Spooner called General Grant “the chief murderer of the war.”
Referring to President Ulysses S. Grant, Spooner noted that the Northern business interests who controlled the Republican Party had “put their sword into the hands of the chief murderer of the war,” who at the time was hypocritically declaring, “Let us have peace.”17 General Grant was known for his willingness to send tens of thousands of Northern men, in wave after wave of attack, into the teeth of Robert E. Lee’s well-entrenched Army of Northern Virginia, which was extremely proficient at killing them by the thousands. The war became known as a “war of attrition,” meaning Grant knew he could conscript an army several times larger than the Confederate army, so his own soldiers’ lives were relatively “cheap”—to him. He could afford to send tens of thousands to their death as a strategy for victory; the much less heavily populated South could not.
Spooner interpreted the crushing of the Southern secessionists, some three hundred thousand of whom (3 percent of the Southern population) were killed at the hands of “murderers” like Grant, as suggesting that Southerners should “Submit quietly to all the robbery and slavery we have arranged for you, and you can have your peace.”18
The Republican Party rhetoric of “saving the union” and “abolishing slavery” was all a sham. “The pretense that the ‘abolition of slavery’ was either a motive or justification for the war, is a fraud of the same character with that of ‘maintaining national honor,’ ” Spooner wrote. The Republicans did not end slavery “as an act of justice to the black man himself, but only as a ‘war measure,’ ” he wrote, using the exact words (“war measure”) that Lincoln himself used in the Emancipation Proclamation. They did this, said Spooner, because “they wanted his [the black man’s] assistance … in carrying on the war they had undertaken for maintaining and intensifying that political, commercial, and industrial slavery.”19
Spooner understood that if the Republicans wanted to abolish slavery and not anything else, then a road map for doing so was readily available to them: They could follow the lead of the rest of the civilized world and end slavery peacefully through some plan for compensated emancipation. Lincoln did talk about such a plan, but failed to use his legendary political skills to see it through to success.
The Massachusetts abolitionist also ridiculed Lincoln’s quite absurd statement in the Gettysburg Address that he had been waging war for the principle of “a government of consent.” In reality, the “consent” Lincoln advocated was: “Everybody must consent, or be shot.” This idea “was the dominant one on which the war was carried on.”20 Thus, “all of these cries of having abolished slavery, of having saved the country, of having preserved the union, of establishing a government of consent and maintaining the national honor, are all gross, shameless, transparent cheats.”21
The great abolitionist claimed that the abolition of slavery was never the true reason for the war.
Walt Whitman would echo Spooner’s opinions, but in a somewhat more approving way. In The Lysander Spooner Reader George H. Smith quotes Whitman as saying, “The war taught America that a nation cannot be trifled with.”22 That is, the logo of the U.S. government became: “Consent to our mandates or be shot.” New England ministers went even further, deifying both Lincoln and the American state. Smith quotes Unitarian minister Henry Bellows as announcing after the war, “The state is indeed divine, as being the great incarnation of a nation’s rights, privileges, honor, and life.”
This type of thinking was a direct repudiation of the “natural rights” philosophy of the founding fathers, which held that human rights to life, liberty, and property are inalienable and God-given, and are not handed down by any state. In the name of religion, ministers like Bellows literally claimed that politicians who ran the federal government should justifiably take the place of God as the source of all human rights.
This literal deification of the state went a long way toward helping the astonishing growth of the power of government that would occur in the postwar years, something that would not have been at all surprising to Lysander Spooner.
7
The Truth About States’ Rights
In his first inaugural address Abraham Lincoln made the absurd assertion that the Union preceded the states, and, therefore, state sovereignty did not exist. This falsehood has been endlessly repeated by various gatekeepers and other advocates of militaristic nationalism and executive power for generations. The truth is, to the founding generation, what has variously been called state sovereignty, states’ rights, or federalism, was perhaps the most important guarantor of their freedoms as American citizens.
It is well known that Southerners from Jefferson to Calhoun to Jefferson Davis championed states’ rights in defense of liberty, but less well known is that the states’ rights tradition was a powerful force in Northern politics as well until 1865. As Dean Sprague wrote in Freedom Under Lincoln, “States’ rights, which prior to 1860 had been as important a part of northern beliefs as southern, were overturned” by Lincoln’s war.1
The founding fathers understood that if they were to have a government of consent, the federal government would sometimes have to defer to state sovereignty when challenged. One example is how New Englanders responded to President Thomas Jefferson’s trade embargo, which was extremely harmful to the New England shipping industry.
President Jefferson responded the only way he knew how when the conflict between Britain and France led to the confiscation of several American ships by the British. On December 22, 1807, he announced an embargo on all shipping. The New England economy depended heavily on ocean shipping and was crippled by the embargo. The New England states formally “nullified” the embargo law, citing Jefferson’s famous Kentucky Resolve of 1798 which enunciated the principle of nullification, or nonenforcement, of a federal law by the citizens of a state.2 To Jefferson—and the New Englanders of his time—the citizens of the states had every bit as much right as the president, Congress, or the Supreme Court to make judgments on the constitutionality of federal laws and decide for themselves whether or not such laws should be obeyed.
On February 5, 1809, both houses of the Massachusetts legislature nullified the embargo act by denouncing it as “unjust, oppressive, and unconstitutional. While this state maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of state government.”3 The embargo, said the Massachusetts legislature, “was not legally binding on the citizens of the state.”4
From the beginning of the Republic, states’ rights was an American political doctrine, used by Northern and Southern states alike.
Connecticut also denounced the federal embargo law as being “incompatible with the Constitution of the United States, and encroaching upon the immunities of the State.”5 Its legislature directed all state government officials to deny “any official aid or cooperation in the execution of the act aforesaid.”
Rhode Island’s legislature announced that it was its duty to “interpose for the purpose of protecting [its citizens] from the ruinous inflictions of usurped and unconstitutional power.” All of New England, plus the state of Delaware, formally nullified the federal embargo by denouncing it as an unconstitutional usurpation of power, in the spirit of Jefferson’s own states’ rights dictum, the Kentucky Resolve of 1798. Nullification was an essential part of the American states’ rights tradition, and it was utilized by Northern states as much as, if not more than, Southern states prior to 1861.
When the War of 1812 broke out, New England Federalists saw it as primarily a dispute between Jefferson’s opposing Democratic-Republican Party and England that did not involve their region of the country (which was heavily involved in trade and commerce with England). Consequently, the region refused to send militia troops when requested by President James Madison. The Connecticut state assembly issued the following statement, a classic example of the states’ rights philosophy that John C. Calhoun would later use in his d
efense of the free-trade South against the protectionist North.
But it must not be forgotten that the state of Connecticut is a FREE SOVEREIGN and INDEPENDENT State; that the United States are a confederated and not a consolidated Republic. The Governor of this State is under a high and solemn obligation, “to maintain the lawful rights and privileges thereof, as a sovereign, free and independent State,” as he is “to support the Constitution of the United States,” and the obligation to support the latter imposes an additional obligation to support the former. The building cannot stand, if the pillars upon which it rests, are impaired or destroyed.6
This statement proves the absurdity of Lincoln’s claim in his first inaugural address that the states were not sovereign. They certainly were. This was understood by the founding fathers and by statesmen for decades thereafter. Neither President Thomas Jefferson nor his successor, President Madison, believed that they had any authority to use military force to compel a state to abide by their political dictates. In fact, it’s impossible to believe that the thought even would have entered their minds.
The embargo, the War of 1812, and the 1803 Louisiana Purchase—three events viewed as politically and economically harmful to their region—so aggravated New Englanders that they plotted to secede for most of the first decade of the nineteenth century (New Englanders opposed the “hordes of foreigners” becoming American citizens that would be the result of the Louisiana Purchase). As Governor Griswold of Connecticut announced, “The balance of power under the present government is decidedly in favor of the Southern states.… The extent and increasing population of those states must forever secure to them the preponderance which they now possess.… [New Englanders] are paying the principle part of the expenses of government” without receiving commensurate benefits.7
The New England secession movement was led by Senator Timothy Pickering of Massachusetts. Pickering had served as General George Washington’s adjutant general, and later as President Washington’s secretary of state and secretary of war, holding the former position under President John Adams as well. Announcing that secession was “the” principle of the American Revolution, Pickering said, “I will rather anticipate a new confederacy, exempt from the corrupt and corrupting influence of the aristocratic Democrats of the South.”8
In 1814 the New England secessionists held a convention in Hartford, Connecticut, where they decided against secession. They did not question the right of secession, or the fact that the states were sovereign, only the practical economic and political wisdom of such a move.
Northern states were also instrumental in assisting President Andrew Jackson in his defeat of the Bank of the United States (BUS). The bank, which would later be championed by Lincoln for his entire political career, was notoriously corrupt and politicized. Consequently, a number of states attempted to tax it out of existence. The Ohio legislature enacted a $50,000 per year tax on each of the two branches of the BUS that had opened in that state. The bank refused to pay, and the chief justice of the United States, Judge John Marshall, supported its decision. But Ohio didn’t consider Marshall’s decision anything more than his opinion, and certainly not more authoritative than that of the state’s own legislature. Explicitly citing the Kentucky Resolve, along with James Madison’s almost identical Virginia Resolve of 1798,9 the Ohio legislature publicly declared that “the States have an equal right to interpret [the] Constitution for themselves.”10 Ohio withdrew “the protection and aid of the laws of the state” from the bank, and Kentucky, Tennessee, Connecticut, South Carolina, New York, and New Hampshire followed suit.
New England was the first region of the country to seriously threaten secession, going so far as to hold a secession convention in Hartford in 1814.
As early as 1816, Indiana and Illinois amended their state constitutions to prohibit the BUS from establishing branches within their jurisdictions. When Maryland did the same, the federal government brought suit in that state, with the case of McCulloch v. Maryland. Knowing that such taxes could destroy the federal government’s bank, Chief Justice John Marshall wrote an opinion in the bank’s favor, famously commenting that “the power to tax is the power to destroy.” Americans who are familiar with this slogan tend to believe that it refers to the ability of government to “destroy” private-sector economic activity. That is true enough, but what Marshall was concerned with was the power of states’ rights to destroy the Federalists’ quest for a monetary monopoly operated out of the nation’s capital. It was the central bank that was being threatened with destruction, which is exactly what the citizens of these sovereign states wanted.
At the time, the Supreme Court’s pronouncements were not considered the last word on issues of constitutionality, and other states continued to harass the BUS with punitive taxes. In light of Marshall’s opinion, the bank refused to pay the $50,000 tax to the state of Ohio, so the state auditor ordered a deputy, John L. Harper, to collect the tax. As James J. Kilpatrick describes the confrontation: “On the morning of September 17, Harper made one last request for voluntary payment. When this was denied, he leaped over the counter, strode into the bank vaults, and helped himself to $100,000 in paper and specie. He then turned this over to a deputy … stuffing this considerable hoard into a small trunk, with which the party thoughtfully had come equipped.”11
The BUS sued Ohio, citing Marshall’s opinion. But Ohio considered the bank’s heavy-handed imposition into the state as a threat to the liberties of all Americans, not just Ohioans. Consequently, the state’s legislature issued a statement saying, “To acquiesce in such an encroachment upon the privileges and authority of the States, without an effort to defend them, would be an act of treachery to the State itself, and to all the States that compose the American Union” (emphasis added). The legislature was aware of Marshall’s theory that the Supreme Court should have the last word on constitutionality, but declared: “to this doctrine” they “can never give their assent” quoting Jefferson’s Kentucky Resolve.12 The legislature felt no obligation to obey Marshall’s ruling.
Ohio then promised to return the $100,000 if the BUS left the state. If not, it proposed a law that would prevent the jailing of any citizen who defied the bank, denouncing the federal courts for “violation of the Constitution.” Kentucky, Connecticut, New York, and New Hampshire issued almost identical declarations soon thereafter.
In light of these relentless attacks on the bank, spurred on by the deeply held belief in states’ rights, President Andrew Jackson gained the upper hand in his political battle to defund the BUS. Public opinion turned against the bank, and Jackson had his way. The Bank of the United States was not rechartered.
Northern states also relied on the states’ rights doctrine of nullification to attempt to nullify the Fugitive Slave Act, which compelled Northern states to capture runaway slaves and return them to their owners. It was natural for them to think of states’ rights as a tool to be used for the liberation of runaway slaves.
Nullification and secession were the two most essential elements of the states’ rights doctrine prior to 1861. The New England Federalists plotted to secede in response to Jefferson’s election, an action they viewed as perfectly consistent with the philosophy and ideals of the American Revolution. Nullification was widely used as a political tool in the North as well. Indeed, on the eve of the war, most Northern newspapers voiced the opinion that the Southern states were perfectly within their rights to peacefully secede. There was even a vigorous secession movement in the “middle states”—New York, New Jersey, Pennsylvania, Delaware, and Maryland—in the 1850s.13 One thing the residents of the so-called middle states had in common with the South was that many of them wanted no part of a government that included the domineering, puritanical New England “Yankees.”
SECTION ONE OF THE KENTUCKY RESOLVE OF 1798
(Authored by Thomas Jefferson)
November 10, 1798
Resolved, that the several States composing the United States of America, are
not united on the principles of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite 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 force: That to this compact each State acceded as a State, and is an integral party, its co-States forming as to itself, the other party: That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
8
Constitutional Futility
Many conservatives and libertarians are fond of describing themselves as “strict constructionists,” meaning they believe the government should strictly enforce the U.S. Constitution as it reads. They believe that, for far too long, the federal government has been either ignoring the constitutional limitations on its powers, or simply making things up as it goes to rationalize the unconstitutional use of governmental power. Consequently, they tend to speak with great reverence for the Constitution, and the founders, and urge other Americans to do the same. The libertarian Cato Institute in Washington, D.C., even mass distributes pocket-sized replicas of the U.S. Constitution, apparently in the hope that once the public reads the document it will somehow insist that it be enforced.
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