- - Monday, July 1, 2013


July 1-3 commemorates the 150th anniversary of the Battle of Gettysburg, and “the high-water mark” of the Confederacy continues to reverberate.

Yet most ceremonies will entertain a question: On what constitutional basis did President Abraham Lincoln prosecute the war?

Lincoln was elected in 1860 on a Republican Party platform committed to stopping westward expansion of slavery. South Carolina led Southern states out of the union, insisting not only on the constitutionally recognized right to own slaves, but also to be able to move such legal property into new states.

Lincoln famously wrote to New York Tribune editor Horace Greeley that “if I could save the Union without freeing any slave, I would do it, and if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some, and leaving others alone, I would also do that.”

The president had insisted on retaining federal property like Fort Sumter in the seceded states in accord with Sen. Daniel Webster’s earlier declaration of “the Union, now and forever, one and inseparable!”

Historian Joseph A. Conlin has noted that “before 1861, ‘United States’ was grammatically a plural; since 1865, it has been a singular. That is, before the Civil War, one said, ‘The United States are ‘ Since, we have said, ‘the United States is.’”

One of those who put the states plural above the country singular was Robert E. Lee. Though owning no slaves and opposing secession, Lee resigned his commission in the national army to serve his native Virginia instead.

The 13 colonies considered themselves independent countries. The Declaration of Independence speaks of “one people” dissolving political bands that connect it to another, but is signed by representatives of “these United Colonies Free and Independent States .”

Those states combined under the Articles of Confederation to fight the Revolution, but did not unite. This almost ruinously inadequate arrangement was replaced in 1787 by “we the People of the United States” with a Constitution designed “to form a more perfect Union .”

The Constitution, however, was approved by individual state conventions, not a popular referendum. No article or amendment asserts that a state, having once ratified the Constitution, or later territory having been admitted as a state, cannot subsequently withdraw.

Lincoln presumed that the union was an unbreakable marriage of states in a federal system that permitted no divorce. No less than future presidents Thomas Jefferson, author of the Declaration, and James Madison, “father of the Constitution,” fought the Alien and Sedition Acts of the late 1790s by trying to give states wiggle room. They argued, anxiously and hence anonymously, in the Kentucky and Virginia Resolutions, that states implicitly retained the right to nullify individual federal laws.

Federalist Party extremists opposed the War of 1812. They urged that the Northeastern states leave the Union and form a new country free of Southern-based Jeffersonian political domination. According to Mr. Conlin, it was a wave of patriotism unleashed by Andrew Jackson’s victory in the Battle of New Orleans and Stephen Decatur’s defeat of the Barbary pirates, not legal arguments, that temporarily submerged this sectional split.

In 1828, the “Tariff of Abominations” favored the industrializing North at the expense of the slave-holding South. Vice President John C. Calhoun tried to promote the agrarian cause in his secretly written “South Carolina Exposition and Protest,” arguing that states created the federal government and retained sovereignty in a voluntary union.

President Jackson raged against such notions, and Congress supported him with the “Force Bill.” Political compromise, including a lowered tariff, let Jackson prevail and South Carolina save face.

From the Missouri Compromise of 1819 through the Kansas-Nebraska Act of 1854, the issue of slavery and its potential expansion strained the Union. Northern victory, presaged at Gettysburg, restored the nation.

Today, rather than split sectionally by slavery, America divides ideologically over the scope of federal authority. Kansas and other state legislatures have declared that national gun laws do not apply to firearms made and owned within their borders. South Carolina and others assert that President Obama’s medical-insurance legislation is unenforceable on their soil.

The 10th Amendment reads “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Red-state America fears Supreme Court commerce clause rulings have made the 10th Amendment a dead letter.

In his Gettysburg Address, Lincoln spoke of “a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.” He said the Civil War was being fought to determine whether any nation so conceived could long endure. It turns out that question remains unresolved.

Eric Rozenman is a Washington, D.C.-based news media analyst.

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