From: Steve Schear <azur@netcom.com>
Date: Mon, 11 Aug 1997 04:33:40 +0800
To: cypherpunks@cyberpass.net
Subject: A peculiar notion
Message-ID: <v03102800b013d04c0f1b@[10.0.2.15]>
MIME-Version: 1.0
Content-Type: text/plain



For those who think that a convenient liberal interpretation of our
Constituton, a 'la Justice Brenan, is a relatively recent phenomenon, I
offer:
---------------


		Rethinking Lincoln and his peculiar notion

By Joseph Sobran

War usually isn't worth the price, even when you win. A new collection of
essays, "The Costs of War: America's Pyrrhic Victories," edited by John V.
Denson (published by Transaction), takes a new look at our wars without the
mythology that portrays them as not only worthwhile but gloriOUB. The
contributors to this stimulating collection agree that most of our wars
have had the ultimate effect of strengthening government at the expense of
liberty and the rule of law.

One of the most provocative essays in the volume is the historian Richard
Gamble's essay "Rethinking Lincoln." Today Lincoln is a demigod to nearly
everyone, with intellectual celebrants on both the Left (Gerry Wills) and
the Right (Harry V. Jaffa). We seldom ask whether he was justified in
making war on the seceding states.

Yet in his own time, this was the crucial queation. The Southern states
declared their independence in emulation of the original 13 Colonies, and
many Northerners recognized their right to do ao.

On what grounda did Lincoln deny that right? On grounds that these states
permitted slavery? No, because that would have invalidated the 1776
Declaration, which Lincoln, like most Americans, held sacred. Some other
reason had to be found.

So Lincoln chose to call secession "rebellion" and "insurrection" - an
uprising against the sovereign Union. He managed thus, Mr. Gamble points
out, by subtituting for the actual early history of the Union his own
version of the American founding." Lincoln offered the. peculiar notion
that the Union had somehow pre-existed the

Constition, the Articles of Conderation, and even the Declaration of
Independence, and that no state, therefore, could withdraw from it. The
Union is older than the states," Lincoln argued; "and, in fact, it created
them as states."

But, as Jefferson Davis, the Confederate president, pointed out, the
Constitution had been "a compact between independent states." The powers
given to the federal government had been "delegated," and whatever is
delegated can be withdrawn. In fact, several states had ratified the
Cosstitution on the express condition that they could reclaim the delegated
powers and secede at any time.

Since the right of secession had been stipulated without challenge in 1789,
either the states had retained it or their ratifications had been invalid.
Lincoln simply ignored this dilemma. His argument implied that the states
had had no choice but to ratify the Censtitution, since they belonged to a
Union from which there was no exit. "In Lincoln's mind," Mr. Gamble
observes, "the Union was not only perpetual, antecedent to the
Constitution, and the creator of the very states that now sought to leave,
it was also a spiritual entity, the mystical expression of a People."

A superb lawyer, logician and rhetorician, Lincoln must have known how
feeble his argument was. Before becoming president, he had several times
affirmed the right of any people, sufficiently numerous for national
independence, to throw off, to revolutionize, their existing form of
government, and to establish such other in its stead as they may choose."
This was sound Jeffersonian doctrine, and his later sophistical attempts to
wriggle out of it must have embarrassed him.

In his prosecution of the war against the Confederacy, he claimed, with
similar sophistry, powers that, under the Constitution, properly belonged
to Congress, including the powers to raise an army and navy and to suspend
habeas corpus. He just)fied himself on grounds that Congress would have
done these things had it been in session-which Mr. Gamble calls a peculiar
defense of his behavior that conceded his guilt."

By Lincoln's wartime logic, no state can ever have the right to secede, no
matter how flagrantly the Constition is violated by the federal government.
The Civil War, waged in the name of the Declaration actually resulted in
the practical abrogation of its principle that any just government must
have "the consent of the governed."

Lincoln insisted that he was violating parts of the Constitution only to
save the whole; but the war ultimately left the interpretation of the
Constitution at the mercy of the government it is supposed to restrain.

In short, the Constitution itself was a casualty of Lincoln's war. A
Pyrrhic victory indeed.