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08 Oct

When—or more properly if—people consider the war that began in 1861, they think of it as a “civil war,” but that nomenclature is erroneous as we shall see. Some authors have called it America’s second revolution because, in fact, it resulted in a new nation rather than the nation that had been in existence from 1789 with the ratification of the Constitution. For Abraham Lincoln’s refusal to accept secession had nothing to do with the Constitution or slavery—though he dearly wanted Americans to believe that such was the case—but with a concept not of union but of government that led to all that followed. Therefore arguing the constitutionality of secession is pointless since that was not the basis upon which Lincoln acted. So what is it that Lincoln believed that set him upon the path of revolution against his own nation and the total war he initiated with all that came afterward? We begin to understand his thinking in an statement made in his First Inaugural Address:

“I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination.”

Lincoln’s understanding of the nature of the federal government and its relationship with the States is expressed in a November 20th 1863 letter in which he reiterates the doctrine he and many of like mind believed regarding the primacy of the central government to that of the States.

“The point that was made against the theory of the general government being only an agency whose principals are the States … is one of the best arguments for the national supremacy.”

In other words, the “national government” in its relationship to the states is supreme. Hardly a constitutional construction, but once understood makes all else that comes after comprehensible. For those who believe that Lincoln acted or intended to act according to the United States Constitution, let us look at his actions and see if those beliefs are valid.

 On June 17th, 1858, Abraham Lincoln gave a speech at the State Capitol in Illinois. It is one of the most well known speeches of a man famous in no small measure because of his speeches. What Lincoln said became renowned as a warning regarding the state of the nation at that time. Quoting Scripture, the candidate stated:

“A house divided against itself cannot stand. I believe this government cannot endure permanently half slave and half free…It will become all one thing or all the other.”

Everyone—then as now—believed that Lincoln was warning against the “slaveocracy” of the South taking control of the government and spreading slavery into the North. This idea terrified Northerners—bringing the African into what were then virtually all-white states and territories was their greatest fear. But the South was politically impotent and no more able to seize power than it was able to free itself of Northern hegemony. Also, the nation had existed since its inception with slavery, both white and black and though the institution was mostly (but not completely) abolished in the North, its retention in the South caused little disharmony among the vast majority of Americans. Indeed, the economic wealth of the South, rising mainly from the use of slave labor, was responsible for the growing wealth of the North through exorbitant tariffs.

What was true that by Lincoln’s time the government could not long endure the way that matters stood. But the problem was not slavery, but two irreconcilable concepts of nationhood, one that had become ever more divisive since the establishment of the union. And it was this “division” that Lincoln wanted most desperately to “cure,” naturally with his viewpoint triumphant. Nothing, could be allowed to weaken the “national” government and that included secession. Whatever had to be done to prevent or cure such an action must be done, the Constitution notwithstanding.

Many in the South rightly believed that the federal government had rejected the constraints placed upon it by the Constitution and expanded its powers far beyond its “enumerated limits.” The majority of the people of the Southern States, having rejected the tyranny of King George, concluded that the Federal Government of 1861 had become king in all but name and they were determined to exercise their right of secession, a recognized recourse under the Constitution.

Lincoln and his Party understood that they had to do more than just defeat secession. They had to conquer and subjugate the people of the South and establish a new constitutional order in place of the old in which the Federal Government moved from a position of limited, enumerated Constitutional powers to one in which that government was perpetual, indivisible, dominant and exalted as “sacred. Thus the aim of the war—and we shall see that Lincoln begins his presidency promising “civil war” upon any State attempting secession—was that Lincoln, acting as Chief Executive and Commander in Chief, would create a supreme National Government with the potential to exert almost unlimited authority. But such a design required a massive re-structuring of the national will, a change which meant that the South—unwilling to accept such a concept—could not just be defeated in war! As a force within the nation, it had to actually be destroyed, its culture demonized, its economy desolated and its political will broken so thoroughly that there would never again be any challenge to Federal domination.

The word “treason” was much used before, during and after the war but few people even now know the constitutional definition of treason as found in Article III, Section 3:

“Treason against the United States, shall consist ONLY in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

As the definition of treason is “making war upon them,” “them” being the States, let us hearken back to Lincoln’s First Inaugural Address. In it, he refers to those Southern States that had already seceded from the Union or were considering doing so:

“In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war. . . You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to preserve, protect, and defend it”

Notice two things: Lincoln speaks of taking an oath to defend the government. But, actually, the oath found in Article II, Section 1 of the Constitution states as follows:

“…I do solemnly swear that I will  . . .  to the best of my ability, preserve, protect, and defend the Constitution of the United States.”

Nowhere does the word “government” appear in that oath! Lincoln swore to uphold the Constitution, not the “government! And we know that he entered his office already prepared to sacrifice the Constitution for his idea of protecting the government. Whatever the reasons for secession—and they were many—Lincoln saw them as an attempt to, in his words, “destroy the government” and the destruction of the government—not the destruction of the nation or even the Union, became the mantra throughout the war—and even after. And it is to prevent the destruction of the government that all of Lincoln’s actions address. He promises—and initiates—war for that purpose. Lincoln waged war in the name of the “government” upon the states of the South. And since the federal government is not a state but a creature of the Constitution which itself is a creation of the States and voted into existence by the States—upon some of whom Lincoln was now waging war—a more clear definition of treason cannot be found. Furthermore, not only was Lincoln and his government guilty of treason, but so was every person, and every state that bore arms giving aid and comfort to his treason.

Lincoln refused those restraints which the Constitution placed around and upon his “government” because to his mind the federal—now national—government was the repository of all power and answerable to no one, certainly not the States of the South. And this mindset was never seriously contested by members of the other two branches of government. Thus strengthened, Lincoln went forth to initiate, sustain and triumph in the most bloody and brutal war ever fought by the United States and in so doing, his constitutional crimes were many and grievous:

 

  1. As President-elect, he planned and carried out a “false flag” action against the government of South Carolina and the newly constitutionally created Confederate States of America in direct violation of both the Constitution and the accord reached between outgoing President Buchanan and that State not to attempt to rearm and send troops and supplies to the federal fort in Charleston. We know this from his correspondence with various people involved in the matter. His own Cabinet violently disagreed with the President’s intentions referable to Sumter, stating that his actions would be correctly seen as a declaration of war by the Confederacy.
  2. As President, he declared war on those States that had seceded from the Union. But the Constitution gives the power to declare war only to the Congress! Article I, Section 8 states that Congress is able: “To declare War…; To raise and support Armies. . .; To provide and maintain a Navy; … according to the discipline prescribed by Congress…”
  3. He suspended habeas corpus, another power relegated to Congress alone in Article I; Section 9 on the duties of the Legislative Branch. Habeus corpus can be suspended, but only by Congress. Needless to say, Congress was not consulted on the matter.
  4. He used the military to control the election of 1864, sending soldiers to vote where they did not reside and using them at the polls to intimidate voters, something that was facilitated by the use of colored ballots indicating the voter’s intentions before his vote was cast. Gen. Butler telegraphed Lincoln from New York City declaring that not one Democrat had voted there.
  5. He established martial law in States within the Union and areas outside a war zone. He suspended civil rights to what he termed “military necessity” as was stated in a letter of August 9th, 1864: “Nothing justifies the suspending of the civil by the military authority, but military necessity, and of the existence of that necessity the military commander … is to decide.” In other words, if you think it necessary to suspend the God-given constitutionally guaranteed liberties of Americans, be my guest.
  6. He authorized the trial of civilians by military tribunals in areas that were not war zones; this practice was continued even after the war. Consider the trial of his assassins which was military in nature, though none being tried were in fact in the military or charged with acting as members of the military.
  7. He gave his blessing to the waging of war contrary to those rules of war in place at that time in the “civilized world,” a strategy which intentionally targeted civilians and non-combatants and involved the destruction of the enemy’s way of life, his culture, his history and his identity; that is, what today we would call “cultural genocide.”
  8. He created the State of West Virginia, from territory legally part of the State of Virginia contrary to the constitutional requirement of the approval of the State, from which territory is taken to make any new State.

And these are only a few of the actions taken by Lincoln that were contrary to both the spirit and the letter of the Constitution and which rendered that document null and void not only in those states of the South … but in those which remained. Indeed, between what Lincoln did during the war and what his government did after his death, the Constitution has never recovered.

Under Lincoln, the entire First Amendment was rendered null and void. Whether by Executive Order or by law, it is forbidden for the Government in, by and/or through any of its branches, to restrict religious observance, freedom of speech, freedom of the press or the right of peaceful assembly and petition. Yet all of the above were effectively suspended by Lincoln. And what about Lincoln and his Administration’s affect on religion? Well, there are countless stories of clerics who were ordered–not asked—to pray for the President and not just for his health or his immortal soul, but for the furtherance of his war. This was demanded by the military of religious leaders both in the North and in the South and when it was not forthcoming—especially in occupied areas in the South—the pastor was arrested and the church closed. Worse, during the war, the churches in the South were a particular target for destruction as a means of inflicting cultural death upon the section. This crusade—fully as awful as any waged by the Ottoman Turk or the Nazis and Communists of the last century—must stand as proof that Lincoln violated even this seemingly militarily neutral section of the First Amendment. Indeed, freedom of any kind was in short supply during the War of Secession. There was a pervasive malignant atmosphere of suspicion and betrayal that silenced even the most benign dissent by the most honorable of dissenters.

Here are some quotes from Lincoln referring to the Constitution. While many of these sound orthodox, his sentiments—like his much vaunted General Order 100—are filled with caveats and admissions that, in the end, he would do whatever was necessary rather than constitutional.

“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”

Lincoln’s only concern was that the Constitution would interfere with him and hence, he was determined to ignore it from the outset.

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”

Here Lincoln speaks of himself in terms of the royal “we,” but he alone is “master” which he proved by virtually nullifying the other branches of government. And while Lincoln assures his listeners that he only intends to “overthrow the men who pervert the Constitution,” he neglects to point out that he is chief among them.

“Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”

In a rhetorical question, Lincoln sets up a false dichotomy, validating his treason by presenting it as the only means by which the country can be saved.

“The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country.”

Lincoln sees the Constitution as “inadequate” for the “stormy present”—a present he made stormy—and validates his chosen course by speaking about “disenthralling ourselves”—that is, throwing off the yoke of constitutional limitations. This particular statement in his December 1st, 1862 Annual Message to Congress is Lincoln’s version of Orwell’s “new think.”

“Can this government stand, if it indulges constitutional constructions by which men in open rebellion against it, are to be accounted, man for man, the equals of those who maintain their loyalty to it?”

Again, Lincoln excuses an unconstitutional act—the creation of West Virginia and its admission into the Union—by calling into question the patriotism of those who oppose it. He points out that those who support the government—again, not the Constitution—are “loyal” while those who disagree are “rebels” and “insurrectionists” intent upon destroying it. But the Constitution says nothing about motives or the government. An act is constitutional or it is not; it stands and falls by no other criteria.

“…I must save this government if possible. What I cannot do, of course, I will not do; but it may as well be understood, one for all, that I shall never surrender this game leaving any available card unplayed.”

Lincoln writes to Reverdy Johnson, on July 26th, 1862 assuring him that he will not to do what the Constitution forbids him doing—but then he turns around and assures Johnson that he intends to do whatever he has to do to “save this government.” Part B clearly revokes Part A.

Lincoln’s willingness to destroy the Constitution is confirmed in his letter to Albert G. Hodges on April 4th, 1864:

“Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.”

Lincoln implicitly believes that the nation could not be saved through adherence to the Constitution and therefore in order to “save the nation” he abandoned it. He embraces the Hobbesian philosophy that the ends justify the means. Of course, in the loss of the Constitution, the nation also is lost—at least as it was conceived by the Founders.

In his letter to Edward Everett, Lincoln also wrote what apparently was supposed to be a sort of constitutional homily on right behavior, behavior from which he exempted himself:

“Continue to execute all the express provisions of our national Constitution and the Union will endure forever – it being impossible to destroy it, except by some action not provided for in the instrument itself.”

There is a modicum of truth in this for Lincoln’s actions were not provided for in the instrument itself and did in fact destroy the Union created in 1776—replacing it with an Empire ruled by a supreme central authority.

In a letter of July 12th, 1863, Lincoln addressed concerns about the many arrests and imprisonments of those who disagreed openly with his actions. To a New York Convention he wrote:

“The resolutions quote from the constitution, the definition of treason; and also the limiting safe-guards and guarantees therein provided for the citizen, on trial for treason, and on his being held to answer for capital or otherwise infamous crimes…But these provisions of the constitution have no application to the case we have in hand, because the arrests complained of were not made for treason—that is not for the treason defined in the constitution…nor yet were they made to hold persons to answer for any capital, or otherwise infamous crimes; nor were the proceedings following, in any constitutional or legal sense, ‘criminal prosecutions’. The arrests were made on totally different grounds, and the proceeding following, according with the grounds of the arrests.”

This is a rather spectacular example of Lincoln’s ability to parse words. He assures the Convention that nobody was being arrested for real treason as defined by the Constitution, but the arrests and all that followed had been made “on totally different grounds”—grounds which Lincoln refuses to identify.

Going back to his First Inaugural we look again at Lincoln’s attempt to establish the concept of perpetuity.

“I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments.”

If Lincoln had not been a lawyer, perhaps some excuse could be made for this statement, but as he was, the only conclusion we must reach is that his ambition was greater than his honesty. For four centuries prior to the Constitution, English common law held that there was no such thing as a contract in perpetuity. Therefore, any contract—which is what the Constitution was—cannot be considered perpetual, simply by adding the word “perpetual” or the phrase “implying same,” as did Lincoln. I can call a bull a butterfly, but that doesn’t make it one.

In conclusion, Abraham Lincoln came into office with an agenda involving a total restructuring of the government of the United States. Obviously, such an agenda required a total disregard of the Constitution. From the time of his election he was in contact with, among others, General of the Armies, Winfield Scott concerning any response available to the government referable to the secession of the Southern states. He was asking—and receiving—advice on his options under various circumstances once he assumed the office of President and, as we have seen by his sentiments expressed in his first inaugural address, those actions included a plan to initiate war against any state that attempted to leave the Union—a clear act of treason. This was not a man who suddenly found himself in an untenable position and had to scramble as best he could to deal with circumstances that even a Solomon would find challenging.

Lincoln was a lawyer. He knew the Constitution, what it said, what it meant and what it stood for and he understood that which, as President, he was—and was not—permitted to do. However, it is also apparent that what he wanted, and in fact, would do as President required him to violate that document and render it ineffective as the Law of the Land! But, for Abraham Lincoln, that didn’t matter. For him, might made right, the ends justified the means and he was willing—nay eager—to do anything and everything necessary to triumph. In the end, he was successful, but his success led to the creation of a new nation and a different government based upon his own understanding of both. Americans of today are the ultimate victims of his choices.

 


One Response to Abraham Lincoln and the United States Constitution

  1. debbie hoffman

    October 8, 2017 at 3:57 pm

    Excellent

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