Rejoinder  

Liberty & Disunion, Now & Forever

by Joseph Sobran

Last issue, Timothy Sandefur argued that the Civil War was constitutional as well as just. But he has understood the issue in terms inherited directly from Lincoln's rhetoric. That simply won't do.

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Mr. Sandefur seems, to me, confused on a basic point, addressed at length by Jefferson Davis in his memoirs. "We the people" were "we the people of the United States"; that is, the people as members of states; that is, of the "free and independent states." I don't, by the way, see how it is "ironic" that I quote the very phrase on which my argument depends and Mr. Sandefur's argument founders.

"We the people" weren't a simple numerical majority, whose membership in states was submerged in membership in a "nation." This conception of "the people" as mere mass belongs to a later era, the era of democracy and nationalism. "We the people of the United States" ratified the Constitution as members of distinct states, not en masse by national referendum. That is why we can say both that "the people" and "the states" ratified the Constitution.

This articulation of the people into states is, after all, the reason we have the Electoral College, which is now generally regarded as an anachronism, but which reflects the original primacy of the states; it is why senators were originally chosen by state legislatures, not by popular vote; it is why there was a Senate, where even the smallest state was equal to the largest, in the first place. From the standpoint of mass democracy, the Senate is an irrational institution, in which people are unequally represented. It remains as a mere relic of state sovereignty.

This sovereignty is also why the Federal powers were spoken of as "delegated." Powers are delegated by a superior authority to a lesser one, and they may be revoked at the pleasure of the superior authority. An authority whose powers are merely contingent, or "delegated," can't be the ultimate ruler. That role belonged decisively to "the people" — the people of the states. "States' rights" is merely shorthand for the sovereignty of the people. (This is a dubious idea in itself, but we are discussing the original, common understanding of the confederated republic.)

The identification of "the states" with "the people" also resolves what has become the riddle of the Second Amendment. Does it protect a right of states or of individuals? The answer is both. It forbids the Federal Government to disarm the people of "a free state," whose "security" (against federal invasion itself, if it comes to that) depends on their "right to keep and bear arms." If they should choose to secede, they are assured of the means to do so. Like the rest of the Bill of Rights, the amendment is a safeguard against federal power. It is meant to put teeth in the people's — and the states' — freedom. (See The Federalist, 28, 29, 46.)

To miss all this is to be blind to the design of the Constitution. It speaks constantly of the "states," often in the plural, never of the "nation" or "Union" as later nationalists and consolidationists would have it. And it is chiefly because of the Civil War that the political idiom of the older America is now almost foreign to us. We may easily suppose that we are speaking the same language which that America spoke when we clearly aren't. Many key terms of the old vocabulary have lost their old force: among them, sovereignty, delegate, usurp, confederation, and (I must say again) even state.

We must not skate over the many documents in which the "sovereignty, freedom, and independence" of the states — that is, of the people of the "several states" — were emphatically claimed and reaffirmed. Mr. Sandefur tells us that these documents (Federalist and anti-Federalist alike!) deny these attributes of the states. I must have missed something.

The Declaration doesn't announce a "Union," let alone an indissoluble one or what Mr. Sandefur oddly calls a "single political unit." It announces 13 distinct political units in firm alliance, "free and independent" not only of Britain, but of all other states, including each other. They weren't vassal states announcing their fealty to a new master.

The Articles of Confederation repeat the point: each state "retains" — keeps — the sovereignty it already has. Why say this, if the states weren't independent of each other? They needed each other as allies against a powerful enemy (the Articles were adopted, after all, during the Revolutionary War); yet they pointedly refused, even then, to surrender any of their sovereignty to the Union. The people of the states feared a "consolidated" central government, foreign or home-grown, and we can hardly doubt that if they had understood the Constitution to deny state sovereignty, they would simply have refused to ratify it. Is it even conceivable that they would have consented to submit to an irrevocable contract to obey a new government, no matter how many powers it might usurp?

"Divided sovereignty" is a terribly refined idea, but it is evasive nonsense. At some point, push comes to shove, and we must face the raw question of power: who is boss? Mr. Sandefur also seems to confuse nullification and secession; nullification was a novelty, all right, but it was actually a compromise designed to avert the necessity of secession.

The Civil War was fought over secession, not slavery. Lincoln himself was quite clear, even vehement, about this central issue; the northern cause acquired its anti-slavery nobility much later. And several slave-holding states seceded only when Lincoln made war on the states that had already seceded.

My remarks on Lincoln's conduct of the war weren't meant as moral criticism (though he was brutal enough); I was calling attention to the impossible position he had put himself in. He couldn't keep his oath to uphold the Constitution while denying the right of the states (again, the people of the states) to secede. He was forced to usurp powers unconstitutionally in order to "save the Constitution" on his peculiar terms. There was no way to do it constitutionally. Lincoln's conception of the Union entailed mass arrests of dissenters and even elected officials, the suppression and destruction of newspapers, arbitrary military courts, and the installation of puppet governments. I repeat: so much for self-government.

As Harry Jaffa puts it, Lincoln "discovered" a "reservoir of constitutional power" that (conveniently) authorized him to take measures that had never before been regarded as presidential prerogatives, such as arresting state legislators, as well as citizens who expressed opinions contrary to his. Presidents, especially in wartime, have been "discovering" unsuspected presidential powers ever since. Today the incumbent continues this baneful tradition. We might wish that such constitutional discoveries had been made by impartial legal scholars rather than interested parties.

I might add that Lincoln seems almost totally ignorant of the ratification debate. As far as I can tell, he never even read The Federalist. Jefferson Davis knew that debate thoroughly.

As a northerner, I would have opposed war to prevent secession, not out of any special sympathy for the South, but because the rights of my own state, and therefore my own rights, were also at stake. Mr. Sandefur (he is far from alone in this) seems to confuse secession and chattel slavery, and like Lincoln, he begs the question by equating secession with "revolt," "rebellion," and even "treason"; but we are discussing whether secession violates the U.S. Constitution, not whether slavery was either the chief motive or a sufficient reason for secession. Many abolitionists had urged their own states to secede; so had various New Englanders; and before Andrew Jackson, nobody seems to have denied that a state might peacefully withdraw from the Union.

On the other hand, wise southern leaders like Davis and Alexander Stephens warned the South against seceding. It would mean removing most Democrats from Congress and giving the Republicans majorities in both houses. There would then be nothing to stop Lincoln from waging an unconstitutional war, which the North would surely win. And so it proved. But these men questioned only the prudence, not the right, of secession.

Faced with an earlier secession threat, Thomas Jefferson replied: "If any state in the Union will declare that it prefers separation . . . to continuance in union . . . I have no hesitation in saying, 'Let us separate.'" Apparently Jefferson was unaware that his Declaration of Independence had created an indissoluble Union. Nor did he suppose that the Constitution had repealed the "unalienable rights" of the people of the states.

But what about slavery? Constitutionally speaking, it is irrelevant. The validity of a legal right doesn't depend on the purpose for which it is exercised; it may be claimed even by "wolves," to use Mr. Sandefur's terms. If we have a legal right to free speech, we don't have to justify the specific content of our speech in order to exercise that right. If the people of a state have a legal right to secede, they possess it regardless of why they choose to do so.

If, in other words, chattel slavery had been a thousand times worse than it was, it wouldn't affect the constitutional issue a whit. That issue must be settled by logic, not pathos and hyperbole. Mr. Sandefur says even 600,000,000 deaths would have been a "cheap" price to free the slaves. I'll raise him: I'll stipulate that 600,000,000,000 deaths would have been a cheap price to free a single slave. But what has this to do with whether the Constitution forbids secession?

Lincoln's war made subsequent federal tyranny possible. Not that he intended results he couldn't foresee; but we should remember that the federal income tax was one of his many innovations. Under the guise of midwifing "a new birth of freedom," he begot the Servile State in America.

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