The Importance of Constitutional Government

This piece was originally published at mises.org

In his book, The Rise and Fall of the Confederate Government, Jefferson Davis explained (vol. 2) the Southern cause, as he saw it: “When the cause was lost, what cause was it? Not that of the South only, but the cause of constitutional government, of the supremacy of law, of the natural rights of man.” His argument was that the conduct of government must be constitutional. In his opinion, it would be unlawful for a government to argue that prevailing circumstances made it necessary to ignore or override the Constitution, as that would be a violation of what he called “the supremacy of law.” An attempt to uphold the supremacy of law by unlawful means would be inherently contradictory. The importance of constitutional government is a lesson worth revisiting in a time when there are new debates on the constitutionality of government action.

Davis highlighted an important point, that the Constitution does not contain an escape clause by means of which it can be set aside whenever the government deems it necessary to do so. He referred to this as a “plea of necessity”: “Therefore, says the plea of necessity, a new power is this day found under the Constitution of the United States…that is, the powers of the Constitution of the United States are enlarged or contracted according to the circumstances.” Davis insisted that this approach to the Constitution would lead inexorably to conflict: “Mankind can not be surprised at seeing a Government, administered on such an interpretation of powers, blunder into a civil war, and approach the throes of dissolution.” In his view, there could be no secure foundation for peaceful resolution of disputes if the very foundation of lawful settlement of disagreement could so readily be set aside at the government’s whim.

Davis highlighted the South’s loyalty and devotion to the Union before this dispute arose, reminding his readers that many Confederate soldiers had fought for the United States in previous wars. Davis wrote that, “The people of the seceded States had loved the Union. Shoulder to shoulder with the people of the other States, they had bled for its liberties and its honor.” But he saw the Constitution as central to a voluntary Union, being itself the agreement on the basis of which the Union was formed, and breach of this compact as justification for withdrawing from it. As Donald Livingston explains, the voluntary nature of the Union was central to the Southern understanding of the Constitution:

Southerners were loyal to the Constitution of the Founders. What they objected to was the northern interpretation of it which sought, by an act of philosophical alchemy, to transmute it from a compact between sovereign states creating a central government with enumerated powers to a consolidated nationalism with a central government having unlimited powers.

Therefore, as Davis saw matters, if the government could simply set aside the Constitution when it deemed this necessary, that in itself would justify secession as it would amount to a declaration that the agreement was no longer to be regarded as binding. As he explained it:

…if the necessity which they [the US government] pleaded was an argument to justify their violations of all the provisions of the Constitution, the existence of such a necessity on their part was a sufficient argument to justify our withdrawal from union with them. If the preservation of the existence of the Union by coercion of the States was an argument to justify these violent usurpations by the United States Government, it was still more forcibly an argument to justify our separation and resistance to invasion; for we were struggling for our natural rights, but the Government of the United States has no natural rights. 

By natural rights Davis meant the rights of life, liberty, and property, which were violated by the government in waging war on the seceding states. Davis’ reference to “natural rights of man” did not denote rights derived from theories or ideologies, but rights protected by the Constitution. He emphasized the constitutional principle that “no person shall be deprived of life, liberty, or property without due process of law,” his point being that the law at the time treated slaves as property. This was the very reason why President Abraham Lincoln said, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Lincoln was not simply expressing his personal disinclination to end slavery, but reflecting a view of the Constitution that was widely held at the time.

The constitutional recognition of the institution of slavery explains why Davis wrote extensively about “unconstitutional interference with slavery”—slavery being lawful at the time and an institution protected at the time by the US Constitution. Davis argued that the fact that the Thirteenth Amendment was passed to abolish slavery only emphasized that slavery was previously deemed to be constitutionally protected: why else would the Constitution need to be amended to abolish it? This amendment was not depicted at the time as an amendment to “clarify” that slavery was always illegal, but an amendment to abolish an institution that had previously been lawful. In their eagerness to comfort themselves by forgetting that slavery was ever lawful, many historians now pretend that the constitutionality of slavery was just a myth dreamed up by Davis. Such historians replace uncomfortable historical facts with their own regretful thoughts and sentiments.

Davis was also concerned about Lincoln’s “indiscriminate war upon all” including civilians, women, and children, with the burning of homes and plantations and the destruction of property, arguing that such methods could not be justified as a method of enforcing the law. In his view, the Constitution was a binding agreement to be upheld in all circumstances: “The commands of the Constitution are positive, direct, unchanged, and unrelaxed by circumstances. They are equally in force in a state of war and in a state of peace.” He asked: “Were these the appropriate means by which to execute the laws, and in suppressing rioters to secure tranquility and preserve a voluntary union? Was this a government resting on the consent of the governed?” This was an important question because until Lincoln’s war; consent of the governed had been treated as a foundational constitutional principle. Davis maintained that the US government had erred by embarking on a course in which, “All constitutional protections were to be withdrawn, and the powers of a common government, created for the common and equal protection to the interests of all, were to be arrayed for the destruction of [Southern] institutions.”

The supremacy of law, in the context in which Davis is writing, does not mean that the law should be slavishly followed no matter how evil it is. It means, rather, that the Constitution ought not to be set aside when it is deemed convenient to do so—that defeats the entire point of having a Constitution in the first place. A constitutional amendment to abolish slavery—not a war against the South—would have been the lawful approach. In the alternative, as Horace Greeley attempted to advise Lincoln, the South should have been allowed to depart in peace. Davis wryly observed that if slavery had genuinely been the sole issue in dispute between the states—as later alleged by the US Congress—then allowing the South to secede would surely have immediately resolved the problem. In “The Secession Tradition in America”, Donald W. Livingston also points out that, “Right up to the firing on Fort Sumter, many abolitionists in the North, having long argued for northern secession, were prepared to allow the South peacefully to secede.” Murray Rothbard also observes that this was a popular view at the time:

Outside of New England and territories populated by transplanted New Englanders, the idea of forcing the South to stay in the Union was highly unpopular. In many middle-tier states, including Maryland, New Jersey, and Pennsylvania, there was a considerable sentiment to mimic the South by forming a middle Confederacy to isolate the pesky and fanatical Yankees. Even after the war began, the mayor of New York City and many other dignitaries of the city proposed that the city secede from the Union and make peace and engage in free trade with the South. Indeed, Jefferson Davis’s lawyer after the war was what we would now call the “paleo-libertarian” leader of the New York City bar, Irish-Catholic Charles O’Conor, who ran for president in 1878 on the Straight Democrat ticket, in protest that his beloved Democratic Party’s nominee for president was the abolitionist, protectionist, socialist, and fool Horace Greeley.