When I was in grad school taking courses in Constitutional history, we would argue. In one class on religion and the Constitution, my adversary made a point about the First Amendment being the most important amendment. The instructor, Tom Morris—the foremost authority on slave law in the Americas—interrupted: “the most important amendment to the Constitution is the Fourteenth.” There was no denying the authoritative tone. Both of us were confused, but one is often confused by one’s professors in grad school.
Of course, we eventually learned that Professor Morris was correct—and still is. The Fourteenth Amendment is indeed the most important change to our Constitution that We the People have ever made. Primarily, this is because of Section 1 of the Amendment, which one of the co-authors and Speaker of the House Schuyler Colfax referred to as “the gem of the Constitution.”* It secured for all Americans full citizenship, the protection of the Bill of Rights from infringement by the states, a fundamental right to due process, and equality for all before the law.
So imagine my surprise when I found that Phil Leigh, writing in the blog Emerging Civil War, had portrayed the Fourteenth Amendment as a cynical ploy by Radical Republicans in 1866 to ground the South under the heel of the federal government in order to secure power for its own agenda! This agenda was somewhat unclear, until I saw that the article also appears in the ultra-libertarian Abbeville Institute’s Abbeville Blog. Considering the nature of the Abbeville Institute, one can imagine: Republicans used black suffrage to create the über-state that Libertarians fear and loathe.
[Note: as of 8/12/14, Phil Leigh no longer writes for Emerging Civil War, and his posts have therefore been removed from that site. However, the article referred to in this post is still up at Abbeville Blog.]
Phil Leigh has written quite a few posts for the New York Times’ Disunion blog. I’m familiar with Leigh only because of an exchange he had with Brooks Simpson at Crossroads a while back regarding an article he also wrote for Emerging Civil War and Civil War Chat. Leigh’s article offered an economic interpretation for the war’s causes. Al Mackey at Student of the American Civil War demolished part of Leigh’s argument in the comments section. Then Brooks copied the article to Crossroads and took the rest of it apart. Leigh then answered Brooks’ critique. I felt like Brooks got the better of the exchange, for several reasons, but that’s another story. But since I was familiar with the name, it jumped out at me. What I found was a rather stunning example of the jerked-from-context polemic that’s all too common among Libertarians.
The Radical Republicans and Early Reconstruction
Leigh begins by outlining the terms for readmission President Andrew Johnson and his cabinet considered a month after Lincoln’s death. The terms for readmission, which reflected Lincoln’s moderate policies, were: “(1) ratify the Thirteenth Amendment abolishing slavery, (2) repudiate Confederate debts, and (3) renounce the secession ordinances.” In addition, citizens who might have assisted the Confederacy would be required to take an oath to uphold the Constitution. But Johnson would require ex-Confederates—those of means or rank who had wholeheartedly backed the Confederacy—to apply for a presidential pardon.
Leigh establishes this moderate-sounding plan of reconciliation in order to contrast it with the merciless Radical Republicans like Thaddeus Stevens and Charles Sumner, who would not rest until the rebel states were reduced to vassalage. Apparently, considering the way Leigh breezily mentions the loyalty oath, the fact that Johnson had his own agenda is not worth mentioning. Johnson’s idea was to turn on the Radicals, whom he despised, isolate them from the Moderate Republicans, then reconcile these Moderates with Northern Democrats (Johnson himself had been a Democrat before the war) and Southern ex-Confederates, who would all be beholden to Johnson after his pardon removed their disenfranchisement. His goal was to realign the political system on him and create a new party—more moderate than the slavery-dependent Democratic Party, but much more conservative that the still-new Republican. But Johnson is not Leigh’s target here—Radical Republicans are.
Leigh then argues that Johnson’s moderate terms were actually pretty severe: $3 billion in slave-capital gone; all Confederate debts in the form of investments or money worthless. This indeed did much to impoverish the South. But Leigh ignores the point that it was not Johnson who “wiped out” capital invested in slaves—the Thirteenth Amendment did that. And what nation in history has ever honored the war debt of traitors who tried to destroy said nation? It also bears mentioning that this was Lincoln’s strategy when he issued the preliminary Emancipation Proclamation in September of 1862, stating that it would not go into effect until January 1, 1863. This was a clear message to the South: come back before New Years’ and all will be forgiven; come back after then, and you will lose your “peculiar institution” forever. But none of this is germane to Leigh, because he is after bigger game.
Johnson’s lenient terms compelled the former Confederate states to eagerly agree, and they established (if they hadn’t already) new state governments and conducted elections in order to get back into the national Congress. Leigh correctly states that “Republicans were shocked that many of the Southern elected representatives for the first post-war Congressional session in December 1865 were former Confederate leaders. In response the Republican controlled Congress refused to seat them.” Why? Because:
Republicans reasoned that if Congress seated such representatives Southerners might join forces with Northern Democrats thereby creating a coalition that could drive the ruling Party from power.
Well, sort of. The point about being driven from power is true, but one must understand what that would have meant: permanent vassalage for blacks.
And this is my point about context: for Leigh, the events and conditions that lead to the drafting and ratification of the Fourteenth Amendment happen in a vacuum of mere politics. Politics abounded, to be sure, but the context of these events was the legal fate of almost 4 million blacks in the South. Keep in mind that the Dred Scott decision–with Taney’s chilling opinion that blacks were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect“–was still the law of the land. So this was not a pissing match over reapportionment or some such; this was, for most Radicals, a moral point of the highest order. And so the main point of Congress, which was controlled narrowly by Republicans in 1866, comfortably in 1867, was to define the legal and political status of blacks.
The reason the Republican Congress refused to seat these new Southern representatives (which was within their rights, according to the Constitution) was because their states had immediately began to oppress blacks and compel them to go back to the cotton fields whether blacks wanted to or not. After ratification of the Thirteenth Amendment ended slavery, newly-freed blacks were in an anomalous position: they were free of bondage, but what else? What was to be their status? Were they to be “underlings” as Lincoln himself had worried in 1858? Almost as soon as it could, the new state government of Mississippi, realizing a desperate need for labor, passed the first of the Black Codes—laws intended to define the legal status of freedmen. The Black Codes were notoriously restrictive: while they did grudgingly grant blacks the right to own property, marry and move about, they curtailed other American rights severely. Blacks were not allowed to serve on juries, testify against whites in open court, or carry firearms. In short, the black codes–a kind of “slavery-lite”–established blacks as “underlings” under Dred Scott.
As reports filtered north that ex-Confederates were reestablishing the old social order of white supremacy and coerced labor, Radical Republicans and their moderate allies became impatient. They passed first the Civil Rights Act of 1866, which defined blacks as citizens; but then, fearing that this mere statute could easily be overturned (by exactly the coalition Leigh describes), they began to debate and craft another Constitutional amendment. This new amendment must do more than grant blacks citizenship: it must create a social order in which blacks could protect themselves from white Southern depredations. In other words, it wasn’t enough for blacks to have civic equality—they must have political equality as well. They must have the fundamental right to create a government which would protect their rights.
Black Suffrage as Republican Tool of Despotism
But this is context, and Leigh doesn’t go in for context, so there must be something else going on. And this leads us to Leigh’s big idea: that the Radical Republicans “settled on two objectives”:
First, was African-American suffrage in all former Confederate states. They expected that such a mostly illiterate and inexperienced electorate could be manipulated to consistently support Republican interests. Second, they wanted to disenfranchise those Southern Whites who were thought likely to oppose Republican policies .
The first thing to notice about this alleged “goal” is that it could be lifted straight from the Dunning School playbook. (Well, really Leigh’s entire article can, but this sentence is the bald-faced giveaway.) But whereas the racist Dunning School itself believed this statement wholeheartedly, Leigh qualifies it with “they expected,” meaning that it was the Radical Republicans who held blacks in racist contempt.
Why did Radicals keep Southern states in limbo and pursue a policy of black suffrage? Before fully discussing this, Leigh takes a right-turn tangent into the historiography of Reconstruction. He does so in order to take a swipe at modern scholarship. In doing so, I fear he tells us more about himself than modern scholars:
Over the last fifty years historians have largely reinterpreted Republican motivations. Shortly before the Civil War Centennial it was generally agreed the chief aim was to insure Republican control of the Federal government by creating a reliably Republican voting block in the South for which improved racial equality was a convenient byproduct. However, by the Sesquicentennial it became the accepted dogma that Republicans were predominantly driven by altruism untainted by anything more than negligible self-interest.
There are two points to make here.
First is the idea that historians are ideologically driven: that they are, in essence, a kind of arch-polemicist. More than mere pedestrian-level polemicists, since their research methods tend to be superior to non-historians, and their positions in university ivory towers make their opinions more believable. But, in the end, because of their adherence to “dogma” and ideology, the mere opinions of historians are no better or worse than anyone else’s. This is particularly convenient because once this notion is established, then Leigh doesn’t have to tackle some annoyingly large books to figure out what was going on. After all, if Eric Foner is a leftist, then who needs to read his essential Reconstruction: America’s Unfinished Revolution, 1863-1877?
The second point has to do with the subject itself. It is the notion that this narrative that historians have constructed—that Republicans were driven to provide blacks with the suffrage largely by altruism—is a fantasy; that there is no altruism but pure greed for power. Here, Leigh is using the argument held by Progressive-era historians, like Charles Beard, who believed high-falutin’ notions of selflessness merely disguised more material motives and concerns. Radical Republicans cared not for black equality, but for power. Leigh’s doubts about altruism say much more about the Libertarian worldview than they do about Radical Republicans. Leigh’s disbelief in altruism seems to me a form of projection: because he can’t understand altruism, he can’t imagine its existence in others—least of all, crusty old guys like Thaddeus Stevens.
The second goal of Republicans, very closely related to the first, was indeed to disenfranchise ex-Confederates. Section 2 of the Fourteenth Amendment would revoke the notorious three-fifths clause. Blacks, no longer slaves, would be counted as full persons for the purposes of representation. This, of course, threatened to work against Republicans, since counting blacks as full persons, and not three-fifths of a person, meant that the ex-rebel states would have even more representation in Congress than they had in the antebellum period. If former slaveholders resumed power in the South, then the new status of blacks could not be protected without direct intervention by the federal government. The Black Codes would become permanent, ensuring control of the labor supply, white supremacy, and black “underling” status.
This is the true “agenda” of Radical Republicans, then. Black equality required both the suffrage of blacks and the disenfranchisement of ex-Confederates. Only then could blacks ensure and maintain their own equality without constant intervention by the federal government.
Republicans Craft the 14th Amendment to Pursue Their Nefarious Scheme of Oppression
Leigh continues by showing how Radicals intended to get the franchise to blacks. Because voting rules were firmly in the sphere of states’ rights, Republicans had to find a way to get around this. The best way to guarantee black suffrage was to create a new amendment to the Constitution. But Leigh points out two problems with this Republican plan:
First, the requirement that three-fourths of the states ratify the amendment implied a legal contradiction. While Republicans would need at least some of the Southern states to ratify it, they did not recognize such state governments as lawful. Second, in reality many Northern states and Republicans objected to uniform Black suffrage. Instead, they wanted mandatory adoption in the Southern states while permitting the matter to remain a states right elsewhere because…well that’s different, see?
In other words, if Radicals considered the new state governments allowed by Johnson illegitimate—so much so that Congress had refused to seat those states’ representatives—how could such an illegitimate state ratify a Constitutional amendment? How could one count such a states’ vote in the ratification process? In addition, universal black suffrage was opposed in much of the North. And so, it would be necessary for Republicans to come up with a scheme that would force Southerners to accept black suffrage, but not Northerners.
Because Northerners were racists, too. That’s the next part of Leigh’s position: that Northerners either did not allow blacks the vote, or put much more strenuous conditions on that privilege. Here, Leigh uses a typical neo-Confederate deflection: the North’s racism makes anything it did as bad as the South. This tu quoque (“you too”), or appeal to hypocrisy fallacy is a favorite of neo-Confederates, although its less common among Libertarians. Nevertheless, it’s wrong in its essentials.
Now, there was indeed much in the way of ugly political wrangling over how to ensure suffrage for blacks in the South; there was a fair share of self-interested arguments. And Leigh is partially correct in his accusation of Northern racism. But he ignores the Big Picture. He neglects to tell the reader what Republicans’ “agenda” really was.
Finally, Leigh gets to his main point, which essentially why the Fourteenth Amendment is difficult to read in places:
Eventually Republicans settled on a plan to achieve their objectives. The initial step materialized as the Fourteenth Amendment. First, states refusing suffrage to male citizens of any race would have their Congressional and electoral representation cut by subtracting the number of members of the excluded race from the applicable state’s population. Thus, owing to their tiny Black populations the provision was inconsequential in Northern states. In contrast, Southern states might lose considerable representation. Paragon examples are Mississippi and South Carolina where Blacks represented over fifty percent of the population. Second, despite the fact that Congress considered their governments unlawful, all Southern states would be required to ratify the amendment before they could be readmitted into the Union. In short, the Republicans ignored the legal contradiction because…well, consistency is the hobgoblin of little minds.
Hardly inconsistent. First, here is the text of Section 2 of the Fourteenth Amendment.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
This revoked the three-fifths clause. But here is the “encouragement” for Southern states to allow black suffrage. I will strikethrough the many qualifiers that tend to bog down readers:
But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Even with the omission for clarity, it still suffers from the legalistic phrasing. But for all that, the message was actually quite clear: If states refuse to allow any black men to vote, then they would all black numbers for the purpose of representation. Preventing suffrage, either directly or indirectly with bogus qualifications like intelligence tests, would lose all the numbers of “such persons” from the counting for representation in Congress.
Section 3, coupled with Section 2’s qualifying “except for participation in rebellion,” was intended to accomplish the second goal of Republicans:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
This is the famous “iron-clad oath”: one must be able to say “I never raised my hand against my country and the Constitution I swore to uphold” in order to participate in politics. This effectively disenfranchised ex-Confederates while allowing Southern Unionists to assert their political will. The free-labor, non-slaveholding yeomen farmers of the South, so long rendered powerless by the slavepower, would now be able to make the ex-rebel states into true republics, rather than the white supremacist oligarchies they had become. And note the “except for participation in rebellion.” Congress would itself decide which ex-Confederates were reconstructed enough to participate in state politics. These Unionists, partnered with the freedmen, were the hope of the Republican Party in the South.
And as far as Leigh’s contention that there was something illegal in forcing the ex-rebel states to ratify the Fourteenth Amendment before re-admittance to the Union, Congress was merely fulfilling its Constitutional obligation under Article IV, Section 5, which reads in part:
The United States shall guarantee to every state in this union a republican form of government[.]
The electoral composition of Southern states before and during the war was anything but republican. A small number of slaveholding families effectively dominated the politics of the South in the antebellum period. Real representative government was a fiction. More important, in this new postbellum period, real representative government simply had to include blacks and Unionist whites. The requirement of ratification, then, was the method Congress chose to ensure republican government in the South.
One might become uncomfortably close to agreeing with Leigh if one looked at the situation from Leigh’s sterile universe, where context does not exist. But in the world described by the historical record, the necessity of disenfranchisement and forced ratification is clear. Congress had just heard testimony of the riot in July 30, 1866 New Orleans, which began when Unionist whites and black U.S. Army veterans convened as Republicans to discuss a new state constitution. The convention was attacked by whites, mostly former Confederate soldiers. 34 were killed, over a hundred injured. Attacks like this convinced Republicans that the ex-rebel states were still violent, even barbaric places were normal political discourse was impossible. Disenfranchisement and required ratification were essential to change this. But this historical background is white noise to Leigh. It does not fit his predetermined outcome.
Part of the problem with ascribing a Republican agenda to this period of Reconstruction is that Republicans had almost no idea what exactly they were going to do! Outside of guaranteeing rights to blacks, there was no real “plan” in early 1867. The record is filled with the impatience of newspapers and politicians over coming up with a program to counter Johnson’s obviously unacceptable plan. Republicans did finally settle on an idea, though. I suspect it’s what gives Libertarians bad dreams. Because, in fact, Republicans held two motives equally high: black citizenship and a new social order in the South based on Northern values of free labor and capitalism. If Moderate Republicans cared more about getting at the under-used resources of the cotton states than they did black civil rights, Radicals certainly were more worried about black equality. This quote by Radical George Julian conveys the fusion of both:
What these regions need, above all things, is not an easy and quick return to their forfeited rights in the Union, but government, the strong arm of power, outstretched from the central authority here in Washington, making it safe for the freedmen of the South, safe for her loyal white men, safe for emigrants from the Old World and from the northern States to go and dwell there; safe for northern capital and labor, northern energy and enterprise, and northern ideas to set up their habitation in peace, and thus found a Christian civilization and a living democracy amid the ruins of the past. That, sir, is what the country demands and the rebel power needs. [January 28th, 1867.]
So they did develop an agenda. But not until after the Fourteenth Amendment was already in the works.
Section 1: The Gem of the Constitution
But perhaps this is a good time to look at the most important part of the Fourteenth Amendment. Thus far, Leigh’s entire argument is based on Sections 2 and 3—that within these sections is the Hidden Agenda of the Republican Party. As we have seen, the true purpose was to guarantee blacks the power to defend their new rights. But what were these new rights?
Section 1 of the Fourteenth Amendment reads:
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.
Section 1 actually was designed with two interrelated goals in mind, just not the ones Leigh says. First (and foremost), it was to grant full citizenship to blacks; in doing so, it set United States citizenship over state citizenship. And second, it was intended to protect a citizen’s liberties by applying the Bill of Rights to the states–one’s “privileges or immunities”—including the right to bear arms so that blacks could protect themselves from white Southern terrorism. The explicit language “No State shall” represents a tectonic shift of power in American federalism. For the first time, the federal government would take responsibility for protecting the basic rights of all Americans, since it was clear that states could not be relied on to do that. Couple Section 1 with Section 5–“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”–and you’ve got a document perfectly calculated to send tremors of fear and loathing through Libertarians everywhere. It was a vast expansion of federal power, but power for the sake of liberty.
And, making its debut appearance in the Constitution, there is the word “equal”:
[N]or shall any State…deny to any person within its jurisdiction the equal protection of the laws.
The Declaration of Independence was perhaps not the first, but it was the most important, document to declare equality a condition of humankind. That revolutionary idea had troubled Americans, living as they were in a republic that countenanced slavery. Many Southerners simply denied it and said Jefferson was wrong. But in November of 1863, Abraham Lincoln—according to Garry Wills—essentially slipped an early draft of the Fourteenth Amendment under our door in the Gettysburg Address. He told Americans that freedom and equality were part and parcel of a “new birth of freedom,” and that both were inextricable parts of the American creed. It was the Radical Republicans that made the first real attempt at making Lincoln’s words part of the Constitution.
And so this all-important Revolutionary theme—equality—was enshrine at last in the Constitution. It is this that Libertarians from the Abbeville Institute would attack and tear down. But he cannot attack this directly–equality, while imperfect and under attack, turns out to be quite popular with Americans. And so Leigh is reduced to launching ad hominem attacks on Radical Republicans.
Leigh’s work also suffers from an incomplete idea of the purpose of establishing black enfranchisement/ex-Confederate disenfranchisement. It was to allow the Southern states, composed of Republicans, to draft new, pro-democratic, liberal constitutions. And these coalitions of freedmen, Southern Unionists (“scalawags”) and Northerners (“carpetbaggers”) constructed very progressive constitutions indeed–they established public education, abolished imprisonment for debt, reduced the numbers of capital crimes, and all had state bills of rights that emphasized equality. The new governments based on these constitutions were composed of blacks and whites; blacks were even elected to the U.S. Congress. And these governments certainly would have executed Leigh’s nefarious plan:
As a result the Republican agenda of high protective tariffs, Federal land donations to railroads, banking and currency regulations unfavorable to the South, and a laxity of government regulation for monopolistic businesses continued for generations
See? The Republican-enforced Fourteenth Amendment caused the South to become a “colony” of the North for years to come. The only problem with this thesis is that these Radical Republican governments were all gone by 1877, and therefore fairly incapable of carrying out schemes of oppression. It is true that for the few years they lasted they worked very hard to turn the Southern states into something that resembled the North. But their failure was less because of corruption or black incompetency (as the Dunning School maintained) as it was white supremacist violence. Terrorism, in spite of federal protection, finally undermined the new governments and intimidated voters. The “Redeemers” were able to get elected, and then stage another set of constitutional conventions, overthrowing the progressive documents, and reestablishing the old order.
And so goes the attempt to discredit the “gem of the Constitution,” the Fourteenth Amendment. This particular effort avoids the all-important Section 1—which is really the part you and I care about today—and attacks Sections 2 and 3, which is very creative. However, it’s still wrong. The antiseptic, airtight laboratory where Leigh conducts his thought experiments turn out to be poor places to practice the craft of history. I know Leigh is frustrated that historians appear to him to be the “gatekeepers” of Civil War memory, the arbiters of “True: and “Not True.” But he will have to learn some of the historians’ craft before polemics like this rock anyone’s world. Prof. Morris is still right.
*Note: to be clear, Colfax was specifically referring to the Privileges or Immunities clause of Section 1. I have taken that appellation out of context and applied it to the entire Amendment.
**H/T to Jarrett Ruminski at That Devil History for the idea of sardonic photo captions.
Akhil Reed Amar, The American Constitution: a Biography.
Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877.
David H. Gans and Doug Kendall, “The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment.” The Constitution Accountability Center, 2008.
Benjamin Kendrick, Journal on the Joint Committee of Fifteen on Reconstruction, https://archive.org/stream/journaljointcom00recogoog#page/n0/mode/2up
Garry Wills, Lincoln at Gettysburg.
Phil and company seek to use history as a means to validate their modern political ideology. Anything that does not support that ideology has to be recast or reinterpreted so that it fits into that ideology. That is what Phil is doing with the 14th Amendment. He obviously sees it as undermining state’s rights and the compact theory of the United States. Remember, that is Phil’s goal; establishing state’s rights and the compact theory as the foundation of the Constitution.
They cannot allow history to stand on its own because history does not support their incorrect interpretation of the Constitution or the history of the US. When we start using the primary sources we find a very different interpretation of events from the past that Phil and company reject. They have a vision of an America that never existed. I think that is one reason they invest so heavily in the causation of the Civil War via the Lost Cause myth. It fits into their ideology. The fact that the Lost Cause is total crap is irrelevant to them.
This is part of the culture wars where ideology is more important than actual history to some people. I find it hilarious that these same people bitch and whine about how the past is interpreted by saying, “History is written by the victors,” when that is exactly what they want to do. What is interesting in this post is that Phil says some things about why the Radical Republicans did what they did, but but ignores the actual reality of what happened after the former confederates regained their voting rights. The Republicans feared that the former confederates would once again subjugate the black people of the South and that is exactly what did happen. The Southerners gained additional representation but denied many who they represented any political voice.
Notice how Phil doesn’t go into that? He won’t either. That is because reality blows his ideology to pieces. He will not address the Jim Crow laws or black codes. This is where the Lost Cause finally collapses and shows the racism inherent in its mythology.
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Agreed, which is why it seems odd to me to see it at Emerging Civil War. I thought Al positively buried him in the comments of the last piece he wrote.
Presentism runs rampant among Libertarians when it comes to history, I’m saying that as someone who leans Libertarian on a lot of issues.
I thought of you whilte writing this, since you’ve told me you lean that way. I’m trying to figure out how to separate the two: reasonable libertarians and ideological Libertarians. So far, all I have is capitalizing the “L”.
Good luck with that! lol. One of the problems with Libertarians and history, is that Libertarian has a lot to do with Constitutional freedoms and economic freedoms via Austrian School of Economics (See Hayek). There are no real historians that recognize with that crowd so what ends up happening is people projecting their Libertarian view points onto the past.
Yeah, I get that. I used to be a libertarian until I realized I liked streetlights. And fire departments. And public schools. I still call myself a civil libertarian. But mostly, I find most Libertarians are people who just don’t want to have their marijuana taxed.
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Only radicals think all aspects of society should be privatized. Or I should say, idiots.
You like public schools? You belong in a private mental hospital.
“The second goal of Republicans, very closely related to the first, was indeed to disenfranchise ex-Confederates. Section 2 of the Fourteenth Amendment would revoke the notorious three-fifths clause. Blacks would be counted as full persons for the purposes of representation. This, of course, threatened to work against Republicans, since counting blacks as full persons, and not three-fifths of a person, meant that the ex-rebel states would have even more representation in Congress than they had in the antebellum period. If former slaveholders resumed power in the South, then the new status of blacks could not be protected without direct intervention by the federal government. The Black Codes would become permanent, ensuring control of the labor supply, white supremacy, and black “underling” status.”
This is misleading, I’m not sure if it is your wording or his, but blacks weren’t counted as 3/5 ths of a person, slaves were. There was no mention of color. Also, I’m not sure it really needed to be revoked, no slaves equals no one to count as 3/5ths.
Thanks for commenting, TOS. You are, of course, correct about the term “black.” That’s my error, not Leigh’s. Revoke is one of the terms I’ve seen used for that amendment.
Great job, Chris. I encountered Phil several times on the old alt.civil.war group on USENET a few years back. He hasn’t changed a bit. Emerging Civil War lost a great deal of credibility from my standpoint by having him on their blog. You can easily see why.
Thank you, Al. It’s a little ragged, but there was a lot of ground to cover and I wanted to be thorough. I’m sure Phil is a very nice man. But I tend to get a little worked up when someone disparages the 14th Amnd.
Well, Al, it looks like they heard you over there.
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“It secured for all Americans full citizenship, the protection of the Bill of Rights from infringement by the states, a fundamental right to due process, and equality for all before the law.”
Yes, it brought PEACE AND JUSTICE TO THE GALAXY! And it wasn’t ALL about POWER… UNLIMITED POWERRRRRRRRRRRRRRR!!!”
The fact is that Emperor Palpatine wasn’t the first one to take over with his “Grand Army of the Republic;” rather, it was Lincoln.
Giving more power to the federal government is suicide, if you think that it can’t be abused, or that voting will enforce the Constitution against it.
The American states are each separate nations, by law, contrary to claims that they jointly form a single nation. The Constitution does not expressly manifest an intention unite the states as a single nation-state– as would be required for them to do so, since no higher power exists to a sovereign nation-state, which can construe such meaning from subtext in a binding manner over them. Therefore the Constitution did not create a single nation out of the states.
Nor did they form a single nation previously, since they each declared independence as separate nation-states in 1776, retained this claim in 1781, and were individually recognized as such in 1783 by Great Britain and all other nations to the Treaty of Paris. Thus, each state remained a separate nation-state in the Constitution—as James Madison expressly explained to Patrick Henry and the People of New York in Federalist No. 39 (though this is not relevant to the fact of such; for again, uniting separate nation-states as a single one, requires express action, not construed meaning).
The Constitution, rather, simply recognized the People—i.e. the registered voters—of each of the 13 nation-states, as the supreme rulers thereof, able to overrule their government by popular vote in State convention. Aside from this, the Constitution simply delegated powers to state and federal government differently than under the Articles of Confederation, this time placing the federal government above state government: but this was simply in the chain-of-command, with People of the respective individual state were the supreme rulers of their respective state, as follows:
FIG. 1 – Chain-of-Command in American Government
As shown here, the Constitution is a compact among the actual Peoples of separate nation-states, each People being a voluntary groups of individuals. Thus People of the individual state, are not limited to simply voting in state and federal elections, as the Constitution permits; since the Constitution did not unite the states as a single nation-state: but on the contrary, the voters in each state remain the supreme rulers of their respective nation-state, who simply delegated powers via the Constitution; and therefore can continue vote to overrule their government (state and federal) as they please, by popular vote in state convention— precisely as they did in 1787-1789. FIG. 2 – The Constitution is an international compact among the Peoples of 13 nation-states, not a national compact among a single People.
Again, contrary to the claims of “official” history, the Constitution did not terminate the separate national sovereignty of each state, or unite their respective Peoples into a single People; but on the contrary, simply identified each state’s national sovereignty as properly belonging to the respective state’s respective People; and therefore it remained with the People of the respective state by law ever since. For example, as James Madison explained in Federalist No. 39, New York remained a separate nation-state under the Constitution, with the People of New York being the supreme ruling sovereigns thereof; the Constitution simply delegated authority to state and federal officials, as noted in Figure 1, with the federal government being higher in the chain-of-command between the respective governing officials. In this manner, the Constitution was “partly federal, partly national,” in that the People of each state delegated certain national functions to the federal government, while retaining various other functions to state government; however this in no way compromised the national sovereignty of each state, since this originated with the state’s People, who were basically the owners of the state, and who simply authorized government to serve at their discretion, while having no power of its own.
Unfortunately, some confuse this delegation of national authority, with the surrender of national sovereignty itself—and thereby, the current American dogma, holds that the Constitution created a national government as a power unto itself, while likewise joining the People of each state into a single group called “The American People” whose only authority is voting in elections as the Constitution permits. This is an Orwellian sophistry which re-defines “democracy” as Totalitarian Democracy—which is an oxymoron, in that democracy is defined as a government deriving its just powers by consent of the People; and this requires that they have final authority over it.
As a result, historical revisionists began propagating this claim, that the states had never been separate nation-states unto themselves, but had always been mere parts of a single nation-state, not a voluntary international association of separate nation-states; and thus when People of a state exercised their power of Nullification in 1932, the Jackson Administration became the first to claim sovereign nation status over the People of every state, with President Jackson claiming that the states declared independence from Great Britain in 1776 as a single nation-state– not separate nation-states, in spite of the express wording to this effect.
As a result, modern revisionists attempted to bear out this claim, by arguing that the Constitution, rather than the Declaration of Independence, united the states as a single nation. But again, not only was this was never the intention of each state’s People; but the Constitution did not expressly manifest such a union, and so could it not have done so under any circumstances.
Ironically, some cite the precedent for such a Union of nations, as the 1707 Treaty of Union between England and Scotland which united them into the single nation of Great Britain However here they defeat their own argument, since this treaty indeed expressly manifests this intention, as follows:
“That the two Kingdoms of Scotland and England, shall, upon the first Day of May next ensuing the Date hereof, and for ever after, be united into one Kingdom by the Name of Great-Britain, and that the Ensigns Armorial of the said united Kingdom, be such as her Majesty shall appoint; and the Crosses of St. Andrew and St. George be conjoined in such a manner as her Majesty shall think fit, and used in all Flags, Banners, Standards, and Ensigns, both at Sea and Land.”
In contrast, the Constitution never expressly or directly manifests this intention by the People of any state, to unite them into a single state; again, this was expressly denied by James Madison, speaking for the Federalist party to the Anti-federalists – however this is not essential to the fact of it, but is merely subtext; for again a sovereign nation-state need never expressly retain its sovereignty, but only need refrain from expressly surrendering it to another nation-state. And the Constitution nowhere expresses this intent, as noted in the Preamble:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Here, the phrase “The People of the United States” referred to the Peoples of the ratifying nation-states, obviously; since this was the only sovereign power which existed, and which held the authority “to ordain and establish” the Constitution. However as noted in Article VII, only nine states were needed to ratify, in order to carry it into effect between those states; and so the actual names of the states were not included, since it was not known which states would ratify.
So learn some REAL history—i.e. what really happened, not what you want to believe.
Thank you, Brian, for commenting. If you have read through this blog, you have seen that this issue has come up and been thoroughly discussed. Because I plan on making a more-extensive blogpost about this issue of sovereignty soon, so I will only reply here in a cursory way.
First, your argument that the states were all sovereign nation-states after Independence, is absolutely correct. The only observer I am aware of who asserted otherwise was Lincoln himself, in his First Inaugural. He was incorrect on that point, although correct on every other point in that speech.
Second, your assertion that all the states retained their total sovereignty after each ratified the Constitution is simply wrong. It ignores the actions and words of the Founders—both before and after the founding—and ignores the text of the Constitution itself. In short, it is bad history, as well as bad theory.
It is bad history because it ignores the motives of the Founders. As seen in their letters to each other in the 1780s, they show a great fear for the inability of the Articles of Confederation to counter your alleged pure sovereignty of the states. (For more on this, see Pauline Maier’s excellent Ratification for a selection of these letters.) James Madison and George Washington in particular expressed fear that these independent states would eventually turn on each other, and America would become like Europe: a constant battleground with standing armies quashing the liberties of the people. And so the overwhelming goal of the Founders was to create a sovereign nation.
They achieved that goal during the ratification. This is why Article VII is structured the way it is. Article VII requires that “conventions of the states,” not the states themselves, ratify the Constitution. These conventions were composed of delegates elected by the people of the state, not the state itself.
This language was deliberate. The purpose of these conventions was to have the People of the United States ratify the Constitution, not merely the states, in order to imbue the new Constitution with the sovereign authority of The People of the United States. At the same time, it was not intended to deprive the states of all their sovereignty, and reduce them into a “consolidated government,” as so many Anti-Federalists claimed. Besides the fact that the Founders understood that none of the states would have acceded to this, it was anticipated (by all except Hamilton) to be a strength.
It is bad theory because it ignores Madison’s greatest contribution to American political science: the idea of divided sovereignty. This is the idea that the citizens who vested their sovereign power in a state government could, at the same time, vest that sovereignty into the federal government. This is a rather radical notion, and I’m not surprised that people either ignore it or refuse to understand it. Certainly, John C. Calhoun refused to acknowledge divided sovereignty. But siding with him doesn’t seem like a good long-term strategy.
The “perfect sovereignty of the states” is also bad theory because of subsequent events. The fact is, the federal government took on almost every action that a sovereign it expected to assume. These powers were not merely “delegated.” And besides, if a government takes on every role expected of a sovereign, it is pretty much sovereign. As a tribal leader discussing Indian sovereignty in the West once remarked, “sovereignty is as sovereignty does.”
I don’t expect that this Reply will have convinced you. I hope to have a more full conversation when I get the full post on American sovereignty up later this month.
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It’s really interesting how so few if any neo-confederates bother to look at the ratification of the Constitution beyond making wild claims about Virginia and New York. This is part of the usual trend they exhibit towards primary sources which don’t fit into their version of how they want history to be. The men who wrote the Constitution had to defend it at the ratification conventions in order to get it ratified. They were pretty articulate in that defense.
They had to be because their opponents were pretty good orators in their own rights. The Anti-Federalists also proved why the Constitution was written and what its purpose was by expressing what they didn’t like about it. They also expressed their fears of what it could do which is why we are marking the anniversary of the ratification of the Bill of Rights today (12-15-1791).
The Supremacy Clause of the US Constitution is pretty plain and pretty simple. No amendment has repealed or replaced it. NOT ONE SINGLE FEDERAL COURT DECISION HAS EVER OVERTURNED IT. Even Thomas Jefferson refused to change or modify it when he was president. In fact, he used it to force the states to follow federal laws. For that matter, TJ even went against his own Kentucky Resolves which proves they were nothing but political rhetoric. Of course, Madison rejected Jefferson’s interpretation of the Constitution.
The states are not sovereign and independent nations. The people knew that they were giving that status up for all time when they chose to ratify the Constitution. They stated this multiple times. Now, John C. Calhoun may have disliked that and he certainly tried to advance the compact theory all the time, but that was rejected repeatedly by almost everyone right up until the 1850s when the slave owners began to embrace it so they could attempt to justify secession to the non-slave owners. The South Carolina Declaration of Secession is loaded with Compact Theory language.
The problem for them is the compact theory has always been rejected as being unconstitutional before, during, and after the Civil War. The confederates thought that if they won their rebellion they would be able to justify their actions. “The ends justify the means” was their way of operating. This is not a compact of sovereign states. That was pretty much what the Articles of Confederation were and that government was a failure in almost every respect.
It is interesting to see you advance the compact theory, but the problem is all you have done is essentially advance your opinion while ignoring the primary sources, court cases, and other facts which do not fit into your version of how you want the government to work. Even the people of today who want a new Constitutional Convention realize that it is not a compact. Otherwise they wouldn’t want the convention. They would just attempt another illegal secession and fail miserably as there is no support in any state that is remotely close to 50% of the state’s population.
Oh, and by the way, there is no power of nullification. That’s been rejected multiple times too by the SCOTUS. Plus by the man who is called the Father of the Constitution, James Madison.
Nice to see activity again, Chris. I miss the arguments sometimes, although it’s silly when people refuse to use facts like the neos do. It’s even sillier when they refuse to learn, but that’s their problem.
I agree, Jimmy. However, for the record, the states are sovereign–just not independent. But that sovereignty is limited, and has been much more limited since the war and the Fourteenth Amendment. This is the subtlety that escapes so many Confederate apologists–that Madison’s brilliant notion of divided sovereignty allowed for what we call a federated system.
Regarding sovereignty claims, I looked this up in the Legal Dictionary: https://legal-dictionary.thefreedictionary.com/State+sovereignty
I think this is going to have to depend on how one defines sovereignty. In the US the states have some powers of sovereignty, but not absolute sovereignty. The Legal Dictionary defines this as residuary sovereignty. The states are beholden to the people in that state plus the US government holds powers over that of the states. Yes, this is what was called Federalism.
Now, we also have to understand that the people of the United States hold absolute sovereignty over the Federal government. They delegate that authority through the election of representatives, senators, and the President. This is really defined in the Preamble of the Constitution and has been upheld by the SCOTUS.
It is really interesting to study how our government was created in 1787 because they literally broke all the rules in building an entirely new form of government where sovereignty as everyone knew it at that time was completely changed in the US. Jefferson liked the concept although he didn’t like the fact that the federal government was supreme over the states, but he like the rest of the Founders accepted that reality in the end.
So if you want to say a state has limited sovereignty, that’s fine, but we have to explain what that means. The best way to do that is through the exploration of the history and primary sources involved with the creation, ratification, and application of the US Constitution. All states are beholden to their citizens and the US Government acting as representatives of the people of the United States. That’s the thing that the states rights folks don’t want to accept.