On a recent episode of The War Room (here) with Stephen K. Bannon the following exchange between Bannon and Mike Davis of the Article III Project took place. Davis is a constitutional lawyer and a very active and successful supporter of Donald Trump and the MAGA movement, as is Bannon. The segment reference runs from 16:25 to 17:50 (transcript taken from closed captions).
Bannon: Listen[,] you’re a strong believer in the 10th amendment to federalism. I’d actually say I´d probably go more even to the states’ rights farther than even a little bit. Why would Gavin Newsom, particularly [for] people [who] believe in states’ rights and people [who] believe in … federalism and [believe] the 10th amendment is the most important amendment of all, why. What Gavin Newsom is doing in California is not that[.] it’s when I say he’s a neoconfederate, I mean he’s a neoconfederate sir.
Davis: Because as we’ve talked about on your show for years Steve [,] the Constitution is a loan agreement between we the people in our government [,] state government[,] federal government[,] tribal government. And we lend specific enumerated and divided powers to the federal government[s], including the president having the commander in chief power, including Congress having the power to control immigration and including the president’s ability, his duty to enforce our laws. All other powers, not specifically in the Constitution, belong[s] to the states and to we the people as confirmed to the 10th amendment.
I could hardly have said it better myself! (except for the part about Congress having the power to control immigration)
On January 17 of this year I posted an article on this site (here) asking the question whether MAGA was in the Southern tradition. My concern was that very strong and influential supporters of Donald Trump and the MAGA movement were also very outspoken proponents of the view that what I call the “Lincoln Revolution” of 1861-1865 was a “rebirth” of the American Founding, putting Lincoln on a par with Washington and Jefferson. While I strongly endorsed the Trump administration’s efforts to expel the elites and the bureaucracy from their positions of power, I was more than a little uneasy with the ultimate goal of the MAGA movement if Lincoln and his revolution were to be its lodestar.
Now we have the conversation I cited above. I had another post on this website a few days ago (here) discussing which organ of government had the ultimate authority for making and enforcing immigration law. Clearly it is a state matter according to the US Constitution as I discussed there. Congress has the authority to legislate to the naturalization process but no further. Bannon is critical of Gavin Newsom for asserting that particular state right over immigration, calling him a “neoconfederate” which to Bannon is obviously a pejorative. Yet Bannon in the same breath says that he is a strong supporter of states’ rights and the 10th amendment. Davis then goes on to endorse (correctly) the constitutional doctrine of enumerated and delegated powers using that same amendment.
Clearly we have some sleight of hand going on here. Nothing was more clear, before, during, and after the War for Southern Independence, than southern fealty to the principle of state sovereignty. In the immigration article I quoted Alexander H. Stephens, the vice president of the confederacy, to that effect. The one definitive outcome of that war was that the states were now subservient to the national government.[1] The Constitution had not changed in this respect but the reality of brute force had changed the equation regarding the balance of national versus state power. Now Bannon and others want to speak out of both sides of their mouth. They exalt Lincoln, whose war destroyed state sovereignty, on the one hand, while they praise states’ rights on the other, simultaneously demeaning the defender of states’ rights, the confederacy, and denouncing those asserting states’ rights by calling them what they consider to be an insult, “neoconfederates”. Such is the confused state of the erstwhile republic today.[2]
I would also like to take this opportunity to dispose of something I overlooked and neglected to address in the earlier post on immigration. The quotation I used there from The American Spectator contained the following sentence regarding the “Civil War”.
It was an insurrection against the federal government committed by 11 states whose Democrat governors and legislators feared that the recently elected Republican president, Abraham Lincoln, would deprive them of their non-citizen labor force. (emphasis added)
This also seems to be a popular trope these days: that the secession by the southern states was an “insurrection” practiced against the national government. I guess this is an attempt to accommodate Lincoln’s efforts to to escape from the constitutional conundrum in which he found himself with respect to the use of military force against the departed states. Either the southern states had lawfully left the union or they hadn’t. If they hadn’t left the union then Lincoln was prohibited by the Constitution from using coercive force against them. If they had left the union then Lincoln would be invading an independent country. To avoid both horns of this dilemma Lincoln resorted to the fiction that secession was fomented by “rebellious elements” in the departed states. Of course, the truth is obvious in the historical record, not that anyone bothers to take that into account any longer. The southern states left the union the same way they came into the union. They called conventions of delegates representative of the people of their state, who then rescinded their articles of constitutional ratification and thus revoked their accession to the union. In other words, they adopted articles of secession. Everything was accomplished in a proper and orderly way from a constitutional perspective. It was hardly the stuff of an “insurrection”.
None of this is new, of course. As the country gropes its way toward some kind of resolution of its ongoing crisis (one could say an ongoing crisis of more than one hundred sixty years since Lincoln overthrew the original constitutional arrangement), we are reminded to keep in our sights the goal toward which we are aiming. If that goal is a restoration of the constitutional republic of the Founders, then it must absolutely be a republic in which the states are sovereign because that is what it was established to be. The obvious point is that a constitutional republic of sovereign states cannot come about through an edict decreed at the national level. It is simply a logical and practical contradiction. If that is what Bannon and other MAGA supporters are aiming at then their plan is flawed and their effort will be futile. To the extent that the national government divests itself of powers it has accrued outside the constitution over the decades since the War Between the States this devolution will certainly assist the restoration. But that devolution on the part of the national government will not be sufficient on its own. Moreover, if it is not clear that certain powers will never again accrue to the national government, it would only take a recapturing of the national government by a party determined to again overwhelm the states to reassert any powers not expressly circumscribed. A constitutional republic of sovereign states can only be regained if the states themselves assert and then secure their sovereignty. How that might be done is a story for a later time.
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[1] Regarding the other supposed definitive outcome of the war, the elimination of chattel slavery, it can be argued that not only did blacks remain in bondage, just in a different form, but many whites were added to their number.
[2] None of this, of course, should induce anyone to think that I consider anything about the immigration situation in the United States today to be salutary.
The views expressed at AbbevilleInstitute.org are not necessarily the views of the Abbeville Institute.
“They called conventions of delegates representative of the people of their state, who then rescinded their articles of constitutional ratification and thus revoked their accession to the union. In other words, they adopted articles of secession. Everything was accomplished in a proper and orderly way from a constitutional perspective. ”
I don’t believe Virginia did it properly, because from the reading of events, it appears Carlile of Harrison Co Va got the idea to pretend to be representing the people when he held (what were really just Wheeling protests) but called “Conventions” – where did he get that idea: from the actions of Virginia delegates assuming the right to call a Convention themselves, then put it to a popular vote, in that order.
Lincoln’s conundrum includes guaranteeing a republican form of government. By his refusal to recognize that all of Virginia had left the Union, including western counties, he was refusing withdrawal of consent.
My comment is an indirect one to say that we were not taught to think about the “Civil War,” I mean to say we were taught what to think about it. Things like memorization of the Gettysburg Address and pro-Union Army displays in the Capitol museum (Madison, WI) were more typical manifestations of a public school education. The best thing that could happen today would be for people to gain the courage to step out from behind facades and actually discuss the different views of any given topic. It’s ironic that in a federal state where we claim the right of free speech it is mainly used in a low level manner.