The South Was Right
Page 27
We have now observed that the states, acting in their separate and independent capacity, exercised their sovereign authority; prior to their Fourth of July joint declaration of independence, during the Revolutionary War, their separate independence was recognized by the British Crown; they restated their separate and independent nature in the Articles of Confederation and, as separate and independent states, sent representatives to the Constitutional Convention; and subsequently, as sovereign states, they ratified the new Constitution contingent upon certain reservations of rights. Throughout this entire course of events, state sovereignty was in no way reduced, impaired, encumbered, or otherwise compromised. Sovereignty remained where it was originally—with the states and the people thereof. The question now arises: Did the states, by some specific declaration in the newly ratified Constitution, surrender their sovereignty to the central federal government?
International law requires more than an inference or even a series of inferences to determine that a nation has voluntarily surrendered its sovereignty in favor of another government. The same rule holds for the thirteen sovereign states that joined together under the compact of the Constitution to form the federal government. The states, by their own voluntary action, created as their common agent the federal government. By means of a compact the states delegated specific powers to their common agent. Their agent, the federal government, could act only in those specific areas allowed by the Constitution. Notice that nowhere in the Constitution is sovereignty specifically surrendered or transferred to the federal government. Even though this new compact limited the federal government to specific areas, there were numerous demands for an amendment similar to Article II in the Articles of Confederation to ensure that the sovereignty of the states would remain safe from the centralizing (monarchial) tendency of all governments. Thus the Ninth and Tenth Amendments were immediately added to the Constitution. The Tenth Amendment clearly states that all powers not delegated by the Constitution are reserved to the states. At the inception of the United States Constitutional Convention, the sovereign authority of the states, as we have demonstrated, was held to remain with the states. Article V of the Constitution provides that no state shall be denied equal suffrage in the Senate without its consent.13 This article recognizes the sovereign authority of the state to defend its equal representation in the Senate. Article IV, Section 3.1, provides that no state may be formed within the territory of an existing state without its consent. Who may nullify the will of Congress, the president, the Supreme Court, all other states, and the people of the United States in the aggregate, if they decide to form a new state within an existing state, contrary to the will of that existing state? By its provisions in Article IV, Section 3.1, the Constitution allows the threatened state to nullify the actions of the federal government, combinations of states, and/or the numerical majority of citizens. Article I transfers the war-making power from the sovereign states to the federal government, but the sovereign states retain the right to engage in war if in imminent danger. Such is the nature of a sovereign state—it possesses the right of self-defense!
ATTACKS AGAINST STATE SOVEREIGNTY
As we have seen, the monarchists were defeated in their early attempts to establish a strong central government patterned after the British system. They gradually moved into the Federalist camp and continued to work for a consolidation of power in the federal government. It is difficult today to assess the motives of the Federalists. Some, such as John Adams and Alexander Hamilton, were monarchists. Others, like George Washington perhaps, recalled the difficulty of defending the country when faced with an organized foreign power and feared future foreign invasion if European powers perceived the United States as a weak and disorganized country. Some, like James Madison, honestly believed that the states were a greater threat to the federal government and therefore the central government needed more powers to protect itself from state encroachments upon federal powers.14 Surely there were many who had honest motives for desiring a stronger (as opposed to an all-powerful) federal government. In the final analysis, the primary motivating factor encouraging the consolidation of power was one of commercial greed—in a word, “money.” Patrick Henry made it very clear that the purpose of the Revolutionary War was to secure for Americans not a “great and mighty empire” but the blessings of “liberty”15 (often described as the right to be left alone). This view was not shared by the writers of the Federalist Papers who declared it to be their intention to establish an American commercial empire.16 The Northeastern states desired to close the Mississippi River by giving control of it to Spain, thereby forcing trade eastward. They were also fearful that an expanding West (a substantial portion of which was then owned by Virginia) would draw off their labor supply and thus increase their cost of labor. In short, the Northeastern mercantile interest feared a loss of their political and economic control of an expanding, agricultural America. Gouverneur Morris of Massachusetts wanted to give control of the Mississippi River to Spain because he thought this would allow the Eastern states to hold the population of the West under their control.17 Captain James De Wolf, one of Rhode Island’s most prosperous slaver traders, realized the potential in developing manufacturing in the United States. He transferred capital from his slaving enterprises and built one of the earliest cotton mills in the New England states:
He [De Wolf] sensed, too, that the new industry needed political influence. … In 1821, he was elected to the United States Senate. Here he was a strong advocate of protection for the new young industries and he opposed the extension of slavery to Missouri and the West. … His interest now was no longer in the African slave but in the white mill laborer.18
Slowly political philosophy of limited versus centralized government began to take on a commercial character as the Northern states began to turn to the federal government as a source of money for internal improvements and of protection for its emerging commercial empire. The money for internal improvements in the North was derived to a greater extent from the Southern states. In the words of Virginia’s senator William Grayson, the South had become the “milch cow of the Union”!
With the ratification of the Constitution, the two opposing political theories stood face to face waiting to see who would draw first blood. It did not take long. One of the very first attempts of the Federalists to enlarge the power of the federal government, to the detriment of the states, was made by none other than the United States Supreme Court in Chisholm v. Georgia. A basic principle of sovereignty is that the sovereign power can not be brought under the jurisdiction of a court. In this case, an individual had brought suit in federal court against the sovereign state of Georgia. The states were shocked! They had been assured by no less a personage than Hamilton himself that this immunity from suit was “inherent in the nature of sovereignty.”19 John Marshall, who would later work so hard to enlarge the power of the federal government, had declared thusly:
I hope that no gentleman will think that a State will be called at the bar of the Federal court. … It is not rational to suppose that the sovereign power should be dragged before a court.20
The state of Georgia declared that to submit to the jurisdiction of the federal court would be to destroy the “retained sovereignty of the State.”21 The Federalist United States Supreme Court required only fourteen days to hear and decide the case and issue a four to one decision commanding Georgia to submit to the authority of the federal court. The Georgia legislature passed a bill ordering that any federal agent attempting to execute the court’s order should “… suffer death, without benefit of clergy, by being hanged.”22 (Oh, for such men today.) Eleven of the thirteen states immediately ratified the Eleventh Amendment declaring that the United States Supreme Court has no judicial power to hear a suit against a state brought by an individual. The Supreme Court had acted so unconstitutionally in the Chisholm case that it required an immediate constitutional amendment to protect state sovereignty.
The danger to state sovereignty
inherent in the Federalist Supreme Court was recognized by the Virginia’s Anti-Federalists, William Grayson and George Mason. While debating the proposed constitution, Grayson declared:
This court has more power than any court under heaven. … What has it in view, unless to subvert the State governments?23
George Mason’s words border upon prophecy:
When we consider the nature of these courts, we must conclude that their effect and operation will be utterly to destroy the State governments; for they will be the judges how far their laws will operate. … The principle itself goes to the destruction of the legislation of the States, whether or not it was intended … I think it will destroy the State governments. … There are many gentlemen in the United States who think it right that we should have one great, national, consolidated government, and that it was better to bring it about slowly and imperceptibly rather than all at once. … To those who think that one national consolidated government is best for America, this extensive judicial authority will be agreeable. …24
Southerners of today should not find it surprising to discover that the United States Supreme Court was the first federal department to attempt to infringe upon the rights of the sovereign states!
Congress, in 1798, demonstrated its ability to overstep its delegated powers when it passed the Alien and Sedition Acts. Essentially these acts made it a federal crime “to oppose any measure or measures of the government of the United States … if any person shall write, print, utter, or publish. …” It is evident that this piece of Federalist legislation was a direct assault upon the Bill of Rights.
As we shall see, the federal Supreme Court, who was according to Federalist theory the exclusive guardian of civil liberties, not only refused to overturn these unconstitutional acts but actually engaged in enforcing them! (Who shall guard the guards?) The purpose of these acts, passed while the Federalist John Adams of Massachusetts was president, was to stifle political opposition to Adams and his monarchist, consolidationist party.
The unreliability of the federal Supreme Court as a guardian of constitutional liberty soon became very apparent. Using these acts, federal Supreme Court Justice Chase (Justice S. Chase, Federalist, who served from 1796 to 1810, not to be confused with Justice S. P. Chase, Republican, who served from 1864 to 1873) was instrumental in having James Callender, editor of the Richmond Examiner, indicted for sedition. Callender was tried and found guilty. Charles Holt, editor of a New Haven, Connecticut, paper was tried by federal Supreme Court Justice Bushrod Washington. Vermont Congressman Matthew Lyon published an article in the Vermont Journal critical of Adams. Lyon was indicted for sedition, tried before federal Supreme Court Justice William Patterson, found guilty, and sentenced to four months in jail. David Brown refused to divulge the names of his friends who shared his Anti-Federalist views. Federal Justice Chase was so enraged that he fined Brown $450 and sentenced him to jail for eighteen months. Barely a decade had passed since the writing of the Bill of Rights and those who desired a strong central federal government (call them monarchists, Federalists, or consolidationists) had already made a mockery of American civil liberties—with the aid and participation of the United States federal Supreme Court, Congress, and the president. After four years of the Federalist John Adams as president, the voters removed King John of Massachusetts and replaced him with a Southern Anti-Federalist named Thomas Jefferson. But even so great a man as Jefferson could not construct a bulwark of sufficient strength to shield the sovereign states of the South from the attacks of the consolidationists. The system was flawed not because it lacked sufficient language in its constitution but because it lacked sufficient integrity on the part of the emerging Northern numerical majority. Commercial profits and greed will never recognize the limitations imposed upon their expansion by constitutions and political philosophy.
After the ratification of the Constitution, the monarchists gradually faded into the background and were replaced by other advocates of a strong, central government. They were known at various times by different names: consolidationists, nationalists, Federalists, Radical Republicans, and currently liberals. The one thing that is common to all is that they are continually searching for and expounding new “constitutional” theories and interpretations that would enlarge the power of the central government while subordinating the states under this newly discovered federal authority.
Federal Supreme Court Justice Joseph Story’s Commentaries on the Constitution is an example of how the consolidationists perverted the plain meaning of the Constitution and forced it to support their views. Story asserted that the federal government was a national government, supreme in its authority (i.e., sovereign), and could if necessary coerce states into submitting to national laws and policies. To negate the doctrine of state sovereignty, he asserted that (1) the people of the thirteen colonies were one people during the colonial period, (2) the people of America formed a nation by declaring their independence on July 4, 1776, (3) the state governments were organized pursuant to the instructions of the Continental Congress, (4) the preamble of the Constitution proved that “We the People” formed the federal (i.e., a national) government, and therefore, (5) sovereign authority resides in the federal government to the exclusion of the states.25 Justice Story’s perverted logic proved to be the primary source of consolidationists such as Webster and eventually Lincoln. Lincoln’s astounding pronouncement that “the Union preceded the States” is rooted in the perverted logic of Federalist Justice Story.
An equally radical and absurd “constitutional” argument was advanced by Sen. William H. Seward, Republican of New York. Seward advanced the notion that the Constitution must be subservient to “higher law,” especially those ideas expressed in the Declaration of Independence.
According to this view, the Declaration of Independence was the founding document, established by the sovereign people of America as opposed to being an act of sovereign states. Thus the Declaration supersedes the Articles of Confederation, the state constitutions, and the United States Constitution as fundamental law. The significance of Seward’s inauspicious utilization of the Declaration of Independence is that it struck at the core of. .. the sovereignty of the states. … The idea of “higher law” is rooted in a natural law tradition—a tradition full of ambiguity and subject to various interpretations … a political movement that articulates a reasonable political ideology from a natural law basis would, indeed, possess the theoretical wherewithal to effectively challenge conflicting positive laws embodied in a written constitution.26
Seward’s logic served the consolidationist dreams perfectly. Here at last was a method to circumvent the strict reservations of rights so plainly written into the Constitution. The consolidationists transformed the Declaration of Independence from a joint announcement of the independence of thirteen states into a document superior to the Constitution. This transformed the Union from a compact among consenting sovereign states to a national compact of individual American citizens. The South recognized the danger posed by this new school of radical consolidationism. Senator Clement C. Clay of Alabama declared:
When they get control of the Federal Government, which they vauntingly predict, the Southern States must elect between independence out of the Union or subordination within it.27
The destruction of the sovereign states and the merging of the American people into one giant nation-state was expressed by Seward as “one country and one Sovereign—the United States of America and the American people.”28 Repeat this Sewardism several times out loud and then repeat this: “God, King, Country.” Do you hear the echoes of monarchy in the former phrase? Now repeat this: “Hitler is Germany, Germany is Hitler.” Notice the similarity of tone and spirit—whether a monarch or a dictator, tyrants hate anything that would limit the exercise of their power; tyrants love strong, consolidated central governments that they control. Any government that is the exclusive judge to the limits of its own power is in effect a tyranny. John C. Calhoun foresaw this
danger:
That the Government claims, and practically maintains, the right to decide in the last resort as to the extent of its powers, will scarcely be denied by anyone conversant with the political history of the country. That it also claims the right to resort to force to maintain whatever power she claims, against all opposition, is equally certain. Indeed, it is apparent, from what we daily hear, that this has become the prevailing fixed opinion of a great majority of the community. Now, I ask, what limitation can possibly be placed upon a Government claiming and exercising such rights? And, if none can be, how can the separate governments of the States maintain and protect the powers reserved to them, and among others, the sovereign powers by which they ordained and established, not only their separate State constitutions and governments, but also the Constitution and Government of the United States? But, if they have no constitutional means of maintaining them against the right claimed by this Government, it necessarily follows that they hold them at its pleasure and discretion, and that all the powers of the system are in reality concentrated in it. It follows that the character of the Government has been changed, in consequence, from a Federal Republic, as it originally came from the hands of the framers, and that it has been changed into a great national consolidated Democracy.29