Friday, January 4, 2013

In Good Faith: Lincoln and the Constitution

"I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so."
  ~ Lincoln
The issues surrounding the War Between The States and President Lincoln's legacy are complex.  Much more complex than the treatment it receives.  I think there is a special irony around the popular view of the subject:  "The Northern states waged a war over moral legislation (Uncle Tom's Cabin being an important piece of agitational literature in the matter) and forced immoral states to accept a moral view.  This is generally the reason for which Northern soldiers fought and were willing to die."   This view is reinforced by the sneering response to the question of whether slavery was the key issue of the Civil War.  To heap irony upon irony, the sneering is generally more pronounced if the pshawer emphatically believes that any legitimate results from the Iraq War were secondary to the real reason (generally involving oil).  And furthermore, that regardless of whatever good might have, it was unconscionable for the public to be misled about WMDs.  The argument for the War in so many words, supported by Congress, was not made in good faith.

Let's leave alone the unwillingness of most left-leaning citizens to question why progressives in the U.S. and in Europe are much more concerned about the freedom of Sharia-embracing, anti-Israel aggressors in the Middle East than they are about people of all faiths that are suffering widespread torture and oppression in central Africa from horrific regimes and sadistic "armies."

Let's instead consider what the Tenth Amendment means and what the ratification of the Constitution implied.  The Constitution represented, one would hope, a good faith attempt to form a "more perfect union" between sovereign political entities, or "states," by establishing a federal entity that could protect their autonomy from foreign enemies, from domestic threats to what is called "republican government" in our Constitution, and from the federal government itself (as argued in The Federalist Papers).  On that last threat, the Constitution contained many key concessions to the Anti-Federalists (who would later be the Democratic-Republicans).  The Bill of Rights, especially the 2nd and 10th Amendments, being the lynchpin addressing these concerns.  An armed populace (call "militia" in the 2nd Amendment) and recurring Congressional approval to maintain federal armed forces were the means of guaranteeing that 10th Amendment federalism was maintainable.

Now, considering that there was a lot of Northern disapproval for slavery from the beginning, and considering that the maintenance of slavery was very important to the Southern states, does anyone think that it is particularly likely that the Southern states would have ratified the Constitution if they thought that any of the follwing were the case:  (1) that the Constitution guaranteed personal liberty, (2) that federal power could trump a state's right to determine the criteria for personal liberty without a voluntary Amendment process, or (3) that if the federal government were to try to override a state's political interest at any time, the state would not be able to secede from what was ostensibly a voluntary union?

These ideas, I believe, are things that are easy to hold as people that grew up with states seeming more like enormous counties rather than federated nation-states, who grew up with a post-Civil War Pledge to "one nation . . . indivisible."  

A lot of people would point to the good that came out of the Civil War.  On this and several other issues, however, I think this is partly a red herring.  If one argues that an act has to be legitimate because some good came out of it, this is essentially an "ends justifies the means" argument.  As popular as this is among people that celebrate end-runs around Constitution, I believe we should base legitimacy on other grounds.

A contract that is made to exploit some meaning or phrase that one of the parties is misled about is not a contract that is made in good faith.  If you have to mislead people about an issue in order to get your way, does that make you a savvy statesman or a corrupt politician?   Lincoln stated several times that he was not waging war to end slavery.  However, today most of the arguments validating Lincoln's war base it on this overriding moral high ground.  This implies that he misled everyone, North and South, as to his real motives in waging war.  A full two years into the War which wasn't expected to last so long and with so much attrition, the Emancipation Proclamation effectively acted as a desperate extension to the policy of economically devastating the South as to insure its submission.  It did not outlaw slavery -- it simply eliminated all slave property claims only in the seceding states.  Lincoln had given up on any amicable resolution and resolved to the utter devastation of the South in order to meet his overriding concern that the Union be "perpetual."  The Union is a roach motel: you can check in but you can't check out.  Or the Hotel California.

So Lincoln claimed, contrary to his apologists Left and Right today, that he wasn't waging the war to help  the slaves.  The implication would be that this was a Noble Lie perpetrated in order to wage the war and liberate the slaves.  Indeed, maybe this pragmatic ends-justifies-the-means ethic is held by the current President in his temporary abandonment of gay marriage in order to gain the Presidency.   One would think that this particular Noble Lie extends back to 1787, in which the South was tricked into thinking that the states were truly sovereign, that the Union was voluntary, and that there would be no coercion by federal forces that would resemble the coercions by the British government in the 1760s-1770s.  The South was tricked into agreeing to the Northern ideal of personal liberty and there was no escape from it in 1861.
[The authors of the Declaration] meant simply to declare the [natural] right [to personal liberty], so that the enforcement of it might follow as fast as circumstances should permit.
  ~ Lincoln   
The popular feeling about the Civil War, that its eventual result in the 13th Amendment is its justification and in turn its justification must have been the impetus of the war, is almost unshakable.  It is so pervasive that one can't question the whole affair without being accused of being pro-slavery.

But here among many things that Lincoln purportedly tricked the American public about are these:  He claimed to not support the social (as opposed to political) equality of blacks:
I have no purpose to introduce political and social equality between the white and the black races...
  ~  First Lincoln-Douglas Debate 
And again
Free them, and make them politically and socially, our equals? My own feelings will not admit of this; and if mine would, we well know that those of the great mass of white people will not.
And again
Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. . . . In some respects she certainly is not my equal; . . .
Lincoln doesn't sound so much like a "classical liberal" (certainly not like a modern liberal or modern conservative) in these statements, and certainly sounds like he would be accepting of the "separate but equal" policies promulgated in the 1950s.  It will be said, of course, that he should be understood as a "progressive civil libertarian" in context of the times.

See also

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