- Albert Jay Nock, Our Enemy, The State, p. 171Lincoln overruled the opinion of Chief Justice Taney that suspension of habeas corpus was unconstitutional, and in consequence the mode of the State was, until 1865, a monocratic military despotism. . . . The doctrine of “reserved powers” was knaved up ex post facto as a justification for his acts, but as far as the intent of the constitution is concerned, it was obviously pure invention. In fact, a very good case could be made out for the assertion that Lincoln's acts resulted in a permanent radical change in the entire system of constitutional “interpretation” — that since his time, “interpretations” have not been interpretations of the constitution, but merely of public policy. . . . A strict constitutionalist might indeed say that the constitution died in 1861, and one would have to scratch one's head pretty diligently to refute him.
Albert Jay Nock makes quite the good point, I think (admittedly, b/c I agree). As a southern nationalist, I hold the view that the United States gov't is illegitimate. Why? B/c Lincoln killed the constitution that defined the United States. The following will be an explanation of why.
In 1776, thirteen American colonies declared themselves independent from the Empire of Great Britain. They seceded from a political union. Twelve years later, those same colonies, now styled "states," seceded once more from the United States of America as defined by the Articles of Confederation and Perpetual Union to form yet another new gov't, the United States of America as defined by the Constitution. In 1861, that same Union sought by force of arms to end and subjugate a new political union formed by the southern states that had seceded. This secession, unlike the previous two, was negated by military coercion and domination. The Confederate States of America, a confederation styled in similar course to the United States as defined by the Articles of Confederation, died in 1865 - as did the very constitution that defined the United States of America.
I am unabashedly pro-South. But make no mistake, I am no neo-Confederate. I do not believe that the South should have won the war. I in fact, am pleased that the South lost the war. I say this, despite being a Southern Nationalist, b/c I am also an Anarcho-Capitalist. I oppose the State. The centralized authority that Hobbes described as being vast in scale and eternal as a form of gov't. I oppose the State. The 20th century was a century dominated by the rise of the State. It exists everywhere. Moreover, I oppose socialism as anti-human and evil. The 20th century was also a century dominated by the acceptance of varying degrees of socialism everywhere. From America to the Soviet Union, socialism was adopted. I do not believe my beloved South would have long survived the egalitarian horrors that arose in the aftermath of the Great War and led to the greater horrors of the second World War and the subsequent half century long "cold war." Dixie has been vindicated by her death at the hands of the Union. I am sad she died, but pleased that she escaped the perverting influences of centralizing gov't.
That being said, I in no way approve of the results of the War for Southern Independence. The Glorious Union sought to subjugate a rival republic and inso doing, it destroyed the confederation as was established by the Constitution in 1788, and replaced it with a federation as was established by the new Constitution in 1865 - the 13th, 14th, and 15th amendments largely nullified the Bill of Rights and established a new understanding of Federal-state relations. The Glorious Union, and the Constitution died on 27 May 1861 when the first Union troop set foot on Virginia soil. Lincoln is not simply a murderer of people and a destroyer of property, but a destroyer of liberty and ideas as well.
The War for Southern Independence resulted in more than 620,000 deaths (be they combat related or otherwise), more than 400,000 wounded or missing souls, billions of dollars in property damage, and a fundamental alteration of the relationship of power in our gov't. Innovations previously unknown in American life were foisted upon the people of both the Union and the Confederacy. A universal conscription, the income tax, standing armies, an outright embrace of imperialism, and a fiat money banking policy. In her desperation to survive, Dixie turned against her initial stance for liberty and followed the Union down the path towards despotism - hence my belief that she would not have been able to resist 20th century trends that led to more than 150 million deaths in peacetime alone. The War for Southern Independence was unnecessary and, for the Union, quite illegal.
Lincoln was a brilliant lawyer for the railways (see also, Lobbyist), a man of conviction, and a man of words - it cannot be said he was a poor statesman. He may have been repulsive to my sensibilities, but he was, otherwise, a man to be acknowledged. Since he was the progenitor of the invasion and the foremost authority on the legality of the invasion, he and he alone bares responsibility for the horrors resulting from that invasion. Lincoln, much like Mao, and Stalin was guilty of committing genocide. Therefore, given that Lincoln was a lawyer, a superb writer and speaker, and was the foremost authority on the legality of the invasion of the South, I direct all of my criticisms at him and the justifications he used.
I know a number of readers will roll their eyes in exasperation. "Not this again!" They will say. Given that my country (Georgia) and my chosen region demanding my loyalty (the Southland) was absolutely devastated to such a degree that we have yet to fully recover economically, politically, and culturally even 150 years later, and given that there have been absolutely no textual alterations to the Constitution as it was written in 1788 by anyone except to add several new amendments which, for all their powers, never mentioned secession, it is quite understandable why this subject continues to be one of fascination and debate. We cannot get over it b/c the losers of wars do not easily swallow domination. We cannot get over it b/c the issues of the war were never addressed. Even the dismissive references to the Supreme Court cases suggest that this issue cannot be easily laid to rest:
- White v Hart (1871)The States are organisms for the performance of their appropriate functions in the vital system of the larger polity, of which, in this aspect of the subject, they form a part, and which would perish if they . . . ceased to perform their allotted work.
- Texas v White (1868)Without the States in union, there could be no such political body as the United States
As a matter of undeniable fact, there has been absolutely no attempt to settle this issue legally. Historically, politically, and culturally settled is not legally settled. Consider that in his inaugural, Lincoln made the following statement:
The power confided in me, will be used to hold, occupy, and possess the property, and places belonging to the government, and to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion—no using of force against, or among the people anywhere.
In other words, not even Lincoln, upon assuming the office of president, disputed the right of secession. His primary concern was the collection of duties and imposts. He was demanding that the South pay for its freedom by tribute. Unless of course, "Honest Abe" was being dishonest?
What were Lincoln's legal arguments for invasion? In his Special Message to the Congress, delivered 4 July 1861, Lincoln said:
They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps, through all the incidents, to the complete destruction of the Union. The sophism itself is, that any state of the Union may, consistently with the national Constitution, and therefore lawfully, and peacefully, withdraw from the Union, without the consent of the Union, or of any other state.
Curious that he, an accomplished lawyer, would consider the words of the progenitor of secessionist initiatives, Thomas Jefferson, and one of Linocln's most admired statesmen, a mere "sophism":
The several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of the Constitution of the United States, and of certain amendments thereto, they constituted a general government for general purposes, delegated to that government certain powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no effect
But Lincoln continues with:
This sophism derives much-perhaps the whole—of its currency, from the assumption, that there is some omnipotent, and sacred supremacy, pertaining to a State — to each State of our Federal Union.
Lolwut? I've read alot, alot, alot of secessionist material and I've never come across this nugget except when reading Lincoln's
description of the Union. Lincoln further challenges the perception that the states created the Union by stating that, besides Texas, no state had ever existed outside the Union. Which is strange for an accomplished lawyer to say, although he was a lobbyist so perhaps I give the man too much credit? Lincoln argues that the states were a Union before 1776, remained a Union in 1788, and continued as Union since he alone denied the legality of the secessions in 1861. In doing this, he confuses 4 different understandings of union. The 13 colonies were, it is true, united in their resistance to British innovation and taxation before 1776. But this is no political union and being that there was no murmuring of secession before 4 July 1776, it seems paradoxical that Lincoln should seek legitimacy for his argument by citing the united colonial front against the British as there were no legal documents accounting for secession before 1776. Buddy's opinion here is moot. Secessionist talk never existed. He goes on to cite the union as was "created" by the Declaration of Independence in 1776. It is unlikely that a man of Lincoln's intelligence would have overlooked the not so subtle fact that the Declaration established a legal right of secession from Great Britain as inalienable.
He goes on to cite the Articles of Confederation and Perpetual Union:
- Article XIIIThe Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.
Yet the thirteenth article stands in contrast to the second article:
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.
Or was it contrast? It seems rather obvious that the Articles established a Union between the several states that was to be perpetual and unalterable while acknowledging the sovereignty, freedom, and independence of each involved. Furthermore, Lincoln's citation is undermined by the fact that the Articles of Confederation were, despite their asserted perpetuity, altered by secession! Recall that the proposed constitution was to take effect upon the ratification of 9 states. Should we consider the remaining 4 states to be a part of a Union they did not originally seek to join? In 1788, there were only 9 states in the Union as defined by the Constitution. Therefore, the new Union seceded from the original Union despite the explicit prohibition on alteration save by unanimous consent found in the aforementioned article. Let us not forget that "perpetual" was mentioned many times in the Articles of Confederation, and that the same generation that ratified the Articles ratified the Constitution. Is "perpetual" mentioned in the Constitution? Go ahead, look. I'll wait. Despite all the copypasta of the Founders between the two documents, they seem to have missed that ever so significant word, "perpetual." Yet we are to assume it to be implied, says Lincoln, by the phrase "a more perfect Union." Forgive me if I require a visual expression of Lincoln's opinion on the matter:
Mod Edit: You are not forgiven.
Another word missing from the Constitutional lexicon? Secession. That's right, secession was never mentioned in the constitution and, given that the 9th and 10th amendments make explicit that any power not mentioned explicitly in reference to the federal gov't of the United States was retained by the individual states, any assertion that secession must be mentioned while perpetual be merely implied is rather vapid... no, that's not quite right... it's fucking stupid.
But now that we've mentioned the 10th amendment, I think we should explore Lincoln's bear shit a bit more. The fact is that in his argument for the illegality of secession and the legality of invasion, he never mentions the 9th nor the 10th amendment at all. In fact, he makes one up, states have no rights that are not expressly stated in the Constitution.
Refer to the above image for an appropriate rendition of Lincoln's logic. He failed to consider:
- 9th AmendmentThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- 10th AmendmentThe 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.
Now before any of you go off about any more nonsense regarding the Nationalist concept of the Union, consider the fact that the Constitutional Convention considered this little nugget for inclusion:
to call forth the force of the union against any member of the union, failing to fulfil its duty under the articles thereof.
In response, a minor player in the Convention (I rather doubt many have heard of him so I hesitate to mention his name but I shall at the risk of any respectability that this opinion might carry), James Madison, said this:
- The Records of the Federal Convention, Max Farrand, Vol. 1, pg. 47.A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.
The motion considered was rejected immediately. Thus, the right to secede is included among the "reserved powers" of the several states found in the 10th Amendment. Add to this the historical fact that those states had that right in 1776, and in 1788, and that four states, including New York, maintained an addendum - “the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness.” Unfortunately, the pain for the Nationalist theory of the Union gets worse when we consider the 2nd Amendment:
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
Now, if we are to consider the historical events that lead to the ratification of the second amendment, and if we accept the rights described in this amendment as legitimate, then it should be no great leap to understand that if it is legitimate for the people to resist the tyranny of their Federal gov't by force of arms, then resistance by peaceful secession is also legitimate. But I'm getting away from the point of this paper -Lincoln's argument for the legality of invasion or rather, the illegality of secession.
Lincoln cited the Supremacy Clause:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
and the Guarantee Clause:
The United States shall guarantee to every State in this Union a Republican Form of Government
Now, if we were to use the supremacy clause as justification for the nullification of secession, then that would obviously beg the question, wouldn't it? The supremacy clause can be used as an argument against secession only if the Constitution requires a state to remain part of the union. Without an "imprisonment clause," the supremacy clause does not apply to a state that has left the Union. Thus, arguments from the supremacy clause assume as a premise exactly what is in dispute: that the state is still part of the Union and thus bound by the supremacy clause. In light of the arguments previously made that the Constitution allows secession, one can just as easily argue that the supremacy clause barred the Union army's invasion of the South!
Additionally, Lincoln's citation of the Guarantee Clause again, begs the question. Furthermore, he forgot to mention the rest of the clause when he told congress:
If a State may lawfully go out of the Union, having done so, it may also discard the republican form of government; so that to prevent its going out, is an indispensable means, to the end, of maintaining the guaranty mentioned; and when an end is lawful and obligatory, the indispensable means to it, are also lawful, and obligatory.
The remaining bit of the guarantee clause being:
“The Unites States shall . . . protect each of them from Invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.”
I wonder why old boy didn't mention this? Maybe it was b/c he was planning an invasion himself? Maybe b/c none of the Confederate legislatures had requested his intervention? In fact, when we consider this clause, we find it rather offensive that Lincoln would use this as an argument for invasion of the South (to guarantee a republican form of gov't) when, upon victory, the Southern gov'ts were immediately dissolved and replaced by military governors. Recall again, the aforementioned court cases. While it may be true that the Union was intended to perpetuate by the founders, I rather doubt that they would have approved of military dictatorship as a requirement for the maintenance of that perpetuity. Since the Lincoln administration invalidated the Guarantee Clause by invading the South, any assertion of constitutional authority to prevent secession is equally invalidated.
In Coleman v Tennessee(1879), the Supreme Court defended military occupation on the grounds that:
Though the late war was not between independent nations, but between different portions of the same nation, yet having taken the proportions of a territorial war, the insurgents having become formidable enough to be recognized as belligerants, the same doctrine must be held to apply. The right to govern the territory of the enemy during its military occupation is one of the incidents of war . . . and the character and form of the government to be established depend entirely upon the laws of the conquering State or the orders of its military commander.
Read that again if you got confused. That's right. The Supreme Court is defending the unconstitutional act of military occupation by invoking international law while at the same time denying that the Confederate States were separate nations. To invoke international law instead of United States law is to implicitly acknowledge the validity and legality of secession and the illegality of the invasion. In short, the Supreme Court declared that in order to subjugate the South, it was necessary that Lincoln himself violate the Supremacy Clause by justifying his actions via international law.
Several of you will say that since the Constitution makes no explicit mention of secession, that secession is therefore illegal. I would reply that the constitution also fails to make explicit the mention of invasion. The strongest case against the legality of secession comes, not from the silly supreme court cases mentioned above that are so often cited (neither of which deal squarely with the issue nor do they contain detailed and serious analysis of the issues, arguments, and constitutional clauses one would expect to see in a comprehensive treatment of the issue by the highest court in the land), but in the 14th Amendment.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Oh wait... did I read that right? Yes I did, in fact. B/c while the 14th Amendment regularly discusses issues surrounding the war, the language present in it necessarily implies that secession is barred. Which obviously implies that secession was a right that was legally enjoyed by the South before the war. Hmmm.... So I suppose that the 14th Amendment does actually help the case for claiming that secession was illegal either, does it? Here's a fun thought, why didn't the men who had just fought a war to nullify secession add into the 14th amendment a provision permanently prohibiting secession?
The fact of the matter is that the invasion and military occupation were illegal, secession was legal. The existence of slavery in before 1865 changes nothing in this regard. Moreover, chattel slavery no longer exists, so it can no longer be used to justify either legally or morally war on a seceding state. Inso doing, the invader creates a new slavery, state slavery. A slavery that dominates us all right now, at this moment. All forms of forced association are forms of slavery. The entire South is now the slave, the Union the master. The war was not fought to end slavery, it was fought to increase it.
