Lincoln’s First Inaugural Address

Lincoln_memorial_lincoln_contrasty Our "president to be" quoted this speech the night he was elected.  He mentioned the "sacred bonds of friendship" or some such thing.  It seems appropriate for him to have done so since there is so little left of that spirit.  He has quoted this speech before in the matter of the "better angels of our natures."  That makes the old words interesting.

I have no interest in visits to the White House or the other trivialities of the day’s news.  The economy will rise or fall, depending on stimulus and the general level of fecklessness in bankers’ hearts.  We can talk about that later.  The next big story will be the personalities with which President-elect Obama populates the Executive Branch of the federal government.  The identities of the appointed inhabitants of the Beltway Enclave will tell us much with regard to what is owed and to whom.  In the meantime, life goes on…

Ah, yes, Lincoln.  I had never paid much attention to his first inaugural address.  As I recall it is the second inaugural address that is carved into the wall of his memorial along with the lyricism of the Gettysburg Address.

It is a remarkable speech, especially remarkable in that it was spoken at a point in time at which seven states had already seceded.

It is a plea for them to return. This is from the Wiki.


Strongest possible federal support for the Fugitive Slave Law and the service/labour clause of Section Two of Article Four of the United States Constitution

  1. He had just taken an oath "to preserve, protect, and defend the United States Constitution" which enjoined him to see that the laws of the Union be faithfully executed in all states.
  2. There would be no invasion of the South unless such were necessary for him as President to fulfill his obligation to hold, occupy, and possess the property and places belonging to the federal government.
  3. The Constitution was established "to form a more perfect union" than the Articles of Confederation and Perpetual Union had been, which was explicitly perpetual in name and text, and thus the Constitution too was perpetual. He added that even were the Constitution construed as a simple contract, it could not be legally rescinded without an agreement between all parties.
  4. He had no objection to the proposed Corwin amendment to the Constitution (that had already been approved by both houses of the United States Congress to protect slavery in those states in which it already existed — though he thought that such was already protected by the original Constitution and that the Corwin amendment merely reiterated that which was already contained in the nation’s highest legal document). (According to Henry Adams, Lincoln actually lobbied to help the Corwin Amendment through both houses.
  5. Nothing in the Constitution expressly says what either can or cannot be done regarding slavery in the territories.
  6. Mails would continue."

By this time, the departed seven clearly wanted "out," but if these words were not disingenuous, then war was not inevitable, not at all.

A couple of things stand out in this composition:

–  The 16th president does not seem to have been much attached to the cause of abolition. This was evident in some of his statements in the Lincoln-Douglas Debates of 1856 and continues here.  Lincoln’s willingness to accept and even support a constitutional amendment specifically barring in perpetuity federal interference in the states’ "domestic institutions" is striking.

–  This is a lawyer’s pleading.  The argument is made that states can not secede unless they do so in a legal way and then he effectively argues that there really is no "legal way."  Lincoln says here that because the present US Constitution succeeded the "Articles of Confederation and Perpetual Union," the resulting union of the states is also perpetual even though the constitution does not say that the union is perpetual.  The fact that the Constitutional Convention in Philadelphia was called to amend the "Articles of Confederation" but did not do so is ignored.  Lincoln also makes a case that a contract entered into by several parties can not be separately voided by some of them without the consent of the others.  Hmmm.  Business contracts always, in my experience, contain the terms of their dissolution.  This one did not and so he argues that it is not legal for some of the states to dissolve that contract.  It is evident that he was a business lawyer. 

– He says that force will not be used against the seceded states unless the seceded states "interfere with" the property of the US Government.  Presumably he means military and naval bases, post offices, customs offices, etc.  He puts it that way because he evidently saw himself as the legal custodian of the goods of the federal government, the "chief magistrate" as he puts it.

– He also says that the Constitution contains no guidance as to the disposition of the jointly owned property possessed by the states as a whole.  He means the results of the "Louisiana Purchase" and the War with Mexico.   Once again, the lawyer in him is assigning ownership rights.

Taken as a whole it is a remarkably moderate document, much different in tone from his second inaugural, "yea verily the Lord is Just, etc." (paraphrase).  I am not surprised that the builders of the memorial preferred the later speech.  Lincoln is revealed in this speech as a practical politician, a man who abhorred the institution of slavery, but was not willing to fight over it or see the country torn apart over it.

I sense somehow that President-elect Obama is somewhat like Lincoln, a man of principle, but not foolishly so.  That is a good thing.  pl

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25 Responses to Lincoln’s First Inaugural Address

  1. Dave of Maryland says:

    The argument is made that states can not secede unless they do so in a legal way and then he effectively argues that there really is no “legal way.”
    An escape clause could be the subject of an Amendment. That would end the confusion.
    As for Lincoln’s eagerness for slavery to continue, if that would save the Union, as you well-know, slavery continued in slave states loyal to the Union (such as Maryland), up until it was expressly outlawed by the 13th Amendment & the enabling laws late in 1865. Such that even though Maryland was loyal, even though Maryland fought on the side of the Union, and even though the Union won, Maryland’s slaveholders still lost. Among members of the propertied class, there was unhappiness in this state because of that, and in some places I think there is unhappiness still.

  2. Obama as a man of principle “but not foolishly so” -see, I told you. He’s not a revolutionary.

  3. Will says:

    according to the david keirsey modification of the briggs-meyers personality types-
    the obama is primarily a rational b/ w/ a strong streak of artisan-informative (communicator=redux reagan) + idealist a.k.a charismatic
    All in All a deadly combination. McCain-Palin really had no chance.

  4. Clifford Kiracofe says:

    I hope President-elect Obama, of Illinois, continues to read Lincoln. Republicans aren’t.
    As a little girl, my late mother’s great aunt (who passed away back in the 1930s) was taken to the 1860 Republican Convention in Chicago by her father, Frederick Becker, a local businessman and newspaper publisher of the day.
    A good place to start reading is the multi-volume Nicolay-Hay edition. My set is number 585 out of the 700 of the “Gettysburg Edition” (New York: Francis D. Tandy, 1903)
    Meanwhile, Republicans are reading Irving (Kristol), listening to the hysterical “formerly” drug addicted shock jock Rush, that slut Coulter, Pastor John (Hagee)not to mention the unmentionable delusional Fundamentalist Pentacostal from Alaska… into what depths of moral and intellectual depravity has the Republican Party fallen?
    For a reality check on what the party once stood for see, Francis Curtis, The Republican Party. A History of Fifty Years’…1854-1904, 2 vols.(New York: G.P. Putnam’s Sons, 1904) and compare to the sewage currently running it and its current Neocon-Straussian “ideology” if one can call it that.

  5. Grimgrin says:

    I feel no envy for President Elect Obama. He’s being compared, explicitly, to Abraham Lincoln and Franklin Delano Roosevelt before he actually becomes president. That’s quite the standard to live up to. “Yeah President Obama was a good president, but not currency good; not ‘carve into a mountain’ good.”

  6. bstr says:

    Dear Sir, a recent poll asserted that a figure approaching 70% of the GOP remain having favorable opinions regarding Palin. They refuse to accept the opinions out of the McCain camp that she is ignorant of world facts and is a profligate of others funds. In fact she appears to be a chisler. They cannot all be stupid, but they all can have such restricted views that can ignore the obvious, deny the facts, and plan their lives around false positives. The great culture wars of the USA are far from dead; many of our political sterotypes have roots in the Jacksonian period. Some might say that the Mexican War is like the invasion of Iraq. That war is generally seen as the end of the Jacksonian era. I do not predict a Civil War, but I see very little that a single Administration can do to reconcile the differences of our current antagonisms based on little more than exaggerated beliefe systems.

  7. Twit says:

    What type of leader will the president-elect be?
    Leila, like you said, I think we can rule out Obama being a revolutionary (like Bush), and therefore also a revolutionary’s inverse, a tyrant. But the danger is that the inverse of being a principled and pragmatic moderate (like Lincoln) is being a cynical and empty brand politician (like Tony Blair).
    Obama’s reliance on imagery, and his calls to ‘believe’ and ‘hope’ more in his personal talents rather than any clear vision of American power abroad, how to modernize the economy, and most other issues indicates to me that he will be much more Blairite than a modern Lincoln.
    Any contradictory evidence/analysis would be much appreciated, as I hope I am wrong.

  8. jon says:

    Cries of socialism aside, Obama is essentially a moderate who proceeds cautiously. I’m not sure we’ve seen any moves so far that have not been considered and thought through.
    This makes his multiple quotings of Lincoln seem a bit surprising. As Grimgrin notes, it’ a little early to be drawing direct parallels, or to be setting the bar for success overly high. Particularly before he is even inaugurated or had a chance to demonstrate success in office.
    While quoting Lincoln may be read as an extended olive branch to Republicans, I doubt it will be accepted in that way in the South. Certainly not by the revanchists. But perhaps Obama has never thought that he would need to rely on their support, regardless.
    The country chose it’s next leader well, and Obama is now the recipient of all these transferred anxieties and dreams. It seems that most would welcome Bush’s resigning his administration early so that we could move directly to new leadership. It’s clear that we have entered a leadership pause, and interregnum, where the ship of state is rudderless and moving at quarter speed in treacherous waters. When Obama takes the controls I hop that he will be able to temper his caution, and move assertively, and with enough reach and vision to secure the transformations that we need.
    Ours will be a fortunate country if Obama is able to to approach Lincoln’s legacy and accomplishments. What does not seem in doubt, already, is that he will outstrip the White House’s current resident.

  9. As documented by Doris Kearns in “Team of Rivals” Lincoln was almost unkown as of May 1859 on a national stage. So too Obama. Lincoln legacy rests with how he addressed the challenges of his time. He clearly did evolve in his positions. So too will Obama and that evolution will be of great interest. Lincoln was faced with the even longer transition period until March from November before the Constitution was modified to move the inaugral date to January. Now 7 of the 70 days of the transition have already passed by as of the end of today. As the character played by Kirk Douglas said during the movie “The Man From Snowy River” —“Get Them At The Jump” Obama has failed to do so. Clearly the various individuals and factions for power are trying desperately to win out in the first OBAMA administration. So we shall see. Nothing has been done in my judgment by OBAMA to diminish the heat of that striving by those pursuing power. Clearly no evidence of the “Public Interest” being paramount in Congress or the incoming administration yet. Is it too soon? Not really! And what was that humiliating line-up (for them) of potential administration players in the first Press Conference? Unseemly. Some of these people have done far far more for the country than OBAMA may be able to accomplish in his first term. Still remaining hopeful as always. An argument can be made that even Lincoln was an enigma until the bombarding of Ft. Sumter (sic).

  10. Will says:

    we’ve had East Coast presidents, Californians, now make room for the City of the Big Shoulders!
    “If the other guy pulls a knife, you pull a gun, if he wounds you, you send him to the morgue”- Rahm Emmanuel. BHO’s CoS who once mailed an expired fish to an opponent. Family name was Auerbach, changed to Emmanuel by dad to to honor his brother, a slain member or Irgun (a terrorist organization). Yet was endorser of Oslo process that made peace w/ the PLO and invited Y. Arafat to the WH.
    Olmert yet surprises again on Jerusalem w/ another statement that Holy City must be shared on Rabin day. Look for convergence ahead.

  11. dlb says:

    Reply to bstr: mortality and changing demographics. As Niels Bohr said: Science advances one funeral at a time. Ditto social progress. In America the “status quo” is more like grit in the gears causing momentary pauses as the entire amazing apparatus lurches into the Future, our true native land.

  12. Jim V says:

    Like Lincoln, Obama faces tremendous problems and will not solve them in his first 100 or 1000 days. As with Lincoln, events will sweep him along and he can at most guide and inspire the rest of us to solve the country’s problems one bit at a time. I do not begrudge Lincoln for his pragmatism in recognizing that trying to change a bad but entrenched system all at once may have countervailing bad effects, and will not begrudge Obama if he advances some of his policies slowly.
    Take health insurance. I myself would like to have a single-payer, non-profit system. I understand that the profit motive plus competition among rival businesses works wonders in other areas, but in health insurance the competition seems to be mostly aimed at providing the least actual health care per dollar of premiums. However, I understand that all those insurance companies are not going to give up the business without a fight, so changes in that direction will have to be gradual. The same is true on the energy front.

  13. What comes through loud and clear in Doris Kearns Goodwin’s book Team of Rivals (which I highly recommend by the way) is that Lincoln was first, foremost and last focused on the preservation of the union. He believed that if the United States of Ammerica broke apart that it would set back the cause of popular government throughout the world by decades, and perhaps centuries. Slavery, he felt, would eventually be washed away by the tide of history. Thus the preservation and restoration of the union alwasys took precedence over abolition.

  14. mlaw230 says:

    Originally from the North, as a young law student in the South, I was shocked and amazed to learn that from a legal point of view, the South was 100% correct both in preserving the institution of slavery and of secession. I have yet to come to terms with the incongruity of it.
    We should keep in mind that the 14th A. etc… was essentially a wholesale, and not very well thought out fundamental change in the constitutional structure. The founding Fathers, to the extent that there were such, NEVER envisaged the Bill of Rights being applied as it has been, i.e. expansively against State government.
    Now, I think on balance that the result has been good, morally and as a matter of government, but Lincolns view was very clearly not “legal” and the post civil war amendments were essentially a cut and paste addition that violated the spirit of the original and doomed us to irrationally interpreting the Constitution in a away that can not be maintained on originalist principals.
    In short the “original intent(ers)” lost their case in 1866, and the “living Constituioners” have no basis in history to make their case. The Constitutional crisis has continued since 1865 because the original sin of slavery separated law from morality and left us in the mix of uncertainty.

  15. Will says:

    Why wouldn’t the other states (those still federated) have simply said “good riddance?”
    What economic, or other factors, dictated the preservation of a forced union rather than an amicable divorce.
    Note the Corwin Amendment would have preserved Slavery. Was the fight about the new Territories, or expansion to Cuba, and Mexico?
    Ostensibly, the war broke out b/c of seizure of federal property, to wit: Ft. Sumter. If not that Fort, then it would have been another, or an arsenal or a post office, or another expression of independence.
    Jesus used the saying of a “house divided against itself must fall” to show that the Shaitan would not cast out members of his own house. Lincoln turned it around to mean that the Union would not be as strong if it were smaller.

  16. TomB says:

    It seems to me a very interesting and revealing thing that so many of the comments here talk about the Civil War from a legalistic perspective, starting with the Colonel’s note about Lincoln’s “lawyer’s pleading” and then all the talk about the Corwin Amendment and mlaw230’s very smart post.
    I think about every thing I’ve read states that slavery was essentially a doomed institution economically, and even socio-culturally the grotesque evil of it was clearly losing the historical moral battle. And thus it appears that if the situation was just left to its own devices some of the Southern states and Western states would have split off, but eventually the slavery issue would have dissolved and those states may well have just rejoined the Union eventually if only out of self-interest and because their point was no longer valid.
    And yet the legalistic perspective that is shown here of course only reflects the legalistic perspective that those at the time argued about too. All of Lincoln’s lawyerly arguing, all of the South’s focus and obsession with it’s “rights” under the Constitution, all the blather about the Corwin Amendment and/or etc., etc.
    Seems to me it just shows the wisdom—applied to the subject of war generally, even civil war—of George Kennan’s view that the main cause of going wrong in conducting international relations has been the attempt to do so through too legalistic a lens.
    I don’t think he ever applied this idea to our Civil War, nor do I think I’ve ever seen it applied thusly by others, but it sure comes through to me in this discussion. Just like with our invasion of Iraq: We get all wrapped up about whether this piece of “evidence” is true or not, and then whether it’s been “proved” to this or that degree of burden of proof, and the impartiality of whoever is “judging” that evidence, and who has what “rights” and blah blah blah, all of which eventually blots out whole horizons of other considerations such as the economic and the cultural and etc., which in the final analysis are far more important than who is allegedly “right” or “wrong” in the conflict.
    Seems to me an appreciation of this cuts both ways, which indicates to me at least it probably has lots of validity. On the one hand it shows the foolishness of, say, viewing the dispute with Saddam too legalistically focusing on whether he violated this or that U.N. resolution, or the dispute with Iran talking merely about whether it has violated the NPT or etc. But on the other hand it also diminishes the overly legalistic arguments we heard about how the U.S. allegedly violated this or that supposedly sancrosanct “international law” in doing this or that.
    It’s almost as if … having no other discrete body of thinking about such things, we resort to the legalistic for want of anything else when in fact much broader and subtler thinking is called for. Especially when it comes to matters of war.

  17. Curious says:

    Well Jr. is so stupid he even mess up his final dubious move. That ought to make interesting Obama entrance speech.
    And all those torturing war criminals in gov. agencies better lawyer up. Specially the high ranking one. They all will go to jail right next to Jr. after war crime tribunal.
    “Fortunately, [the White House] made a mistake,” said a top Senate Democratic aide.
    Last May, White House chief of staff Joshua Bolten instructed federal agency heads to make sure any new regulations were finalized by Nov. 1. The memo didn’t spell it out, but the thinking behind the directive was obvious. As Myron Ebell of the conservative Competitive Enterprise Institute put it: “We’re not going to make the same mistakes the Clinton administration did.”
    President Bill Clinton finalized regulations within 60 days of the 2001 inauguration, meaning Bush could come in and easily reverse them.
    It could take Obama years to undo climate rules finalized more than 60 days before he takes office — the advantage the White House sought by getting them done by Nov. 1. But that strategy doesn’t account for the Congressional Review Act of 1996.

  18. Sidney O. Smith III says:

    I am not qualified to comment on the constitutional issues you raised, although I am trying to look a them more closely. But you write as if you are a member of the Order of the Coif, meaning extraordinarily well. And I understand the “incongruity” that you raise, although it comes from an experience that moved in the opposite direction, so to speak. I originally am from the South but attended (undergraduate) school “up” North. Loved the experience.
    Maybe a “congruence” between the insights of scholars like Glenn Greenwald, Phil Weiss, and the paleo/ libertarians will help overcome the historical “incongruity” that has plagued our nation for such a long time. Such would succeed in transcending regional differences as well as differences between urban and rural cultures. Of course, such a congruence must address the rise of an imperial executive branch, at least in my view.

  19. Clifford Kiracofe says:

    1. Yes, to preserve the Union a matter noted in Washington’s Farewell Address.
    Preserve from what? Dissolution. The strategic situation was that by about 1850 the United States were the third industrial power in the world. UK was number 1, France was number 2. Some argue that it was logical that the UK and France wanted to tear the US into pieces, and hence essentially supported the South. Confederate heavy Judah P. Benjamin retired to exile in the UK.
    Is it true or false that Union officers discovered cyphers John Wilkes Booth had which matched code allegedly in Benjamin’s possession? Was Booth a Confederate covert operator?
    Is it true or false that Booth met with representative(s) of the New York based B’nai Brith prior to the assassination?
    Assassination “just” in retaliation for the Dalhgren affair? Or something larger and international?
    2. Lincoln’s family roots were in the Shenandoah Valley of Virginia. His father, Thomas Lincoln was born in Rockingham County. A Lincoln family farm was at Lacey Spring which is between Harrisonburg and New Market on Route 11.

  20. Will says:

    policy or reason is the soul of the law, when policy changes which is the reason for the law, then the law also changes, so they taught us in law school. Law, is nothing but a collection of rules enforced by society.
    Always look beyond the rules for the factors or reason that create the rules- the societal and economic factors and reasons.
    I went to a public black law school, seven miles from the white public law school. It was created for obvious reasons. By the time, i went there the student body was beginning to look like mostly white female. But the best faculty was black. Street smart and savvy. They knew their way around a courtroom as well as a classroom.
    My favorite prof was a graduate of Harvard Law. My Employment Discrim and Appelate Ad prof now sits on the 4th circ fed court of appeals.
    NC Gov. Easley was a fellow grad as well as many judges in my district.
    I would have given anything to have been at NC Central Law School election night watching the results.
    Speaking of laws, my favorite is the Yassa, the secret code of the Mongols. Running against the grain of Hammurabi and the Romans- theirs were not published, kept secret but known by all and generally punishable by death.

  21. mlaw230 says:

    Sidney Smith & TomB, thanks for the compliments.
    Law is for settled things and it doesn’t do very well leading the charge on issues of morality. On the other hand it is not particularly prone to passion. Lincoln surely knew that slavery had died of natural causes virtually everywhere else in the world by 1860. Perhaps as a good politician and lawyer he hoped to buy time and avoid the convulsion of secession, and so he sought to thread the needle, preserving the peculiar institution while at the same time not letting it expand into the new territories. He could hardly state that his goal was to end the evil of slavery.
    The religion angle is fascinating. We today think of the South as the home of those not entirely committed to the separation of church and state with the Northeast being a bit more secular, but it wasn’t always so. It was Adams et als that were the religionists, and virtually all of the Northern states had state religions while Madison and Jefferson in Virginia were skeptics. Washington famously declined to declare days of prayer and Jefferson was accused of being an atheist, and by the standard of Sarah Palin, rightly so. That divide continued through the Lincoln era, and continues today.
    Against that backdrop, abolition to the North was surely the one great uncompromisable issue. “as he died to make men holy let us die to make men free” was, I am told, actually sung by soldiers on their way south. Few soldiers in the South, and none of their heirs in a bar room today, would say they fought to preserve slavery, yet the Southern elite counted preserving slavery high on their lists.
    The church/state conflict, the much ignored 11th Amendment, and the appropriate role of government seem not to be flaws they are features, fundamentally necessary ambiguity.

  22. TomB says:

    It seems to me you might be overly blaming the Civil War amendments for things. Since of course the original articles allowed amendments, technically it’s impossible to say that such amendments violate the original intent of the instrument. But I understand how you mean this in terms of those amendments being so very different as regards addressing the states from what had gone before.
    But, still, up until quite modern times, historically speaking (the 1950’s with Brown v. Bd. of Ed.?) just how many Civil War Amendment cases really were seen as pinching the South?
    And your broader point concerns not just pinching the South but all the vastly increased federal muscling of the states, and of course so much of that can be traced not to any amendment at all but instead to the reinterpretation of the Commerce Clause in the 1930’s, right?
    So at any rate I think one can be a little “Southern-centric” in seeing slavery and the Civil War as being the genesis of what we now see as our constitutional/federalist problems and etc. I’ve always been a little suspicious of (mostly Northerner’s) historiography that lays that kind of blame at the South’s feet.
    I dunno about ever really resolving that “incongruity” you speak of. (Which is obviously dependent on exactly how one defines that, but ….) We’ve come so far down the path that we are on, including that of having a very very powerful chief executive, and federalizing damn near everything…. Indeed I can’t see the federal gov’t doing anything like that itself since, after all, it’s asking it to give up it’s own power and that is hardly something political bodies do. Thus I suppose if there’s any hope it’s that time will eventually take the stigma off the idea of “state’s rights,” which stigma has admittedly come about through our North/South antagonisms and has thus been so important. But, again, it was the Great Depression that really federalized us, and might be seen as also implanting the idea that our President’s are not just Commander-in-Chiefs in wartime, but domestically too. And look at the reaction to the present economic crisis: how far does anyone think they’d get arguing that the nation-wide problem isn’t a federal one? Yikes, as far as I see it’s the states *themselves* screaming for same. (With California seemingly on the verge of asking to be bailed out just like AIG.)
    Nice post, got exactly to the point I was trying to make earlier about how limited the law is and erroneous it is to rely too heavily upon it in matters of foreign affairs and war. I.e., it’s not just a matter of being “right” when dealing with such things, but being smart counts just as much if not more.

  23. mlaw230 says:

    I was not blaming the south, or slavery, quite the opposite.
    The Commerce Clause was used to stretch federal regulatory power long before the 1950’s. Nevertheless, the CC is essentially a tool to impose jurisdiction in the federal government, the substantive regulation was not very controversial. That changed when it became a tool to enforce the Bill of Rights after the Civil War.
    The “incongruity” is that what is apparently morally correct is also illegal, or at least beyond a non-tortured reading of the Constitution or laws.
    Of course there is more to life than law, but law does codify what we can agree on, the least common denominator.

  24. TomB says:

    “I was not blaming the south, or slavery, quite the opposite.”
    No I understood your intention, but the clear implication of some of what you wrote (e.g., “[t]he Constitutional crisis has continued since 1865 because the original sin of slavery…”) seemed to me to put the locus there. And as stated, I’ve seen lots of other stuff—older now, thankfully—wherein Northerners tried to blame everything on the supposedly beyond-evil South.
    “The Commerce Clause was used to stretch federal regulatory power long before the 1950’s.”
    You misread me here. What I said/asked was whether it wasn’t until the 1950’s (starting with Brown v. Bd. of Ed.) that the *Civil War Amendments* (and not the CC) really got the South screaming, right?
    (Of course it’s true that the CC had been used earlier to support some federal economic-type regulation but recall it wasn’t until the ’30’s and the New Deal legislation that the Court wholesale started allowing same, with those being the highly controversial ones. I.e., “The switch in time that saved the nine” and all that, remember? And otherwise I’m a bit confused by your saying that the CC was used to “become a tool to enforce the Bill of Rights after the Civil War” since my recollection/understanding is that while the CC was used especially in the 1960’s to supposedly give the federal government the right to pass civil *liberties* laws such as non-discrim in jobs and housing and accomodation and all that, you never needed the Commerce Clause to enforce the civil *rights* you have under the Constitution. If you claim the feds or a state are denying you same you have a claim against them based on the *direct* civil rights amendment you say has been violated–today using either Sec. 1983 or the Bivins case, right? But it wasn’t ever the *Commerce* Clause that, for instance, gave African Americans the right to sue for their voting rights or due process or equal protection rights or etc. that I recall, and indeed I don’t even see how that would have worked; after all what would have been the *need* to invoke the CC in such instances?)
    In any event, I very much like your “common denominator” observation about the law. Well put.

  25. RickH says:

    What Lincoln failed to note or did not care to note was that at least one member of the Union reserved the right to leave when she joined in 1788, Virginia.
    The other point, and I am no expert on the Constitution nor am I a lawyer, was that if it was considered a moral right to dissolve the bounds that connected us to England why did we not have the same right to leave a Union we felt was not in our interest. And if we could not leave the Union, what in the heck is the legal basis to allow West Virginia to even exist (not that I want it back!)

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