I’m not sure how a conservative undertakes to write a pro-Lincoln apologetic without a single word pledged to exculpating ostensible Fourteenth Amendment grievances from “small-government” opprobrium. But National Review’s indefatigable Rich Lowry has done it in a piece called “Defending Lincoln.” I’m just unconvinced that the article delivers as promised, is all.
In so “defending,” Mr. Lowry hasn’t been very nice to fellow conservatives or libertarians less consanguine about Lincoln’s bugaboos—those individuals christened lovingly by him with the epithet “human-owning libertarians” (as accurate as it is fair). Fellow travelers on the right with whom Mr. Lowry disagrees, like Thomas Woods or Thomas DiLorenzo, earn our sharpest slurs when they acknowledge the implications of the fact that “Democrats like to claim Lincoln as…the first Big Government liberal.”
No, wait—Mr. Lowry himself has said so in this very piece. I believe the game, then, lies in stipulating what about Lincoln enables Dems to do so “inaccurately”: after all, Leftist appropriations of Reagan or Jefferson would be risible.
Mainly, his article points out ways that Lincoln was indisputably good.
But that doesn’t do the work Mr. Lowry claimed. For my part, being in between Mr. DiLorenzo’s and Mr. Lowry’s viewpoints (okay, closer to the former), I simply labor to point out that the “case against Lincoln” can actually be “tendentious and wrong” only if, somehow, Lincoln’s acts did not inaugurate the end our country’s status as a bona fide republic. If so, then Lincoln can doubtful be “off the hook.”
Mr. Lowry correctly equates Lincoln’s view of “union” with one iteration or another of the Madisonian project reflected in famed Federalist 39. Yet by that measure, Lincoln doesn’t fare nearly so well.
As it proceeds, Mr. Lowry’s article offers much that is commendable: he’s correct that Thomas Woods comes out flat wrong on the matter of whether secession “remained a reserved right of the states.” It was not. Well…of course it was and remains a natural right of all peoples—the “appeal to Heaven”—but not a positive right, enumerated within a specific constitutional regime. Thus, Mr. Lowry is correct to quote Madison instead of Woods here: rights of rebellion and secession are “extra and ultra” to constitutional orders, which cannot include a methodological discourse on their own devise, by definition.
But this is all redundant shop-talk: Lincoln even waged a fascinating debate with Confederate Secretary of War and Attorney General Judah Benjamin on this matter; by most accounts, I’ll admit, he won. Joining a confederation has been likened to joining in matrimony—all parties come together freely (i.e. they don’t have to), but after they do so, they owe duties of propagation to one another, like reasonable loyalty.
But the matter becomes tricky (and Mr. Lowry becomes wrong) precisely at this point: the states were certainly designed to hold an absolute right of self-determination not applicable to the religious person’s view of marriage. So, however analogous, joining a union is not quite like joining a marriage in the sense that in marriage alone “perpetuity is implied.” In federal republics, perpetuity is aspired for but never grasped, just as dual sovereignty is purported without being understood.
Mr. Lowry seems to share Lincoln’s spurious, humanist assumption that republics somehow might survive forever. Neither Montesquieu, the Whig theorists, Plato, Aristotle, Protestant nor Catholic Christianity shares such a groundless presupposition (even though most modern-day Americans do seem to share it). The idea’s unenumerated pedigree is, as far as I can discern, pagan.
Mr. Lowry’s proposes “there is nothing in the text of the Constitution to suggest that it is a [mere] treaty among independent nations.” In this, he suggests an insoluble bond between people and government inconsistent with the Declaration of Independence (where all political bonds are listed as “dissolvable”). But, with a presumed nod from Lincoln, Mr. Lowry mocks the idea of mere treaty government for its transitory and ever-changing nature.
“Nothing in the text”—oops—now he’s stepped in it! Our Constitution not treaty government?! Strange that Mr. Lowry has said so one scant paragraph above his citation of the most famous half-line description of the Constitution’s constitution (in Federalist 39): “neither national nor foederal, but a composition of both.”
Well, Rich, foedus is Latin for…um…treaty. “Half federal” means “half treaty-styled government.” Madison refers to the states and the national government (at Framing, “national” and “federal” indicated opposites) in undeniable terms of international governmental immunity, the mark of treaty government.
There’s the rub, the American sphynx’s riddle, the answer to all the questions: is “half national, half federal” possible? At each of the 1788 state ratification debates in all the states, delegates discussed the stodgy-sounding, treaty concept of “imperium in imperio”. In short, is “sovereignty within sovereignty” possible, whereby state govs and the Fed treat with one another partly as international sovereigns?
Consider that, along with “federal,” the term “congress” too is ripped from that mode of government (whereas “Parliament” and “legislature” are more consistent with national identity). The year 1765 was the first time the old word had ever been used in the English language to denote a lawmaking capacity within a single nation; prior to that, it always designated a meeting by two or more sovereign peoples to “treat,” on the battlefield or otherwise. The Articles of Confederation, treaty government to be certain, chose the word ever selectively for this denotation. And by almost all accounts—even Lowry’s (excluding only Lincoln’s insupportable assertion that American sovereignty “antedated” the Constitution)—the States remained 13 separate countries under the Articles. Finally, treaty parlance comprises every word of the 11th Amendment: immunization from taxation and legal suits is one of the trappings of sovereign internationals. (Unabashed treaty-styled assumptions inform the federalism of the 9th and the 10th too.)
Now, the question is whether government half-by-treaty, half-by-national-power is possible at all, as a genus. Gazing on the palimpsest of history, I believe that the answer is “no”: imperium in imperio is only a contradiction, “green pastel redness,” a circular square, etc. And Lowry’s certainly right that this sad historical fact is not Lincoln’s fault. In fact, being a libertarian (and not a “civil libertarian”: a meaningless neologism on the ascendancy with the Left these days), I deem Lincoln can be wholly forgiven his emergent transgressions against the individual. Mr. Lowry and I are agreed there.
But his wholesale overturn of Jeffersonianism does, on the other hand, approach unforgivable. Although Mr. Lowry calls him a “worshipper” of the Founders, Lincoln stood their project on its head in averring that it could be conceived as “perpetual.” As noted above: republics are not that. Through the 14th Amendment, Lincoln exchanged the federal heroes (the States) for the villain (the Fed). Against every foundational intuition, the former is supposed to be the “palladium” of the people’s rights.
Perhaps the Southern States had failed their citizens (a fair charge, in light of slavery). Then the republic as a federal unit was done with then and there: a “res publica” holds onto one uniting moral notion as long as it exists. The republic is done with once a major moral disagreement presents itself. That is: if the abolitionist argument was that most slave-owners were vicious, hypocritical white trash (sounds plenty fair to me), why forcibly keep them in your country and then slap a few Reconstruction amendments over their ungovernable wickedness like so much perfume over the fetid stench of body odor?
But Lincoln, like every statist who asserts rights like the “substantive” ones of the 14th Amendment, believed that national government was here to help. And against these mixed charges of negligence and ignorance, Lincoln enjoys no affirmative defenses.
Over against Lincoln’s pseudo-theological assumptions about America seculo seculorum, Jefferson wrote in 1787 that “God forbid we should ever be twenty years without such rebellion.” As a recent revolutionary, he understood the idiocy of assumptions about the “perpetuity” or stasis of republics: government by people fails during the first lazy or sleazy generation. To a related end—showing the fleetingness of republican life—Jefferson wrote from the Presidency in 1804 that “whether we remain in one confederacy, or form Atlantic and Mississippi confederacies, I believe not very important to the happiness of either part.” The revolutionary-President happily acknowledged the naturalness of secession because, just as Lincoln would later borrow from Matthew’s gospel, “a house divided against itself cannot stand.” Unlike Lincoln, however, Jefferson actually understood those tea leaves: shrinkage is the single way to keep a republic moral (say, “slavery- and infanticide-free”).
Ironically, the “house divided” line’s most famous expositor missed the memo on its meaning: “don’t force natural rivals to live in the same house if they don’t want to.” If you want stability in your “house,” go get a King—one who understands that reference to “perpetuity” of government is just secularized religious iconography (like calling America “the hope of the earth”). Get a king who doesn’t assert “remedies” (i.e. the 14th Amendment) with graver infractions against “personhood” (say, oh, federalized abortion) than the breaches (i.e. slavery) which led to them. Get one to enforce virtue the old-fashioned way. If your response, Mr. Lowry, is that Lincoln had no reasonable basis for knowing the infanticide that would spring up out of the 14th Amendment like a ghost from the machine, then you’ve missed the point entirely: republics require virtue, and virtue requires excising the bonds with persons unfit for self-rule. All surrogates for this sole antidote leave the organism poisoned.
People of virtue want self-rule, those of vice an overlord. Thus, I want a slave-owner for a countryman precisely as much as I want an abortionist: none at all.
So why the feigned shock? Of course something terrible grew out of a statist’s ill conceived, makeshift remedy to a morally vicious economic device. Republicanism must be a constant separation of wheat from chaff: go read your Montesquieu, Mr. Lowry. But Lincoln ruined all that good theory, didn’t he, failing to grasp the sad truth that only a house divided hopelessly against itself would produce such an abomination as the 14th Amendment, a nightmarish surrogate for what he what he refused to accept as the inevitable fate of robustly functioning republics: purifying shrinkage.Published in