Originally published at Mises.org.
In his article “Is the Constitution Broken beyond Repair?” David Gordon draws attention to a phenomenon that is often overlooked, namely, the great rejoicing among some constitutional lawyers over the fact that “to establish the new Constitution, Lincoln overthrew the first one… he replaced the old, immoral Constitution with a new one based on equality.” This is indeed one reason why some of Lincoln’s admirers still celebrate the burning of the South by the Union Army—the devastation and destruction of the South symbolizes for them the brave new world of equality and social justice forged by a righteous army through fire and steel.
Most people, if they understood what was really being celebrated here, would be bewildered. Although Abraham Lincoln and the Union Generals Ulysses Grant and William Sherman are generally admired for saving the Union by those who do not consider the consent of states to be necessary, they may not necessarily think the war was commendable in itself or worthy of celebration; they merely consider that war was necessary for Lincoln to advance his righteous cause. They would view the claim that Lincoln rejected the constraints set by the Constitution as some sort of critique, at the very least—while we can and do debate matters of constitutional interpretation, surely we all accept the premise that a president should not actually overthrow the Constitution? Shouldn’t any president at least try to pretend to uphold the Constitution, even as he brazenly drives a coach and horses through it? Even if he is an unashamed hypocrite who believes double standards always apply to his conduct, he should at least make a show of believing that he sees his actions as constitutional, and should by no means concede to complaints that he is subverting the law.
But, rather surprisingly, some Lincolnite constitutionalists do not see matters that way. They believe that deliberately subverting the Constitution is actually very good if it is done with good intentions—namely, intentions of which progressives approve. As they see it, the new Constitution created by Lincoln’s war is more egalitarian and just than the old one written by slave owners. They believe the overthrow of the old Constitution ought to be welcomed by everyone who upholds “the idea of America”—the “idea” being, of course, progressivism. Nor is this desire to destroy the Constitution new. In the 19th century, the abolitionist William Lloyd Garrison described the Constitution as an “agreement with hell”:
Garrison then produced a copy of the 1850 Fugitive Slave Law and put a match to it. Amid cries of “Amen” the hated document burned to a cinder… As Martin Luther had burned copies of canon law and the papal bull excommunicating him from the Catholic Church for heresy, Garrison consigned each to the flames. Holding up a copy of the U.S. Constitution, he branded it as “the source and parent of all the other atrocities–‘a covenant with death, and an agreement with hell.’” As the nation’s founding document burned to ashes, he cried out: “So perish all compromises with tyranny!”
The abolition of slavery in 1865 only fanned the flames of this revolutionary fever. The new rallying cry was that steps must be taken to ensure that slavery “by a different name” would never return, and Reconstruction amendments were accordingly forced through. Tennessee, which was the only state in the South to “willingly” ratify the Fourteenth Amendment, only did so after threats of force.
In Tennessee, opponents of the Amendment absented themselves from the House in order to prevent a quorum. This did not stop the supporters of the Amendment, who forcibly seized two absent members and held them in a committee room. The House ignored a court order to release the two and overruled the Speaker, who ruled there was no quorum present.
To many people this might seem, at the very least, mildly embarrassing but nevertheless understandable in the tumultuous aftermath of war. There is a process for amending the Constitution, and the use of force is not part of that process, so at the very least these irregularities ought to be condemned. But for progressives, overthrowing the old Constitution by any means necessary is praiseworthy, because the Fourteenth Amendment brought equality and justice! Let justice be done by any means necessary! In his foreword to Raoul Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment, Forrest McDonald observes that activist courts enthusiastically endorsed the Reconstruction amendments without any qualms. He explains that “advocates of judicial activism began to assert that neither the words of the Constitution nor the intentions of the framers are any longer relevant.” After all, the framers were “racist” so nobody should care what their original intentions were.
After 1865, the progressive amendment of the Constitution continued inexorably under the civil rights regime. When Christopher Caldwell wrote his critique of the Civil Rights Act usurping the Constitution, one reviewer summarized Caldwell’s analysis under the title “The Law that Ate the Constitution.” Now, many readers would assume that “the law that ate the Constitution” is a provocative title denoting an unwelcome development, and that the whole point of Caldwell’s analysis would surely have been to warn us that the Constitution was under threat. Even those committed to “the idea” of civil rights, who may never be persuaded that civil rights pose a threat to the constitution—the judges just need to be a bit more careful to avoid subverting the Constitution, right?—might nevertheless appreciate Caldwell’s attempt to warn us of a potential threat to which we may wish to be alert. But, astonishingly, some law professors view it not as a threat but as cause for celebration—if Caldwell is right that the civil rights law is now the de facto Constitution and has displaced the racist de jure Constitution, they would take that not as a warning but as a wonderful outcome that merits celebration.
Progressives favor the centralization of constitutional authority in the federal courts, and therefore, as they see it, if the courts indeed willfully distorted constitutional history to achieve that goal, so be it. After all, judges are distorting the Constitution for a good cause—in the service of equality, fairness, and justice. Raoul Berger, writing about the role of the Fourteenth Amendment as a platform for the “continuing revision of the Constitution under the guise of interpretation,” notes how the progressive Warren Supreme Court was hailed as “keeper of the national conscience.” Therefore, when conservatives like Thomas Sowell warned about “the quiet repeal of the American Revolution,” progressives saw that not as cause for alarm but as evidence that they are winning. As they see it, activist courts are to be commended for deliberately replacing the American Revolution with a racially-enlightened social revolution. Far from denying that they have subverted the Constitution, they are supremely proud of themselves for having done so. They have convinced themselves that the new de facto Constitution better reflects “American values.”
The point here is not simply that there are different schools of statutory interpretation, by reference to which some constitutionalists uphold a “purposive” or “living tree” approach which tries to give meaning to what they see as the underlying goals and values of the Constitution. Most progressives who champion purposive interpretation do not claim that the old de jure Constitution should be altogether destroyed and replaced with a de facto new Constitution that is morally superior—most would at least attempt to offer some sort of argument that their inventions are a matter of reinterpretation and redefinition of the words actually written in the original Constitution.
The progressives who praise themselves for displacing the Constitution altogether make a very different argument. They do not claim to be engaged in creative reinterpretation, but to be abolishing the de jure Constitution altogether in order to replace it with a more worthy compact rooted in their civil rights revolution.
The views expressed at AbbevilleInstitute.org are not necessarily those of the Abbeville Institute.
The Ironclad Oath of 1862 is the instance the US transformed from Republic of Sovereign States to “nation”. Prior to 1862, military officers from the Republic’s military academies swore to defend the US from THEIR enemies. When the first half-witted Grunt/Squid raised his hand to support the Constitution, that act invalidated EVERY OATH EVER TAKEN BY EVERY OFFICER IN THE UNION ARMY PRIOR TO HIS DECISION.
Fools who choose to feather their nests by abusing Confederate patriots only do so in deliberate ignorance of the above stated fact. Some of these fools even pretend to instruct history classes at West Point, etc., where they do not teach this fact to their cadets for fear of undermining their undermining of historical truth. As a 1987 USAFA grad who went toe-to-toe with ignorant military history professors, I can speak to the pleasure and the fear of putting these morons into their proper place, for after all, they hold your academic career in their filthy, lying hands. A pretender in 1983 tried to ignore the fact there were slaves in the “US” during the War…he was taken to task and embarrassed by a doolie who didn’t cotton to deceptive yankees disparaging his ancestors.
My hope is that the captains and majors of yesteryear have had ample time to reflect and rinse their brains of yankee propaganda and now realize the first black military officers in the New World were those who voluntarily formed the Louisiana Confederate Native Guard. Fifteen hundred free black men who rallied to the defense of their City, State and Confederation…this fact, also not taught at USAFA; probably ever.
>>The Ironclad Oath of 1862 is the instance the US transformed from Republic of Sovereign States to “nation”.
But WHAT WAS a Republic of Sovereign States?
States can be merely “domestically sovereign,” rather than internationally; which means that they are not sovereign nations, but dependent states (of a single internationally sovereign state); however they DO have some domestic privileges that are written in law– but which they cannot enforce, by overruling the central government, which is thus bound only by its own discretion over domestic policy.
And so a “Republic of Sovereign States,” can also be a single sovereign nation (i.e. an “internationally sovereign state”), of DOMESTICALLY sovereign states); thus making it a NATIONAL republic, rather than simply federal.
This is not “semantics,” since the US government claims that “state sovereignty” is simply domestic– not international; and that the states had NEVER been 13 sovereign nations.
But in reality, the law holds– and all parties universally intended– that each state was 100% internationally sovereign (i.e. a “free, sovereign and independent state”) in 1783; which wholly invalidates the US government’s legal argument for national union over the states.
And that is the “elephant in the room,” which must be mentioned; but which the nationalists claim is PINK.
a bolus of some delegated tasks while in such a republic until they choose to leave? choosing to leave is an exercise of sovereignty?
Every stripe on the US flag represents a slave State. No yankee State ever freed a slave, they just made it inconvenient for owners of slaves. Yankee States forced owners to sell property or move…passing a tax to free blacks was never considered. Blacks competed with White labor and there were plenty of Whites coming over from Europe who wouldn’t dare venture South into the malarial lands…there was no reason to hinder this flow of free White labor by welcoming black labor to compete.
I remember being taught at USAFA the fact Pennsylvania was the first State to pass laws against slavery and also one of the first passing laws to DISENFRANCHISE blacks immediately after helping to “free” these same unfortunates. Of course, at USAFA, they taught no such “disenfranchising” nonsense, because truth in academia wasn’t just absent in the ivy league schools which had been funded in previous ages by profits from slave ships plying their wares about the world.
Of course, I risked banishment from USAFA for failing to kowtow to the worship of the communist, atheist, philandering, plagiarizing mlk my senior year. Told I would not graduate for daring to challenge the 1987 equivalent of blm at USAFA, I did manage to graduate, and the communist, racist organization I was in conflict with was banished instead, until men of cowardice arrived to further divide the USAFA cadet corps and future military leaders at all service academies.
Fortunately, we now have political leaders who realize the purpose of the “nation’s” military is to win wars and not to divide the military and nation so as to leave it vulnerable to attack. For decades, woke nonsense was purposely injected into our military to weaken it along racial and other lines. Traitors to this nation all, any who ever had the words “diversity” or “inclusion” in their fitness reports need to be stripped of rank and pension and put to work repairing the damage caused by their treason.
“…until men of cowardice arrived to further divide the USAFA cadet corps and future military leaders at all service academies.”
They arrived in force and are deeply entrenched.
They are fools and history is NOT on their side. When one of them can explain how the Corwin Amendment was made mysteriously absent from core curriculum despite being one of only 33 amendments sent to the States, at least they will have overcome their cowardice on that particular matter. When they can show me the oath General Robert E. Lee took to the Constitution, our discussion of his “rebellion” can commence. When they explain how a Congress controlled by yankees allowed Oregon to enter the union in 1859 as a WHITES-ONLY State, then, we can discuss so called, “Jim Crow” laws.
History is not on the side of these fools who have controlled the narrative for so long…we and the world-wide-web have ended their reign of propaganda.
“History,” by definition, is what really happened.
And it is a FACT of history, that the American Revolution established the states as 13 separate independent sovereignties– as opposed to Lincoln’s claim that they had never been such, as his sole legal basis for denying secession by any state.
So anyone who claims to be “ON the right side of history,” cannot claim that the states formed a national union– and thus, they cannot claim that there was a “civil war” among the states of such (since they were sovereign nations ,of an international union, and it would be like calling “Brexit” a rebellion against the “national EU” which doesn’t exist).
Rather, each sate was always legally a separate sovereign nation unto itself, which was supremely ruled by its respective citizen-voters; and in 1860, several of those states’ peoples, simply exercised their sovereign power to overrule their international subordinates– and withdraw their respective states, from the international union that was formed among them, beginning in 1787.
So indeed, this is EXACTLY like calling Brexit, “rebellion by the UK against the national EU.”
And this is why the US government claims that the states had never been 13 separate sovereign nations; i.e. because this destroys its claim of national union over any state.
And that is precisely why any pro-Southern argument, should be founded on the historical fact, that the American indeed established the Union of the states, as an international union of thirteen separate sovereign nations.
And I’ve attempted to do this, at my website; which all are welcome to read, and critique my legal arguments here.
“This is indeed one reason why some of Lincoln’s admirers still celebrate the burning of the South by the Union Army—the devastation and destruction of the South symbolizes for them the brave new world of equality and social justice forged by a righteous army through fire and steel.”
The real issue, is that they claim it did so by LAW; i.e. claiming that the Union was a sovereign nation, and that the individual states never were; when in reality, the opposite is true– thus making it not a civil war, an act of terror, treason and usurpation, in violation of 34+ national sovereignties.
I hate to sound like a broken record on this nobody else is mentioning the elephant in the room– or at least proving it, to my knowledge (as explained on my website).
And because of this, propagandists are able to claim “civil war,” against what Marx described as “300,000 slave-owners engaged in armed revolt”.