Article Six, Section 4 of the Constitution proclaim that the Constitution is “the supreme law of the land”?  Of course it does.  But what part of the Constitution is the supreme law of the land?  All of it, including the amendments, which according to Article V are when ratified for all intents and purposes part of the Constitution.

And that includes the Tenth Amendment, which states, “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.”  So we must ask, what provision of the Constitution authorizes the federal government to prohibit secession?  The answer is, none.  And then we ask, what provision of the Constitution prohibits that power to the States?  And again we answer, none.  So if power over secession is not delegated to the federal government and is not prohibited to the States, it is reserved to the States by the Tenth Amendment, and that, my friends, is the Supreme Law of the Land.

But some will say the Southern States seceded over slavery, not constitutional issues.  It would be far easier to gloss over this issue, but I think it needs to be addressed. 

Was slavery the issue in the War Between the States?  That depends on who you ask, and what region they were from, and at what time during the War.  All Northerners didn’t think alike, nor did all Southerners.  We could get into a battle of dueling quotations here, quoting some who said slavery was the issue and quoting others who said it was not.  I’ll just summarize my conclusions this way:  Was slavery an issue?  Yes.  Was slavery the only issue?  No.  Was slavery the main issue?  Again, it would depend on whom you asked.  Ending slavery was a major issue for many New Englanders, much less so for those of Ohio and Indiana.  And it is hard to believe that Southern soldiers, at least 90% of whom had never owned a slave, were fighting for the slaveholding rights of the other 10%. 

Here are two sources we seldom hear today. President Lincoln declared,

“My paramount object in this struggle is to save the Union, and is not either to save or destroy slavery. If I could save the Union without freeing any slaves, I would do it; and if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that.  What I do about slavery and the colored race, I do because I believe it helps to save the Union; and what I forebear, I forebear because I do not believe it would help to save the Union.”[1]

And in the Crittenden-Johnson Resolution of 1861, Congress stated its reasons for the War:

“That in this national emergency Congress, banishing all feeling of mere passion or resentment, will recollect only its duty to the whole country; that this war is not waged upon our part in any spirit of oppression, or for any purpose of conquest or subjugation, or purpose of overthrowing or interfering with the rights of established institutions of those States, but to defend and maintain the supremacy of the Constitution and to preserve the Union with all the dignity, equality, and rights of the several States unimpaired; and that as soon as these objects are accomplished the war ought to cease.”

Cong. Globe, 37th Cong., 2d. Sess. 222 (1861). This Resolution  passed the House 119-2 and the Senate 30-5. See id. at 223.

Let’s be clear:  No one here defends slavery.  Rather, we object to making slavery solely the sin of the South.  It was in fact a worldwide evil, and the slave trade was conducted by New England traders.  And we object to judging the South on slavery alone, when there was so much good about the South as well.  And those good things are what soldiers fought and died for.

Some fought because they believed in the Constitution’s plan of states’ rights.   Some simply followed the lead of their respective states; and while many Northerners  opposed the War and many Southerners opposed secession, when the lines were drawn nearly all of them lined up with their respective states, because in those days we understood America as a union of sovereign States, not as one national government with fifty administrative subdivisions.

Think about this for a moment:  In the sentence, “The United States ___ going to war,” what’s the missing verb?  Today most people would say “The United States is going to war.”  But before the War Between the States, nearly everyone would say “The United States are going to war.”  That’s why, when we tour battlefields, we see monuments to Ohio Regiment, Alabama Regiment, New Hampshire Regiment, Texas Regiment. 

Those soldiers fought because they loved the South.  And what did they love about the South?  Perhaps I can best answer, What do I love about the South?  Many things: 

* I love neighbors waving as I drive by.  I love saying “Good morning!” to strangers on the street without them shrinking away as though I were invading their space.

* I love the way Southerners treasure their families – not just their immediate families, but their ninth cousins five times removed, as part of who we are.

* I love the way Southerners value their land, not just for its economic value but because land is an extension of our identity.  

* I love the Southern acceptance of human fallibility, and with it the Southern skepticism of Big Government and Centralized Power as the solution to all of our problems.  As Calhoun wrote in his Disquisition on Government, “But government, although intended to protect and preserve society, has itself a strong tendency to disorder and abuse of its powers….”

* I love the Southern respect for tradition.  “We’ve always done it that way” doesn’t mean it shouldn’t change, but it does mean it’s probably worked fairly well.  “We’ve never tried that before” doesn’t mean we shouldn’t try it now, but it might mean we should ask some questions first.

* I love the story Richard Weaver tells of the cousins driving together across rural Kentucky.  The Northerner delivers a lengthy harangue about how backward the South is in literacy, highway construction, and other measures of progress.   His Southern cousin responds, “Yeah, but look at that countryside.  Aint it beautiful?”  A different sense of what’s ultimately important.  A recognition that everything of value is not measured in terms of the Almighty Dollar.

* I love the way Southerners are not afraid to be out of fashion in their politics, their dress, their speech, and their lifestyle, and I love the way Southerners can laugh at themselves.  It’s been said, “New Englanders are provincial but don’t know it.  Midwesterners are provincial, know it, and are ashamed of it.  Southerners are provincial, know it, and are proud of it.”  It’s also been said, “Northerners claim to have read books they haven’t read.  Southerners deny having read books they have read.”  Most Southerners have read Webster and Lincoln, but how many Northerners have read Davis and Calhoun?  And yet, we’re the ones who are narrow-minded!  When Flannery O’Connor was asked at a writers’ conference why Southern writers focus on freaks and misfits, she answered, “Because we can still recognize them.”  But Southern writers often recognize the misfit as the hero who ultimately saves and transforms the community.

* I also love Southerners’ unabashed patriotism – patriotism toward their country, and toward their region of the country.  In every war since the War Between the States – the Spanish-American War, World War I, World War II, Korea, Vietnam, Desert Storm, Afghanistan –  Southerners have served in greater percentage than the rest of the nation.  Today the Southern states are 36% of the population, and 44% of the military.    I regret that the Battle Flag is seen by some as a symbol of hate.  That’s not what it ever meant to me, or to those assembled here.  And I’m not impressed by those who’ve never had a good word to say about America or the American flag, except when they wrap themselves in it to denounce the Confederacy.  And just last week, residents of Laguna Beach complained about flag designs on their police cars that were “intimidating and racist” – not Confederate flags, but American flags!  Where is this going to end?  If California secedes, I will miss some of them.  But I thought they told us we couldn’t do that.

* And what I love most is that Southerners who are Christians are unafraid to talk openly about their faith.  If someone invites me to his church, he’s not trying to impose on me; he’s honestly concerned about the salvation of my soul.  I appreciate that.   And we want to know the faith of those who run for office, because laws and government policies are based on moral values, and morality is based upon religion.  Southerners have a moral compass, even if they don’t always follow it.  You don’t hear Southerners say “That may not be appropriate under the circumstances.”  Southerners just say, “That aint right.”   Flannery O’Connor used to say the South was “Christ-haunted.”  Christ may be nearly forgotten, but the notions of sin, judgment, and salvation always lurk somewhere in our semi-conscious minds.  We pray that, instead of being Christ-haunted, the South will become Christ-centered.

And so, despite our imperfections, we proudly stand for Southern values, and we honor those who have defended the South in the past.

David honored Saul and Jonathan after they died in battle, and he also honored his general Abner, saying “there is a prince and a great man fallen this day in Israel.” (II Samuel 3:38).

And think of Sophocles’ play  Antigone, written around 442 BC.   The City of Thebes has been ravaged by civil war, and Eteocles and Polynices, brothers of Antigone, have died fighting on opposite sides.  The victor and new ruler of Thebes, King Creon, has decreed that those who fought for him will be buried with full honors, while opponents will lie on the field unburied.  Nevertheless, Antigone provides her brother with a burial.  When she is brought before King Creon, it seems he wants to excuse her by pleading ignorance:

Creon:  …You knew the order not to do this thing?

Antigone:  I knew, of course I knew.  The word was plain.

Creon:  And still you dared to overstep these laws

Antigone:  For me it was not Zeus who made that order.  Nor did that Justice who lives with the gods below mark out such laws to hold among mankind.  Nor did I think your orders so strong that you, a mortal man, could over-run the gods’ unwritten and unfailing laws.  Not now, nor yesterday’s, they always live, and no one knows their origin in time… .”                                                           Antigone, Wyckoff trans. Lines 446-57

Antigone is saying there is a Higher Law, higher than any king’s decree – our Declaration of Independence calls it “the laws of nature and of nature’s God” – that requires that she honor her fallen brothers by burying them with military honors, even if King Creon forbids it.  The Divine imperative to honor one’s kinsmen, especially those who have died in battle, is universal.

Respecting the dead is the truest act of kindness, because the dead cannot defend themselves.  It is entirely fitting that we should remember our ancestors, especially those who died fighting for their homes. 

And so, Memorial Day began.  Before a national memorial day was established, Southern ladies in 1866 began decorating the graves of Confederate soldiers, and in some cities they decorated the graves of Union soldiers as well.  The practice spread to the North, and it became a national tradition around 1882.  In the South, as throughout the Nation, we celebrate Memorial Day in May to honor all who have given their lives for our country.  But in April we celebrate Confederate Memorial Day to honor our own.

And this monument stands before us today to honor those 122,000 Alabamians who risked their lives and, for some, gave their lives in the War. 

Jefferson Davis laid the cornerstone in 1886, and the monument was dedicated in 1898.  It has stood for 121 years as a memorial to the courage, valor, self-sacrifice of those who died, and of those who were willing to die, for their homeland.

But today, across this Nation, there is a drive to blame the South for all that is wrong with America.  Jesus said “Greater love hath no man than this, that a man lay down his life for his friends” (John 15:13),  but many today would destroy these monuments as symbols of hate.

To stop these self-appointed vandals, and sometimes vandals holding official positions, in 2017 the Alabama Legislature enacted, and Governor Ivey signed, the Alabama Memorial Preservation Act.  The law provides that no monument more than 40 years old may be moved, destroyed, or renamed without provision of the Alabama Monument Protection Committee.

But in January of this year, a Birmingham circuit judge, on his last day in office, issued a politically-charged ruling that the Memorial Preservation Act is an unconstitutional violation of the City’s right to free speech.  This ruling has been appealed; the Alabama Supreme Court has stayed the ruling pending the outcome; I firmly believe the higher courts will reverse the Circuit Court and sustain the Act, and I promise you that tomorrow the Foundation for Moral Law will file an amicus brief in support of the Act.

Behind the drive to remove flags and monuments is a drive to re-write history itself, as a prerequisite to fashioning a new America that bears no resemblance to the constitutional republic our Founding Fathers designed.  Remember the chilling words of George Orwell in 1984: 

“If the Party could thrust its hand into the past and say of this or that event, it never happened – that, surely, was more terrifying than mere torture and death? … And if all others accepted the lie which the Party imposed – if all records told the same tale – then the lie passed into history and became truth.  ‘Who controls the past,’ ran the Party slogan, ‘controls the future: who controls the present controls the past.’”

If you remember nothing else from this address, remember these lines:  Who controls the past controls the future; who controls the present controls the past.  And remember this as well:  No society can long survive if it teaches its children to hate their ancestors and be ashamed of their heritage.  And nowhere is that happening more than in America, and nowhere in America more than in the South.

First they came for the Confederate monuments.  Then they came for Columbus.  Now they’re coming for George Washington and Thomas Jefferson.  Who’s next?  Frederick Douglas, Booker T. Washington, and George Washington Carver for being too moderate?  Hank Williams, Jr., for writing “If the South Woulda Won”?  Johnny Cash for writing “God Bless Robert E. Lee”?  Do we denounce Plato and Aristotle, and the Greek civilization, because they condoned and practiced slavery?  And when the politically- correct orthodoxy changes, who will those in power go after then? 

Besides reminding us of the honor and valor of those who served, monuments, especially monuments that are currently unpopular, are voices of dissent.  They are a stark reminder to the politically-correct orthodoxy, and to those who blindly follow it, that there was a time when people believed otherwise, and there are voices of the past that may be worth heeding today.

And that’s another reason we honor those who served.  Jefferson Davis said prophetically, “The principle for which we contend is bound to reassert itself, though it may be at another time and in another form.”  Without being blind to its faults, we must keep the ideals of the Confederacy alive:  limited government, decentralized government, government based upon the Higher Law of  God, and the Southern way of life. 

As Connie Chastain said, “The South won’t have to rise again.  Just remain standing while the rest … falls.” And when things fall apart, people will look for answers, and they may find them in the South.

God bless America!  God bless the South!  God bless Alabama!  God bless all who served.  And God bless all of you for coming today!


[1]  Abraham Lincoln, in Abraham Lincoln from His Own Words and Contemporary Accounts29(Roy E. Appleman, ed., National Park Service Source Book Two, Washington, DC 1956).

About John A. Eidsmoe

John Eidsmoe is a retired Air Force Lt. Colonel, a retired Alabama State Defense Force Colonel, and a Colonel in the Mississippi State Guard. He is a Professor of Law at the Oak Brook College of Law and Government Policy, and in his various teaching assignments his students have giving him the Outstanding Professor Award or Prof of the Year Award five times. He has served as Senior Staff Attorney at the Alabama Supreme Court and is currently Senior Counsel & Resident Scholar for the Foundation for Moral Law. More from John A. Eidsmoe

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