Lincoln vs the founders?

10 Feb


From Joseph Sobran


Harry Jaffa says Jack Kemp and I have been conducting an “uncivil war” over Abraham Lincoln’s character. Well, for my part, I deny it. Kemp called me one of the current “assassins of Lincoln’s character,” which I thought was a little rabid, inasmuch as I had given Lincoln praise as well as criticism in the speech Kemp referred to (without having heard or read it, naturally). Jaffa doesn’t say how I was “uncivil” in defending myself by quoting Lincoln. I don’t consider it character assassination to distinguish the real Lincoln from the Mythic Lincoln. (A Reply to Harry Jaffa’s In Re Jack Kemp v. Joe Sobran.)

But before I get into details, let me go right to the real point. In the book I’m now writing about Lincoln, I argue for the right of secession. And I also argue that if there is a right of secession, it follows that Lincoln had no authority to suppress secession by force.

Jaffa thinks that he and Lincoln have, between them, demolished the case for secession. Far from it. To make their case, both of them have had to misread the American founding documents, especially theDeclaration of Independence.

What, exactly, did the Declaration of Independence declare to be independent? Thirteen states — “free and independent states.” Now in 1776 and long afterward, a state was by definition free, independent, and sovereign. If it formed a confederacy with other states, it could withdraw — secede — reassert its independence — at any time, because a confederacy was, again by definition, a voluntary association of sovereigns. And the Declaration said nothing about a “Union,” or as Lincoln later put it, “a new nation.”

In order to get around these inconvenient facts, Lincoln said falsely that the Union was older than theConstitution, older even than the states. How could a union of things be older than the very things it was a union of? Isn’t that a bit like saying that a marriage is older than either spouse?

Well, said Lincoln, the Union had been formed while the future states were still colonies — then they declared their independence of Britain — but not of each other, mind you — then the Union was “further matured” in the Articles of Confederation — then it was matured still further in the Constitution; but at every stage, the states had had no existence outside the Union, so the Union was indissoluble. At least no state could withdraw without the consent of the rest of the Union. (This contradicted Lincoln’s own ringing affirmation of the right of secession during the Mexican War, but never mind. He came up with a fine and convenient distinction between a “revolutionary” and a “constitutional” right of secession.)

Oddly enough, the states of 1776 thought they were states, plural, not provinces of a sovereign “Union.” N.B.: They did not declare themselves a single “free and independent state,” which is what Lincoln (followed by Jaffa, of course) in essence said they were.

Let’s pause briefly on one point here. A state can secede from a confederation any time it wants to. It needs no justification beyond its own sovereignty. Lincoln, in denying that the states were sovereign, was denying that they were really states at all. All the rest is secondary — whether slavery was good or bad, whether it was endangered, whether the Southerners were acting like sore losers over the 1860 election, and so forth.

Now for the Articles of Confederation. As their name implies, they defined the Union as a confederation of the states, not as a sovereign power over the member states. In fact their second article says plainly: “Each state retains its sovereignty, freedom, and independence,” et cetera. Each state, if I understand these words correctly, “retains,” among other things, its “independence.” This would seem to imply that each state already enjoyed its independence — not only of Britain, but of the other states.

So the Articles of Confederation were a second Declaration of Independence. Even as the states were still fighting together to secure their independence of Britain, they asserted their independence of each other as well! They were loosely united in a confederation, or, as they also put it, “a firm league of friendship.” But they retained severally their “sovereignty, freedom, and independence,” which I interpret to mean their sovereignty, freedom, and independence.

In the 1783 Treaty of Paris, Britain recognized, and listed by name, the 13 “free, sovereign, and independent states.” Evidently the states were sticklers for acknowledgment of their separate statehood. They didn’t settle for recognition of “the United States” in the aggregate.

Note that the Constitution always speaks of the United States in the plural. There is a reason for that; it isn’t just a quaint detail of linguistic usage.

Perhaps a Straussian analysis will demonstrate that the “inner meaning” of these documents flatly contradicts their ostensible meaning. Meanwhile, we may be pardoned for taking them literally.

We may also note that President Thomas Jefferson, chief author of the Declaration, said, when some states talked of secession, that they should be permitted to go in peace.

The Constitution says nothing about secession, either way. But it doesn’t equate secession with “rebellion” or “insurrection,” as Lincoln did. It says the federal government may aid a state in suppressing “domestic violence” — if the state requests its help. It doesn’t suggest that the federal government may invade a state against its will for any reason.

How could Lincoln be so wrong? Well, he was a product of a later generation of rising nationalism, typified by Daniel Webster and Henry Clay, that was out of touch with the Founders and the Framers of the Constitution. As a matter of fact, the longer I study Lincoln, the more I am convinced that he was simply ignorant of the greatest body of American political thought; I seriously doubt that he ever read even The Federalist Papers. If he did, he never assimilated their thinking about the problems of “confederation,” “consolidation,” “usurpation,” and the like. Jefferson Davis was steeped in these ideas and completely mastered them, as his memoirs show. Lincoln, however, couldn’t have carried on an intelligent conversation with Madison, Hamilton, or his hero Jefferson (whose Kentucky Resolutions he also seems ignorant of).

Jaffa may be surprised to learn that much of my critique of Lincoln, as I will present it in my book, King Lincoln, is drawn from the evidence of his own recent book, A New Birth of Freedom. He doesn’t realize how damning to Lincoln his own words are. For example, he says Lincoln thought that “the Union stood in the same relationship to a state as a state to a county.” Could Lincoln (or Jaffa) really hold such a naive view? The states were not formed by counties delegating powers to them; the counties had no sovereignty, but were mere subdivisions of the states. The states were not mere subdivisions, or inferior parts, of the Union. Lincoln’s simple hierarchical view of the Union is a far cry from federalism. Again we see Lincoln’s simplistic nationalist ideology.

Jaffa tries to make Lincoln sound like an avatar of the Founding Fathers, but about all he took from them was a set of snippets — “All men are created equal,” “consent of the governed,” et cetera — from which he wrung inferences they would have rejected. Jefferson in particular would have disowned Lincoln as a disciple.

Lincoln’s lack of learning was a serious defect, and it cost all Americans dearly. I’m not just defending the Confederacy; I think it was foolish to secede when it did, though it was fully within its rights. The point is that Lincoln’s war deprived all the states of their ultimate defense against federal tyranny and usurpation. Since 1865 the federal government has had little to fear from the states, and it has steadily usurped their reserved powers without much opposition and with total impunity.

To my mind, the most egregious case was the U.S. Supreme Court’s wholly arbitrary 1973 ruling that the states could not constitutionally protect unborn children from violent death by abortion. This was not only morally outrageous, but constitutionally absurd. But by then the states were helpless. Lincoln made that possible.

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