Maryland constitutional questions after Fort Sumter

[David Lockmiller]

The most important legal question that President Abraham Lincoln had to address in his July 4, 1861 Message to Congress was the constitutionality of secession by a state. This “constitutional” law argument was written and presented to Congress by a man of very limited formal education who had achieved the distinction of receiving an honorary Doctor of Laws degree from Knox College exactly one year earlier, to wit:

It might seem, at first thought, to be of little difference whether the present movement at the South be called "secession'' or "rebellion.'' The movers, however, well understand the difference. At the beginning, they knew they could never raise their treason to any respectable magnitude, by any name which implies violation of law. They knew their people possessed as much of moral sense, as much of devotion to law and order, and as much pride in, and reverence for, the history, and government, of their common country, as any other civilized, and patriotic people. They knew they could make no advancement directly in the teeth of these strong and noble sentiments. Accordingly they commenced by an insidious debauching of the public mind. They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps, through all the incidents, to the complete destruction of the Union. The sophism itself is, that any state of the Union may, consistently with the national Constitution, and therefore lawfully, and peacefully, withdraw from the Union, without the consent of the Union, or of any other state. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice.

With rebellion thus sugar-coated, they have been drugging the public mind of their section for more than thirty years; and, until at length, they have brought many good men to a willingness to take up arms against the government the day after some assemblage of men have enacted the farcical pretence of taking their State out of the Union, who could have been brought to no such thing the day before.

This sophism derives much---perhaps the whole---of its currency, from the assumption, that there is some omnipotent, and sacred supremacy, pertaining to a State---to each State of our Federal Union. Our States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution---no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence; and the new ones each came into the Union directly from a condition of dependence, excepting Texas. And even Texas, in its temporary independence, was never designated a State. The new ones only took the designation of States, on coming into the Union, while that name was first adopted for the old ones, in, and by, the Declaration of Independence. Therein the "United Colonies'' were declared to be "Free and Independent States''; but, even then, the object plainly was not to declare their independence of one another, or of the Union; but directly the contrary, as their mutual pledge, and their mutual action, before, at the time, and afterwards, abundantly show. The express plighting of faith, by each and all of the original thirteen, in the Articles of Confederation, two years later, that the Union shall be perpetual, is most conclusive. Having never been States, either in substance, or in name, outside of the Union, whence this magical omnipotence of "State rights,'' asserting a claim of power to lawfully destroy the Union itself? Much is said about the "sovereignty'' of the States; but the word, even, is not in the national Constitution; nor, as is believed, in any of the State constitutions. What is a "sovereignty,'' in the political sense of the term? Would it be far wrong to define it "A political community, without a political superior''? Tested by this, no one of our States, except Texas, ever was a sovereignty. And even Texas gave up the character on coming into the Union; by which act, she acknowledged the Constitution of the United States, and the laws and treaties of the United States made in pursuance of the Constitution, to be, for her, the supreme law of the land. The States have their status IN the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence, and their liberty. By conquest, or purchase, the Union gave each of them, whatever of independence, and liberty, it has. The Union is older than any of the States; and, in fact, it created them as States. Originally, some dependent colonies made the Union; and, in turn, the Union threw off their old dependence, for them, and made them States, such as they are. Not one of them ever had a State constitution, independent of the Union. Of course, it is not forgotten that all the new States framed their constitutions, before they entered the Union; nevertheless, dependent upon, and preparatory to, coming into the Union.

Unquestionably the States have the powers, and rights, reserved to them in, and by the National Constitution; but among these, surely, are not included all conceivable powers, however mischievous, or destructive; but, at most, such only, as were known in the world, at the time, as governmental powers; and certainly, a power to destroy the government itself, had never been known as a governmental---as a merely administrative power. This relative matter of National power, and State rights, as a principle, is no other than the principle of generality, and locality. Whatever concerns the whole, should be confided to the whole---to the general government; while, whatever concerns only the State, should be left exclusively, to the State. This is all there is of original principle about it. Whether the National Constitution, in defining boundaries between the two, has applied the principle with exact accuracy, is not to be questioned. We are all bound by that defining, without question.

What is now combatted, is the position that secession is consistent with the Constitution---is lawful, and peaceful. It is not contended that there is any express law for it; and nothing should ever be implied as law, which leads to unjust, or absurd consequences.

The entire July 4, 1861 Message to Congress by President Lincoln

[David Lockmiller]

A New York Times correspondent reported on President Lincoln’s July 4, 1861 Message to Congress in the July 7, 1861 edition of the Times:

“The Message, which is plain, strong, and characteristic of its author, made a profound sensation in the two houses of Congress. It will be found quite equal to the public expectation, as it regards the vigor of the policy it recommends; and in spite of obvious faults of style, I venture to say that it will add to the popularity of the Rail-splitter. It is evidently the production of an honest, clear-headed and straightforward man; and its direct and forcible logic and quaint style of illustration will cause it to be read with peculiar pleasure by the masses of the people. The announcement that Congress would be called upon to raise an army of four hundred thousand men and a budget of four hundred millions of dollars was received with irrepressible applause. The attention paid to the reading was profound; a fact due, in part, to the intense desire to know what policy the President would recommend, and in part to the absence of printed copies from the desks of the members.”

Doris Kearns Goodwin wrote in her book Team of Rivals at page 368 regarding the Northern newspaper reporting on the President’s Message and, in particular, quoting the New York Times correspondent quoted immediately above:

Northern newspapers generally praised the message, though some failed to appreciate the rigor of Lincoln’s appeal and the clear grace of his language. “In spite of obvious faults in style,” the New York Times correspondent conceded, “I venture to say that it will add to the popularity of the Rail-splitter. It is evidently the production of an honest, clear-headed and straightforward man; and its direct and forcible logic and quaint style of illustration will cause it to be read with peculiar pleasure by the masses of the people.”

I agree with Doris Kearns Goodwin’s assessment!

[David Lockmiller]

The Pledge of Allegiance that later evolved into the form used today was composed in August 1892 by Francis Bellamy (1855–1931), who was a Baptist minister, a Christian socialist. Bellamy's original Pledge read: “I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.”

The Pledge was supposed to be quick and to the point. Bellamy designed it to be recited in 15 seconds. As a socialist, he had initially also considered using the words equality and fraternity but decided against it, knowing that the state superintendents of education on his committee were against equality for women and African Americans.

(Wikipedia: “Pledge of Allegiance”)

President Abraham Lincoln provided constitutional meaning to the concept of “democracy” in his July 4, 1861 Message to Congress. The American Civil War was the price paid at the time to enforce democratic principles.

President Lincoln told Hay in early May, 1861:

"I consider the central idea pervading this struggle is the necessity that is upon us, of proving that popular government is not an absurdity. We must settle this question now, whether in a free government the minority have the right to break up the government whenever they choose. If we fail, it will go far to prove the incapability of the people to govern themselves." (Hay, Inside Lincoln’s White House, p. 20.)

I think that all of these thread postings regarding President Lincoln’s efforts to save the Union have profound meaning today for our nation. And I am concerned for our democracy for many reasons.