From the 2005 Abbeville Institute Summer School.
Continued from Part One.
Over the course of the 20th Century, the States have been increasingly sidelined. Everything is considered through a national lens and said to have a national scope. Consider, for example, the Seventeenth Amendment, which gave us the direct election of senators. In a recent Supreme Court case, the State of Arkansas attempted to have term limits on U.S. senators and the Supreme Court said: “Sorry, Arkansas, you can’t do that, because your senators don’t simply represent people in Arkansas. They have a national constituency.” Per the Court, even though they can’t vote for them, interest groups from all over the country, if not the world, are represented by these senators. So, Arkansas cannot deny that national constituency the option of voting for somebody from Arkansas. Nevertheless, if the States were to get their act together, the States could reassert themselves. You really didn’t have national parties until relatively recentl. The parties, through the precincts and the State party organizations, were State-based, and for the most part represented State interests. So, even through the national parties, you had a strong element of federalism, but as a result of reforms in the 1970’s, especially in the Democratic Party, and television, which made the party system less important, the emergence of political action committees, the emergence and importance of polling, and primaries, the States aren’t as important as they once were. And, once again, they’re intentionally being minimized. But that doesn’t mean there aren’t opportunities for States to reassert themselves. Most of the control of the federal government over the States is through grants, intergovernmental transfers with conditions attached. Let’s assume the typical amount of federal funding that goes to a State is 30% of its budget. That’s pretty high, but we’ll say 30%. If that State could live without that 30%, it could have a lot more autonomy, but that doesn’t stop block grants and other types of grants, categorical grants, that go directly to the cities. So, if I’m the mayor of West Palm Beach, I don’t have to go through Tallahassee. I go to Housing and Urban Development and I apply for a categorical grant with all kinds of conditions attached. That’s a form of subsidiarity. I’m dealing directly with a U.S. federal agency and bypassing the State, so if they say there are certain conditions attached to using this money, but those conditions are not necessarily supported by the people in Tallahassee, so what? I want the money and my constituents want the money. We’re seeing this all the time and it’s everywhere. Now, I don’t want to digress too much, but we were talking about this yesterday. I think that the tax burden is going to become so tremendous that hopefully people are going to say, “Enough is enough.” The comment was made that they’ll just devalue the dollar, but that also devalues purchasing power. I’m thinking about my son. He’s fourteen. He’s a pretty bright kid. By the time he’s twenty-five, if certain entitlements and patterns aren’t stopped, his tax rate, federal, state, and local is going be in the 70% range. If you’re paying 70% of your income in taxes, something’s got to give.
Now, when you think about what’s happening in the United Nations, they’re attempting to have an independent revenue source, like through the internet. I’m convinced that if John Kerry is elected, you’ll have a tax on the internet, you’ll be paying so many cents per emails that you send or receive. The U.N. has been working behind the scenes feverishly for this. And even though it’s just, you know, they’ll get billions of dollars, which isn’t necessarily much, but it’s the beginning of independence for them if they have an independent revenue source. Now, the Clinton administration were seriously considering taxing emails and other transactions on the worldwide web, so the United Nations was complaining: “Why is the web run by the Americans? Shouldn’t the worldwide web be run and regulated by the United Nations?” Many in America agree with this, and they’re pushing hard for it. It’s just a matter of time before this thing really is out in the public square and people are debating it openly, but the United Nations is just on the cusp of taking over the worldwide web. And a lot of what you saw during the Clinton administration, like that litigation against Microsoft, all ties into it. Who was suing Microsoft? The European Union. They do not want these competing centers of power and influence, and the web has been a tremendous technological development to decrease the power of government, believe it or not. So, in E.U. versus Microsoft, Microsoft is paying billions of dollars in settlements, court costs, and everything else. This is a power struggle. I looked at this quite closely when it was happening, and a complaint showed up in a legal brief for the United States government, saying they didn’t like how the people in Microsoft would dress. You know, on the west coast, they had this mentality where they’d dress down, whereas the bureaucrats would be wearing their typical suits. It was also a cultural conflict that was coming through in the legal briefs that were being filed by the two sides. It was amazing. So, these are some of the issues that not only could be litigated, but also legislated about. For example, the Gore Tax. The next time you look at your phone bill, call the phone company and say: “What are these surcharges?” Because the phone company used to list what those charges were. They’re collecting taxes for the government, the Gore Tax to get computers in poor, impoverished areas. That’s why you’re paying a couple dollars extra per month per phone. I think for every second or third phone, you’re paying a higher rate in taxes. So, the phone company said, “People are complaining about our rates going up,” so they started calling it a tax and said it was for the federal government. In response, the government passed a law or a regulation requiring the phone company to disguise the tax as part of your phone bill. There are all sorts of ways that the government is trying to keep its influence in these developing areas of technology.
In the United States, we just denied that the States were ever sovereign in the first place. That was Joseph Story’s argument (and Abraham Lincoln’s). But the E.U. is going to have a more difficult time, and that’s why the notion of subsidiarity is so important. They have to acknowledge that those nation-states were sovereign, because nobody can credibly deny the sovereignty of the U.K. or France or Germany. So how will this shake out? Are they going to explicitly concede sovereignty? Well, probably not. There will not be a secession article in the E.U. constitution. What they’ll do is have this tremendous amount of economic integration, and also have the Court of First Instance and the European Court of Justice, that are going to be litigating all these disputes. So, they’ll just chip away at soveriegnty bit-by-bit until it becomes impractical to secede. Let’s use the United States as an example. Imagine that NAFTA is expanded to be not only an economic trading unit, but a political unit with a legislature and everything else. If a State such as Alabama says, “I want out,” there are certain economic costs that could be imposed upon the state of Alabama that would be tremendous. In other words, it might be in their cultural interest, but it’s not in their economic interest. Now, when the two butt up against each other – and this has been shown in exit polling time and time again – when Southerners have a choice, which one do they vote for, their economic interests, or their cultural interests? They pick economic interests every time. Is there even a remnant of a cultural interest to vote for or to support? That’s why Mel Bradford said he wasn’t a conservative because there’s nothing left to conserve. He called himself a reactionary because he had to recover what has been lost. But how do you recover what’s been lost when your population has little or no interest in doing so? The demographics have changed and shifted, though you might have pockets here and there. Moreover, you have the problems of the federal government not dealing with the State, but with cities and counties and school boards directly. Look at No Child Left Behind. The U.S. Department of Education is dealing directly with school boards and it has wreaked havoc where I live. Oklahoma was on the verge of opting out because of all the regulations and how much damage it’s done to their educational system. I don’t know where they are in that discussion, but even the administration said it’s a mess.
Where I live in Palm Beach County, they brought in a consulting firm (which is defined as somebody from outside the city with little or no experience). They brought in this team and they found out that in implementing the No Child Left Behind policy, the money they got from being part of that program cost more than if they just said, “the heck with it!” But now there’s an ideological commitment. So, if the school board says this is too expensive and too difficult to administer, then are they opposed to education? Are they going leave children behind? Where my son goes to school (he’s gonna be a freshman) is a beautiful school. It’s brand new. Millions of dollars have gone into it. Out there in the Everglades, there are these two small cities, Belle Glade and Pahokee. And they are F-rated high schools, so they qualify for No Child Left Behind. So, they’re taking this money. This is the second year. But last year the students had a choice. They could go to any school in the county they wanted to go to, that was an A or B school. So, they happened to go to this school, Palm Beach Central. They had to bus them thirty miles to the school and thirty miles back home. And what a cultural clash. I mean, it was so bad that they had to lay off librarians to bring police in. I mean, the kids that came from those other schools had such an attitude. Fortunately, the locals had enough clout that now they’re going to another school. But it wasn’t in the interests of anybody. What they should have done is find out why those schools in Belle Glade and Pahokee are F-rated schools and dealt with it rather than taking a good school and spending a lot of money to make an excellent school into a mediocre school. And what happens is the people with money and such, they went to the private schools and private schools started to pop up and it made it even more isolated between the haves and the have-nots, whites and blacks. And that was and is a big problem.
There is an axiomatic question for the American constitutional order that the EU needs to confront as well as the United States. With all these checks on centralized power, how did the Supreme Court alter the American constitutional order to the point where State sovereignty was subordinated to the national supremacy? It is also important to consider in what manner and to what extent nationalism is susceptible to a similar fate, of national sovereignty being subordinated to transnational control. The answers are to be found in the articulation of the American rule of law and the adoption of that rule of law by the European Union and the United Nations. So, we’re saying: “Who would you rather vote for? Would you rather have President Kerry or President Bush?” Let me ask you this: “Who would you rather have as your president, President Bush or President Kofi Annan?” Think about it. If we’re shifting that type of power and influence, who is more in tune to your interests, the U.N. General Secretary or the President of the United States? Remember, the U.N. General Secretary is representing all these other interests, i.e., nation-states with a fairly radical agenda that’s very hostile to the United States. I don’t have to go into it, but I could summarize it by: “Why do they have it so good and the rest of us have it so bad?” So, they’re talking about a major redistribution of the world’s wealth. And you saw this with the Law of the Seas Treaty, where U.S. corporations were mining resources on the sea floor, on the bed of the ocean, and the United Nations was saying, “well, that belongs to everybody,” even though it was U.S. investments and capital that went out and got these minerals. They put in a tremendous surcharge, a huge tax that was to go to the United Nations, and the U.S. Senate simply wouldn’t ratify the treaty until it was changed, but that’s the type of redistribution you’re in for. And I’m not gonna read through it, but I encourage you to go to the U.N. website and read through those charters and those protocols, especially when it’s titled “human rights” and “social justice,” because their mindset is this: Not only are you entitled to higher education, but so too is everybody who wants it in any place in the world. How do you pay for it? Well, just like you have redistribution in the United States, you’re gonna have to have global redistribution. Somebody mentioned, I think it was in here, that they get Pell Grants and that helps them get to school. We were talking about government funding, and what happens is even with that type of scholarship or Pell Grant, yeah, it might help you pay your tuition, but you’d be much better off paying your own tuition because it would bring the cost of higher education down and you wouldn’t be paying for everybody else’s tuition for the next fifty years. You’ll be paying into that Pell Grant fund for the rest of your working life. If you were to do the math, what you’re paying for higher education is much higher than if you just paid your own way. Tuition keeps going up because of federal grants and loans. Universities can keep jacking up tuition because they know there’s a guaranteed payer, and these programs have artificially inflated the costs of college tuition. Imagine what that would look like on a global scale! And when you think about the United Nations, keep in mind that it’s not only an ideological commitment to this notion of “the human family” and “social justice,” but that those terms are code for global redistribution of wealth.
Now, although the prerogatives of the States were diminished by Supreme Court rulings favourable to national supremacy, that is what many of the States wanted. They wanted national supremacy or it never would’ve happened. The same thing goes for the European Union. State supreme court judges turned to the U.S. Supreme Court for direction just as American colonial judges turned to Blackstone and English common law courts. Accordingly, when State judges at the early development stages of American jurisprudence incorporated into State case law the nationalistic precedents established by the U.S. Supreme Court, the States were inadvertently conceding important aspects of State sovereignty. This does not mean that some States did not experience a boon to their political interests when national power was augmented. This is the subtle but clear thesis of Forrest McDonald’s book States’ Rights and the Union: Imperium in Imperio. He makes it quite clear that the States have no one to blame but themselves. Yes, they were co-opted by the national government, but they were the national government. It’s not as though the national government just appeared out of nowhere and started to take away States’ Rights. The States were acting in unison under the guise of the national government to pool their resources together to get the benefits that they could get by oppressing other States. And that’s what the Southern States finally caught onto. But they were part of the racket too. The Southern States are just as culpable as the others. Daniel Elazar was a political scientist from Temple University. He passed away a couple of years ago. In several of his books, but especially in Building Toward the Civil War, he has all this data, all these examples of how the Southern States were at the trough. They wanted those goodies too, but they weren’t getting them to at the rate that they thought they were entitled to them. They were paying so much in and getting so little back, and that’s when they said, “this is not a good bargain,” and began to talk about withdrawing from the Union. Even the failed commercial conventions that John C. Calhoun tried to put together in the late 1840’s and 1850 were, in many ways, the response to this. If they wanted more money for internal improvements, they had to change their economy so they could justify them. It’s difficult to justify internal improvements if you’re primarily an agricultural-based economy. But if you have factories and mills, why ship to England or to New England? Why not have your own textile mills? Then you can make the case. Then you could get some of that funding. But it failed for a variety of reasons. The Southerners were not interested, but what’s amazing to me is how they became interested in 1861. What a transformation of their economy in response to the War! I’m always amazed at how, in a matter of months, in a few short years, they began the transformation of their economy.
The Supreme Court was always following the economic activity that underlay and drove politics. In other words, the courts are responsive to the political situation. They have to wait. That’s why it’s so incremental. They could kind of push and nudge, but the courts can’t strike out on their own, or there’s going be a tremendous political backlash. We saw this in 1803 with Marbury v. Madison. We saw it with Dred Scott. But the States were disarmed early. We don’t have time to go into it, but the economic activity that underlay and drove politics determined whose constitutional model would prevail, the States’ Rights model or the nationalistic model. Nationalism is essentially a phenomenon of States acting in unison towards some common goal or goals. Would it be feasible for the national government to pursue a policy objective which a majority of the States adamantly opposed? For example, could Lincoln have succeeded in subjugating the Confederacy without the support of Northern States? Or, more specifically, with the support of a Northern numerical majority, but without the support of a majority of Northern States, would Lincoln’s policies to keep the Union intact have prevailed? Divided sovereignty is commensurate with the various and complex political fault lines separating the States, with the varying forms of nationalism being the manifestation of those fault lines. North against South means Northern States against Southern States. Hence the nomenclature of “the American Civil War” is overly simplistic. Much more descriptive would be “The War Between State Coalitions Acting Through Their Respective USA and CSA Unions.” As the United States’ union was a coalition of states, the Confederate States of America was a coalition of States, and in its brief existence, the coalitions within the CSA were shifting. You know, the two States that did most to defeat the South, in my mind, and I mean this sincerely, are North Carolina and Georgia. If those States had been on board and much more participating, I think, in critical junctures of the War Between the States, the South would’ve prevailed. But that’s how States are. They follow their own interests. This is not to say that influential political leaders do not favour a unitary, as opposed to a federal, form of government. There were nationalists out there who were pushing for nationalism. There’s no question about that. Moreover, there have been notable successes towards that transition. For example, economic interests were critical in the success of Chief Justice John Marshall’s jurisprudence, which was used, in the South’s perspective, “to justify every manner of federal intrusion on the rights of the States.” The evolution of the country’s economic activity was anything but static. The monetary policy, demographic changes, developments in manufacturing, and even an information revolution with the invention of the telegraph, profoundly affected political ideologies and public policy preferences regarding internal improvements, the protective tariffs, and slavery. As policy preferences changed, so too did political activists’ preferences for States’ Rights and nationalism. The Southern States were nationalists when it came to the Fugitive Slave Law. They were supportive of the Supreme court when it came to their interests, as in Dred Scott. So, they too were nationalists when it served their interests.
Depending upon which model was most conducive to one’s policy objective, that model was rhetorically defended against one’s political opponents. This helps to explain how early in his career Daniel Webster was a hardcore States’ Rights advocate and John C. Calhoun a nationalist. Later you see a switch, with Webster becoming a nationalist and Calhoun a States’ Rights man, each following the shifting interests of his State. Even though the original Constitution was overwhelmingly inclined towards state’s rights, as the nation developed, factions gained influence which favoured a much stronger federal government. Three regionally-based groups in particular fit that description. Westerners sought internal improvements such as roads, canals, and river dredging to be funded by the U.S. government, which is to say at the expense of the taxpayers from other regions. So, when Westerners wanted internal improvements, they wanted other regions to pay for those improvements. Northern manufacturers and capitalists sought U.S. government protection from foreign competition through protective tariffs and sought the financial stability that a reconstituted, revitalized, and effectively managed Bank of the United States could provide. The economies of the Southern States linked their interests to the status quo, and that was essentially a limited federal government. The North and West became increasingly nationalistic in many of their respective policy objectives, but they were also States’ Rights when it came to nullifying the Fugitive Slave Law, particularly by Midwestern States. As Southern economic productivity served as the cash cow for the internal improvements and protective tariffs of Westerners and Northerners, Southerners turned to their States for protection. Contrarywise, Southerners turned to the national government for enforcement of the Fugitive Slave Law, and Northerners turned to their States in the attempt to thwart national enforcement. As the territorial disputes were becoming increasingly heated, Senator Charles Sumner of Massachusetts gave a speech on the floor of the U.S. Senate that he titled “The Crime Against Kansas.” I’m not going to read it, but the impact of this inflammatory rhetoric, the regional biases, the cultural distinctiveness, the demagoguery, not to mention jurisprudence as the Supreme Court entered the fray in the attempt to douse the intense, red-hot coals of territorial disputes, became manifest. As reactions to the beating of Sumner enhanced those regional cleavages, adherence to States’ Rights and nationalism waxed and waned as one section maintained or lost influence over the federal government.
So, you see these parallels in the United States in the lead-up to the War, and you’re going to see the same developments in the European Union. As I mentioned before, many of the Europeans are very skeptical about the motives of Germany and France. They see it as conquest by other means, and that’s probably why some of these nations are backing off or not as supportive as they might have been a couple years ago. I was recently at a conference and the Germans – it’s amazing – they brag about this. I mean, these German scholars talk about the Euro and the Mark and how the Euro is essentially the Mark. I mean, they’re quite open about it. They make no bones. There’s this sense of pride. “Well, we’re gonna do it the right way this time.” There are some very interesting parallels that I don’t think are given enough attention by the people who are studying American political developments in the 19th century. But if you need proof, look at what’s happening, because you could say: “Well you have political actors and given certain circumstances, they’re gonna behave a particular way.” If they behaved that way in America in the 19th century, why wouldn’t nation-states with similar interests and motives behave the same way in the 21st century? That’s why the courts are so critical in holding all this together. The courts can do things behind the scenes that have support, but they can do it much more effectively and with finality so that you don’t have to worry about a subsequent legislature coming back and repealing them. Now, you could have a decision overturned, but it’s infrequent that that happens, and every time it happens, the Supreme Court has to give a tremendous explanation explaining that decision. For example, when they overturned Plessy v. Ferguson through the ruling in Brown v. Board of Education, they relied on a moral argument to justify their decision. “That was bad law. We’re gonna do it right this time.” That’s how they operate, and it really sets the standard for how the political actors are going interact among each other in the authority and the reach of the centralized government. But just as in American politics in the antebellum period, it’s really states versus states or coalitions versus coalitions. You see the same patterns in the European Union, with Germany and France and their allies against a fragmented collection of other nation-states. I made reference to the economic integration and the comment was made: “Well, England’s not gonna ratify this. They’re not gonna become a member.” My response is that eventually they will if they don’t want to be left behind economically. The economic arguments are tremendous, and the benefits are pretty persuasive because it’s really creating a free trade zone. Who could be against that? And so, you have all this “prosperity,” presumably. I think it’s remains to be seen how they’re going work this out. But England, I mean, can you imagine the Pound versus the Euro, if they decide that they’re going to go their own way?
The Confederate States of America had two constitutions, a provisional Constitution that was in effect from February, 1861 to February, 1862 until the permanent Constitution, which was ratified in March of 1861, became operational. During the transition from the U.S. Constitution to the Confederate Constitutions, the U.S. statutes and case law remained in force until or unless repealed by the Confederate Congress or overturned by a Confederate court. Although Article III, Section One of the Confederate Constitution authorized the establishment of a Supreme Court, the Confederate Congress did not pass the enabling legislation, preferring to defer to State high courts as the final arbiters of constitutional law during the War. This presented a lot of problems for the Davis administration, but there was no Confederate Supreme Court. They came close a couple of times, but there was just so much going on and so much dissatisfaction with the way the U.S. Supreme Court had behaved that they said: “Well, let’s just keep the status quo. We’ll defer to the State supreme courts for the time being.” Nevertheless, the Confederate constitution was firmly grounded in American constitutionalism and its foundation, English common law. The innovations the Confederate Constitution made to its U.S. counterpart reflect the Southern States’ resistance to national development. For example, the Supreme Court’s nationalistic case law and the Congressional fiscal policies that were centralizing power at the federal level at the expense of States’ Rights. So, by this time the Southern States and the Southern leadership were fed up with centralization and they wanted to have some solid checks on the Confederate central government. This Confederate constitution is essentially a reactionary document in an attempt to recover the 18th-century American Whig and Jeffersonian traditions of States’ Rights. The common misunderstanding is that the Confederate Constitution is basically a copy of the U.S. Constitution with some minor editorial changes. When Southern states seceded from the Union, they did not reject unionism per se. They were very much convinced of the utility of membership in a voluntary Union consisting of other States acting in concert for their collective interests. They were also convinced that the Union from which they recently seceded provided a constitutional blueprint from which to structure a new Union. Most scholarship considers the acceptance of the 1789 constitutional blueprint as evidence that Southern secession was illegitimate and merely the result of sour grapes stemming from their declining influence in national politics. Hence the rules of the political game (the U.S. Constitution) were fine, they just wanted a new set of players so that Southern political interests would dominate. Such scholarship cites the lack of a secession clause in the Confederate Constitution as evidence that the Southern States were disingenuous, that they favoured a strong national government, but one dominated by Southern interests. These claims overlook the fact that the framers of the Confederate Constitution considered including a secession clause, but decided that such a clause would be superfluous in a voluntary Union based upon the consent of its members States. They also did not explicitly include a secession clause because to do so, they said, would be conceding the argument to the Republicans, that if it’s not explicit, you don’t have it. You see what I’m saying? First of all, it wasn’t needed because the Union was voluntary, membership was voluntary, based on consent, not coercion. Secondly, if you put it in there, you’re conceding the argument to the Republican nationalists.
Now, it is true that much of the Confederate Constitution is a word-for-word copy of the U.S. Constitution, but it is also true that the structural and linguistic deviations from the U.S. Constitution have profound implications for the depth and breadth of the central government’s powers vis-à-vis the States. It is well known that the U.S. Supreme Court Justices have pedantically scoured the structure and wording of the U.S. Constitution to determine the power relations among State and national governments. The changes to be found in the Confederate Constitution substantively alter juridical prerogatives that favour central power over States’ Rights. A review of the Confederate Constitution makes this clear. Now, I don’t have time to go to into all the innovations, but let me just go through a few of them. The Preamble to the Confederate Constitution contains five substantive qualifications to the U.S. Constitution’s Preamble. First, it affirms that the people of the Confederacy ordained and established the Confederate Constitution through their respective States, “each State acting in its sovereign and independent character.” That’s straight out of the last paragraph of the Declaration of Independence. The U.S. Supreme Court has consistently maintained that the U.S. Constitution was ordained and established by the American people, not the States. The Court first did this in 1798 in a case dealing with ex post facto law, Calder v. Bull. Justice Samuel Chase insisted repeatedly that it was a collection of individuals that formed the Constitution, not individual sovereign States. Justice Iredell said so in his opinion as well. So, this has early precedents, 18th-century precedents, in American case law.
Second, the Confederate Preamble recovers the traditions of the Declaration of Independence, the Articles of Confederation, and an original view of the U.S. Constitution by reaffirming that the States are the sources of authority for the central government. The Confederate framers deleted the phrases “provide for the common defense” and “promote the general welfare” in the attempt to particularize the document’s application to the States, as opposed to a general application to the people of the Confederacy. This is closer to the commitment to States’ Rights found in Article II of the Articles of Confederation, which states: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” The third innovation in the Preamble is the purpose of the Confederate Constitution, which was to “form a permanent federal government” and not “a more perfect union.” And we’ve already discussed Lincoln and his more perfect union ideas and they represent the nationalist interpretation of the U.S. Constitution. Lincoln equated a more perfect union with an indissoluble and perpetual union. He looked at the title of the “Articles of Confederation Perpetual Union” and said: “Well, if something perpetual is made perfect, it becomes indissoluble,” but we’ve discussed that in some detail over the last couple days, so I’m not gonna belabour that point. Fourth, the Preamble, as well as Article I, Section Eight, Clause One, lacks the “general welfare” clause. So, the “general welfare” clause is taken out of the Confederate Constitution completely.
Fifth, the Preamble invokes “the favour and guidance of Almighty God.” Such an invocation is not necessarily consistent with the thrust of abolitionism, which placed its faith in “higher law” (whatever that meant) and human reason. Now, the Confederate framers were very much aware of the theological debate between Northern theologians and Southern theologians, and the Northern theologians knew they could not make a biblical argument for abolition. The Southern theologians won the argument. The Bible does sanction slavery, though perhaps not the type of slavery in the South, and the Southerners were saying: “Well, if we’re gonna have slavery, we need to make it a Christian form of slavery. We need to clean up our act.” But if you look at the debates that were happening in the North (and this goes back to the 1830’s), because the Bible did not sanction abolitionism, they resorted to this “higher law” doctrine, and this is where you start seeing people in the Northeast, especially Boston, denying the divinity of Christ and the legitimacy of the Bible. As a matter of fact, the Protestant denominations began to split much earlier than the States began to separate. The Unitarians, transcendentalists, and other various heresies relied on this notion of higher law, that you go to natural justice, natural law, and that’s really a trump card to neutralize the importance of revelation. Going back to Calder v. Bull, Justice Chase appealed to natural law. Justice Iredell chastised Chase because “natural law” is an ill-defined concept that can mean virtually anything to anyone. So, these natural law arguments have precedent in American jurisprudence. Going back to the original point, invoking “the favour and guidance of Almighty God” makes the Confederate Constitution not only a compact among the States, but a covenant. This is something else that Daniel Lazar discusses in some detail. Making it a covenant means that if is you break this agreement, you’re not only offending your fellow member states, but you also are offending God because we’ve made a covenant that we’re going to do our best to operate in good faith with one another. It adds an ethical and moral dimension to this confederation, as opposed to strictly crass political interests.
Okay. Let’s go through Article I and look at some of the changes there. Article I, Section One of the U.S. Constitution stipulates: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” In the C.S. Constitution, the powers are not granted, but delegated. Jurisprudentially there is a substantive difference between granted powers and delegated powers. Chief Justice John Marshall went through this in great detail in McCulloch v. Maryland when discussing the constitutionality of the branch of the Bank of the United States in Baltimore. “Granting” means handing over the power, while “delegating” is saying you can exercise the power, but there are conditions attached. The Confederate framers were familiar with this jurisprudential argument and thus changed the language from “granted” to “delegated.” So, you have a clearer relationship of principals to their agent. This is just clarifying things, because, remember, they took American case law and made it operational in the Confederacy. So, if they were going to have a Confederate Supreme Court, they’d have to acknowledge this difference because Marshall made such a big deal about it in McCulloch v. Maryland. So, they picked these words apart in the attempt to give an interpretation to a clause or a word that supports their side of the argument. This is just more pro-States Rights’, this change from “granted” to “delegated,” and this preference for the States is reaffirmed in the Confederate version of the reserved State powers. The Tenth Amendment to the U.S. Constitution stipulates: “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.” The Confederate equivalent (Article VI, Section Six) says the same thing, but adds “thereof” at the end. The powers are reserved to the States or the people of the States, not to the people at large. Once again, they are clarifying something that was thought to be ambiguous as the Constitution was being interpreted by politicians and judges. According to Chief Justice Marshall, constitutional powers granted to the federal government cannot be recalled by a State because such powers were not granted by a State, but by the “American people.” The “American people” would have to act en masse, together as a collectivity, in order to recall granted powers. Per Marshall: “Granted powers denote the voluntary transfer, with or without compensation; a gift or bestowal by one having control or authority over it.” In other words, granting powers is like a gift. It’s yours forever. In the case of those powers granted by the “American people” to the Congress, those powers are now in the possession of the Congress and the people have relinquished all rights to those powers. Now, in 1791 the States hedged their bets and insisted upon the Tenth Amendment’s use of “delegated” rather than “granted,” because delegated merely empowers the Congress to perform tasks on behalf of the States as their agent. Delegating powers to the Confederate Congress is much more consistent with States’ Rights than granting powers, as is the Tenth Amendment’s change from “granted” to “delegated.”
Article I, Section Two, Clause One stipulates:
“The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall be citizens of the Confederate States, and have the qualifications requisite for electors of the most numerous branch of the State Legislature; but no person of foreign birth, not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political, State or Federal.”
This qualification manifests an appreciation of a Southern community distinct from Northern and Western States. The Confederate framers anticipated a deluge of immigration from the Northern States and abroad as the Confederacy prospered commercially. In an attempt to mitigate the device of national politics experienced in the old Union, the Confederate framers stifled Northern interests relocated in the Confederacy from percolating upward by essentially disenfranchising non-indigenous Southerners. This debate is very timely, because you probably know in San Francisco, they’re gonna give the right to vote in local elections (for school boards and other things) to non-citizen immigrants. This used to be a common practice in other places such New York City, where you have this notion of home rule, that if people are paying taxes, they can vote. But as opponents to this realize, this is just a step towards letting immigrants vote in State and federal elections.
In Article IV, Section Three, the Confederate Constitution says: “Other States may be admitted into this Confederacy by a vote of two- thirds of the whole House of Representatives and two-thirds of the Senate, the Senate voting by States.” And this is so non-Southern interests could have a voice in Confederate politics, but such a state could only be admitted by two-thirds vote. Whereas in the U.S. Constitution (Article IV, Sec. Three), admission to the Union required only a majority vote. So, the Confederate framers took membership much more seriously. Once again, they anticipated that once they got established, other States would leave the Union and join the Confederacy. And Northerners in the late antebellum period, William H. Seward especially, were concerned about this. They didn’t want this free trade zone in the South competing with their protectionist policies in the North. The Confederacy was thinking about expansion in 1861, and the Northern response was thinking: “Well, their expansion is our contraction.” And then you have this notion in the North that they’re out to save the world, and all their cultural and economic plans are thwarted if the Confederacy is allowed to survive, because he Confederate was very serious about this. They were open to the inclusion, the membership, of free states. That’s why they had provisions and what they have future of slave laws because they anticipated free states being in the Confederacy. That’s why they essentially incorporated Dred Scott into the Constitution. They anticipated a huge Confederacy based upon voluntarism as people pursued their collective interests by joining in this Confederate union. So, if you’re sitting in Boston, you’re thinking: “Well, gee, if this thing gets going, our imperialistic plans, both cultural and economic, are doomed.”
Let me skip to Article I, Section Six, which reads: “Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department.” So, the executive branch is sort of like a cabinet government. You could have department heads from the executive branch sitting as non-voting members of the Congress, so that you could have open discussions about what the central government is doing. And this is supplementing the committee system of the Congress. There are some major changes to Article I, Section Eight. It reads: “The Congress shall have power to lay and collect taxes, duties, imposts, and excises for revenue,” and here’s the innovation, “for revenue, necessary to pay the debts, provide for the common defense, and carry on the Government of the Confederate States; but no bounties shall be granted from the Treasury; nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry; and all duties, imposts, and excises shall be uniform throughout the Confederate States.” So, when you combine this with the exclusion of the general welfare clause, it essentially becomes a way of stopping pork-barrel legislation. You cannot have these bounties. You cannot be passing legislation for quote, and Then there is a specific provision (Article I, Section Eight, Clause Three) which basically prohibited internal improvements and protectionism. You could have internal improvements, both by Congress and at the State level. That was the innovation of Article I Section Eight, Clause Three, and Article I, Section Ten, Clauses Two and Three. But that money had to be spent in those areas where the commerce was taking place. So, they could tax exports, but the people who paid the exports had to be using those ports and the money had to be spent there to enhance the facilities. The Confederate Congress couldn’t have a tax on exports in Charleston and spend the money collected in Savannah.
Another innovation was included in Article I, Section Eight, Clause Seven. Congress could “establish post offices and post routes,” post routes, not roads, but routes, “but the expenses of the Post Office Department, after the 1st day of March in the year of our Lord eighteen hundred and sixty-three, shall be paid out of its own revenues.” Now, this was a big deal because the expense of the post office was enormous and the post office provided huge amounts of patronage back in those days. Abraham Lincoln actually violated the law. He was both a surveyor and ran a post office in Illinois, and you weren’t supposed to have both positions simultaneously. There’s this one quotation when this was being discussed: “Why should the poor man have to pay for sending and delivering the rich man’s mail? The people who use the mail should pay for it instead of being subsidized by general revenue.” So, you know, this is the notion of fiscal conservatism. The post office has to wash its own face instead of giving opportunities for patronage and corruption at the expense of the tax-payers.
Article I, Section Nine, Clause One prohibited the slave trade but it was not enforced. You actually had a pretty vibrant slave trading going on, even up to and during the civil war, by Northern interests. Article I, Section Nine, Clause Six allowed taxes on exports, but it took a two-thirds vote of both houses of Congress to pass them. Article I, Section Nine, Clauses Nine, Ten, and Twenty say:
“Congress shall appropriate no money from the Treasury except by a vote of two-thirds of both Houses, taken by yeas and nays, unless it be asked and estimated for by some one of the heads of departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the Confederate States, the justice of which shall have been judicially declared by a tribunal for the investigation of claims against the Government, which it is hereby made the duty of Congress to establish…All bills appropriating money shall specify in Federal currency the exact amount of each appropriation and the purposes for which it is made; and Congress shall grant no extra compensation to any public contractor, officer, agent, or servant, after such contract shall have been made or such service rendered… Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.”
So, you don’t have these riders, and it takes a two-thirds vote to pass an appropriations bill unless the executive branch submits the proposal. There are quite a few more changes that are important and substantive. There were term limits on the Presidency, which the U.S. Constitution didn’t have until the Twenty-Second Amendment passed after F.D.R.’s death. The U.S. Bill of Rights was incorporated into the text (Article One, Section Nine). How to deal with the territories (Article IV, Section Three, Clause Three) and how to amend the Constitution were both changed from the U.S. Constitution. Three States could convene a constitutional convention. It wasn’t up to the Congress. That’s absent. Only the States could convene a constitutional convention, and it only took three. States could impeach judicial and other federal officers within their jurisdiction (Article One, Section Two, Clause Five). They had to be tried in the Senate, but they could still be impeached by State legislatures. So, the Confederate Constitution really ramped up the States’ Rights dimension of the Confederate union vis-à-vis the United States, because they learned from experience. It’s a practical document. It is still conducive to “a commercial empire,” as Hamilton talked about in Federalist Number One. They used the same language. They wanted a prosperous economy and they anticipated that they would be so successful that other States would be banging at the door to get into the Confederacy. Thank you.
In this case, U.S. Term Limits Inc., v. Thornton, by a 5-4 ruling, the Supreme Court basically gelded the Tenth Amendment. The Supreme Court found that the power to add such qualifications was not within the “original powers” of the States because no such right existed before the enactment of the Constitution. Therefore, the Tenth Amendment did not reserve this right for the States. Additionally, the Supreme Court found that the Framers intended the Constitution to be the sole source of qualifications for members of Congress, thereby divesting the States of any power to add qualifications. Arkansas also argued that the amendment is not a qualification, but rather an acceptable use of the State’s power to regulate the “Times, Places, and Manner of Holding Elections” under Article I. The Supreme Court found this Article only allowed the States to create procedural regulations, not to exclude classes of candidates. A state congressional term limits amendment is unconstitutional if it has the likely effect of handicapping a class of candidates and “has the sole purpose of creating additional qualifications indirectly.” Furthermore, “…allowing individual States to craft their own congressional qualifications would erode the structure designed by the Framers to form a ‘more perfect Union.'” In a concurring opinion, Justice Anthony Kennedy declared the amendment would interfere with the “relationship between the people of the Nation and their National Government,” and is therefore unconstitutional. Clarence Thomas’s dissent was fiery: “It is ironic that the Court bases today’s decision on the right of the people to ‘choose whom they please to govern them.’ Under our Constitution, there is only one State whose people have the right to ‘choose whom they please’ to represent Arkansas in Congress… Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.” In making this argument, Thomas essentially echoed judge and legal scholar William Rawle, who wrote in his View of the Constitution of the United States: “It depends on the state itself to retain or abolish the principle of representation, [in the Federal Congress] because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle of which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.”
At this point in SCOTUS history, there were no majority and minority opinions. Each Justice simply wrote his own. Significantly, Chase appeals to natural law over and over again throughout his opinion. Justice James Iredell excoriated him for it. For the full text of all the Justices’ opinions, see: https://supreme.justia.com/cases/federal/us/3/386/#opinions
For details on the Southern position and the theological debate as a whole, see Eugene Genovese and Elizabeth Fox-Genovese, The Mind of the Master Class; and Joseph Jay, Sacred Conviction.
The full text of Marshall’s opinion can be found here: https://supreme.justia.com/cases/federal/us/17/316/
As previously noted, Marshall also assumed there was such a thing as one American people, as opposed to multiple American peoples, each inhabiting a sovereign, distinct, unique political community called a State. Joseph Story made the same assertion in his Commentaries to support his “the Union created the states” interpretation of the Constitution (see also Story’s ruling in Martin v. Hunter’s Lessee). Long prior to the South’s secession, John Taylor of Caroline and Abel Upshur both addressed this claim. For Taylor, see New Views of the Constitution of the United States. For Upshur, see A Brief Enquiry into the Nature and Character of the Federal Government.
A paraphrase of the statement quoted at length in the second-to-last paragraph of this article.