Of War and Freedom

Independence Day 2013 had perhaps a more than usual significance for our national holiday.  On that day, 150 years before, the Army of the Potomac waited on the hills and ridges south of Gettysburg for a rebel assault that did not come.  Though General Meade and his officers and soldiers were unaware of it that morning, the rebel army was beaten, after three fruitless days of attacking the soldiers of the United States to clear a path to Philadelphia, Baltimore, or even Washington itself.  Instead, Robert E. Lee was engaged on July 4, 1863, in plans to extricate what was left of his army from Pennsylvania and get it across the Potomac and into Virginia before it could be destroyed.

On that same day a thousand miles to the southeast, the rebel army in Vicksburg, Mississippi, surrendered to the U.S. Army and General U.S. Grant.  It was strategically an even more important victory.  The fall of that rebel stronghold would lead to the free navigation of the entire Mississippi River, from its source to the Gulf of Mexico, for all shipping loyal to the United States, and it divided the rebel Confederacy in two.

As Grant reflected later in his Memoirs,

The fate of the Confederacy was sealed when Vicksburg fell.  Much hard fighting was to be done afterwards and many precious lives were to be sacrificed; but the morale was with the supporters of the Union ever after.  (Ulysses S. Grant, Personal Memoirs of U.S. Grant, p.297)

Some who are not friends of the United States Constitution make the false claim that the War of the Rebellion was clear evidence that the Constitution was hopelessly flawed, that the war revealed the weakness of the American government rather than its strength.  Such critics little understand history or what a rare thing it is for nations—or rather the people of nations—to learn to be willing to settle issues of life, death, and livelihood by the casting of ballots.  It is an acquired discipline. 

Consider how very few democracies or republics have been established and accepted by the populace without the people being convinced by bloody war and rebellion that deciding issues by votes and law is superior to trying them by force.  England had many civil wars and rebellions on its way to rule by parliaments instead of kings.  France, too, went through several revolutions before its current Fifth Republic achieved political stability.  The Weimar Republic of Germany teetered for some fifteen years until it descended into the Third Reich, and only upon ruins was a stable federal republic built.  Japan at last settled for meaningful republican government after its military dictatorship completely prostrated the nation in World War II.  Republican government was only months old when the Bolsheviks replaced it with the dictatorship of the proletariat, and the verdict is not yet in as to whether the Russian nation has embraced free republican government even now.  Similar stories can be told all across the globe, about China, Korea, Turkey, Mexico, and many other lands that through trauma and struggle came today to be governed by leaders chosen by the people limited in their authority by viable constitutions.

But if the American War of the Rebellion demonstrated the challenges to constitutional government in the first one hundred years of the Republic, it also showed its strength.  That can be illustrated by what its critics consider its most damning flaw, for they denounce the document for enshrining human chattel slavery instead of abolishing it.  In this they are entirely wrong.  The Constitution took the thirteen new American states as they were in the late eighteenth century and brought them into a society of constitutional freedom incompatible with slavery, where the operations of that Constitution would sooner or later bring slavery to an end.

It is true that there are provisions in the Constitution as adopted in 1787 that recognized slavery.  That was the price for bringing the slave-holding states into the Union within the structure of the Constitution.  That very Constitution, however, made it impossible for slavery in the United States to endure.  Four score and seven years after the Declaration of Independence, war waged by the people under that very Constitution was abolishing legal slavery in America.  Perhaps there was a time when it might have ended peacefully, but peacefully or not, slavery in the United States had to end.

As Abraham Lincoln predicted at the 1858 Illinois Republican Convention, “I believe this government cannot endure, permanently, half slave and half free.  I do not expect the Union to be dissolved; I do not expect the house to fall; but I do expect it will cease to be divided.  It will become all one thing, or all the other.”  I believe that Lincoln knew which would triumph, but I do not know that he suspected that he would be the constitutional officer that would see that the Union was not dissolved and that all of the United States would become free.

By  the end of 1860, slaveholders knew that they could not retain slavery if they stayed under the Constitution.  Sooner or later, the votes would be cast to end the practice.  The slaveholders chose to rebel and get out from under the Constitution before its principles of human freedom inexorably overcame them.  But once under the Constitution, it was too late to leave.  Under the organization of the Constitution, the armies of the Republic were organized and put down the rebellion and slavery, holding congresses and conducting elections along the way.

The War of the Rebellion did not free the land from enemies of freedom and constitutional law. Those who would impose their will on their neighbors remain with us today.  Their freedom is protected by the Constitution.  But the Constitution has ever stood in the way of their plans to subjugate their fellows, and it will continue to do so as long as it is upheld.  Hence the relentless efforts to undermine it, to claim it a flawed document, or pronounce it a “living document,” changeable at the whim of politicians and judges who are allowed to raise their own will above its meaning.  Our devotion to that Constitution, if we are to remain free, cannot be any less than that of those who fought at Gettysburg and other battles of freedom.  As we remember them, it is our turn to show “increased devotion to that cause for which they gave the last full measure of devotion”.

Of Lawlessness and the Constitution of the United States

Trivia question for the day:  What is the smallest national legislature in the world?  If you answered, the Supreme Court of the United States of America, give yourself 25 points and a chance at the bonus question:  What is the highest law of the land?  If you answered, the Constitution of the United States of America, subtract 50 points from your score and shake hands with the moderator as you leave the contest in polite and condescending disgrace.

If you are a student of the history of the United States, particularly of its founding, and if you are in addition a constitutional scholar, including some experience reading the writings of the writers of the Constitution, you can take some solace in knowing that your second answer used to be right.  It was right for most of the first 100 years of the history of the United States, and remained right for another 50 years or so after that, although things were already changing in the late 1800s.

In the latter part of the 1800s the Progressive movement, and its fellow travelers the Positivist legal scholars, asserted its voice in America with the notion that law was not at all really connected to natural law as the Founders believed and intended.  In the Progressive/Positivist view, law was whatever lawmakers wanted it to be, and that extended to how the Constitution was to be interpreted.  The Constitution was a collection of written words, words whose meanings were to be interpreted by the new supreme legislature, the Supreme Court, to accommodate the Progressive/Positivist agenda.

The whole idea of a constitution is that there are some fundamental, basic laws that do not change, or that change only by the specific decision and action of super majorities of the population (super majorities to ensure that the rights of minorities are safeguarded).  To preserve their integrity those fundamental laws are written down and taught and embraced from generation to generation.  In the United States, it was on the basis of written constitutions that our nation came together, first the Articles of Confederation, and later the Constitution.

The Constitution of the United States begins with the words, “We the People”.  All of these were new, exceptional ideas.  The approach at the time in the rest of the world was, “You the People”, with a despot, monarch, or some small group of people governing the rest of the population.  In America things were different, and the Founders sought to enshrine and perpetuate that difference within strong bands of a written constitution and the division of governmental power prescribed  and preserved by the Constitution.

It does not seem so different or exceptional anymore.  It seems that today the law, constitutional or otherwise, can be changed or written by five out of nine unelected people in black robes issuing their decrees from a Greek temple in Washington, D.C.  The rest of the 313 million who make up We the People have no more say about it.  That is tolerable, and even desirable if these nine, or the five of the nine, limit themselves to enforcing the laws and Constitution that the people themselves have established through constitutional process.  It becomes intolerable when they just make it up, as they have been increasingly doing since the 1930s.  That is not law.  It is tyrannical lawlessness.

This is very real to the 313 million who are expected to follow the dictates of this tiny legislature.  Under the influence of the lawless behavior of the members of the Supreme Court and their failure to uphold the Constitution, lawlessness and lack of respect for the Constitution are spreading throughout the American system of government.  In very recent years we have witnessed a narrow majority in the Congress, violating its own procedures, pass legislation that obviously violated the Constitution. The executive branch, suspected by the nation’s Founders as ever prone to plans to oppress the people, has exerted an increasingly cavalier attitude toward the Constitution.

These lawless acts themselves are not trivial.  They were explicitly designed to restrict the freedoms of the people, whether with regard to their healthcare choices, how they conduct their financial affairs, or how they find, develop, and use energy—all pretty fundamental to the way that the people live their daily lives.  Under the rule of law we would look to the courts (among other places) to uphold the law and turn back unconstitutional and thus lawless efforts to take away the rights of the people.  Too often lately we look to the courts in vain.  It is far from a sure thing these days that the Court will come to the rescue of the Constitution and the freedoms it was written to protect, witness the suspense that precedes each new decision.

The recent Obamacare decision is the latest and most painful insult to “We the People” yet to come from the Supreme Legislature.  For now, the Five have said that the Commerce Clause of the Constitution cannot be used to force Americans to buy health insurance.  No need.  The Five decided that the taxing authority can be used to force people to do whatever our leaders in Washington want us to do—although they failed to indicate which taxing authority was used. 

The Founders were chary with the taxing authority that they extended to Washington, putting strong walls and tight rules around its exercise.  Remember, it took an amendment to the Constitution to allow an income tax.  Obamacare is not an income tax, or any of the other constitutionally allowed taxes.  Yet a tax it is, now decreed by the five of the nine Justices, that can be applied to anyone—and the anyone is mostly younger adults—who choose in the future not to buy health insurance.  The Five did not say what we might next be forced by taxes to do:  that is just a blank that they have left for people in Washington to fill.

In the days when the Constitution was the highest law of the land one of its great defenders, Daniel Webster, declared in a pleading before the Supreme Court that, “The power to tax is the power to destroy.”  The Chief Justice of that Court, John Marshall, quoted and enshrined that thought in his ruling, McCulloch v. Maryland.  Today that power is now available, at the will of the Five, to destroy the freedoms of the people, freedoms that the Constitution and the earliest Courts served to protect.