Positive Liberty

Thomas DiLorenzo is an unusually bad scholar, whose incompetence at history is only exceeded by his poor grasp of basic Constitutional theory. In a series of lousy, often hysterical, articles and books, he’s attempted to demonize Abraham Lincoln as the author of most of the evils of modern America, and to vindicate the Confederacy’s claim to a constitutional right to secession. I’ve rebutted these arguments many times before, but in his latest, he takes a few silly swipes at me, and since this has to do with my post about Akhil Amar, I thought I’d post some thoughts in response.

First, if I’m a member of Harry Jaffa’s “cult,” someone should tell Jaffa. I’ve attacked Jaffa’s views in print many times—enough to give me a bit of a frosty reception over at Claremont nowadays. I guess I’m not a very effective “echo chamber acolyte.” In fact, I’ve never proposed to defend many of Lincoln’s actions during the Civil War. I’ve defended the Union’s constitutional authority to wage the war, and I’ve defended (some of) Lincoln’s views with regard to the indissolubility of the union. If that’s enough to make me a card-carrying cult member, then membership in the cult isn’t very demanding. The absurdly overblown nature of DiLorenzo’s rhetoric on this matter ought to suggest just how empty his argument really is.

According to DiLorenzo, Thomas Jefferson’s “Kentucky Resolve [sic] of 1798, establish him as the foremost American architect of the states’ rights philosophy. Lincoln commanded an army that killed 300,000 fellow citizens to assure the destruction of that philosophy.” Well, that’s one way of putting it, I suppose. It’s certainly true that the Kentucky Resolutions were seen by nineteenth century advocates of secession as the foundation of their interpretation of state’s rights. Jefferson argued there that the Constitution did not create a sovereign government, but only a league between sovereign states, so that states could, under certain conditions, intercede between the federal authorities and citizens. Later, Calhoun and others argued that this also included the power to secede. As I’ve repeatedly said, Jefferson was unequivocally wrong on this score, and James Madison, who was always a far better scholar of the Constitution (and was, of course, much closer to its authorship to begin with) tried to explain that to him at the time: “Have you ever considered thoroughly the distinction between the power of the State, & that of the Legislature, on questions relating to the federal pact[?] On the supposition that the former is clearly the ultimate Judge of infractions, it does not follow that the latter is the legitimate organ especially as a convention was the organ by which the Compact was made.” Letter to Thomas Jefferson (Dec. 29, 1798) in Madison: Writings 592 (Jack Rakove ed. 1999). See further Drew McCoy, The Last of The Fathers: James Madison And The Republican Legacy (1989).

Whether or not Jefferson really meant to say that the Constitution was simply a league between the states—Madison late in life claimed he hadn’t—the fact is that the Constitution is not a league between sovereign states. It is a sovereign government in and of itself. The Constitution’s proponents were quite up front about the fact that it was a government which would operate directly on the people themselves. See, e.g., Federalist No. 15 (Alexander Hamilton): “The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist.” When Patrick Henry challenged Madison at the Richmond Convention—“Who authorized [the Constitutional Convention] to speak the language of We the people, instead of We, the States? States are the characteristics, and the soul of a confederation”—Madison replied that the authority of the Articles of Confederation had been “derived from the dependent derivative authority of the legislatures of the states; whereas this [Constitution] is derived from the superior power of the people.” 2 Debate on The Constitution 596-597, 619 (Bernard Bailyn ed. 1993). To ensure a national, rather than a derivative, treaty-like foundation, the framers insisted that the Constitution be ratified through special ratification conventions, not by state legislatures. States were not, therefore, parties to the Constitutional “contract,” and thus could not choose to break it. Only the “the people of the United States,” who are parties to the Constitution, may make that choice, through amendment. The Constitution did not consolidate the states entirely, but “[s]hould all the States adopt it, it will be then a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large.” Id.

Even Anti-Federalists acknowledged that ratifying the Constitution meant redefining American sovereignty. “Cincinnatus,” for instance, complained that “[s]uch is the anxiety manifested by the framers of the proposed constitution, for the utter extinction of the state sovereignties, that they were not content with taking from them every attribute of sovereignty, but would not leave them even the name.—Therefore, in the very commencement they prescribe this remarkable declaration—We the People of the United States.” 1 Id. at 118-19. And “Brutus” opposed ratification because “it is ratified, [it] will not be a compact entered into by the States, in their corporate capacities, but an agreement of the people of the United States as one great body politic…. It is to be observed, it is not a union of states or bodies corporate; had this been the case the existence of the state governments might have been secured. But it is a union of the people of the United States considered as one body, who are to ratify this constitution, if it is adopted.” 2 Id. at 173.

Moreover, as Amar points out, the kind of union created by the Constitution, unlike its predecessor, never mentioned the “sovereignty” of the states, or a “confederation” of them. Instead, it repeatedly described itself as a Constitution, “unmistakably styled after earlier state prototypes.” America’s Constitution at 33. Moreover, Amar notes, “more striking than what the Constitution’s friends said is what they did not say. No leading Federalist ever publicly sought to win over states’ rightists by conceding that a state could unilaterally nullify or secede…. Never did they say, ‘Give the new plan a try, and if you don’t like it, your state may always leave.’” Id. at 37. Lincoln was right that a state may not unilaterally secede.

DiLorenzo thinks that the Declaration of Independence set forth “a declaration of secession from the British empire,” and that “Lincoln denied that such a right even existed and waged war to destroy the most important principle of the Declaration of Independence.” There are two things that make this claim so ridiculous: first, secession is nowhere mentioned in the Declaration; the right of revolution is mentioned, but not any right of secession, and there is an important difference (namely, revolution is based on self-defense, while secession is based on a group’s decision simply to break off from duly constituted, legitimate government authority). And second, the “most important principle” in the Declaration is not revolution (let alone secession), but the principle that all men are created equal, a principle which the Confederacy was essentially founded to reject, and in defense of which Lincoln eventually lost his life.

The equality principle is the most important in the Declaration because it is what validates the right of revolution. Because we are all created equal, therefore we have the right to government-by-consent, and because we have the right to government-by-consent, therefore we have the right to rebel against an abusive government. That is a very far cry from the Confederacy’s claim that they had the right to enslave blacks without interference from the federal government, or that they had the right to create their own “government,” regardless of its substantive claims of legitimacy or policy, so as to protect this institution. Jefferson in the Declaration makes clear that he is not defending a mere right to change government, in itself: only when “government becomes destructive of these ends”—that is, of the rights that spring from the principle of equality—and only when “a long train of abuses” has demonstrated an intent to reduce the people under despotism—only then are the people entitled to throw off their government.

This, of course, Lincoln never disputed: “[i]f, by the mere force of numbers, a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution-certainly would, if such right were a vital one,” he said in his First Inaugural. “But such is not our case.” Quite so.

Finally, demonstrating his now-predictable historical ignorance, DiLorenzo claims that “Lincoln did more than any other human being to bring to America the centralized, bureaucratic leviathan state that we all slave under today.” More, you see, than Woodrow Wilson, who spearheaded the Progressivist regulatory welfare state; Franklin Roosevelt, who instituted the entire New Deal bureaucracy; Lyndon Johnson, who initiated the Great Society; or George W. Bush, who has outspent his predecessors by a breathtaking margin. Yes, Lincoln was so much worse than them all.

How sad that when the general public looks to find out what “libertarian” means, so many of them will be directed to such ignorant and histrionic nonsense as the writings of Thomas DiLorenzo.

When a man makes such statements as he makes, with such seeming unconcern for the truth, it seems that no amount of rational argument could do any good. That is a sad thought, but it does seem that he is much more interested in making a stink of himself. I have long resisted Richard Dawkins’ view that scientists should refuse to debate creationists, so as to deprive them of any intellectual respectability, but I am strongly tempted to do that here. The Lew Rockwell crowd are the creationists of the libertarian movement, and simply deserve no respect from serious scholars of the Constitution. And yet I cannot help but hope that truth can penetrate even the densest minds.

Update: I neglected to mention two things. First, as I have blogged before, Jefferson believed that states could be compelled to remain in the American union even under the Articles of Confederation!

Second, DiLorenzo’s statement that Jefferson was “was a great champion of free speech” is fine enough as far as it goes. But the idea that he was a consistent champion of civil rights in a time of armed conflict is absurdly naive.

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