Tuesday, September 18, 2007

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delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy?"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.

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