Monday, November 16, 2009

Was the Civil War Justified?

This is a paper that my colleague David Parker wrote defending the State rights that were infringed upon in the Civil War. The essay is based on Part 6 of James McClellan's Liberty, Order, and Justice, which deals with the interpretation of the Constitution.

Mr. Parker's articulation for State rights is passionate, but the natural conclusion of his reasoning is that the North had no right to invade the Confederate States. If this reasoning were followed through, we might have a nation to the South of the American Republic where slavery is still legal today. Was the “War of Northern Aggression” justified in light of the moral cause of freeing the slaves? Did the end justify the means?

These are complicated questions that cannot so easily be answered. Yet I would contend that, whatever the answers to these moral dilemmas, the Civil War resulted in the inflation of the federal government and the demise of principles such as interposition and nullification. I cannot say whether I definitively agree or disagree with Mr. Parker, but I include this essay in the hope that his passionate defense leads to further debate and clarification of the issues involved.

It has always been difficult to evaluate cases in court based solely on the merit of the law. The founders recognized the impossibility of leaving prejudices and political orientations out of judicial interpretation, and wrote into the constitution certain measures to help counter this tendency. “In the final analysis, it must be remembered that the question of interpretation is inevitably affected by politics. Ideally, the constitution should be given a consistent interpretation. But as the Founding Fathers understood well, the temptations of office are often too great to expect a uniform adherence to principle in all situations.” (499) Despite such lofty intentions, sadly the judicial branch is plagued with political machinations of the worst kind bent on usurping constitutional intent.

It is my contention that this particularly abhorrent tendency, which rises and falls in propensity with those who are appointed to serve their constitution on the bench, is most despicably prevalent in the Supreme Court decision Texas v. White in 1869, delivered by Chief Justice Salmon Chase. The decision, which significantly weakened states’ rights and makes any form of secession illegal, declared the Southern states never to have possessed the right to secede, therefore they never did secede, and therefore they never left the Union and achieved their own sovereignty and independence. The reasoning of the court was based on the “Indissolubility” of the Union, an obscure phrase from the articles of Confederation, which actually is not to be found in those articles. The Union is declared to be perpetual, not insoluble in the language of the Articles.

The entire history of the union is the history of the debate between states rightists and unionists. At issue was who was ultimate arbiter in deciding the interpretation of the constitution within the states. In Martin v. Hunter’s Lessee Spencer Roane, Chief Justice of Virginia’s highest court, argued that the State of Virginia, while not the final arbiter of the constitution, was not bound by Supreme Court precedents. The final culmination which decided this decades long debate was the defeat of Robert E. Lee at Appomattox, Virginia. It wasn’t until later that Texas v. White would judicially announce that what took place in the southern confederation during the civil war was not succession, but insurrection.

Most principals in the argument favored that should interpretation err on one side or the other, that the constitution should be interpreted in the direction of states’ rights. Madison wrote that “in the case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, [THE CONSTITUTION] The states, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil.” 493. Jefferson said that, “states are sovereign and independent, and for this reason have the unquestionable right to determine whether federal laws are constitutional. The rightful remedy is a nullification of all unauthorized acts done under the color of the constitution.” 493.

To quote the decision by Justice Story in Martin v. Hunter’s Lessee, “The court is unanimously of opinion, that the appellate power of the Supreme Court of the United States does not extend to this court, under a sound construction of the constitution of the United States…and that obedience to its mandate [a previous supreme court decision ] be declined by the court.” 526

The Union is a voluntary compact of states which retain individual sovereignty. The state courts, which can and should be necessarily free from Supreme Court precedent, which may have ruled against secession, and free to interpret constitution, even if it allows nullification of their compact to the Union. This is why the decision by Justice Chase in the Texas v. White case is such a prominent example of political influence and prejudice among the court. Their political justification severely tainted their clarity of vision in their arbitration of state sovereignty and civil war.

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