"What they cannot take by an election, neither can they take it by war"

From Abraham Lincoln’s Message to Congress, July 4, 1861 talking about Fort Sumter and its aftermath. (I believe that the reference to “Washington” is to George Washington and neither to the city nor to the government that lives there.)

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It forces us to ask: "Is there, in all republics, this inherent and fatal weakness?" "Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?"

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This is essentially a people's contest. On the side of the Union it is a struggle for maintaining in the world that form and substance of government whose leading object is to elevate the condition of men -- to lift artificial weights from all shoulders; to clear the paths of laudable pursuit for all; to afford all an unfettered start and a fair chance in the race of life. … (T)his is the leading object of the Government for whose existence we contend.

I am most happy to believe that the plain people understand and appreciate this.

It is worthy of note that while in this, the Government's hour of trial, large numbers of those in the Army and Navy who have been favored with the offices have resigned and proved false to the hand which had pampered them, not one common soldier or common sailor deserted his flag, .. To the last man, so far as known, they have successfully resisted the traitorous efforts of those whose commands but an hour before they obeyed as absolute law. This is the patriotic instinct of plain people. They understand, without an argument, that the destroying the Government which was made by Washington means no good to them.

Our popular Government has often been called an experiment.

Two points in it our people have already settled -- the successful establishing and the successful administering of it.

One still remains -- its successful maintenance against a formidable internal attempt to overthrow it. It is now for them to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion; that ballots are the rightful and peaceful successors of bullets; and that when ballots have fairly and constitutionally decided there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by war; teaching all the folly of being the beginners of a war.

The Civil War Must Be Refought In Every Generation

This essay is called "The Civil War Must Be Refought In Every Generation"

I wrote it 1996, after listening to Robert Dole accept the Republican nomination for President. I did not try to update it, as I feel that even my references to things that are not currently discussed are about things just lurking under the surface.

It is my bedtime story, and it informs everything political and historical that I write.

It is a little pedantic, as I cover points that you all know about. When I re-read it, some of it seemed contradictory, but I realize that what it proves, again, is that I stand in an odd place politically. There is a little more conservative blood in me than in most self-described liberals, but not enough to be a Republican!

Here it is

THE CIVIL WAR MUST BE REFOUGHT IN EVERY GENERATION

We are still, 200 years later, a new experiment on the face of the earth. We are a nation conceived in liberty, and dedicated to the proposition that certain truths are self-evident. All men are created equal. We are endowed by our creator with certain inalienable rights, such as life, liberty and the pursuit of happiness. We, the people, in order to form a more perfect Union, founded a government of the people, by the people, and for the people.

It is easy to say that we fall short of these ideals every single day. For about fourscore and seven years, the ideals themselves were questioned. Some argued that all men were not created equal, and that the best way for some men to live was as the property of other men. Citizenship was not granted on the basis of where you were born, but on the color of your skin.

Some argued that the people had no legitimacy to form a more perfect Union. Some said that the people had nothing to do with the Union, that the Union was one of States, not people. It was, after all, the United States of America, and not the United People of America. Any rights that the people had came from the individual States, and not the United States.

In 1856, former President Fillmore ran for election with a third party, the Know-Nothing Party. He won 21 percent of the popular vote on a platform that sought to eliminate benefits to immigrants, whether they were citizens or not. There was a feeling that Germans and Roman Catholics were taking too many jobs from real Americans.

Then we engaged in a great civil war, in which those believed in one ideal fought against those who believed in another ideal. Meade held off Lee at Gettysburg. Sherman burned down Atlanta and Charleston. Grant marched into Richmond.The single fact of our history is that the Union won the Civil War in 1865, and those who lost it have been trying to reverse that result ever since.

When people say that the 60s are a mistake, or that such and such a thing proves that the 60s spirit is still alive, and that people have the power, or that such and such a thing proves that the 60s are over, and good riddance, I always have to ask them which 60s they are talking about.Slavery was abolished in the 60s, and the 14th Amendment gave all citizens equal rights.

Among other factors, a labor movement, a woman’s suffrage movement, a civil rights movement, and a nationalist Supreme Court, tried to inch the concept of equal rights closer to reality.Land was plentiful. If you lacked an opportunity, or could not take advantage of an opportunity, you could go west. We needed more help, and with more open-handedness and more open-heartedness than any people in the history of the earth, we invited people who were willing to work to come join us. We educated the children of these people. We demanded that the government educate them. We took advantage of this education. We succeeded and succeeded.

From another land, a power arose that believed that more people were more equal than others. That some people were slaves, and that other people really weren’t people at all. This power felt that citizenship was not to be based on who you are, or where you were born or what you agreed to do as a citizen, but on who your great-grandfather was. We smote that power and we ruled the world.

Were things better then, as Bob Dole says they were? I guess if you are the only country standing after the rest of the world is destroyed, things will be better for the winners. If we wanted to destroy the rest of the world, and be winners like that, things could be “better” again. Sexual repression and rigid religious intolerance did not make things better then. Low taxes, no Miranda rights, and lynchings did not make things better. Winning World War II made things better.

A Cold War simmered after that. We were opposed by an evil empire. Why was it evil? One reason was that it took a good idea – our idea of government of the people, by the people, and for the people --- and perverted it. We won that war, too.

After the Cold War ended, we saw something strange happening. We discovered that in places like Yugoslavia, 45 years of totalitarianism, of police state repression and fear, could not wipe out the basic centuries-old animosity that people had for their neighbors.

The same is true here in the United States. The great animosity that never quite went away and that revived itself full-throttle after the United States won the Cold War, was the great fact that the Union won the Civil War in 1865, and the losers have been trying to reverse that result ever since.

When Newt Gingrich speaks of a Contract with America, and when Pat Buchanan speaks of a cultural war, and when, most surprisingly to me, Bob Dole, the man from bleeding Kansas, in accepting the Republican nomination, denigrates the legitimacy of the executive branch to spend tax dollars, and relies on the “American people” (whoever they are), we discover that despite the fact that all Americans have fought to defend this country through two World Wars, a Cold War, and assorted other wars, despite the unparalleled success of the United States from 1865 to 1996, we cannot wipe out the basic fact that not everyone accepted the result of the Civil War.

The Civil War must be refought in every generation, and in this generation, there are times when it seems that the losers of the Civil War are winning the latest battle.

The battle manifests itself in a platform that attempts to deny the basic rights of citizenship to children born in America. It defines citizenship, just as Millard Fillmore and the Know-Nothings did, just as slave owners did, totally on who your grandparents were. If there is an “American people” as Bob Dole say, and not “American citizens” as the Constitution says, you wind up with a nativist Republican platform plank.

The battle manifests itself in any and every discussion of block grants. Only in an environment which values states rights over the rights of people could we pass laws where a taxpayer from New York or California pays money to Washington and then be told by Washington that the money was being transferred to Little Rock and Jackson without any oversight, without any right of the person from New York or California to know what the money was being used for. This is neither a state tax nor a Federal tax. It is a state with certain values trying to assert primacy over a state with other values.

The battle manifests itself in any and every discussion of the legitimacy of Federal taxes. If we the people tried to form a more perfect Union, and the Federal government, over the long term, is somewhat responsive to we the people, then the government is worthy of our financial support. After all, without the Federal government, we would not be as prosperous. Through the coordination of the Federal government, we the people built canals, built turnpikes, built the railroads, supported the transcontinental cable, built the interstate highway system, launched telecommunications satellites, flew to the moon, and through the military, developed the Internet. People made financial fortunes standing on the shoulders of the efforts of we the people. Everyone’s tax dollars went to developing the tools through which many of these efforts were possible.However, if the government of the United States is to the individual states what the United Nations is to the individual nations, then paying taxes to the Federal government can be seen as intrusive, redundant, and illegitimate, despite the Constitutional amendment expressly allowing Federal income taxes. If the Federal government is not worthy of financial support, it is not that important, and it should not be too worrisome to shut the Federal government down.

The very notion of a “Contract With America,” the very choice of the words “Contract With America.” no matter what its contents, implies that the government is not of the people, by the people, and for the people. The very notion of a Contract “with” America implies that government is an outside alien entity that needs to enter a contract with the American people (whatever that means) to be legitimate.

That, however, was not the result of the Civil War. The result of the Civil War was that there is no Contract with America. There is a contract of, by and for America. It is called the Constitution. It is made among people with American citizenship, which is a privilege that comes with being born on the land, or comes by meeting certain minimal citizenship requirements. I hold these truths to be self-evident. Pat Buchanan does not.The people who wish to defend the Constitution better wake up and go to war to defend it. The people against the Constitution have been wide awake for a very long time.

The Civil War Must Be Refought In Every Generation --- A Radical Footnote

I reposted what I call my "bedtime story" The Civil War Must Be Refought In Every Generation .

I wrote it in 1996 on an old Brother Word Processor, and I edited it slightly, when I retyped it into Blogger on the day after Election Day 2004.

When I put it up today, I did not re-edit it at all.

One prominent school of scholarship says that the Civil War occurred because the elite class in both the North and the South became more radical than the people they were representing. The Southern leadership was more secessionist than the Southern people. The Northern leadership was more abolitionist than the Northern people. Instead of the leadership (basically the older men) cooling the passions of the rabble (basically the younger men), they inflamed them into fighting, where there may have, in fact, been more room to compromise.

My own view of the matter, which I have discussed at various points on this blog, is that although the South seceded over something called "states rights," they meant something very different (in the 1850s) from what the term came to mean (basically in the 1950s). The states righters of the 1850s, I contend, did not feel that the Federal government was too strong.
They felt that the Federal government needed to be very strong to protect the "states rights" -- i.e. -- the rights of the states to make and enforce state laws regarding whatever they liked, notwithstanding the objections of the other states. In those days, they liked slavery.

When the South lost control of the Federal government, for the first time really, in the Election of 1860, they did not want the strong Federal government they created to be turned against them. Therefore, the South seceded.

"States Rights" in the 1850s context, especially in the radical notion espoused by John Calhoun, refers to the notion that the States, not the people, are the sovereign players in the Federal government. In order for me to make that claim, or for Calhoun or Cobb, or any of the other Fireeaters to make that claim, you have to assume that in the Preamble to the Constitution, either the phrase "We The People" refers to the States, or more likely, that the people give their power to the States.

In either context, under this theory, individuals are not direct players in the Federal government.

The Civil War changed that context on the ground, and the 13th Amendment and the 14th Amendment changed that result in the Constitution. The South lost the Civil War, and have spent the last 140 years trying to reverse that fact I am free to assume, and of course, I do assume, that whenever someone talks about longing for a Constitution that goes back to the "original intent of the framers" that they are looking for a Constitution that ignores the fact that the Civil War was fought, and ignores the Amendments that arose because of the War. Of course, the Supreme Court does that themselves all the time. But, its more than that.

If I am right in saying that the Civil War was fought because the South did not want the strong Federal government that they themselves had created to be used against them, then the South has managed to re-write history (fiction) that states rights meant a weak Federal government. And with the election of George W. Bush, they moved a long way, if not all the way, to success.

That, of course, is a library and a lifetimes worth of research and assumptions ploughed into one paragraph, but we'll deal with the specifics some other day.

But for now, it leads to the following conclusions: The Federal response to Hurricane Katrina -- "it's not my job man" -- is the direct result of the refusal to face the fact that the States Rights was not a cause of the Civil War. Slavery was.

Although States Rights could have other meanings, States Rights, as an actual doctrine in the world, has only been used as an excuse for racism early (as an excuse for free labor) and later on in the contexts of "right to work" -- (an excuse for cheap labor)

The Intent of the Framers -- Roe v Wade and Terri Schiavo

I seem to keep coming back to the following point --- I believe that even a conservative Supreme Court will leave Roe v Wade stand until it can find a way to hold that abortion is illegal as a Constitutional matter. It can then hold that decisions regarding abortions never should have been, and therefore cannot now be, a matter of State law (or to close the circle, a matter of Congressional legislation).

The Supreme Court will never return the jurisprudence on abortion to the legal status of 1970, as if Roe had never happened.

In my analysis, the overturning of Roe would be handled the same way that the Supreme Court tried to in Dred Scott -- by attempting to ensure that the old establshed decision makers (Congress on slavery, and the States on abortion) were not allowed to make new decisions. That is why the two conversations are related. (See Part 2 -- below)

Anyway, the best way for a conservative court to overturn Roe would be to show that the termination of the fetus violates the 14th Amendment rights of the fetus. Since I agree that jurisprudence surrounding the 14th Amendment has always been a complete mess, I don't really think that it would be a long leap for the Supreme Court to state that a fetus is a person under the 14th Amendment, etc. (Although obviously it would be a huge leap politically.)

On that day, I think we will find a lot of the "intent of the Framers" types and the entire "religious right" much more tolerant of finding additional rights in the Constitution. And the folks on the left will feel somewhat differently, too.

Not to open up that old can of worms again, but we had a little sampling of all that earlier this year, when every person in the Bible Belt expected and demanded that the Supreme Court invent what seemed to me to be new fundamental Federal rights for both . Terri Schiavo and her parents.

I am surprised that Terri Schiavo's name did not come up more in the recent stuff on Harriet Miers. Maybe it didn't come up because Harriet Miers was basicially a family dispute amongst conservatives. When the next Supreme Court justice is nominated, Luttig or Alito or McConnell, I hope that Terri Schiavo's name comes up in talking about the fact that judicial activism is always in the eye of the beholder.

The Intent of the Framers -- The Dred Scott Decision

The Supreme Court in Dred Scott said that Congress had no right to ban slavery in the territories that were not yet states. (In the case of Dred Scott it was Wisconsin, but as a political matter, Wisconsin was really a stand-in for Kansas and Nebraska and New Mexico. Nebraska and New Mexico both being much larger then than now.)

Until Dred Scott, Congress assumed that it had the power to regulate slavery in the territories before they became states, and exercised that power from the Northwest Ordinance in 1787 through to the Kansas-Nebraska Act in 1854. Congress, and everybody else, knew that its use of this power would pre-determine which way the newly admitted state would decide the slavery issue. That is why the Dred Scott court was so determined to limit Congressional power.

Commenting on the implications of Dred Scott was the topic of much of Abraham Lincoln's political activities in those days. Lincoln's "House Divided" speech, for example, talks about the conspiracy to rebuild the house. Lincoln imagined a Dred Scott II type of decision that would require every state to accept slavery. That was a pretty paranoid charge. Still, Lincoln gained a lot of support by saying those things. The Supreme Court's silence, and what it might do next, also came up a lot in the Lincoln - Douglas debates.

And Lincoln's Cooper Union speech was an attempt, through statistical analysis, to show that the 39 men who were both at the Constitutional Convention and who served in Congress, firmly believed in the right of Congress to limit slavery in the territories and were not in favor of slavery as anything other than a short-term resolution. Lincoln would refer to it as "putting slavery on the road to ultimate extinction" According to Lincoln, back in the time of the Framers, even the Southern Framers were in favor of limiting slave

The Intent of the Framers -- Marbury v Madison and the Civil War Amendments

When originalists say that the Supreme Court should interpret the Constitution solely by the intent of the Framers, and the Supreme Court should have no more power than a Surrogates Court, one of the points some of the originalists are trying to make is that MARBURY v MADISON (1801 -- one of the key cases regarding Judicial Review) itself was wrongly decided

Problem with that, of course, is that MARBURY v MADISON itself was a battle between 2 groups of people, both groups being present at the creation, both groups of "originalists".

In MARBURY, the side favoring strong central government with strong judicial review won. The side that said they favored a weaker government with less judicial review (the side that had control of the Executive and the Congress for most of the next 60 years) could have taken steps to limit the Supreme Court, but chose not to.

One moral I take from the story is that the Framers said a lot of different things, and that an activist Supreme Court was useful to generation of the Framers, and the generation after them.

For myself, just about the only thing I can clearly glean from the original Constitution is that the Framers tolerated some form of slavery, and may or may not have favored equal protection amongst the States. In the world view of the Southern Framers (who are the only Framers who seem to count to some of these modern-day originalists), Equal Protection for people was ludicrous.

About the only thing I can glean about the 13th, 14th and 15th Amendments (Abolition of Slavery, Equal Protection and the Right to Vote) is that the Southern Framers would have opposed them (as did Southerners at the time of passage), and that the Amendments only passed into the Constitution after the Civil War because the South was still out of the Union. I am sure Strom Thurmond, and maybe Robert Bork and Trent Lott, would agree that the poor South was coerced into accepting the Civil War Amendments as an unfair cost of readmission into the Union.

Does that mean that originalist nominees to the Supreme Court in 2005 should oppose the Civil War Amendments as well? Can even a Constitutional Amendment be unconstitutional if it does too much violence to the original intent of the Framers?

A Quote From Daniel Webster

They do not remember that the doctrines and the miracles of Jesus Christ have, in eighteen hundred years, converted only a small portion of the human race; and among the nations that are converted to Christianity, they forget how many vices and crimes, public and private, still prevail, and that many of them, public crimes especially, which are so clearly offences against the Christian religion, pass without exciting particular indignation. Thus wars are waged, and unjust wars. I do not deny that there may be just wars. There certainly are; but it was the remark of an eminent person, not many years ago, on the other side of the Atlantic, that it is one of the greatest reproaches to human nature that wars are sometimes just.

Daniel Webster
(Whig -- Massachusetts)
March 7, 2005
(On the Floor of the Senate)