Something for the weekend. The opening of the Civil War documentary, to the tune Ashokan Farewell, that premiered twenty-five years ago this September. As the 150th anniversary of the Civil War draws to a close, what strikes me most is the immensity of the conflict and the huge changes it wrought in American life. One can spend a lifetime studying this conflict as I have, and still find, almost daily, new pieces of information. Shelby Foote, and it took a gifted novelist I think to write an epic history worthy of this huge, sprawling event in American history, put it best:
- Any understanding of this nation has to be based, and I mean really based, on an understanding of the Civil War. I believe that firmly. It defined us. The Revolution did what it did. Our involvement in European wars, beginning with the First World War, did what it did. But the Civil War defined us as what we are and it opened us to being what we became, good and bad things. And it is very necessary, if you are going to understand the American character in the twentieth century, to learn about this enormous catastrophe of the mid-nineteenth century. It was the crossroads of our being, and it was a hell of a crossroads.
- Before the war, it was said ‘the United States are’ – grammatically it was spoken that way and thought of as a collection of independent states. And after the war it was always ‘the United States is’, as we say today without being self-conscious at all. And that sums up what the war accomplished. It made us an ‘is’.
Foote’s comment about “the United States are” vs “is” is very incisive.
The federal Republic instituted by the Founders dramatically and fundamentally changed by the War. What had been a federal system of very limited central government and very powerful states had been transformed over four years of conflict to the nascent form of what we struggle with today: a central government with great power and an ever-growing lust for power, and weaker states growing progressively weaker. The 14th Amendment (which sought to guarantee that newly freed blacks would be afforded every civil liberty a state afforded to its white citizens) very soon became a judicial foot in the door for federal notions of “due process” to be imposed on all the states. Ultimately this 14th Amendment would soon be used to assert federal primacy in small ways (to federalize police practices (“Miranda” warnings, exclusionary rule, etc)) and in large– to strike down abortion and sodomy laws; and likely soon to impose “gay marriage” on unwilling states.
The sad lesson of the War is, in my view, that for the horrible sin of slavery that our Protestant Republic, north and south, imported to this continent and perpetuated, atonement came at a great price in the blood of 400,000 soldiers, the destruction of civilian infrastructure, property, and even lives, and not least, the deformation of our Constitutional framework of limited central authority.
“What had been a federal system of very limited central government and very powerful states had been transformed over four years of conflict to the nascent form of what we struggle with today”
Untrue. The Federal government shrunk in size rapidly to a size similar to what it was in 1860.
“The 14th Amendment (which sought to guarantee that newly freed blacks would be afforded every civil liberty a state afforded to its white citizens) very soon became a judicial foot in the door”
The first of the incorporation decisions was not until 1925.
“that our Protestant Republic”
Slavery was equally a Catholic sin. Priests and bishops were notable by their absence among the ranks of the abolitionists.
he federal Republic instituted by the Founders dramatically and fundamentally changed by the War
Donald already beat me to the punch, but this is an oft-made claim that doesn’t withstand a second of scrutiny. As Donald mentioned, the federal government quickly shrunk in size in the post-war era. It wasn’t until first the ascendancy of Woodrow Wilson and the Progressives, and then the Depression and FDR that the federal government became a true leviathan.
As for the 14th Amendment, the blatant misreading of it by later Supreme Court justices does not nullify its usefulness nor its need.
at least those who died for the abolition of slavery and the preservation of the Union in the Civil War had a purpose in life that was honorable and valid.
Any familiarity with the 14 th Amendment, especially with the ratification debates, will reveal that it was an instrument which was designed, and within a lifetime, used, to fundamentally alter the original federal arrangement of the Constitution by imposing federal notions of due process, “substantive” and procedural, on the states.
No war, no coercing the southern states into ratifying the 14th Amendment, no 14th Amendment. No 14th Amendment, no Roe v. Wade, Lawrence v. Texas, or whatever case will be the death of state control of marriage.
The War did fundamentally alter our federalist arrangement.
The size of government always decreases in the aftermath of a war, as it did after the Civil War. Its claim to power in this case, however, did not cease, and only increased with continued Manifest Destiny and the suppression of the American Indians.
“No war, no coercing the southern states into ratifying the 14th Amendment, no 14th Amendment. No 14th Amendment, no Roe v. Wade, Lawrence v. Texas, or whatever case will be the death of state control of marriage.”
Rubbish Tom. You might as well claim, with better justice, that Dred Scott was the ancestor of Roe:
“The concluding paragraphs of Justice Scalia’s dissenting opinion in Planned Parenthood v. Casey 505 U.S. 833, 1001-1002 (1992)
There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Ante, at 24.
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”
Of course there would have been no War except for the fact that the Southern slave holders were in a panic against a purely phantom threat to their precious right to own other people as property.
“Its claim to power in this case, however, did not cease, and only increased with continued Manifest Destiny and the suppression of the American Indians.”
Actually Tom it was the slaveholders who tended to be the most vociferous advocates of Manifest Destiny in order to provide more room for the expansion of slavery.
http://www.cambridge.org/us/academic/subjects/history/early-republic-and-antebellum-history/slavery-race-and-conquest-tropics-lincoln-douglas-and-future-latin-america
The Civil War had nothing to do with the suppression of the Indians that had been underway since the founding of Jamestown.
Don, with all due respect, you’re really stretching if you seriously maintain that the 14th Am does not constitute a fundamental shift in the federal scheme as it was before the War, and if you cannot concede that the 14th has been the primary tool of used to nullify all kinds of state laws that would have been perfectly acceptable before the 14th.
We could argue the genesis of the War ad infinitum, but the simple fact is, the War effectuated a fundamental transformation of the balance of power between the states and the federal government which the Founders originally instituted in 1789. The very fact that federalized state troops could be used to invade a state such as Virginia which had not fired a single shot would certainly have amazed Geo Washington and Tom Jefferson, and probably even Hamilton.
Having won and forced through the 14th Amendment, the interference of the federal government into purely state affairs would be legalized and set in stone.
If it was not the intent of the Republicans in passing the 14th Amendment to do that which they could not have done to the states before, what in the world was the point of passing the damned thing?
That’s the only point I was making: that the War resulted in a change from federalism as envisioned by the framers of the Constitution.
Let’s remember that slavery and its close relative indentured servitude were established with the full knowledge and consent of the Crown of Great Britain. Only in the vastly agricultural Southern colonies, and then states, did slavery grow roots and become an institution.
The Civil War was instigated, financed and run by slaveowners. While other Western Hemisphere nations phased out slavery, the American South would have none of it. The South was wrecked economically and in a depression for more than two generations for starting a war it could never win without outside help. Great Britain was the only nation that could and Lincoln told the Crown’s representatives that if they helped the Confederacy, his troops would march into Canada and take over the entire place.
As a result of the loss in the War, the North, where industrialization was under way, experienced the economic growth than made the USA a world power. The great industrialists were all from the North. It was highlighted in the History Channel series The Men who built America. Vanderbilt, Morgan, Carnegie, Rockefeller, Ford, and Frick, Edison and Westinghouse as well as industrialists not mentioned in the series such as Henry Flagler and the Du Ponts all were from the North. The factories they built and the immigrants they drew on to work came to the North, not the impoverished agrarian South.
This industrial base with its roots in the Northern victory provided the factories and the capital needed to win two World Wars and elevate the standard of living in much of the world.
it was not until well after WWII, and the advent of air conditioning, that the South, free of the pathetic Democrat machine politics that infect Northern cities, has risen again, in large part due to business and industry relocating, military spending, and retirees and others who want to escape the miserable cold of the North.
As for the Indians – I deny the political correct nonsense that they were all peaceful – they were not – and like it or not, stronger cultures inflict their will on weaker ones. It started with the Spanish Empire and men with small armies such as Cortez and Pizarro destroying the Aztecs (and their human sacrifices) and the Inca. Their way of life was finished forever when Queen Isabel assisted Columbus on his initial voyage.
Any familiarity with the 14 th Amendment, especially with the ratification debates, will reveal that it was an instrument which was designed, and within a lifetime, used, to fundamentally alter the original federal arrangement of the Constitution
The War did fundamentally alter our federalist arrangement.
We could argue the genesis of the War ad infinitum, but the simple fact is,
Tom, with all due respect, your method of argumentation is to bang your fists on the table and more loudly argue your points. At no single point in any one of your comments have you been able to provide a substantive argument that backs up any one of claims you have made.
Any familiarity with the 14 th Amendment, especially with the ratification debates
Having written a dissertation that studied both I have more than a passing familiarity with the background of these items.
“Don, with all due respect, you’re really stretching if you seriously maintain that the 14th Am does not constitute a fundamental shift in the federal scheme as it was before the War, and if you cannot concede that the 14th has been the primary tool of used to nullify all kinds of state laws that would have been perfectly acceptable before the 14th.”
The problem wasn’t the 14th amendment Tom but rather the Supreme Court. As we both know, in the Slaughterhouse cases of 1873 the Supreme Court ruled that the 14th amendment had no impact on the police power of the states. The incorporation of the bill of rights through the 14th amendment as binding on the states would await Gitlow v. New York in 1925. Your ire is misdirected at the 14th amendment and should be aimed at those who interpret it.
“the War effectuated a fundamental transformation of the balance of power between the states and the federal government which the Founders originally instituted in 1789.”
Not really. The Whiskey Rebellion put down by Washington was a broad based movement west of the Alleghenies and Washington had no ideological problem using federalized state militias to put it down. Washington in his Farewell Address made it clear what he thought of the concept of secession: “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, ’til changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all.” Jefferson in his First Inaugural Address noted: “If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it.” What the Civil War does mean is that unilateral attempts to dissolve the Union will lead to war. The Confederates of course should have brought their secessionist demands to Congress for action by all the people. I think they would have found a fair number of northerners, especially among Democrats, sympathetic to a call for a peaceful separation of the sections of the country. However that was not done because the wisest secessionist leaders knew that secession would not occur unless done in an atmosphere of panic. Once the Lincoln administration took office, a secession movement that sought the approval of Congress would quickly have lost steam due to Lincoln’s stated policy of not interfering with slavery in the states where it existed.
It wasn’t until first the ascendancy of Woodrow Wilson and the Progressives, and then the Depression and FDR that the federal government became a true leviathan.
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Federal expenditure in 1916 amounted to less than 2% of gross domestic product. The federal sector grew contextually quite large during the 1st world war (comprehending about 13% of gdp, IIRC), but it was all dismantled by 1922. The federal sector grew contextually larger during the early Depression years as nominal expenditure was maintained while production was imploding. The Roosevelt Administration embarked on a number of initiatives, but even in that circumstance, domestic expenditure by 1940 was no greater than about 7% of domestic product. The advance of the federal sector was stepwise, most occurred after 1940, and not really completed until about 1974.
The problem wasn’t the 14th amendment Tom but rather the Supreme Court.
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I think vague and perplexing constitutional language is something of a problem.
Henry Flagler and the Du Ponts all were from the North.
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IIRC, Flagler made a fortune in Florida real estate development. The duPonts made their home in Delaware, which was a slave state which refused to secede. As we speak, about half Delaware’s population constitutes a component of greater Philadelphia and the other half is Southern-lite.
Having relatives in Delaware (Dover) there is a bid difference between Wilmington (part of the Philly metro area in fact if not in statistics) and downstate. The du Ponts were centered around Wilmington.
Flagler made a fortune in Florida real estate but he started with a fortune he made in Northeast Ohio. Flagler built the railroad that went all the way to Key West.
In doing so, Flagler made South Florida, well, not South at all in terms of outlook and culture.
I still use the grammatically correct (and historically correct) “United States ARE”.
As much as I respect the opinions and knowledge of my friends, Don and Paul (two gentleman whose historical acumen far exceeds my own), I just don’t see how anyone can dispute the point that Tom (and Art, at least in pointing out the danger of “vague and perplexing constitutional language”) is making that the 14th Amendment — whatever noble aims it may have had in the context of slavery and the Civil War — has, indeed, transformed the very nature of this country into something wholly unrecognizable from the nation the founders established.
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It didn’t take a fairly conservative (at the time) Supreme Court long to recognize the danger posed by the 14th Amendment in this regard, which is why we have the Slaughterhouse Cases less than a decade after its passage. Unfortunately, they left unblemished a vague Equal Protection Clause for future, less conservative and less deferential (at least with regard to state prerogatives) Courts to make mischief with.
Lino Graglia has offered that the three troublesome clauses in the 14th Amendment were an address, respectively, to the legislative, judicial, and executive branches of state governments and that it is invalid to refer to the equal protection clause to test any statute. (For my own part, I’ve never figured out why the privileges and immunities clause was not held to incorporate the Bill of Rights and can think of at least one legal historian who insists that it does).
Just to point out, the really troublesome 14th Amendment case law was issued in the last 60 years. To the extent that the federal government’s dimension and function in 1925 differed from what it had been in 1860, it was about what you would expect given the changing character of commerce – larger volumes of cross-border trade and larger volumes of trade in merchandise whose contents were esoteric. You also had a more sophisticated financial system and the advent of policy problems derived from technology. So, you had more of a federal health-and-safety inspectorates, the advent of new sorts of property rights (e.g. broadcast licenses), the detritus of warfare (veterans’ hospitals), statistical collection services, and some efforts (ham handed) to prevent industries from devolving into monopolies). All of this was fairly benign (and, bar the VA, low-budget). About the only pre-Roosevelt example of federal authorities manipulating state governments in an appreciable was would be the Bureau of Public Roads and the financing of the U.S. Route System.
“… I’ve never figured out why the privileges and immunities clause was not held to incorporate the Bill of Rights and can think of at least one legal historian who insists that it does …”
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Yeah, I read that book in law school, too.
😉
Do the United States need to pass an Amendment XXVIII that would make applicable Amendment XIV to the regime in Washington, DC?
Wilmington (part of the Philly metro area in fact if not in statistics) and downstate. The du Ponts were centered around Wilmington.
In 1920, the portions of New Castle County, Delaware found outside of Newark and Wilmington had a population density of 88 persons per square mile, or less than 0.14 persons per acre. It was countryside, not Philadelphia suburb.