Saturday, February 23, 2008

Paul Johnson on the American Civil War

Paul Johnson's History of the American People, is valuable because Johnson, not being American himself (he is British), has achieved a level of insight into American history that is rarely present in our own historians. Here is what he says about the American Civil War.

“The Civil War…made America a nation, which it was not before. For America…was, rather, an artificial state or series of states, bound together by negotiated agreements and compacts, characters and covenants…. Their contract to become Americans – the Declaration of Independence – did not in itself make them a nation. On the contrary, the very word ‘nation’ was cut from it – the Southerners did not like the word. Significantly it was John Marshall, the supreme federalist, the legal ideologist of federalism, who first asserted in 1821 that America was a nation. It is true that Washington had used the word in his Farewell Addess, but elliptically, and it was no doubt inserted by Hamilton, the other ideologue of federalism. Washington referred to ‘the Community of Interest in one Nation,’ which seems to beg the question whether America was a nation or not. And even Marshall’s definition is qualified: ‘America has chosen to be,’ he laid down, ‘in many respects and for many purposes, a nation.’ This leads one to ask: in what respectsm and for what purposes, was America not a nation? The word is not to be found in the Constitution. In the 1820s in the debates over the ‘National Road,’ Senator William Smith of South Carolina objected to ‘this insidious word:’ he said it was ‘a term unknown to the origins and theory of our government.’ As one constitutional historian has put it: ‘In the architecture of nationhood, the United States has achieved something quite remarkable…Americans errected their constitutional roof before they put up their national walls…and the Constitution became a substitute for a deeper kind of national identity.”

(Paul Johnson, A History of the American People, New York: NY, 1997)

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Thursday, February 21, 2008

Shrove Tuesday and Ashes

As we continue through the season of Lent, Joel Garver has some inspiring comments on his Sacra Doctrina blog regarding Shrove Tuesday and ashes. Read HERE.

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Friday, February 15, 2008

The Constitution and States' Rights

(This article is the third in a series. The earlier articles can be read HERE and HERE and HERE.)
Even though the Constitution clearly specified that power was left in the hands of individual states, three colonies/states thought it was necessary to take additional precautions to make this point clear. Thus, the states of New York, Rhode Island and Virginia, each included in their written ratifications of the Constitution statements on the subject of a state’s right to secede from the new union.

New York’s ratification read in part: “That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness…" Virginia’s read in part: ‘…the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them [the Virginians] whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will…

The states which did not pass specific resolutions such as these still operated with the underlying premise. The historian John Dwyer tells us that, “during the 18th and 19th centuries in which these events took place, the term ‘state’ – which was usually captialized as ‘State’ – connoted the idea of a distinct nation or country more than it did a small regional division of a nation as it now does.”

Constitutional Concerns

The Anti-Federalist, Arthur St. Clair, believed that the constitution did not go far enough to preserve freedom. “…he was a strident anti-Federalist, believing that the proposed federal constitution would eventually allow for the intrusion of government into virtually every sphere and aspect of life. He even predicted that under the vastly expanded centralized power of the state, the taxing powers of bureaucrats and other unelected officials would eventually confiscate as much as a quarter of the income of the citizens – a notion that seemed laughable at the time but that has proven to by ominously modest in light of our current governmental leviathan.” (The Patriot’s Handbook, p. 229). St. Clair eventually renounced his American citizenship because he believed that the U.S. constitution, with its emphasis on rights, would be the undoing of the great experiment in liberty. “I foresee the day," he said, "when rights will subsume responsibilities, where the poor and the despised will become wage slaves of the elite and the mercantilism that we have fought against, and the tyranny that we have stood against, will be swallowed by the average American citizen and they will call that freedom.

Patrick Henry (picture below) was a more moderate anti-federalist than Arthur St. Clair. But he still had concerns about the constitution.

Henry was concerned that the ‘general welfare’ clause in the constitution’s preamble might one day be interpreted to authorize more federal power than the framers intended.

Thomas Jefferson wrote to Joseph Priestley in 1802 recollecting similar reservations:

"I was in Europe when the Constitution was planned, and never saw it till after it was established. On receiving it, I wrote strongly to Mr. Madison, urging the want of provision for... an express reservation to the States of all rights not specifically granted to the Union."

To keep that from happening, the 10th amendment was added to the American constitution.

The Tenth Amendment

The 10th amendment reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Put simply, it is illegal for the federal government to exercise power in a state unless the constitution specifically grants the federal government that authority. As Thomas Woods writes,

“The Tenth Ammendment gauranteed the states’ rights to self-government. If the states had not delegated a particular power to the federal government, and if the Constitution had not forbidden the power to the states, then it remained as reserved to the states or the people. For Thomas Jefferson this was the cornerstone of the entire Constitution. Its presence in the Bill of Rights serves to remind us of the importance of self-government in the minds of Americans of the early republic.

"Since the states existed prior to the federal government, they were the source of whatever power the federal government had. Thomas Jefferson determined the constitutionality of proposed legislation on this basis: If he did not find the power spelled out in Article I, Section 8, then it remained reserved to the states. It would be unconstitutional for the federal government to exercise the proposed power. If the Tenth Amendment were stil taken seriously, most of the federal government’s present activities would not eist. That’s why no one in Wshington ever mentions it.”

Madison Bows to Tenth Amendment

On the eve of his departure as president in 1817, President Madison vetoed a bill authorizing federal expenditures to pay for roads and canals. In explanation, Madison said that although he personally thought it was a good idea to use federal money to finance these projects, the constitution had not actually given the federal government this authority. He said that the constitution would have to first be changed and then he could legally agree to use federal money to pay for roads and canals.

The reason it is illegal for the government to use federal money to pay for roads is because the 10th amendment prohibits the federal government from exercising power in a state unless the constitution specifically grants the federal government that power.

One can only wonder what Madison would have thought if he saw the situation today, where most of the federal laws assume authority over areas not delegated to federal government by the constitution. In 1792, Madison wrote,

If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress... Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”

The First Amendment

What many people - including conservative people - today do not grasp is that the whole point of the constitution was NOT limited government, but limited federal government. Misunderstanding this basic points leads to further misunderstand about the constitution. For example, how many times have you heard that the Constitution gives citizens the right to free speech, free press and free religion? It doesn’t. The 1st Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While on the surface these words seem to guarantee free religion, at the time it was taken to simply meant that Congress - the federal government - couldn’t interfere with the press or religion of any given state. But the individual states were free to regulate as much as they wanted to in those areas. The same is true of free press. Whether there is a free press or not is something the constitution leaves completely open to the individual states. The constitution does not guarantee free press, it only guarantees that the government in Washington will not pass any laws about it. It was actually assumed that the individual states could restrict free press. As Thomas Jefferson said in a letter to Abigail Adams in 1804: “While we deny that Congress has a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right to do so.” Similarly, it was assumed that the government of individual states would pass laws about religion. The 1st amendment was simply telling the Feds to leave the states alone. As Thomas Jefferson said, referring to religion, “It must rest with the states as far as it can be in any human authority.”

Because the founding fathers had confidence in self-government, they were more worried about the central government becoming tyrannical than the small local government of the individual colonies or states. It was assumed that the individual states, because they were democracies, would always tend towards freedom rather than oppression, but it was not assumed that about the federal government. On the contrary, they were suspicious of large overarching systems that, by virtue of being so large and powerful, tend towards corruption. Patrick Henry summed it up well when he said,

The constitution is not an instrument for government to restrain the people but an instrument for the people [i.e. self-governing colonies] to restrain the government, lest it come to dominate our lives and our interests and everything in our lives and our interests.

Living and Breathing Document?

The founding fathers were worried that future generations of Americans would not allow themselves to be bound down by the chains of a literal reading of the Constitution. The supreme court was intended to safeguard against government interpreting the constitution in a way that was inconsistent with their original aims and intent. One of the purposes of the judicial branch was to prevent someone like Al Gore or Hillary Clinton coming to power and claiming that the constitution is a ‘living and breathing document’ fluid enough to be adapted to the changing values of the contemporary community (which in practice means that the constitution can simply mean whatever you want it to mean). Thus, Thomas Jefferson emphasised that “In questions of power, then, let no more be heard of confidence in man, but bind him down by the chains of the Constitution.” Compare Jefferson's words to those of Al Gore:

You know, I believe the Constitution is a living and breathing document and that there are liberties found in the Constitution such as the right to privacy that spring from the document, itself, even though the Founders didn't write specific words saying this, this, and this, because we have interpreted our founding charter over the years and found deeper meanings in it, in light of the subsequent experience in American life of the last 211 years of our republic, and a strict constructionist, narrow-minded, harkening back to a literalist reading from 200 years ago, I think that's -- I think that's a mistake. And I would certainly not want to appoint any justices that took that approach.” (Al Gore, March 14, 2000)

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Federalism, Anti-Federalism and States' Rights

People today tend to think that it was after the ratifying of the constitution that individual states gave way to a single ‘nation.’ It would be more accurate to say that the Constitution was designed to keep the States separate. This is because the Constitution was based on the political philosophy known as federalism.

The Federalists wanted a strong central government, for purposes of defence, but with most powers remaining with the states. The Federalists included prominent figures such as Alexander Hamilton and initially James Madison. Madison (picture below), though originally one of the more centralist-leaning of the founders, called the Constitution “a compact between the States in their sovereign capacity.” Elsewhere Madison said:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite… The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government.” [James Madison, Federalist #45]

Secession and States Rights

Because Madison believed the states retained sovereignty, he believed that secession was in principle possible, such as in occasions when force was used against a state. It is clear that Madison didn't believe America possessed the kind of metaphysical indivisibility that would later be accepted as axiomatic. Madison said: “The use of force against the [individual] state would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.” (Quotation taken from HERE)

To say there can be a ‘dissolution of all previous compacts by which [the state] might be bound’ is simply to say that states can secede from the union. This seems to have been taken for granted by many, if not all, the founding fathers on the grounds that the union only existed in the first place because each state had voluntarily chosen to be part of it.

Related to this was the fact that the federalists favoured a very limited national government. In Federalist # 28, Alexander Hamilton (pictured left) wrote, “It may safely be received as an axiom in our political system, that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority.

Alexis de Tocqueville, the Frenchman who wrote about his observations of American democracy in the 19th century, referred to the founding of America by saying: “The Union was formed by the voluntary agreement of the states; and these, in uniting together, have not forfeited their nationality, nor have they been reduced to the condition of one and the same people will stop if one of the states chose to withdraw its name from the contract, it would be difficult to disprove its rights to do so.” (Tocqueville, Democracy in America)

Despite the provisions that Federalism made to preserve the self-government of the various states, the Anti-Federalists (also called Republicans at the time), such as Patrick Henry and Thomas Jefferson believed that the Federalists were not going far enough. Anti-Federalists believed that all sovereign power should remain with the states, except for very few ‘enumerated’ powers specifically delegated to the federal government.

Thomas Jefferson argued that it would be preferable for states to break away from the union rather than continue as part of something that might threaten their self-government.

[We should be] determined…to sever ourselves from the union we so much value rather than give up the rights of self-government…in which alone we see liberty, safety and happiness.” (Thomas Jefferson, letter to Madison in August 1799)

And again Jefferson wrote: “If any state in the Union will declare that it prefers separation... to a continuance in union... I have no hesitation in saying, 'let us separate.'” (Thomas Jefferson, letter to W. Crawford, June 20, 1816)

The conviction – held in varying degrees by both the Federalists and the Anti-federalists – that States are better governing themselves instead of being subject to central control, was enshrined in the constitution. The constitution was intended to make it impossible for the federal government to limit the self-government of the states. That will be the topic of the next post.

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States' Rights and the Meaning of Freedom

Free and Independent States

One of the common misconceptions about the American War of Independence is that the Americans were fighting against the British for the Independence of America as a single nation. But the Declaration of Independence nuances things differently:

That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do” (emphasis in original).

As the above wording makes clear, the Colonies were fighting to be free and independent states (plural) - they were not fighting for the right to have one centralised government replaced by another centralised government. To understand the significance of this we must first explore the notion of freedom.

The Concept of Freedom

For a long time I struggled to understand the concept of freedom as it was used in American political rhetoric. As a boy I frequently heard people talk about the freedom and liberty - especially on the 4th of July - and I wondered what it meant. No one was really able to tell me so one day I looked ‘freedom’ up in the dictionary. To my surprise I saw that it simply meant ‘the absence of restraint.’ Well, I thought, freedom isn’t necessarily a good thing, because total freedom (absent of restraint) would mean no government at all. All that happened during the Revolutionary War, I reasoned, was that America stopped being governed out of London and started being governed out of Philadelphia, and it is only sentimentality to say that one is ‘freedom’ and the other isn’t.

What I didn’t understand, and what many Americans don’t appreciate, is that the concept of ‘freedom’ during the inception of America was not a free standing timeless principle, but a concrete context-dependent notion. It meant self-government just as it did in the classical era. It referred to the colonies' ability to govern themselves instead of being governed by Parliament or the King. The colonies didn’t want an abstract, mythic, vague kind of freedom that no one can really define but which everyone is supposed to somehow know what it means; rather, they wanted the very specific freedom for each colony to be autonomous. And that freedom, they believed, went hand in hand with responsibility.

It follows that when Patrick Henry said, ‘Give me liberty or give me death’ he meant liberty for the people of Virginia to form their own legislature and not to be ruled by Parliament, nor by Philadelphia or Washington DC if it came to it. When the founding fathers like Jefferson spoke of freedom and liberty, they were drawing on concepts found in classical Greek and Latin authors where freedom meant local self-government. On the other hand, when modern Americans sing about America being the ‘land of the free’ or recite the words ‘liberty…for all’ in the Pledge of Allegiance, they usually mean freedom and liberty as skwooshy abstract concepts and would be flustered if pressed for a definition. Probably no one who cites the pledge thinks he or she is talking about liberty for Idaho to pursue sovereign self-government, and if they did think that, the words “one Nation” and “indivisible” would at once render such an interpretation untenable.

The Independent Nation of Vermont

At the risk of overstating my argument, the Americans saw themselves as a collection of separate colonies that were only loosely connected together to fight on behalf of each other for a common cause: colonial self-government. The state of Vermont even declared itself an independent nation in January 1777 and fought its own separate war against the British. Consequently, Ethan Allen and his ‘green mountain boys’ were not fighting for the independence of America, as is often thought, but the independence of the Republic of Vermont. On the left is a picture of the flag for The Republic of Vermont.
The Articles of Confederation and States' Rights

In 1781, the Articles of Confederation were ratified as the Constitution of the new and United States and served as such until the current Constitution took effect in 1789. The second article in the Articles of Confederation set forth the states’ view regarding who held ultimate political power over them: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

The Articles of Confederation established the union of states as a ‘confederacy’ and a voluntary ‘league of friendship.’ Speaking about the Articles, John Dwyer writes,

The states declare themselves as sovereign, on the human plane, over their own destinies. They reserve the right to form, remain, or not remain in league with one another, and they convey only specific, limited powers to the association of states they have formed. These powers do not include the right to hold them together in any association against their will.’

In summer of 1787, representatives from every state except Rhode Island gathered in Philadelphia to discuss revisions to the Articles of Confederation. The convention delegates sought to strengthen the power of the central government but still prevent the new government from encroaching upon the states’ rights of self-government. It soon became apparent that a new document would be required, and this led to the drafting of the Constitution. James Madison suggested that the new federal government be given the power to veto state legislation. The proposal was overwhelmingly defeated. It would have gone against everything they had fought for in the war against the British. Backing down, Madison explained that federal activity would be confined almost exclusively to foreign affairs, while the actual governing of the country would be the province of the individual states.

So concerned were Virginians about the possibility that the new Union would infringe upon their rights of self-government that upon ratification of the Constitution Virginia declared that it reserved the right to secede from the Union. …evidence from Virginia’s ratifying convention makes clear that the delegates believed they were entering a voluntary compact among states rather than yielding their sovereignty to an all-powerful national government. New York and Rhode Island would include similar clauses in their own acts of ratification.” (Dr. Thomas Woods, ibid)

Treaty of Paris

When King George II admitted defeat to the colonists, he admitted defeat to ‘sovereign and independent states.’ As Article I of the Treaty of Paris put it,

His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States; that he treats with them as such, and for himself, his heirs and successors, relinquishes all claims to the Government, propriety and territorial rights of the same, and every part thereof.”

Note that King George was required by the terms of the treaty not to admit that ‘America’ was independent or even that ‘the United States’ was independent, but that the thirteen named states were independent.
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Presidents Day and States' Rights

As America prepares to celebrate 'Presidents' Day', it is a good occasion to reflect on what our presidents actually believed concerning the role of federal and state government. Over the next few days I will be posting a series of articles I wrote earlier in the year exploring the history of the American system, with particular emphasis on the importance of states' rights.

In order to understand the importance of states' rights, it is necessary to go back to the very inception of America. The earliest English settlers formed colonies that were fiercely independent. Each colony had a unique culture, a unique way of life and often different religious approaches. This being the case, there was frequent bickering between the colonies, as seen by some of the nasty comments they made about each other. One Puritan said of the Virginians: “The farthest from conscience and moral honesty of any such number together in the world.” Virginian William Byrd II, said of the Puritans: “A watchful eye must be kept on these foul traders.” At least the Puritans and the Virginians could agree about Quakers, saying: “[They] pray for their fellow men one day a week, and on them the other six.” The Quakers, on the other hand, called the New Englanders, “the flock of Cain.” (From Dr. Thomas Woods' The Politically Incorrect Guide to American History.)
The bickering amongst the colonies also extended to religious matters. As Dr. Thomas Woods writes:

Religion was fundamental to the colonists; and though they worshipped the same God, there was plenty of bickering. Indeed, the Religious Society of Friends, or Quakers, raised the ire of many colonists. The Puritans, who thought they had purged their worship of the Church of England’s ritual and ‘superstition,’ were still too formalistic for the Quakers. Decades before William Penn settled in Pennsylvania in the 1680s, Quakers living in Rhode Island travelled to Massachusetts to rouse its benighted inhabitants from their dogmatic slumber and awaken them to the aridity of their faith. Quakers disrupted Puritan church services, heckled ministers, and even walked naked up and down the church aisles. The Friends were banned repeatedly from Massachusetts.

This mutual antagonism contributed in a peculiar way to the development of American liberty: Each denomination and colony was vigilant against interference in its internal affairs by others. The differences among the colonies created the presumption that each should mind its own business, and so should any potential central government.

As I shall be arguing, it was these marked differences between the colonies that made the framers and ratifiers of the constitution so anxious to preserve the autonomy of each state and avoid centralism. The colonists were wary of joining intercolonial confederations, unless for practical purposes such as defence. Even then, they insisted that the union should not infringe on the self-government of each colony.

In 1643, the Confederation of New England was formed in case of conflict with the Indians. But Massachusetts was sure to establish the principle that each colony held a veto over the actions of the Confederation. The same spirit led the colonists to reject Benjamin Franklin’s proposed Albany Plan of Union in 1754, which called on the colonies to yield authority to a new intercolonial government to help coordinate defence against the Indians. Not a single colonial assembly ratified the plan because they didn’t want to be joined together.

But didn't that all change when the constitution was framed? Didn't the states become 'united', as seen in the title of our nation, "The United States of America"? Well, yes and no. But that is the subject of my next article.
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