Three Awkward Questions
In reviewing the phenomenon of the removal of Confederate statues, it strikes me that this is a great opportunity to review some fundamental questions about things Confederate and indeed about the nature of our federal system of government. To those celebrating the removal of soldiers’ statues, I would pose three questions.
First, what provision of the U.S. Constitution gives the Federal government the power to overthrow an elected republican government and replace it with an appointed military governor? The short answer is that no provision of the federal constitution gives the general government that power. There are some who will say that it was employed because it was necessary, that “the Constitution is not a suicide compact” (whatever that means). This argument could be employed to cover any act by the general government. Jefferson said that if the general government could employ any power it deemed necessary, then the only limits would be its discretion and that is a government, as Jefferson said, that would “stop nothing short of despotism.”1 Indeed, the general government did indeed overthrow elected state governments and replace them with appointed military governors. The federal constitution stipulates that “the United States shall guarantee to every State in this Union a republican form of government.”2
Second, on which date did the United States become an indivisible political unit? While there is no answer to the first question, there are many answers to this one, each indicates much about the assumptions and the thinking of the respondent. For example, one might say that the Union was indivisible at the proposing of the Albany Plan of Union. The colonies rejected the Albany Plan.3 This response betrays a willingness to accept Joseph Story’s views on the subject, which Abel Upshur’s work, A Brief Inquiry into the Nature and Character of Our Federal Government, thoroughly demolished. Was the Union indivisible at the meeting of the first Continental Congress, at the proposal of the Articles of Confederation or at their ratification? Dr. Thomas Woods has some thoughts on this subject:
Another serious problem for the nationalist theory to overcome is that the Articles of Confederation proclaimed in 1781 that “[e]ach state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” There it is, as clear as anyone could ask for: each state retains its sovereignty, freedom, and independence. The states would have had to be sovereign in the first place in order for them to retain their sovereignty in 1781. Thus, their status as separate and distinct sovereign states is officially acknowledged in the 1780s, meaning that any collapsing of the distinct peoples of the states into “one people” could not have occurred prior to that date.4
What about the ratification of the ninth state conventions, making the Constitution operative “between the states so ratifying” in June 1788? Or the meeting of the new government under the Constitution in April 1789? An article on the “Wayward Sisters” in Humanitas shows that, once nine states had ratified the Constitution, the Founders viewed the non-ratifying states as being out of the Union. 5 Statements of indivisibility in the Articles of Confederation were aspirational and today when people cite them they are begging the question. Was the Union rendered indivisible in April 1865? Can the Constitution be amendment by force? How one answers indicates how they view the federal Union.
Third, to what extent is it reasonable to argue with one’s agent over the powers one delegated to that agent? The relationship between the powers of the attorney and the rights of the principal might seem to simple, but history shows this not to be the case. In the North Carolina convention, James Iredell likened the proposed constitution precisely to a power of attorney with the states as the principals and the general government as the attorney. A parable might help illustrate the idea.
A while ago, I gave Mr. Smith a special power of attorney to sell my car in Madison County. Smith tried to sell my house in Morgan County. What is the proper way for me to respond? I gently reminded Mr. Smith that selling my house was not what I wanted him to do and that I had not delegated to him the power to sell the house. Mr. Smith responded, “Well, you did designate me as your attorney, and you did delegate to me the power to sell your property. I claim the right to decide what property and where the selling is to be done.”
“Not so,” I might say, “I delegated limited power to you and in any case, I am the principal and you are the agent. I reserve to myself the right to determine whether a power is delegated or not. It was never my intention that you have the right to sell my real estate in Morgan, so I forbid you to sell my house there.”
At this point, the discussion became tense. Mr. Smith suggested that his son decide the issue. I told him that his son was not part of the agreement and in any case, his son was not an independent judge between us. Smith produced a crowbar and threatened to beat me with it if I did not acquiesce in his interpretation. The situation seemed ridiculous. I had no intention of debating the point with my servant. Since no servant so insubordinate can be trusted to handle any question, I declared the power of attorney null and void. At this, Smith became enraged, and resorted to violence. I lost the ensuing fight, and at some point lost consciousness. When I awoke in a hospital, I had been beaten so badly I had had to have a leg amputated and I had a broken arm and several broken ribs. I asked, incredulously, why Smith had done this to me. He replied, “None of this would have happened if you had not been disloyal to me.”
Of course, in this fictional scenario, no ethical person would consider Mr. Smith to have been in the right. His behavior should be considered monstrous. Yet, the analog to the United States (the principals in our system) and the federal government (the agent created by them and given specified limited powers for certain purposes) and holds some similarities that one would hope many Americans would find disturbing. The states were the principals. They delegated certain limited enumerated powers to their agent the general government. A dispute arose between some of the principals and the agent over whether certain powers were delegated or not. When some of the principals abandoned the power of attorney, the agent denied that the principals had the power to abandon the arrangement. Indeed, Virginia, Arkansas, Tennessee and North Carolina left the Union precisely over this question. No rational person would debate with his servant the limits of delegated powers. Neither should a sovereign state.
It is to be hoped that these questions, posed in a Socratic dialogue, might cause Americans of the nationalist or “Massachusetts” school to rethink their position. While we are hastily taking down Confederate monuments, it might be useful to pause and consider that Confederate soldiers fought in opposition to the idea that the general government had the power to overthrow an elected state government and replace it with an appointed military governor. They fought against the idea that the Union was forever indivisible, regardless of the desires of the people. Finally, Confederate soldiers fought in favor of the proposition that the people of the states were the principals in our system of government and they, as principals, they had the sovereign right to tell their agent, the general government, what powers they had delegated and that the agent had no right to debate with the principals as to the extent of the agent’s powers.
One of the unique aspects of the American Union was that, in the United States, the people came together to form a government, to delegate to it certain limited, enumerated powers. The War to Prevent Southern Independence destroyed that arrangement and established the principle that the people do not dictate to the government what powers the government can employ. Instead, the general government dictates to the people what rights the people retain. If the people object, then the government established that it has the power to kill them if need be, up to 600,000 of the people. Confederate monuments were erected after the war established this new arrangement was established in 1865. When debating what to do with Confederate monuments, we would do well to remember this.
1. Thomas Jefferson, The Kentucky Resolutions. See William J. Watkins, Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy, (New York: The Independent Institute, 2004), 172.
2. Constitution of the United States, Article IV, Section 4.
3. Samuel Eliot Morison, Henry Steele Commager, and William E Leuchtenburg, The Growth of the American Republic, (New York: Oxford University Press, 1980), I:114-15.
4. Tom Woods, “The Return of a Great Jeffersonian,” LewRockwell.com, November 1, 2006, https://www.lewrockwell.com/2006/11/thomas-woods/the-case-for-states-rights/, accessed December 28, 2017.
5. Jonathan White, “The Wayward Sisters and Constitutional Interpretation,” Humanitas, Nos. 1 & 2, 2013, 51-70. http://www.nhinet.org/white26-1.pdf, accessed December 28, 2017.