CHAPTER TWENTY:
The "New Nation" Enters the First World War
There is No Longer a Federal Government
In his book entitled Abraham Lincoln and the Second American Revolution, modern historian James M. McPherson wrote:
[After the war] the old decentralized federal republic became a new national polity that taxed the people directly, created an internal revenue bureau to collect these taxes, expanded the jurisdiction of federal courts, established a national currency and a national banking structure.
The United States went to war in 1861 to preserve the Union; it emerged from war in 1865 having created a nation. Before 1861 the two words "United States" were generally used as a plural noun: "The United States are a republic." After 1865 the United States became a singular noun. The loose union of states became a nation [emphasis in original].(1)
McPherson, who does not take sides with the South, perhaps admitted more than he intended in the above statement. The vast majority of Americans today are completely blind to the fact that there was no restoration of the "Union as it was" when the Southern States were subjugated in 1865, but rather the permanent establishment of a centralized military despotism which, although styled the "United States," bears no more relation to the Government of the United States of America under the Constitution than did that political body to the former Government under the Articles of Confederation. Prior to the 1860s, the Union was not a self-existent entity, but merely a condition arising from the common consent of the participating States. As such, the Union could neither create States — the new States were admitted by Congress to the Union after being created by the inhabitants of the Territory — nor compel their submission by force once admitted — a war between the States was only made possible by States acting in combination outside of the constitutionally-created Union against their sister States. The Government created by the Constitution was established to govern this voluntary association of States, and to represent them abroad; it was therefore their common agent, never their master. As Supreme Court Justice Story pointed out in 1833, "The Federal Government... as a creature of that compact [the Constitution], must be bound by its creators, the several States in the Union and the citizens thereof, having no existence but under the Constitution, nor any rights but as that instrument confers."(2) Echoing this view, Jefferson Davis wrote:
In the nature of things, no union can be formed except by separate, independent, and distinct parties. Any other combination is not a union; and, upon the destruction of any of these elements in the parties, the union ipso facto ceases. If the Government is the result of a union of States, then these States must be separate, sovereign, and distinct, to be able to form a union, which is entirely an act of their own volition. Such a government as ours had no power to maintain its existence any longer than the contracting parties pleased to cohere, because it was founded on the great principle of voluntary federation, and organized "to establish justice and insure domestic tranquility." Any departure from this principle by the General Government not only perverts and destroys its nature, but furnishes a just cause to the injured State to withdraw from the union. A new union might subsequently be formed, but the original one could never by coercion be restored. Any effort on the part of the others to force the seceding State to consent to come back is an attempt at subjugation. It is a wrong which no lapse of time or combination of circumstances can ever make right. A forced union is a political absurdity.(3)
Likewise, Alexander H. Stephens wrote:
The very object in forming all Confederated Republics is to create a new and an entirely artificial or conventional State or Nation, which springs from their joint Sovereignties, and which has no existence apart from them, and which is but the Corporate Agent of all those Sovereignties creating it, and through which alone they are to be known to Foreign Powers, during the continuance of the Confederation. This Conventional Nation is but a Political Corporation. It has no original or inherent powers whatever. All its powers are derived — all are specific — all are limited — all are delegated — all may be resumed — all may be forfeited by misuser, as well as non-user. It is created by the separate Republics forming it. They are the Creators. It is but their Creature — subject to their will and control. They barely delegate the exercise of certain Sovereign powers to their common agent, retaining to themselves, separately, all that absolute, ultimate Sovereignty, by which this common agent, with all its delegated powers, is created. The new Conventional State or Nation thus formed is brought into being by the will of the several States or Nations forming it, and by the same will it may cease to exist, as to any or all of them, while the separate Sovereignties of its Creators may survive, and live on forever....
...[T]he Government itself, with all its power as well as machinery, was founded upon Compact between separate and distinct Sovereign States. If this be so, as has been conclusively established, then the Government, so constructed, must of necessity be Federal, and purely Federal, in its character (emphases in original).(4)
In this view, Davis and Stephens were sustained by none other than Alexander Hamilton himself. According to the latter, the States "possess inherent advantages, which will ever give them an influence and ascendancy over the National Government, and will forever preclude the possibility of Federal encroachments." To therefore strike at the sovereignty of the States, and to destroy their governments, would deliver a fatal blow to the federal Government itself and would amount to its own "political suicide." Such an action, in Hamilton's opinion, would be the end of American liberty: "The States can never lose their powers till the whole people of America are robbed of their liberties. These must go together; they must support each other, or meet one common fate."(5) Given his oft-expressed love of consolidation, Hamilton's observations carry all the more weight because he spoke of things as they were, not as he had desired them to be.
In the words of the Supreme Court, "The people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence.... In many articles of the Constitution the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized. The States disunited might continue to exist, but without the States in Union there could be no such political body as the United States."(6) It follows then, upon a dissolution of the voluntary Union, a destruction of the Constitution, and an overthrow of the sovereign States, that the federal Government of the United States can no longer exist in organic law(7) as a corporation de jure; if it continues, it must necessarily take on a "life" of its own under color of law(8) as a corporation de facto with its own internal codes, rules, and regulations. It has been judicially declared that "where congress creates a corporation merely by virtue of its authority to legislate for a particular territory, and not by a general act, the corporation is a foreign one in any state or territory other than that in which it was created."(9) It comes as no surprise, therefore, that Title 28, United States Code, Section 3002(15)(a) clearly defines the "United States" as "a Federal corporation" and that elsewhere we are told, "The United States government is a foreign corporation with respect to a State."(10) Black's Law Dictionary defines a corporation as "an artificial person or legal entity."(11) Thus, the U.S. Government, with its permanent seat in the District of Columbia,(12) is a fiction comprised of other fictions ("U.S. citizens"), not the lawful government of real people (State Citizens) it was before the 1860s:
This self-formed corporate body has not merely an esprit de corps, but a oneness of will and purpose characteristic alike of a corporation, an oligarchy, or an autocrat; and the federal legislature, executive and judiciary, which were established as three absolutely independent institutions, to watch, and, if necessary, check one another, are now so unified as to act with one mind and will: thus practically changing them into a vast and chronic conspiracy against the people's liberty, as any gang of men, acting with one mind in the hiding places of the constitution and government, and constantly influenced by power and money, will gradually become.
Under the forms of a republican federation, then, we have a consolidated empire, and a corporate despot, just as the Romans had "an absolute monarchy disguised in the form of a commonwealth" (Gibbon). The parallelism will hereafter more fully appear.(13)
It is this corporate despot that has continued its subjugation of the people of both North and South through its municipal franchises, the fifty reconstructed "States." That these are not the organic and sovereign States which comprised the original Union but are, by their very nature, foreign political entities which are only nominally republican, is evident from the fact that their elective franchises consist exclusively of U.S. citizens who, although they reside in one of the States, nevertheless have their legal domicile in Washington, D.C. and owe "unqualified allegiance" to the Government seated there.(14) Furthermore, the new State constitutions were all framed post-Reconstruction by these foreign residents and, at least in the South, contain provisions which openly repudiate State sovereignty and the right of the American people to self-determination:
With the shots "heard round the world," Americans rebelled against an oppressive foreign authority. Then, after a generation as semi-independent states, they entered into a compact as "the People" in order, as the Preamble to the Constitution reads, to "secure the Blessings of Liberty to ourselves and our Posterity." The purpose of the 1789 Constitution was to charter a government of limited powers that could never become a tyrannical overlord. To guard against government's tendency toward self-aggrandizement, the framers not only expressly delimited the powers of Congress but tried in the Bill of Rights to carve out certain areas of freedom — speech, press, assembly, religion, arms — that would remain beyond the federal government's reach. They would remain vested in "the People," who preceded and superseded the Constitution they established....
The recognition that the People are one group, an American nation, makes possible the sustained campaign to convert the elitist Constitution of 1789 into an egalitarian constitution of popular suffrage — that is, a constitution that bases democratic rule on the majority of all the people....
Nationhood, equality, and democracy — these are the ideas that forge a new Constitution. But Lincoln was a good lawyer, and lawyers always seek to camouflage conceptual transformations as the continuous outgrowth of language used in the past. That's why he invoked government "by the people" to capture the new principle of democratic rule. But the significance of the People had changed. They no longer exist as the guarantors of the Constitution, the bestowers of legitimacy. States and individuals can no longer set themselves apart from the nation. The people exist exclusively as voters, as office holders and as beneficiaries of
legislation.
The relevant concept in the new Constitution, then, is not "We the People" but "We the citizens of the nation" — and this transformation is apparent in the post-Civil War amendments. The Fourteenth Amendment, for example, gives us our first concept of national citizenship. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof" are henceforth citizens. Prior to the Civil War, we allowed each state to define for itself who could become a citizen of the state and, on that basis, a citizen of the country. The new definition of who belongs to the polity marks a new beginning [emphasis in original].(15)
Thus, according to this writer, the so-called "Civil War" somehow breathed life into the empty shell of the Story-Webster theory of the "people in the aggregate." It does not seem to bother such modern legal experts that the "campaign to convert the elitist Constitution of 1789 into an egalitarian constitution of popular suffrage" was, in reality, a lawless and bloody revolution which would have made Robespierre envious.
Additionally, over the last decade or so, the foreign residents of the States have begun to remove the old boundaries from their constitutions. For example, the acting Mississippi State Legislature proposed and adopted the following resolution in 1990:
That the following amendment to the Mississippi Constitution of 1890 be submitted to the qualified electors of the state for ratification or rejection at an election to be held on the first Tuesday after the first Monday of November, 1990:
Repeal Section 3, Mississippi Constitution of 1890, which reads as follows:
Section 3. The limits and boundaries of the State of Mississippi are as follows, to wit: [description of boundaries omitted]....
BE IT FURTHER RESOLVED, That the explanation of the amendment for the ballot shall read as follows: "This proposed constitutional amendment repeals the section which establishes the boundaries of the state."(16)
It should be noted that since a State is legally defined as "a people permanently occupying a fixed territory,"(17) and "a political community of free citizens, occupying a territory of defined boundaries,"(18) it follows that a "State" with no boundaries cannot really be a State at all.
The Congress established by Article I of the Constitution consisted of a House of Representatives, composed of elected representatives of "the People of the several States,"(19) and a Senate, composed of "two Senators from each State" acting as representatives of the State government which selected them.(20) Since all political power descended from the sovereignty of the people of the States, it is obvious that the members of Congress could not be other than State Citizens — a Congress composed of any other persons has no lawful standing to make law under the Constitution, but may only decide matters of public policy. That Congress continues to operate in this provisional character to this day is openly declared in the list of Titles in Volume One of the United States Code. Title II — "The Congress" — is marked with an asterisk and a footnote at the bottom of the page reads, "Exists By Resolution." The difference between resolution and law is "that the former is used whenever the legislative body passing it wishes merely to express an opinion as to some given matter or thing and is only to have a temporary effect on such particular thing, while by a 'law' it is intended to permanently direct and control matters applying to persons or things in general."(21) Of course, Congress is not alone in facing this problem of legitimacy; today, not a single office in the land, from the President down to the lowliest notary public, is occupied by a State Citizen as required by the United States Constitution and the constitutions of the several ante-bellum States. Indeed, it would be correct to say that such Citizens have long since gone out of existence and with them went the Republic.
The President as "Supreme Dictator"
Not only did [Lincoln] do things that were regarded by most people as within the exclusive field of Congress's power, but he went further and asserted his competence to do things in an emergency that Congress could never do at all, maintaining that his designation as Commander in Chief allowed him to adopt measures that in normal times could only be effected by an amendment to the Constitution. This was a revolutionary and unique reading of the war clauses of that document, an unparalleled precedent for some equally extraordinary crisis act by a future President of the United States.(22)
The "executive war power" that was invented and utilized by Lincoln lay somewhat dormant from the close of Reconstruction to the first World War. During this time, the reconstructed States were allowed to maintain an appearance of their former glory and the centralized Government in Washington was content to play the part of a benevolent and unobtrusive overseer. Moreover, the four-month Spanish-American conflict of 1898 healed the breach between North and South, and by the close of the Nineteenth Century many Southerners were willing to put the tragic past behind them and accept their place in the new nation without further complaint. In the words of Southern historian Jabez L.M. Curry, "The spirit of nationality and of devotion to the Union is as strong in Georgia as in Massachusetts...."(23) Even former Confederate military heroes, such as John Brown Gordon, likened the War Between the States to the Christian Church's baptism on the Day of Pentecost, stating their expectation that "the Republic, rising from its baptism of blood with a national life more robust, a national union more complete, and a national influence ever widening, shall go forever forward in its benign mission to humanity."(24)
However, with the entry of the United States into the first World War, the Government under the Administration of Woodrow Wilson cast aside all pretenses of its "benign mission to humanity," and returned with renewed vigor to its former policy of denying the American people the right to govern themselves:
Faced with the exigencies of World War I, Wilson found it necessary to expand executive emergency powers enormously. In many respects, this expansion of powers in wartime was based on precedents set by Lincoln decades earlier. Unlike Lincoln, however, Wilson relied heavily on Congress for official delegations of authority no matter how broadly these might be.
Wilson's exercise of power in the First World War provided a model for future Presidents and their advisors. During the preparedness period of 1915-1916, the submarine crisis in the opening months of 1917, and the period of direct involvement of U.S. armed forces from April 1917 to November 1918, Wilson utilized powers as sweeping as Lincoln's. Because governmental agencies were more highly organized and their jurisdictions wider, presidential powers were considerably more effective than ever before.(25)
At the height of the war, it was said of Wilson, "What the United States needs and what it must have if it is to win the war is a supreme dictator, with sole control of and sole responsibility for every phase of war activity.... The sooner it comes the better for all of us.... For supreme dictator at the present moment, there is but one possible man — the President of the United States."(26) Wilson himself, when he was still a professor of politics at Princeton University, had taught that the President could ignore the constitutional separation of the Executive and Legislative powers at his own discretion — not only in times of crisis, but in peacetime as well — by becoming the "originator of policies."(27) As President, his views were not substantially different for he "always regarded the forthright suggestion of desired legislation as one of his principal functions."(28)
The two most noteworthy Acts which were passed by Congress during this period at Wilson's bidding were the Trading With the Enemy Act of 1917 and the Sedition Act of 1918. The first of these Acts — the Trading With the Enemy Act — designated as an enemy of the United States Government "any individual, partnership, or other body of individuals, of any nationality, resident within the territory... of any nation with which the United States is at war,"(29) and basically prohibited trade among such persons within foreign territory occupied by the U.S. military, except by special license granted by the President.(30) The second — the Sedition Act — resurrected the old heavy-handed censorship that had been attempted by the Federalists in 1798. This Act "punished expressions of opinion which, irrespective of their likely consequences, were 'disloyal, profane, scurrilous or abusive' of the American form of Government, flag or uniform; and under it Americans were persecuted for criticizing the Red Cross, the YMCA and even the budget."(31) Even the Committee on Public Information, which was the propaganda arm of the Wilson Administration, had to admit that "few more sweeping measures have ever found their way to the national statute book."(32)
Journalist Walter Lippmann denounced the Wilson Administration for having "instituted a reign of terror in which honest thought is impossible, in which moderation is discountenanced and in which panic supplants reason."(33) Henry Lewis Mencken, editor of the Baltimore Evening Sun, likewise described this legislation as "a system of espionage altogether without precedent in American history, and not often matched in the history of Russia, Austria and Italy. It has, as a matter of daily routine, hounded men and women in cynical violation of their constitutional rights, invaded the sanctuary of domicile, manufactured evidence against the innocent, flooded the land with agents and provocateurs, raised neighbor against neighbor, filled the public press with inflammatory lies and fostered all the worst poltrooneries of sneaking and malicious wretches."(34) Mencken was mistaken on only one count: this "system of espionage" was not, in fact, "altogether without precedent in American history." It had been practiced with reckless abandon against the Northern Democrats by the Republicans during the War of 1861, and it was now the Democrats' opportunity to return the favor.
Another notable feature of the Wilson years was the passage of the Selective Service Act of 18 May 1917. This was the first time that conscription was ever used by the U.S. Government to send soldiers overseas and was a gross violation of the Constitution, which only allowed for the calling forth of the State militia "to execute the Laws of the Union, suppress Insurrections and repel Invasions."(35) Despite this defect, nearly ten million men between the ages of twenty-one and thirty-one years had been registered for the draft by the fifth of June. That number more than doubled by the following year when the eligible age bracket was broadened to include men between the ages of eighteen and forty-eight years. Agents of the American Protection League, newly created under the auspices of the Department of Justice and boasting a membership of about 250,000 by mid-1918, descended on the major cities, eager to earn the $50 bounty which the Government had placed upon the head of any draft-dodger. An amended form of the Selective Service Act remains on the books at Title 50, United States Code, Section 460.(36)
It was Wilson's promise that the "supreme dictatorship" which he had established would be terminated at the close of the war, but when Congress passed a bill in the summer of 1920 repealing sixty wartime measures delegating emergency powers to the President, Wilson killed the bill by a pocket veto.(37) Most notably, the Trading With the Enemy Act, with its Executive war power to regulate the commercial activities of "enemies" during wartime, was left in place.(38) This fact prompted U.S. Supreme Court Justice Charles E. Hughes to issue the following warning in 1920: "We went to war for liberty and democracy, with the result that we fed the autocratic appetite. We have seen war powers, which are essential to the preservation of the nation in time of war, exercised broadly after the military emergency has passed and in conditions for which they were never intended, and we may well wonder, in view of the precedents now established, whether constitutional government as heretofore maintained in this republic could survive another great war even victoriously waged."(39) Justice Hughes did not have to wonder for long.
Endnotes
1. James M. McPherson, Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1990), page viii.
2. Story, Commentaries on the Constitution, Volume I, page 318. This statement proves that Story was able to accurately discuss the constitutional compact of States under the Constitution when he was not under the spell of his opposing consolidationist theory.
3. Davis, Rise and Fall of the Confederate Government, Volume II, page 322.
4. Stephens, Constitutional View of the War Between the States, Volume I, pages 483, 485.
5. Hamilton, in Elliott, Debates in the Several State Conventions, Volume II, pages 239, 355.
6. Lane County v. Oregon (1869), 7 Wallace 71, 76.
7. "Organic law. The fundamental law, or constitution, of a state or nation, written or unwritten. That law or system of laws or principles which defines and establishes the organization of its government" (Black's Law Dictionary [Sixth Edition), page 1099).
8. "Color of law. The appearance or semblance, without the substance, of legal right" (ibid., page 265).
9. Daly v. National Life Insurance Company, 64 Ind. 1.
10. In re Merriam, 36 N.E. 505, 141 N.Y. 479, affirmed 16 S.Ct. 1073, 163 U.S. 625, 41 L.Ed. 287.
11. Black's Law Dictionary (Sixth Edition), page 340.
12. Reference: Title 4, United States Code, Section 71.
13. Sage, Republic of Republics, pages 11-12.
14. Reference: U.S. v. Macintosh (1931), 283 U.S. 605, at 625, 51 S.Ct. 570, at 575.
15. George P. Fletcher, article: "Unsound Constitution," The New Republic, 23 June 1997, pages 14-15.
16. Mississippi Senate Concurrent Resolution 520.
17. Black's Law Dictionary (Sixth Edition), page 1407.
18. Texas v. White, 74 U.S. 700.
19. U.S. Constitution, Article I, Section 2, Clause 2.
20. Op. cit., Section 3, Clause 1.
21. Black's Law Dictionary (Sixth Edition), page 1310.
22. Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, New Jersey: Princeton University Press, 1948), page 234. Rossiter's usage of the phrase "constitutional dictatorship" is based on his assumption that the Constitution allows for the President to seize control over the Government in times of crisis. As such, his book was basically an apology for the dictatorial actions of Abraham Lincoln, and later of Woodrow Wilson, and Franklin Delano Roosevelt, but it is nevertheless a valuable resource for anyone who wishes to understand the mindset which drove these men and now drives the Government which they created. A more up-to-date treatise on the subject is Martin S. Sheffer's 2002 essay entitled "The Continued Need for Prerogative Presidency" in White House Studies, Summer 2002.
23. Curry, Southern States of the American Union, page 235.
24. John Brown Gordon, Reminiscences of the Civil War (New York: Charles Scribner's Sons, 1903), page 465.
25. Reference: United States Senate, "Introduction," Emergency Powers Statutes: Provisions of Federal Law Now in Effect Delegating to the Executive Authority in Time of National Emergency: Report of the Special Committee on the Termination of the National Emergency (United States Senate Report No. 93-549, Ninety-Third Congress, First Session; Washington, D.C.: U.S. Government Printing Office, November 19, 1973; #24-509), page 3.
26. Warren G. Harding, quoted by New York Times, 10 February 1918; cited by Rossiter, Constitutional Dictatorship, page 254.
27. Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1908), page 73; see also Norman J. Small, Some Constitutional Interpretations of the Presidency (Baltimore, Maryland: John Hopkins Press, 1932), pages 46-54.
28. Rossiter, Constitutional Dictatorship, page 244.
29. Trading With the Enemy Act, 6 October 1917, Section 2(a); Statutes at Large, Volume XL, page 411.
30. Op. cit., Section 5(b).
31. Paul Johnson, Modern Times (New York: Harper and Row, 1983), page 204.
32. Frederic L. Paxson, Edward S. Corwin, and Samuel B. Harding (editors), War Cyclopedia: A Handbook for Ready Reference on the Great War (Washington, D.C.: Government Printing Office, 1918), page 88.
33. Walter Lippmann, letter to Secretary of War Newton Baker, 23 July 1920; quoted by Johnson, Modern Times, page 204.
34. Henry Lewis Menchen, quoted by Johnson, op. cit., page 206.
35. U.S. Constitution, Article I, Section 8, Clause 15.
36. At the time of this writing, a bill — H.R.163 and S.89 — is before Congress which will expand conscription to include females.
37. Reference: U.S. Senate, A Brief History of the Emergency Powers in the United States (Special Committee on National Emergencies and Delegated Emergency Powers, Ninety-Third Congress, Second Session, July 1974), page 4. According to Black's Law Dictionary, a "pocket veto" is an "act of the President in retaining a legislative bill without approving or rejecting it at the end of the legislative session and, in effect, vetoing it by such inactivity" (page 1155).
38. Reference: U.S. Senate, Emergency Powers Statutes, page 5.
39. Charles E. Hughes, quoted by the New York Times, 22 June 1920, page 11.
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