The Founders wrote the Civil War into the Constitution...

>> Thursday, February 18, 2010

A few more thoughts about the the Mount Vernon Statement, which I wrote about yesterday. Specifically, I was thinking about the way the Vernonites fetishize their imaginary version of the Constitution and Jim Wright's piece over at Stonekettle Station (if you haven't hit it yet, it's worth a read, and not because Jim gives yours truly a nice nod).

Jim gives a good bit of discussion to the idea that the Vernonites are Constitutional amateurs--I might use the word "dilettantes," just because it connotes people who are dabbling in something without enough investment to be experts; I agree with him up to a point, though I also have to note that whatever disagreements I might have with Vernonite Edwin Meese, I can't disparage Mr. Meese's professional credentials as a lawyer, including, naturally, his time as the country's Attorney General. I'd have to say Mr. Meese ought to know better and that his view of the Constitution, if sincere (and I think it is), is delusional--but he's no dabbler.

The thought that occurred to me, anyway, is that the Founders themselves were dilettantes--farmers and businessmen and lawyers who were sometimes out of their depth while valiantly trying to cobble together a nation based on their ideals. The only problem with that thought, though, is that it's also delusional, or based on the popular mythology. Whatever else they did in their day jobs, nearly all of the men who wrote the Constitution were, in fact, professional lawmakers prior to and during the Revolution. We have this fanciful collective notion in the United States, I think, that men like Washington, Jefferson and Adams were ordinary folks who dropped their normal routines as hard-working men to lead a nation to liberty, etc.; the truth is that they were wealthy, well-educated men whose business affairs in agriculture, finance, industry, law and other fields, along with the fortunes they inherited and/or married into, left them with lots of free time and disposable income that could be channeled into full-time political careers in state legislatures and the Continental Congress.

So the question that leaves me with, that I thought I'd answered with their imagined amateur status, is how did they make such a botch of the Constitution?

That's a pregnant statement, I realize. Let me say that I love the Constitution, that as a member of a State Bar I took an affirmation to uphold the Constitution which I remain inordinately proud of, that if the Constitution were a woman I would marry it, especially if it had nice gams and dark hair. But the Constitution is a damn mess, is the thing.

How bad is the Constitution Of The United States? Let's start with the cold fact that the Constitution caused the American Civil War.

I talked around this in yesterday's post in discussing the "Constitution of 1868," but hadn't quite crystallized the conclusion. I think I left it at suggesting that by deferring the problem of the slave trade and hacking together some uneasy compromises between non-slaveholding and slaveholding states, the Constitution failed to avert the Civil War. But of course this isn't strong enough--the Constitution of 1789 didn't merely fail to avert the Civil War, it made the War inevitable.

Consider: the thirteen colonies' only real binding tie in 1789 was Anglophobia. Encompassing a vast geographic territory--perhaps a minimum of four geographic regions1--the new "union" remained arbitrarily divided into thirteen oddly-sized and shaped chunks; some in which slavery was profitable and in others not, some possessing a distinctive religious or ethnic character and others more diverse, some on course to be essentially agrarian while others were already diversifying into industry and exchange, and so on. In fear that the British would wait to catch a second wind and for the French to lose interest in the New World and then attempt to reclaim their lost colonies, it seemed vital for the delegates of the states to maintain a strong, undivided front for the purpose of national defense in spite of the fact that they otherwise had little else in common. This in turn led to a number of compromises. Some were mostly harmless, like tacking on the Bill Of Rights. Others, as discussed here yesterday, were poison pills leaching out a fatal toxin.

Now, here's the funny thing about those compromises, and one in particular: as part of maintaining a united front, the one thing the Constitution conspicuously lacks is a mechanism for dissolving itself, or more specifically for allowing states to opt out. There is, true, a nod towards states reserving rights for themselves--but absent a method of secession, that's in fact a meaningless phrase. A state might say they have the right to do something, to which the other states collectively say, "Nope, you can't," and what's the remedy then? One supposes that this might be an Article III Constitutional question (I think we'll be revisiting Article III at some point), but should recourse to the Supreme Court fail, what then? To assert a right and be told, in effect, "suck it up," is as if to not have the right at all, no?

And this is how the Constitution caused the Civil War. The absence of secession clauses was meant to be a feature, not a bug--indeed, the Constitution's direct precursor, the Articles Of Confederation, expressly forbade secession. But without a secession clause, the idea of "states' rights" is a fiction, a fig leaf. The only remedy for a state which persists in asserting a right against the will of the federation is to withdraw, a remedy not specifically enumerated in the Constitution and implicitly forbidden, leaving it to the remaining members of the Republic to decide whether to show weakness by tolerating the withdrawal--thereby establish a precedent that makes the Union meaningless--or respond by insisting on the supremacy of the Federal government, using force if necessary.

We know how this turned out.

None of this, by the way, is to absolve slavery or remove it from the list of causes of the American Civil War. It is still correct to say the Civil War was caused by slavery, seeing as how the venomous threads the Founders wove into the document were pertaining almost exclusively to slavery--agreeing to put a freedom of conscience clause into the Constitution's appendix to gain a few signatures was a harmless compromise, the agreement to count slaves as three-fifths of a human being for purposes of allocating House and Electoral College seats was not.

As I wrote, I love the Constitution. But if the authors sowed the seeds of their nation's own destruction--and the Civil War was both apocalyptic and transformative, a nation destroyed in oceans of blood and storms of fire and regenerated as a true union--then how much reverence are they really due? Respect, perhaps; admiration for their strengths and regrets for their frailties, undeniably. Yesterday, I believe I mocked the Mount Vernon Statement's second sentence: "Through the Constitution, the Founders created an enduring framework of limited government based on the rule of law." I have to mock it again--not because the Founders were without noble ideals; I revere most of their principles as much as the next post-Enlightenment liberals--but because the Constitution as it was penned was a failure of truly epic proportions.

1At a minimum: North, Mid-Atlantic, South, Appalachia; strong argument could be made for considering the Ohio River Valley and/or the Trans-Canadian northern border states (Vermont, New Hampshire, Maine) as additional regions. Why is this important? Because even then, as now, residents of, for instance, Appalachia have more in common with each other--culturally, ethnically, politically, economically--than with their "fellow residents" in the states Appalachia crosses.


Janiece Thursday, February 18, 2010 at 5:01:00 PM EST  

Eric, I'm totally going to start stalking you if the Smart Man gets hit by a bus and dies in a tragic accident.

If Jeri doesn't beat me to it, that is.

Thanks for (another) good post.

impladmh - what happens to my head when I try to learn a foreign language. Like English.

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