Thursday, July 25, 2013

A Doctrine Utterly Subversive of the Constitution

Former-Vice President and later Kentucky Senator John C. Breckinridge tried in vain to hold Congress to the Constitution and stop the Republican party's war upon the South in mid-1861.  Returning home after the mid-year            legislative session, he witnessed Federal officers assembling and training volunteers at Lexington, a forced political alignment with Lincoln's government, and his own imminent arrest by the Northern military.
Bernhard Thuersam, Chairman
North Carolina War Between the States Sesquicentennial Commission
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"The Official Website of the North Carolina WBTS Sesquicentennial"
A Doctrine Utterly Subversive of the Constitution
"[In January 1860, John C. Breckinridge] . . . still had more than a year to serve as Vice President of the United States. Within the month past the General Assembly of Kentucky by an overwhelming majority had elected him to the Senate of the United States for the six years beginning March 4, 1861.
Neutrality caught the fancy of most Kentuckians, though the Southern Rights element was at first reluctant to accept it.  In succession, however, the House of Representatives on May 16 (1861), the governor on May 20, and finally the Senate [on May 24] . . . assented to that policy.
For himself, he took the position that he was making a record of protest against the unconstitutional measures with which the majority party was fighting and unconstitutional war.  Certain it is that had the Republicans accepted his criticisms as valid they would have been forced to abandon the conflict.
During the [legislative] session he made four principal speeches. On July 16 he spoke vigorously against the joint            resolution "to approve and confirm" various "acts, extraordinary proclamations and orders" performed or issued by            the President since March 4 "for suppressing insurrection and rebellion."  Breckinridge urged that if Congress had the "power to cure a breach of the Constitution or to indemnify the President against violations of the Constitution and the laws," it might in effect "alter the Constitution in a manner not provided by that instrument."
He attacked the specific acts of the President [as unconstitutional such as] the establishment of a blockade of Southern coasts, the authorization of the suspension of the writ of habeas corpus by various military commanders, the waging of war and raising armies without any act of Congress, arbitrary interference with freedom of the press, and the arbitrary imprisonment of private citizens.
Looking for a justification of the President's acts, Breckinridge assumed that it would be found in the necessities of the case. He denied indeed that there was any genuine necessity for the acts of which he complained, but, more fundamentally, he argued that the "doctrine [of necessity] is utterly subversive of the Constitution . . . [and] of all written limitations of government.  Thus he concluded that only the powers actually granted in the Constitution may be exercised by the government, whatever the emergency.
Expanding an argument which he had used at Frankfort on April 2, he predicted that unless current tendencies were checked, the result would be "to change radically our frame and character of Government" by establishing a centralized regime without any effective limitation upon its powers.  [He argued] that he and many other conservative men counted "the Union not an end, but a means – a means by which, under the terms of the Constitution, liberty may be maintained, property and personal rights protected, and general happiness secured."
When asked, near the end of the session, what he would do [with] a hostile [Southern] army encamped but a few miles from the national capital, Breckinridge declared flatly that he would abandon the war; that he did "not hold that constitutional liberty . . . is not bound up in this fratricidal, devastating and horrible contest. Upon the contrary, I fear it will find a grave in it . . . Sir, I would prefer to see these States all reunited upon true constitutional principles to any other object that could be offered me in life; . . . But I infinitely prefer to see a peaceful separation of these States, than to see endless, aimless, devastating war, at the end of which I see the grave of public liberty and of person freedom."   
(Breckinridge in the Crisis of 1860-1861, Frank H. Heck, Journal of Southern History, Volume XXII, Number 3, August, 1955, pp. 338-341)