Briefs, Not Boxers

Willie and Salome. Ignore the underwear.

When Good Amps Go Bad III

When we last visted this topic, I had emailed PartsConnexion to find out what power transformer I needed to replace the transformer that went bad in my ST-40.

The bad news: PartsConnexion doesn't stock it.

The good news: I exchanged some very nice emails with Chris Johnson, the president of PartsConnexion. They've contacted Hammond to see about pricing and availability.

The picture: Canada reminds me of winter . . . and snow . . .

History: Who Needs Facts?

The other day, I commented on an excellent American history/civics quiz.

At Civil War Bookshelf, Dimitri has found an article on it: "Students Know Less After 4 College Years." Dimitri rightfully highlights the following blather from Eric Foner:

A professor of American history at Columbia University, Eric Foner, said that a multiple-choice exam testing factual knowledge of history could exaggerate student ignorance of American history.

"The study of history has changed enormously," Mr. Foner said. "It's become much more broad and diverse. The study of facts about particular battles has diminished, but maybe students are in a better position to answer questions about the abolition of slavery."

Somehow, I suspect that Donald Kagan would disagree.

I can't help but note, by the way, that Dimitri pointedly failed to reveal whether he took the quiz and, if so, how he did. What's the story, Dimitri? How'd you do?

President Buchanan and the Militia V

The last post on this subject reviewed the “force” provision in the sixth resolution of the Virginia Plan and James Madison’s expression on May 31, 1787 of “hope[] that such a system would be framed as might render this recourse unnecessary.” As President Buchanan noted in his State of the Union Address on December 3, 1860, Madison “advert[ed]” to the “force” provision again on June 3, 1787. Examination of this discussion, I believe, undermines President Buchanan’s conclusions. Let us see why.

It turns out that the immediate topic under discussion on June 3, 1787 was Charles Pinkney’s version of the “negative” clause – the clause that would grant Congress the power to negative any state law.

Here again are Madison’s notes on Pinkney’s introduction of the topic. Pinkney did not propose a “force” clause or mention the “force” issue at all. His sole proposition was that the national legislature needed to have the power to negative state laws deemed to be improper in order to keep the states from invading “the national prerogatives:”

Mr. [CHARLES] PINKNEY moved "that the National Legislature shd. have authority to negative all laws which they shd. judge to be improper." He urged that such a universality of the power was indispensably necessary to render it effectual; that the States must be kept in due subordination to the nation; that if the States were left to act of themselves in any case, it wd. be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations; that this universal negative was in fact the corner stone of an efficient national Govt.; that under the British Govt. the negative of the Crown had been found beneficial, and the States are more one nation now, than the Colonies were then.

Madison enthusiastically endorsed Pinkney’s views. In this context, it was Madison who inserted the “force” issue as relevant to the matter under consideration. Madison's notes describing his speech are a single paragraph. For readability, I have added paragraph divisions:

Mr. MADISON seconded the motion. He could not but regard an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect system. Experience had evinced a constant tendency in the States to encroach on the federal authority; to violate national Treaties; to infringe the rights & interests of each other; to oppress the weaker party within their respective jurisdictions.

A negative was the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them. Should no such precaution be engrafted, the only remedy wd. lie in an appeal to coercion. Was such a remedy eligible? was it practicable? Could the national resources, if exerted to the utmost enforce a national decree agst. Massts. abetted perhaps by several of her neighbours? It wd. not be possible. A small proportion of the Community, in a compact situation, acting on the defensive, and at one of its extremities might at any time bid defiance to the National authority. Any Govt. for the U. States formed on the supposed practicability of using force agst. the unconstitutional proceedings of the States, wd. prove as visionary & fallacious as the Govt. of Congs.

The negative wd. render the use of force unnecessary. The States cd. of themselves then pass no operative act, any more than one branch of a Legislature where there are two branches, can proceed without the other. But in order to give the negative this efficacy, it must extend to all cases. A discrimination wd. only be a fresh source of contention between the two authorities. In a word, to recur to the illustrations borrowed from the planetary system. This prerogative of the General Govt. is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System.

Madison’s position on the “negative” continued to be stunningly radical. He castigated state government. The states had shown over and over, he thought, that they were the problem and needed to be restrained. He regarded “an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect system.” In other words, he urged that their sovereignty be limited so that the system would not fly apart. He urged the Congressional “negative” as “the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them.”

In fact, the passage suggests that Madison’s conception of the “negative” was even more radical than Pinkney’s. Apparently Madison was urging that no state law should come into effect until Congress had had an opportunity to consider whether to veto it or not. Congress would in effect be an additional house of the legislatures of all the states: “The States cd. of themselves then pass no operative act, any more than one branch of a Legislature where there are two branches, can proceed without the other.”

The passage also makes clear that, in Madison’s mind, the “force” and “negative” clauses were intimately interrelated. He argued that inclusion of the “negative” clause would make a “force” clause “unnecessary.” Since the states could pass “no operative act” without congressional review, they could not “encroach on the federal authority.” Force was a species of post hoc remedy aimed at improper state statutes already passed and in effect – an eventuality that would never occur.

Finally, and crucially, Madison’s observations strongly suggest that he was not thinking of, or addressing, secession at all. He was focused on a far more mundane yet important topic: how to effectively prevent states in the Union from passing laws that would impinge on federal authority. States passed such laws all the time. Madison understandably believed that it would be impracticable and impossible for the federal government to send in troops every time they did so. The general government could wind up calling out the troops dozens of times a year. That was clearly absurd. Better to craft a solution that would prevent the passage of such laws in the first place.

David Atchison, President!

I love it! The American Presidents Blog has a post pointing out that Senator David Atchison of Missouri has an argument -- albeit not a winning one -- that he was president of the United States for twenty four hours.

President Polk's term expired at midnight March 3, 1849. Zachary Taylor refused to be sworn in as the new president on March 4, 1849, which fell on a Sunday. Vice President elect Fillmore did not take the oath of office on March 4 either. They were both sworn in on Monday March 5. In the interim, so the argument goes, the presidency fell to Senator David Rice Atchison of Missouri, who was then President pro tempore of the Senate.

I agree that the argument ultimately fails. If Taylor did not become president on March 4 because he did not take the oath of office that day, well, neither did Atchison. Still, getting there is half the fun, so let's look at at some of the issues.

First, did President Polk's term end at midnight on March 3, 1849? The answer is "yes," but it takes a few steps to get there.

The Constitution did not originally specify the date on which presidential terms began or ended. Article II, Section 1, Clause 1 merely stated that the president "shall hold office during the term of four years."

The March 4 date was not inevitable. On September 13, 1788, after the Constitution was ratified by the requisite number of states, the Continental Congress issued a "Resolution of the Congress, of September 13, 1788, Fixing Date for Election of a President, and the Organization of the Government Under the Constitution, in the City of New York." As the title suggests, that resolution fixed the date on which the new government would come into effect:

Resolved That the first Wednesday in Jany next be the day for appointing Electors in the several states, which before the said day shall have ratified the said Constitution; that the first Wednesday in feby next be the day for the electors to assemble in their respective states and vote for a president; And that the first Wednesday in March next be the time and the present seat of Congress the place for commencing proceedings under the said constitution.

The "first Wednesday in March next" turned out to be March 4, 1789. But did that mean that the presidential term began that day?

Not necessarily. The first Congress came into existence on March 4, 1789, and its term therefore ended March 3, 1791. But Congress did not certify Washington's election until April 6, 1789, and he took the oath of office on April 30. There were, then, three dates from which to choose. (Query: who, if anyone, was president between March 4 and April 30, 1789?) Arguably, one of April dates would have been preferable. If future presidential elections went to the House (as the election of 1800 did), then the new House would select the president, rather than the old, lame duck representatives.

Congress did not choose that option. In 1792, Congress passed a law that endorsed the March 4 date. Section 12 of "An Act relative to the election of a President and Vice President of the United States, and declaring the Officer who shall act as President in case of Vacancies in the offices both of President and Vice President," 1 Stat. 239 (March 1, 1792), provided:

Sec. 12. And be it further enacted, that the term of four years for which a President and Vice President shall be elected shall in all cases commence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given.

The Twelfth Amendment, ratified in 1804, also referred to the March 4 date in specifying what would happen if the election devolved to the House of Representatives:

And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.

It appeared, then, that President Polk's term began on March 4, 1845 and that it lasted only four years -- until the end of the day March 3, 1849. He was not president on March 4, 1849.

The more interesting question is whether anyone was president on March 4, 1849. I'm not prepared to give a definitive answer. Here are two considerations that point in opposite directions.

The case in support of the position that Zachary Taylor was president on March 4, 1849 begins with the Twelfth Amendment:

1. The Electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed . . ..

Zachary Taylor had received "the greatest number of [Electoral] votes for President," and the number of Elector votes he received was "a majority of the whole number of Electors appointed." Under the Twelfth Amendment, he was the president.

In addition, the same 1892 statute discussed above seems to buttress Taylor's case. Section 12, already quoted, provided that Taylor's "term of four years" commence[d] on March 4. Moreover, Section 11 provided:

Sec. 11. And be it further enacted, That the only evidence of a refusal to accept or of a resignation of the office of President or Vice President, shall be an instrument in writing declaring the same, and subscribed by the person refusing to accept or resigning, as the case may be, and delivered into the office of the Secretary of State.

This language certainly seems to assume that, if you're elected president, come March 4 you are president, unless you have formally refused to accept or resign, in the manner specified. Zachary Taylor did not do so.

The case in favor of an "interregnum" also rests on the Constitution. Article I, Section 1, Clause 7 specifies that the president must take the oath of office in order to "enter on the execution of his office:"

7. Before he enter on the execution of his office, he shall take the following oath or affirmation:

"I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

This would suggest that Zachary Taylor had no presidential powers on March 4, 1849. He could not sign or veto legislation, act as Commander in Chief, make treaties, appoint ambassadors, etc.

I therefore come down squarely in the middle. On March 4, 1849, Zachary Taylor's term of office began, and he was the president; but he had no presidential powers!

How Large Was Xerxes' Army?

At Brett Schulte’s new Civil War group blog, TOCWOC (The Order of Civil War Obsessively Compulsed - Informed Amateurs Blog the American Civil War), Ray B has a fun post in which he applies the lessons of Thermopylae to the Civil War.

As I usually do, I’ll only pick at the details. Ray says:

A total force of some 7000 Greek and Spartan allies was able to hold off an invading force of perhaps millions. (Xerxes’ Persian army consisted of a little over 5 million, but not all were present at Thermopylae. Estimates range anywhere from 300,000-800,000 actually took part in this battle.)

Let’s look at the Persian numbers in greater detail.

In his History, Herodotus tells us that Xerxes’ infantry numbered 1.7MM men. There were also 100,000 cavalry, camel corps and chariot corps, plus 300,000 Thracians and Greeks (more than the entire population of the Balkans!), for a total of 2.1MM. There were 541,610 men manning the fleet, for a total armed force of 2,641,610 men. He then adds non-combatants (cooks, drivers, etc.) to double the total and reach the awesome number of 5,283,220.

Demographics, logistics and common sense demonstrate that these numbers are impossible. The most attractive theory that both explains how Herodotus could have come up with these numbers and suggests the true order of magnitude of Xerxes’ forces lies in the structure of the Persian army. The army was organized in a decimal system up to units of ten thousand. Units of ten men were formed into units of one hundred; units of one hundred into units of one thousand; and units of one thousand into units of ten thousand men. The 10,000 men units were known as Myriads, under the command of Myriarchs. The Myriads were then organized into corps of 60,000 men.

Herodotus understood there were 30 corps commanders, 29 of whom commanded 60,000 men each. He made his basic calculation of 1.7MM infantry simply by multiplying the number of corps commanders by 60,000.

But what if Herodotus (who did not speak Persian, after all) or his sources had confused the Myriarchs and the corps commanders. 30 Myriarchs times 10,000 men each would produce an infantry force of 300,000 men.

This number is still unreasonably high, but at least it is in the right ballpark. Other other considerations may get us closer to an actual figure.

The first is the difference between actual strength and nominal strength. As any student of the United States Civil War knows, there is often a dramatic difference between the two figures. Even without fighting a battle, tens of thousands of men crowded together create unsanitary conditions that in turn generate disease. Assuming that each Myriarch started with a full complement of 10,000 men (and that in itself is a questionable assumption – was there no recruiting fraud in Persia?) those figures would have been quickly reduced.

Second, Xerxes' army clearly included both regular troops and more lightly armed allies. By analogy to the later Roman army, the allied units may well have been smaller. In short, many of Herodotus' thirty commanders may have been commanding units of, say, 5,000 men rather than 10,000.

Finally, it is not credible to believe that the entire army simply marched to the front. Xerxes’ commanders would have left sizable contingents along the march, to guard fords and bridges, man forts, protect supply depots, and the like.

Historian A.R. Burn has pointed out that the limited water sources along the route, if nothing else, "lead[] to the conclusion that 200,000 is about the limit for the total manpower of the expedition." All in all, I would guess there were substantially fewer than 200,000 Persian infantry -- perhaps somewhat more than half that number -- in the neighborhood of Thermopylae when the Persian army encountered Leonidas and his colleagues. It's not 5,000,000, I know -- sorry to disappoint -- but still a huge number when you consider that 2,400 years later large Civil War armies were in the range of 100,000 men.

The New York Times Archives

When it abandoned the disastrous TimesSelect program the other day, the New York Times also made its older archives freely available. It's not exactly the most user-friendly system around, but it's valuable nonetheless.

Some time ago, for example, I was trying to document the fact that the Times had fully reported on Senator Jacob Howard's May 23, 1866 speech introducing to the Senate the Joint Committee on Reconstruction's proposed amendment to the Constitution, which ultimately became the Fourteenth Amendment. I understood that the May 24, 1866 edition of the Times had quoted the speech at length, including those portions in which Senator Howard had asserted that the "privileges or immunities" referred to in Section 1 included the rights contained in the first eight amendments.

For some reason, using the term "Howard" did not produce the article, but the term "immunities" did. Sure enough, the article includes lengthy quotes from Senator Howard's speech, including his assertion that "to these privileges and immunities may be added the personal right [sic] guaranteed by the first eight amendments of the United States."

You can see the article for yourselves here; then click on "view full article."

An Excellent Civics Quiz

This 60-question Civics Quiz by the Intercollegiate Studies Institute is outstanding. I strongly encourage everyone to give it a try.

Can I toot my own horn? I answered 56 out of the 60 questions correctly -- 93.33%!

James Buchanan and the Militia IV

Let’s turn next to President Buchanan’s “legislative history” argument, based on the proceedings at the Constitutional Convention. The president asserted that James Madison’s own position at the Convention supported the conclusion that the federal government did not have the power to suppress statewide secession and insurrection.

To make sure we give the president his due, here, again, is his reasoning, in his own words:

So far from this power [to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy] having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution. It appears from the proceedings of that body that on the 31st May, 1787, the clause “authorizing an exertion of the force of the whole against a delinquent State” came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed:

“The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.”

Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: “Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress,” evidently meaning the then existing Congress of the Confederation.

Let’s begin by tackling the history. On Tuesday May 29, 1787, Edmund Randolph of Virginia laid before the Convention, sitting as a Committee of the Whole, a series of fifteen resolutions that have become known as the Virginia Plan. The sixth resolution was as follows:

6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.

I have bolded the final clause, on which President Buchanan later focused, but it is also important to note its context. The clause immediately follows the extraordinary proposition that “the National Legislature” should have the power to “negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union.” In other words, Congress would have the right to veto any and all laws of any State that Congress, in its sole discretion, believed intruded on federal authority.

The last clause of the sixth resolution came up for discussion two days later on Thursday May 31, exactly as President Buchanan said. Immediately before that, the Committee of the Whole, surprisingly, apparently reacted favorably to the “negative” clause. Here are Madison’s notes on the subject:

The other clauses [of the sixth resolution] giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. the articles of union, down to the last clause, (the words "or any treaties subsisting under the authority of the Union," being added after the words "contravening &c. the articles of the Union," on motion of Dr. FRANKLIN) were agreed to witht. debate or dissent.

Madison’s notes indicate that the “force” clause was then taken up without pause. Madison was apparently the only person who spoke on the subject. Presumably the other members understood that he was the driving force behind the Virginia resolutions. When he expressed the hope that a “force” clause would prove unnecessary and moved to postpone discussion of it, the other members, who already faced a myriad of extremely difficult issues, were presumably delighted to concur:

The last clause of Resolution 6. authorizing an exertion of the force of the whole agst. a delinquent State came next into consideration.

Mr. MADISON, observed that the more he reflected on the use of force, the more he doubted the practicability, the justice and the efficacy of it when applied to people collectively and not individually. -A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed. This motion was agreed to nem. con.

To this point, then, the legislative history is somewhat more ambiguous – and a good deal more odd -- than President Buchanan suggested. Madison was, on the one hand, willing and in fact eager to dramatically curtail the sovereignty of the states by making all legislation subject to federal veto. On the other hand, he resisted the “force” clause as impracticable, unjust and potentially counterproductive. Were the two positions related, and if so how? And what did Madison mean when he said that “[h]e hoped that such a system would be framed as might render this recourse unnecessary”?

As we will see in a future post, I believe that Madison’s “incidental adverting” (in President Buchanan’s phrase) to the force issue on FridayJune 8, 1787 pretty clearly answers these questions. There is ample reason to think that Madison believed that curtailing state sovereignty in the radical way proposed by the sixth resolution would make the force provision unnecessary. Indeed, a strong case can be made that Madison was not thinking about secession at all, but rather the more mundane issue of how to prevent states from passing legislation that “encroach[ed] on the federal authority.”

President Buchanan and the Militia III

In the last post, we outlined President James Buchanan's arguments in support of his assertion that, although secession was unconstitutional, the federal government had no power to do anything about it. We now begin to consider his arguments more closely.

As you will recall, President Buchanan began his first argument by restating the question: "The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy?" Turning to the Constitution, the president quite correctly concluded that nothing in the text of the document specifically granted Congress that power.

The problem with this analysis is that the phrasing of the question is outcome determinative. Of course the Constitution does not specifically grant Congress the power "to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy." However, if the question is rephrased, the federal government has ample power to enforce the laws and quell insurrection.

Professor Currie puts it this way:

Not surprisingly, the Constitution appeared to have solved the problem. Article II required the President to "take care that the laws be faithfully executed" and made him Commander-in-Chief of the armed forces; Article III extended the judicial power of the United States to "cases . . . arising under this Constitution" and other federal laws. Article I empowered Congress to provide for calling out the militia "to execute the laws of the Union, suppress insurrections, and repel invasions" and to pass all legislation "necessary and proper for carrying into execution" any powers vested by the Constitution "in the Government of the States, or in any department or officer thereof."

In short, President Buchanan's first argument was not persuasive. Next time, we will begin to look at his second, based on statements that James Madison made at the Constitutional Convention.

President Buchanan and the Militia II

As I explained in an earlier post, in his December 3, 1860 State of the Union Address, President James Buchanan asserted that he did not have statutory authority to call out the militia to suppress the insurrection in South Carolina.

President Buchanan next turned to the question whether Congress had the power under the Constitution to grant him that power. In the president's phrasing, the issue was whether "you [congress] possess [under the Constitution] the power by force of arms to compel a State to remain in the Union." The president believed he was obligated to explain his views because "I should feel myself recreant to my duty were I not to express an opinion on this important subject." As before, I will begin by simply outlining the president's arguments, perhaps with a few snarks. In posts to follow, we will look at the arguments in greater detail.

The president began his analysis by restating the question presented: "The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy?"

The answer, as you may expect, was in the negative:

If [the question is] answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not "necessary and proper for carrying into execution" any one of these powers."

This argument was based on the text and wording -- or lack thereof -- of the Constitution itself. President Buchanan then sought to bolster his conclusion by citing the "legislative history" of the Constitution, that is, the events at the Constitutional Convention:

So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution.

It appears from the proceedings of that body that on the 31st May, 1787, the clause "authorizing an exertion of the force of the whole against a delinquent State" came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed:

"The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."

Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: "Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress," evidently meaning the then existing Congress of the old Confederation.

Next, the president looked to "the . . . spirit and intent of the Constitution:"

Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit and intent of the Constitution. Suppose such a war should result in the conquest of a State; how are we to govern it afterwards? Shall we hold it as a province and govern it by despotic power? In the nature of things, we could not by physical force control the will of the people and compel them to elect Senators and Representatives to Congress and to perform all the other duties depending upon their own volition and required from the free citizens of a free State as a constituent member of the Confederacy.

Finally, he supplemented his arguments with practical observations that, he believed, supported his position:

But if we possessed this power, would it be wise to exercise it under existing circumstances? The object would doubtless be to preserve the Union. War would not only present the most effectual means of destroying it, but would vanish all hope of its peaceable reconstruction. Besides, in the fraternal conflict a vast amount of blood and treasure would be expended, rendering future reconciliation between the States impossible. In the meantime, who can foretell what would be the sufferings and privations of the people during its existence?

The fact is that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force.

In reviewing the president's constitutional arguments, the best place to begin, I think, is with David Currie's commonsense observation that the assertion that secession is unlawful, but that there is nothing that the president or Congress can do about it "seems a most singular conclusion."

As Chief Justice Marshall said in Osborne v. Bank of the United States [1824], any well-constructed government must have authority to enforce its own laws. The want of such authority was mentioned again and again as one of the leading defects of the Articles of Confederation.

In posts to follow, we will look more closely at the president's individual arguments.

President Buchanan and the Militia I

I am late in noting it, but Big Mo has done his usual excellent job on James Buchanan. I'd like to use Big Mo's post, however, as an excuse to look a little more closely at President Buchanan's position concerning his authority to call out the militia to suppress insurrection.

In his final State of the Union Address, dated December 3, 1860, President Buchanan asserted that secession was unconstitutional. However, he claimed, the president did not have the legal authority to call out the militia to suppress insurrections that encompassed an entire state. His argument breaks down into two parts. First he asserted that the executive did not have statutory authority to suppress the insurrection then in progress in South Carolina. Second, he denied that the Constitution granted the Congress the power to pass such a statute.

In order to keep posts to manageable length, I am going to divide the discussion into several parts. This post discusses President Buchanan's statutory argument. A later post (or posts) will review his assertions about the Constitution.

In his discussion of the Executive's responsibility to suppress insurrection, the president first conceded that South Carolina was then in a state of insurrection (although the state did not secede until December 20):

What, in the meantime, is the responsibility and true position of the Executive? He is bound by solemn oath, before God and the country, "to take care that the laws be faithfully executed," and from this obligation he can not be absolved by any human power. But what if the performance of this duty, in whole or in part, has been rendered impracticable by events over which he could have exercised no control? Such at the present moment is the case throughout the State of South Carolina so far as the laws of the United States to secure the administration of justice by means of the Federal judiciary are concerned. All the Federal officers within its limits through whose agency alone these laws can be carried into execution have already resigned. We no longer have a district judge, a district attorney, or a marshal in South Carolina. In fact, the whole machinery of the Federal Government necessary for the distribution of remedial justice among the people has been demolished, and it would be difficult, if not impossible, to replace it.

President Buchanan then turned to his statutory authority as it then existed. The core of his argument seems to have been that he was required first to command the insurgents to disperse, and that he could not do so where no federal authority existed:

The only acts of Congress on the statute book bearing upon this subject are those of February 28, 1795, and March 3, 1807. These authorize the President, after he shall have ascertained that the marshal, with his posse comitatus, is unable to execute civil or criminal process in any particular case, to call forth the militia and employ the Army and Navy to aid him in performing this service, having first by proclamation commanded the insurgents "to disperse and retire peaceably to their respective abodes within a limited time" This duty can not by possibility be performed in a State where no judicial authority exists to issue process, and where there is no marshal to execute it, and where, even if there were such an officer, the entire population would constitute one solid combination to resist him.

In short, he maintained that his statutory authority did not permit him to call out the militia and that only Congress had the power to determine whether it could or should amend the law (as we will see in a later post or posts, he concluded they did not):

The bare enumeration of these provisions proves how inadequate they are without further legislation to overcome a united opposition in a single State, not to speak of other States who may place themselves in a similar attitude. Congress alone has power to decide whether the present laws can or can not be amended so as to carry out more effectually the objects of the Constitution.

The statute to which President Buchanan was alluding was "An Act to provide for the calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the Act now in force for those purposes," 1 Stat. 424, enacted February 28, 1795. The key provisions are Sections 2 and 3, which provided as follows:

SEC. 2. And be it further enacted, That whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States, to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress.

SEC. 3. Provided always, and be it further enacted, That whenever it may be necessary, in the judgment of the President, to use the military force hereby directed to be called forth, the President shall forthwith, by proclamation, command such insurgents to disperse, and retire peaceably to their respective abodes, within a limited time.

The statute clearly contradicts the president's argument. Section 3 did indeed require the president to "command such insurgents to disperse" when calling out the militia. However, nothing in the statute required that there be in the state "judicial authority . . . to issue process," or "[a] marshal to execute it." Nor does the statute provide that it does not apply where "the entire population would constitute one solid combination to resist" the order, or where there is "a united opposition."

Moreover, it would be ludicrous to infer such a limitation. Section 2 specifies that the president's power extends to situations where there exist "in any state . . . combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act." Indeed, the statute arguably implies that it extends to situations where federal authority has broken down so completely in a state that calling upon that state's militia would be ineffective. The statute provides that the president may call upon the militia of "such state, or of any other state or states." (Emphasis added)

Finally, it is worth noting that Section 1 of the same Act specifically addresses the president's power "in case of an insurrection in any state, against the government thereof." That section specifically limits the president to responding "on application of the legislature of such state, or of the executive, (when the legislature cannot be convened,)." Sections 2, dealing with cases of insurrection against federal authority, pointedly contains no such limitation -- strongly suggesting that the statute applied when the state government itself was the source of, or complicit in, the insurrection.

The more interesting statutory question -- which the president did not raise in his address -- is whether the president had authority to call out the militia while Congress was in session, as it was in December 1860. On the one hand, the statute does not on its face contain such a limitation, and it hard to believe that Congress would have omitted this requirement if the limitation was intended. On the other, the final clause of Section 2 ("the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the then next session of Congress") might conceivably be read to suggest that the statute was intended to apply when Congress was not sitting).

I like this picture of James Buchanan as a younger man. It makes him seem a bit more human -- as indeed he was.

When Good Amps Go Bad II

I previously explained that my Assemblage ST-40 power amplifier recently started blowing fuses. I have no idea how many ST-40s are still out there and in use, but I figured that I would post periodically on my progress, just in case others encounter the same problem and are looking for help.

The manufacturer or assembler of the old ST-40 kit was a Canadian company called The Parts Connection. TPC was, I believe, the original kit and parts company that later also made retail audio equipment under the name Sonic Frontiers. TPC fell on hard times, and the assets were sold to some of the old employees (and perhaps founders), who reopened the parts business under the name PartsConnexion. The website is at http://www.partconnexion.com. Although the new company is not formally the successor of the old one, there is I believe continuity of technical expertise.

For this reason, when I encountered my problem and was unable to figure it out, I emailed PartsConnexion. Within 24 hours, I received an email back that boiled down to the following: if the fuse still blows with all tubes removed, then the power transformer is shorted; if not, then one of the tubes is causing the problem.

Unfortunately, when I retested with all tubes removed, the fuse still blew. Looks like I need a new power transformer.

The power transformer in the amp is a Hammond H300338. Hammond is still in business, and PartsConnexion sells their transformers, but all the numbers seem to have changed. I've therefore emailed PartsConnexion for their advice on what I need. We'll see what they come up with.

The inside of the amp is pictured above. The underside of the power transformer is visible at the bottom center. You can click on the photo to enlarge. Note the tremendously bad wiring job, done by someone who at the time didn't know a resistor from a capacitor. Now I'll get to remove it and do it better.

Molly Moo

Molly Moo is the matriarch of Farmer Harry's herd. She's a doting mother -- and the meanest herbivore on two legs. Here she is eyeing me suspiciously. You can click on the picture to enlarge.

1850 vs. 1860

I mentioned that I'm re-reading Mills Thornton's Power and Politics in a Slave Society. If I weren't so lazy, I'd tell you how unfair my earlier semi-review of the book was. But since I am lazy, I'll content myself with my favorite quote so far. As you'll see, Professor Thornton does not think the south was ready for revolution in 1850. I enjoy the lines because Professor Thornton backs them up and because the first sentence is laugh-out-loud funny:

It has been the fashion among some students of the Crisis of 1850 to pretend that a listener, if sufficiently attentive, can hear the thunder of the guns at Gettysburg in the debate over the Georgia Platform. The sounds which reach the present writer's ears, however, only emphasize that the decade which intervened between 1850 and 1860 was marked by the creation of very new social conditions, in Alabama as elsewhere. The electorate accepted in 1860 what it had rejected in 1850, not merely because affairs had taken a more serious turn at Washington but also because the voters were residents of a new world, which made new demands of them and to which they were compelled to offer new responses.

You just can't beat insights -- and writing -- like that.

Remember 9/11

Not everyone does.

Antigone

"And the elderly cat shall lead them . . ."

"Between You and I"

I was surfing the web with "CSI Miami" on in the background when I dimly heard the lead character, you know, the guy with red hair, say something like, "I'll tell you what. Let's keep this conversation between you and I."

I will avoid simply railing about how most Americans are utterly devoid of knowledge about grammar. What got me thinking was, I couldn't figure out how or why that line made it into the show. Were eight layers of writers, editors, directors, producers, whatever, so stupid that none of them noticed?

Or was the line put in, or left in, by someone who knew it was wrong? And if so, why?

Did the actor notice? Was there a behind-the-scenes fight in which he complained bitterly about being portrayed as a techno-savvy grammatical moron?

Ah, well, "Dog the Bounty Hunter" is on. Now at least I know where I stand. Did I ever tell you how I missed seeing Dog and Mrs. Dog in a bar once by about two minutes? Oh, well, that's another story . . .

Abraham Che Lincoln

Brian Dirck will be happy to see that Zombietime has discovered that, in San Francisco at least, poor Abe is now a communist truther.

The Secret Ballot Again

I was about to say, "Few books are worth reading twice," but that's unfair. Many are, and yet I rarely read a book a second time -- there are simply too many books out there I haven't even read once.

And yet . . . I was at loose ends, unhappy with my latest purchase and casting about for something else, and it struck me that I should reread Mills Thorton's Power and Politics in a Slave Society. I was sure I raced through it too fast the first time. As magnificent as I found it, there was much I didn't absorb. So I'm reading it again, slowly, savoring it like a fine wine.

About a week ago, I mused on the origins and importance of the secret ballot. In that context, here's an otherwise purely trivial sentence that leaped out at me:

Voting [in pre-War Alabama] was by ballot, but a number was placed on each ballot corresponding to a number by the voter's name on the master list, so it was possible later to determine how each man had used his franchise.

Thornton goes on to point out that the existence of these lists was rarely used to challenge voters or votes after the fact, but the fact remains that that one's vote was not secret when cast, and it was not secret afterwards either.

When Good Amps Go Bad

I turned on my "summer" amp this morning -- and nothing. Dead as a doornail. Seemed like it must be a fuse, so I opened it up, and sure enough the fuse was blown. The amp is an Assemblage ST-40 EL34 tube amp, the first amp I ever built, and it's worked flawlessly for years. I'm not sure I've ever opened it up since I built it. I figured that, after eight or more years (I think I put it together circa '98-'99), the fuse had simply died, much as light bulbs eventually do.

Wrong. I put in a new fuse -- and it promptly blew. I have no idea why. Is the switch bad? Is there a short somewhere? Why? Where? I haven't the foggiest, and troubleshooting is not my area of expertise.

To assuage my frustration, I put a good solid state amp, a 100W AKSA built from a partial kit, into the system and am blasting Lauritz Melchior. The picture above is of the AKSA in action. Poor Floyd the Farmer is in the field getting blasting by Lauritz singing "Vesti la giubba" -- in German, no less! He probably thinks I'm insane!

An Unexpected Advocate of the International Slave Trade

Christopher C. Danley comes across in James M. Woods' Rebellion and Realignment: Arkansas's Road to Secession (Fayetteville: University of Arkansas Press 1987) as one of the more interesting figures in pre-War Arkansas. Danley assumed the editorship of the Whig Arkansas Gazette, based in Little Rock, in 1853. He became a Know Nothing, and the Gazette became the leading Know Nothing paper in the state.

In the late 1850s, Danley opposed both the regular Democratic party, known as the Dynasty, and Thomas Hindman and the faction he assembled. In the secession crisis, Danley was a staunch unionist, albeit a conditional one. Only after Fort Sumter and Lincoln's call for troops did Danley endorse secession.

What makes Danley particularly interesting, however, is that this conservative unionist was also an advocate of reopening the international slave trade. His arguments included traditional justifications (slavery was sanctioned by the Bible and brought the benefits of civilization to blacks, raising them from their barbarous and degraded conditions and habits in Africa, etc.).

However, the core of his argument was that slavery and the slave trade would help combat disunion by bringing prosperity the south:

As a conservative, Danley believed an answer to the sectional crisis lay in economic, not political independence. The Gazette editor proposed that the South boycott Northern goods and develop Southern industry. He called for vigorous interstate trade among slaveholding states and more direct trade with England and Franc, which meant that the cotton South could bypass Yankee merchants and middlemen. If the South became economically and educationally independent of the North, Danley reasoned, it could then stay in the Union without having to worry about Northern attitudes and opinions. Far from being a disunionist, the Little Rock editor planned to keep the states united by having the Old South become more independent of the North.

I could not find a photograph of Danley. The photo at the top is of David Walker, another conservative unionist who chaired Arkansas' secession convention.

Thanks!

Thanks to the anonymous commenter (commentor? commentater? commentator?) who, several months ago at least, recommended James Woods' Rebellion and Realignment: Arkansas'a Road to Secession. I'm less than half way through it but I'm enjoying tremendously.

As some might surmise, the quotes in the "Guess the State" post above are taken from the book.

Guess the State

A British traveler had this to say about a state in the late 1830s:

Gentlemen who have taken the liberty to imitate the signature of other persons, bankrupts who were not disposed to be plundered by their creditors, homicides, horse stealers, and gamblers, all admired [the state in question] on account of the gentle and tolerant state of opinion which prevails there.

In 1849, a leading paper in the state admitted:

People at a distance easily come to the conclusion that [the state] is only famous for private brawls and lynchings, and the bloodiest encounters in the annals of border warfare. Consequently, a typical [citizen of the state] is pictured as a person in a semi-barbaric state, half-alligator, half-horse . . . armed to the teeth, bristling with knives and pistols, a rollicking, daredevil type of personage, made up of coarseness, ignorance, and bombast . . ..

Guess the state!

Millard Fillmore, Know Nothing: Part II

The conservative Whig game plan at the beginning of 1854 to ride anti-Kansas Nebraska to victory foundered almost immediately because they lost control of the terms of the debate. Radical free soilers denounced the Act as an aggression of the evil Slave Power; southern Whigs were therefore unwilling or unable to oppose the Act. The Whigs were unable to heal their sectional wounds.

Contrary to common assumption, however, it was not the incipient anti-Nebraska coalition that really destroyed the Whigs as a viable party during 1854. The true culprits were a mistaken assumption about the nature of American politics in the 1850s and a political thunderbolt that came out the blue.

The assumption was that Democratic losses would more or less automatically translate into Whig gains: in other words, that politics was a zero sum game between the two major parties. For the past 150 years, this has largely been the case. The antebellum era was different.

As Michael Holt has explained, the entrenchment of current parties is largely attributable to the adoption of state-printed ballots in the 1890s. This development

measurably increased the difficulty of launching a third party . . .. Since those major parties had an automatic slot on the ballots governments prepared and since the legal hurdles for other parties to get on those ballots were so high, Republicans and Democrats effectively monopolized voters’ choices.

Before the Civil War, however, these impediments did not exist. To the contrary,

the rules of the political game encouraged rather than inhibited the creation of new parties. Instead of state-printed ballots that gave legally recognized major parties pride of place and disadvantaged other groups who sought to be listed on them, political parties printed their own ballots. As a result, it was far easier for new parties to challenge the old ones.

The thunderbolt was the Know Nothings.

Millard Fillmore, Know Nothing: Part I

I have posted previously about Millard Fillmore and have made no bones about my belief that he was an admirable man and a fine president.

Spread out over several installments, I am going to tackle what is generally considered to be the most embarrassing episode in Fillmore’s career – his affiliation with the American (Know Nothing) party, a rabidly anti-Catholic, anti-immigrant group that burst onto the political scene in 1854. In 1856, Fillmore ran as the Know Nothing candidate for the presidency.

It would be easy to assume that Fillmore’s embrace of the Know Nothings merely confirms that he has been justly relegated to historical oblivion. Does it not demonstrate that Fillmore was a disgusting advocate of hatred and discrimination? Alternatively, perhaps it shows that, behind the mannered façade lay an ambition so overweening that he was willing to ally himself with any group, no matter how bigoted, that would advance his selfish ends. Or was he so stupid that he allowed himself to be used by bigots, oblivious to the credibility he gave them?

In order to keep this post manageable, I’ll just begin to set the stage. By the end of 1853, Fillmore’s Whig party was on the ropes. Winfield Scott had been swamped in the 1852 presidential election, and state and local elections during 1853 had largely been disastrous for the Whigs. Even so, at the beginning of 1854, many Whigs were optimistic. They had been on the ropes before and bounced back. What they needed was an issue.

Democrat Stephen Douglas gave them that issue when he introduced the Kansas Nebraska bill in January 1854. Conservative Whigs such as ex-president Fillmore, who had left office in March 1853, looking to restore the Whigs as a credible, national party, began to salivate. Whigs could oppose the bill on the ground that it betrayed the “final settlement” of the slavery issue represented by the Missouri Compromise and the Compromise of 1850, which Fillmore had championed.

In this way, Whigs could devastate free-state Democrats by firmly opposing the spread of slavery. At the same time, the Whigs would be taking a position reaffirming the finality of the Compromise of 1850 that would have great appeal in the south. By positioning their opposition in this way, they thought, the Whig party would (in modern terms) both energize its base by opposing the Democrats and take a highly popular position likely to win additional converts, particularly in the north and border and mid south. Whigs would sweep to victory in 1854, laying the groundwork for retaking the presidency in 1856.

Alas, for a number of reasons, it was not to be. In the next installment, we’ll consider why not.