|San José State University|
& Tornado Alley
of the United States and its Historic Abrogation
At the ending of the War of Independence the thirteen former British colonies had the status of independent countries. They first joined together under the Articles of Confederation. This arrangement had too little central authority to promote growth and prosperity. In particular under the Articles some states created interferences with interstate commerce to protect local businesses.
The states then convened a Constitutional Convention in Philadelphia in1787 to create a new governmental structure. At the end of the Convention as Benjamin Franklin, one of the participants, was leaving a woman asked him what form the new government would take, republic or monarchy? Franklin famously answered, "A republic, if you can keep it?"
The framers of the Constitution created a wise and cautious structure. First of all they limited the powers of government to those that were expressly given in the Constitution. Second they created a division of power to serve different purposes. The Constitution then states that the legislative power, the power to create laws, is vested entirely with Congress. The executive power to carry out the laws enacted by Congress is vested in the Presidency. The judiciary was created to pass judgement on the constitutionality of the laws passed by Congress and their manner of execution by the President.
The powers of Congress enumerated in Article I, Section 8 of the Constitution were
Ten amendments limiting the powers of the Federal government were added as the first act of Congress when it first met
|Delaware||Dec. 7, 1787||30-0||0|
|New Jersey||Dec.18, 1787||38-0||0|
|Maryland||April 28, 1788||63-11||0|
|South Carolina||May 23, 1788||149-73||2|
|New Hampshire||June 21, 1788||57-47||12|
|Virginia||June 25, 1788||89-79||20|
|New York||July 26, 1788||30-27||33|
|North Carolina||Nov.21, 1789||194-77||26|
|Rhode Island||May 29, 1790||34-32||21|
|Jan. 10, 1791||105-2||0|
If states did not have the right to secede then Virginia, New York and Rhode Island did not legally join the Union and are thus legally sovereign countries.
The Supreme Court ruled in Texas versus White in 1869 that unilateral secession by a state is unconstitutional. However since the Constitution was in effect a contract between the States and the Federal Government and the Supreme Court is an agency of the Federal Government its opinion is irrelevant. The adjudication of a states' right to withdraw from the contract would have to be carried out by a third part independent of the two parties to the contract. It is notable that Lincoln did not even call for the Supreme Court to adjudicate secession before opening hostilities. Of course, neither did the seceding states.
For Lincoln the issue was only the preservation of the integrity of nation; for him the issue was not slavery. He famously said in a letter to Horace Greeley, the editor of the influential New York Tribune
I would save the Union. […] If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. 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. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union.
Before the Civil War United States was a plural noun; after the Civil War it became a singular noun.
There has been a concerted effort to promote and perpetuate the notion that the American Civil War was over slavery and the ending of slavery justified the enormous tragedy of over six hundred thousand American killed and uncounted numbers severely wounded. They were not killed ending slavery, they were killed nullifying the Constitutional right of the states to secede. There was only one country where slavery ended only with bloodshed and that was Haiti and even there the story was more complicated than just a rebellion against slavery.
The Lincoln administration did not end slavery in the Union territories where it could have done so. The Emancipation Proclamation ended slavery in the Confederate States where it could have no effect and did not apply in Union territory it would have had an effect. The Emancipation Proclamation was issued because Britain was threatening recognize the Confederate States the basis that there was no difference between the United States and the Confederate States on the issue of slavery.
As it happened there was something of an emancipation of slaves in the Confederacy. It was proposed in 1864 that any slave willing to fight in the army for the Confederacy would be free. It was debated in newspapers and the Confederate Government which finally enacted the necessary legislation in March of 1865. But General Lee surrendered at Appamatox in April of 1865 thus ending the Civil War.
The further abrogation of the Original Constitution came with the courts allowing the Interstate Commerce Clause to cover almost any action Congress chose to take.
The shift of Congressional powers to agencies in the executive branch became excessive during the Progressive Era from the 1890's to the 1920's. This was motivated by the notion that government could "achieve the greatest good for the greatest numbers" through social engineering. This shift became institutionalized during Roosevelt's New Deal. Because of the Great Depression it was widely believed that ongoing executive agencies were necessary to manage the operation of the economy. So the structure of the country shifted from one in which power was vested solely in Congress to one in which a large degree of power lay in executive branch bureaucracies.
(To be continued.)
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