The Federal Monopoly
most teaching about the American Civil War, the pupil
learns that there was a necessary association between
war ended happily, he is told, because slavery was destroyed and the Union was
But there was no inevitable connection between slavery and secession. In fact, the first secessionists were Northern abolitionists who wanted no part of a Union that tolerated slavery. They just didnt acquire enough influence to persuade their fellow Northerners to declare their independence.
Suppose they had. Suppose New England had pulled out of the Union in indignation over slavery. Suppose the remaining states had declared war in order to save the Union, and after a bitter five-year struggle, costing nearly a million lives, New England had been conquered.
Then what? History might record that the victorious Union took a fierce revenge by occupying, looting, and setting up puppet governments in New England for several years; furthermore, that it also amended the Constitution not only to protect slavery in the South, but to extend the right to own slaves to every state and all U.S. territories.
In that case, saving the Union might not seem such a wonderful thing. It would have come at the price of saving slavery. The causes of Union and slavery would have been synonymous for later generations.
A more chilling thought is that the Union victory over New England might not only have saved slavery, but conferred moral legitimacy on it. Abolitionism might be associated with those nasty rebels who tried to destroy the Union, and slavery with the cause of patriotism! To the victor belong the spoils including, to a great extent, the moral sense of the population.
Both sides in the actual Civil War were engaged in subjugation. The South was protecting chattel slavery; the North was denying the right of secession on which this country was founded.
At the time the Constitution was adopted, several states, including Virginia and New York, ratified it on the express condition that they might withdraw from the Union at any time they deemed it in their interest to do so. This was in keeping with the Declaration of Independence, which says that people have both the right and the duty to alter or abolish a government destructive of their rights.
Nobody at the time challenged these states claim to a right of secession. Not only did the Declaration support them; as a practical matter, nothing could stop them. The federal government was too weak.
The Civil War established that the federal government had grown strong enough to prevent and punish any independence movement. From then on, no state could secede for any reason, no matter how tyrannous the federal government might become.
The military ratio has widened enormously: today the states still have rifles, but the federal government has a nuclear arsenal. Nobody talks about secession (at least not very loud).
This is what makes it possible for the federal government to dictate to the states. If the Union were still voluntary, the Supreme Court wouldnt dare, for example, to strike down the abortion laws of all 50 states, because many of those states would have seceded immediately after such an outrageous usurpation of their power.
Ah, but we no longer speak of federal usurpation and why not? Because the powerful can change even our moral sense, unless we are extremely vigilant. So most of the country has accepted as legitimate the courts claim to authority over state abortion laws.
As Andrew Jackson once said of Chief Justice Marshall, John Marshall has made his decision now let him enforce it! Translation: The power to interpret the law is meaningless without the power to enforce it. If only the federal government can enforce the Constitution, only the federal government can interpret it.
So, as a practical matter, there is no longer any such thing as a federal usurpation of power. Nobody can enforce the Constitution against the federal government, so why bother trying? Which makes the Constitution pretty useless for the purpose of limiting that government.
When you look back on a famous victory in any war of the past, dont be too sure the right side won.
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