In the Shadow of Our Founders: "On shaky ground"

» BuckyRea - "On shaky ground"

Lincoln was clearly stretching by claiming that the perpetuity of the Union preceded the Union itself by either 2 or 14 years (depending on whether you want to use the start date of 1776 or 1788 when the Constitution was ratified). But he was justifying a political position, not offering a legal argument. I agree that we need to look into the Constitution to see if secession was constitutional.

But I'd also argue that the Constitution doesn't claim to inventory the whole number of rights that American humans have. It specifically allows that there are other rights with the reserve clause. While the positive right to quit the Union is no where to be found in the Constitution and was specifically rejected by the leading "law-givers" of 1787, it isn't specifically rejected in the wording of the document. And there were a number of law-givers in the state conventions who stated explicitly that they did have that right. This wording was part of the approval process in Rhode Island, Virginia, and New York, I've read.

I have always failed to see then how it does not then fall under the rubric of a reserved right. I trust you'll cover this in part two.

Among these reserved rights obviously falls the right to resist tyranny. In 1861, the law of the land--altho I do not agree with it--explicitly held that a certain class of people were to be legally considered as property and that that form of property received special consideration in matters of interstate transport. It follows perfectly, I think, that threats of deprivation of that property would be a form of tyranny if the life, liberty, pursuit of happiness, general welfare, or domestic tranquility of citizens were affected by that deprivation.

The question then, as I see it, is that of who gets to decide where tyranny leaves off and simply "an inconvenient commercial regulation" takes up. It would be an absurdity to allow that the alleged tyrant, in this case Lincoln, gets to make that call. It makes more sense to say the decision lies in the sovereign people, acting in the aggregate.

Of course this all leads eventually to a "might makes right" argument. This was, after all, the principle established at a separate "constitutional convention" at Yorktown in 1781 and ratified in Paris two years later. Under that standard, as you point out, Lincoln was definitely in the right and Davis in the wrong. But I suspect you don't wish to rely on that precedent. :o)

This is where I break with Davis: the same right to resist tyranny invested in the white Southerners and exercised through their instruments in the states also existed among the black Southerners. And further, that the Union had a right to assist their neighbors or countrymen in the assertion of their rights to resist tyranny. The inherent sense in this--or at least, the better marketing concept of this rationale--certain dawned on Mr Lincoln. By the start of his 2nd term he was justifying the war mostly in the name of ending slavery.

These are just my instinctive reactions to this debate. I don't necessarily see the precedential value of the Founders' writings outside of the Constitution on this question. While I think their thoughts are enlightening and worthy of great consideration, their personal opinions do not hold the same force as the legal codes they left us with. I know you've studied this matter more than I have, so I'm really looking forward to part two. This is the central problem that I have with Lincoln's early defense for opposing secession. I think it's significant that at first he chose to stand and fight not over secession but over the federal property confiscated by the Confederates.

Here's a cool link I found, by the way.

-- posted by BuckyRea