Wednesday, September 19, 2007

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delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy?"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grant Congress the power "to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy."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

No comments:

Post a Comment

Related Posts with Thumbnails