Let’s start with the self-evident: Any defense of Lincoln is primarily a defense of the Civil War. If Lincoln was right to wage the Civil War on behalf of the Union, one will be hard pressed to fault him as a President of that Union. If Lincoln was wrong to wage the Civil War on behalf of the Union, however much I say about Lincoln’s domestic programs (and, frankly, the less said the better), I will not save him. The Civil War was the defining moment of Lincoln’s Presidency. And, thus, the Civil War is where we start.
Now, there are many ways to judge the rightness of the Civil War — and most point, without controversy, in Lincoln’s favor. [For instance, it is not hard to see why, as a purely pragmatic matter, the Northern States would be interested in keeping the Union intact. The secession of the South, if allowed, would set the precedent that any state could withdraw from the Union at any time and for any reason — the “more perfect Union” of the Constitution would become a Union-at-will. A Union-at-will is, of course, no union at all. It’s the difference between cohabitation and marriage. Indeed, a union-at-will would hold all federal policy hostage to the preferences of any single state — which, aside from being contrary to both the letter and spirit of the Constitution, would result in the de facto demise of United States of America (such as they were).]
But I will not concern myself with pragmatism, or realpolitik, or practicalities. [That ground is too easy to defend. Nor will I argue about the tremendous evil of slavery — which most would agree was itself sufficient cause for war, just as most would agree that the Holocaust would have justified the invasion of Germany even if Hitler had not disturbed his neighbors. Nor will I discuss the fact that Lincoln was himself no radical, and posed little danger to the South (which had just received a stunning — albeit erroneous — judicial victory in the Dred Scott case). Nor will I address the acts of war that the South undertook upon the North after it purportedly seceded — acts that fully and independently justify a military response by the North — such as the unlawful attacks on federal lands and forts.] No, I’ll limit myself to the letter of the law, and show why secession was illegal.
We start, as we always should in these matters, with the plain and simple language of the U.S. Constitution. Although we can discourse at great length (and perhaps will) on all parts of the Constitution and their historical meaning and context, for the moment let’s restrict ourselves to the preamble to the Constitution. There’s enough there to chew on for quite some time — indeed, you’ll see that I scarcely make it past the first seven words before I start claiming victory.
The preamble to the U.S. Constitution reads as follows:”We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”See who formed the Union: not the several states, but “the People of the United States.” This is important. From the outset, the constituent parts of the Union are not states but individual citizens — and not citizens of each state, but citizens of “the United States.” Indeed, since the union is not (in fact) among the states, but the people, the first seven words of the preamble begin to show that a claim of a right to secede is not merely wrong, but wholly irrelevant. It’s similar to answering “Ontario” to the question “what is two plus two?”
If you doubt the intention or importantance of this line — it’s only a few words, after all — judge it by the lines of its relevant contemporaries. That is, compare it to the first lines of the preambles to the prior Articles of Confederation — the treaty that governed relationships among the states prior to the Constitution — and the Constitution of the Confederate States. You’ll see that each opens in a way that is radically different from the preamble to the U.S. Constitution. The Articles of Confederation begin:”To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting. Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.”
The preamble to the Confederate Constitution reads:”We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America.”
As the old Seseme Street song goes, one of these things is not like the other — and the difference is purposeful and telling. Unlike the U.S. Constitution, both the Articles of Confederation and Confederate Constitution expressly recognize that their unions are comprised of states, not citizens. For them, the language of state secession may be appropriate. The U.S. Constitution, however, provides for the exact opposite. Indeed, at this point, I’m wondering why anyone would believe that state-by-state secession is appropriate under the U.S. Constitution — and I’ve only read the first line of it!
The massive flaw in Von’s case here is very easy to spot. If the constituent parts of the Union are the individual citizens of the United States of America, then each citizen would have had to individually ratify the Constitution, and moreover, the Union could not possibly apply to individuals born later, as no individual can be subject to an agreement to which he has not been a party.
But I’ll leave the rest up to Nate. He’s much more interested in this sort of thing.