Free For All - The Free Liberal Blog: “Original Intent”: Then, Now and Forever

August 2008

Sun

Mon

Tue

Wed

Thu

Fri

Sat

Two conversations that freedomistas continue to have are about the “original intent” of the Constitution and the intent of the Union during the Civil War. These issues are intertwined in interesting ways.

Let’s stipulate that we really can’t know what the “original intent” of the Framers was. Sometimes, I myself am conflicted in my intent, how about you? Occasionally, I’m quite clear on my intentions, but, frankly, that’s a rare thing. I suspect that’s the human condition, and was the human condition in the 18th century, too.

If true, it follows that any one Framer’s intent back then was probably somewhat muddled. Aggregate those muddles, and we get a pool of muddledness. We can read the text of the Constitution, transcripts of the proceedings, written documents from the times commenting on the draft, etc. But, still, we should be humble enough to recognize that there was no such thing as an “original intent.”

Which leads to the intentions of the Union in 1860: What was it? It may be no surprise that it was just as muddled in the 19th century as it was in the 18th. This, of course, includes Abraham Lincoln, whom some deify and others demonize. It’s one thing to explode myths about Lincoln, but another to suggest that the Confederacy’s secession was in effect authorized by the Constitution’s (non-existent) original intent. A case can be made, surely, but overstating the case tends to undermine the validity of the assertion.

The revisionists go further: The Civil War wasn’t about slavery, or that slavery was one of several disputes. Yes, the record shows that there were other bones of contention. Yet, one need only read the Republican Party’s platforms of 1860 and 1864 that the party, at least, was deeply concerned about the continued institution of slavery. It appears that they viewed the secession of the Confederate states to be a “Rebellion.”

In 1860, they said:

7. That the new dogma that the Constitution, of its own force, carries Slavery into any or all of the Territories of the United States, is a dangerous political heresy, at variance with the explicit provisions of that instrument itself, with contemporaneous exposition, and with legislative and judicial precedent; is revolutionary in its tendency, and subversive of the peace and harmony of the country. 8. That the normal condition of all the territory of the United States is that of freedom; That as our Republican fathers, when they had abolished slavery in all our national territory, ordained that "no person should be deprived of life, liberty, or property, without due process of law," it becomes our duty, by legislation, whenever such legislation is necessary, to maintain this provision of the Constitution against all attempts to violate it; and we deny the authority of Congress, of a territorial legislature, or of any individuals, to give legal existence to Slavery in any Territory of the United States. 9. That we brand the recent re-opening of the African slave- trade, under the cover of our national flag, aided by perversions of judicial power, as a crime against humanity and a burning shame to our country and age; and we call upon Congress to take prompt and efficient measures for the total and final suppression of that execrable traffic.

In 1864, they said:

3. Resolved, That as slavery was the cause, and now constitutes the strength of this Rebellion, and as it must be, always and everywhere, hostile to the principles of Republican Government, justice and the National safety demand its utter and complete extirpation from the soil of the Republic; and that, while we uphold and maintain the acts and proclamations by which the Government, in its own defense, has aimed a deathblow at this gigantic evil, we are in favor, furthermore, of such an amendment to the Constitution, to be made by the people in conformity with its provisions, as shall terminate and forever prohibit the existence of Slavery within the limits of the jurisdiction of the United States.

There are a number of ways to look at any issue. We should take great care when asserting that we know the one truth.

-RC