The Enduring Relevance of Robert E. Lee : The Ideological Warfare Underpinning the American Civil War 9780739187883, 9780739187876

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The Enduring Relevance of Robert E. Lee

The Enduring Relevance of Robert E. Lee The Ideological Warfare Underpinning the American Civil War Marshall L. DeRosa

LEXINGTON BOOKS Lanham • Boulder • New York • Toronto • Plymouth, UK

Published by Lexington Books A wholly owned subsidiary of Rowman & Littlefield 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowman.com 10 Thornbury Road, Plymouth PL6 7PP, United Kingdom Copyright © 2014 by Lexington Books All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data DeRosa, Marshall L., 1955– . The enduring relevance of Robert E. Lee : the ideological warfare underpinning the American Civil War / Marshall L. DeRosa. p. cm. Includes bibliographical references and index. ISBN 978-0-7391-8787-6 (cloth : alk. paper) — ISBN 978-0-7391-8788-3 (electronic) 1. Lee, Robert E. (Robert Edward), 1807–1870—Political and social views. 2. United States— History—Civil War, 1861–1865—Causes. 3. Secession—Southern States. 4. United States—Politics and government—1857–1861. 5. Southern States--Politics and government—1775–1865. 6. Generals—Confederate States of America—Biography. 7. Confederate States of America. Army—Biography. I. Title. E467.1.L4D47 2014 355.0092—dc23 [B] 2013036351 TM The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992.

Printed in the United States of America

For my wife Mary, the love of my life.

Contents

Introduction: The War of Ideas 1 2 3 4 5 6

ix

Defense of Traditional American Principles Confederate Constitutional Principles Political Obligation in a Federal Republic The Discerning Christian Lee’s Two-Front War Lee Under Hostile Political Fire

1 19 43 69 85 105

Conclusion

139

Index

151

About the Author

155

vii

Introduction The War of Ideas

Reflecting on the centennial of the American Civil War, Robert Penn Warren observed that “only at the moment when Lee handed Grant his sword was the Confederacy born; or to state matters another way, in the moment of death the Confederacy entered upon its immortality.” 1 Warren’s observation gives credence to the power of ideas in human affairs and that powerful ideas have long-term consequences. The American experience was substantially launched by the idea of a self-evident truth that all men are endowed by their Creator with certain unalienable rights, such as life, liberty, and the pursuit of happiness. Of course, this clashed with the English system that the king is sovereign, the people his subjects, with their rights determined by the king. The American ideal clashed with the English. War resulted and the Americans prevailed. It’s a familiar story and one of which Americans are rightfully proud. However, the American military victory did not settle a more profound challenge—the challenge of establishing a government grounded in the ideal. As the 1787 Constitutional Convention and the subsequent ratification process make clear, the battle of ideas was not settled. The “majestic vagueness” cliché in reference to the U.S. Constitution points to this fact. Those favoring centralized powers—the Federalists—and those favoring decentralization— the Antifederalists—filled that vagueness with their respective hopes for the future development of the American polity. The period between April 1861 and April 1865 is an episode in that development during which the opposing sides took up arms in the attempt to settle the issue. North versus South was essentially a struggle over ideas which can with some accuracy be characterized as a war over ideas. Robert ix

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E. Lee still matters not because he personifies a lost cause, but because the primary idea for which he fought, the decentralization of political power, still resonates with many Americans. It goes without saying that the previous sentence contradicts the accepted belief that the Confederacy and men like Lee were not merely misguided in the ideas for which they fought, but that those ideas were essentially unAmerican and evil, for instance, the perpetuation and expansion of slavery. The fact that this is the currently sanctioned government-sponsored view of the war should raise concerns for a variety of reasons. For our purposes the silencing of opposing views about the cause of the war is an assault on freedom of thought. In Persecution and the Art of Writing, Leo Strauss reminds us that “What is called freedom of thought in a large number of cases amounts to—and for all practical purposes consists of—the ability to choose between two or more different views presented by the small minority of people who are public speakers or writers. If this choice is prevented, the only kind of intellectual independence of which many people are capable is destroyed, and that is the only freedom of thought which is of political importance.” 2 If we are to come to grips with our present political circumstances it is necessary to revisit, with a freedom of thought unencumbered by the government sponsored storyline, a seminal event of American political development, the American Civil War. Focusing on Lee’s view about the war is a helpful first step. All acknowledge the relevance of the war. Civil War historian Professor James McPherson recently opined about “Why the Civil War Still Matters.” According to McPherson, the “war of 1861–1865 resolved two festering questions that the Revolution of 1776 and the Constitution of 1789 had left unresolved: whether this fragile republican experiment called the United States would survive as one nation, indivisible; and whether this nation born of a declaration that all men are created with an equal right to liberty would persist as the largest slave-holding country in the world.” 3 If Professor McPherson is correct, then the original U.S. Constitution was fundamentally flawed and required a war to correct it; those resisting the correction were either misguided dupes and/or evil men dedicated to the perpetuation of slavery. The sesquicentennial of the war between the United States and the Confederate States of America (C.S.A.) is an opportune time to consider the veracity of the professor’s conclusion. The role played by one of the war’s most prominent participants, General Robert E. Lee (1807–1870), will be our guide. By considering Lee’s role in the war, as he himself understood that role, much will be learned about the war and its consequences. Why Lee and not President Jefferson Davis or Vice President Alexander Stephens, both of whom wrote extensive postwar reflections? Lee is important because he marks the last surviving beau ideal of the Confederacy and its

Introduction

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core conservative principles. As Lee goes, so goes conservative principles in American political/historical consciousness. As the father of post–World War II conservatism noted, “The Civil War and the suppression of the South so terribly injured intelligent conservatism in America that conservative ideas have made little truly effective recovery until recent years—and even now, no satisfactory recovery in the popular mind.” 4 Until recently General Lee has been largely immune to the harsh condemnation. In 1936 President Franklin D. Roosevelt (FDR) remarked about Lee, “All over the United States we recognize him as a great leader of men, as a great general . . . as one of our greatest American Christians and one of our greatest American gentlemen.” In 2003 we are informed this “eulogy to an officer who dedicated himself thoroughly to destroying the United States” is evidence that the truth about the war has been obscured and that the Confederacy has yet to be totally defeated. 5 FDR’s admiration for Lee and his inclusion in the pantheon of American heroes was at the time noncontroversial. But the cause for which he fought always made that inclusion somewhat tenuous. The New York Times 1870 obituary of Lee captured the victors’ love-hate posture toward Lee: [T]he career of Col. Lee had been one of honor and the highest promise. In every service which had been entrusted to his hands he had proved efficient, prompt and faithful, and his merits had always been readily acknowledged and rewarded by promotion. He was regarded by his superior officers as one of the most brilliant and promising men in the army of the United States. His personal integrity was well known, and his loyalty and patriotism was not doubted. . . . There are probably few who doubt the sincerity of his protestation, but thousands have regretted, and his best friends will ever have to regret, the error of judgment, the false conception of the allegiance due to his Government and his country, which led one so rarely gifted to cast his lot with traitors, and devote his splendid talents to the execution of a wicked plot to tear asunder and ruin the Republic in whose service his life had hitherto been spent. 6

In what manner could Lee be a great American if he played a pivotal role in a wicked un-American cause, the disruption of the Union for the purpose of perpetuating slavery? The New York Times rationalizes that a regrettable error in judgment led this otherwise patriotic, honorable, and brilliant man to cast his lot with Confederate traitors. And why would FDR, an advocate of nationalism, invoke Lee’s greatness? Perhaps he was sincere or playing partisan politics to solidify his southern Democratic base? But the important point is that his praise for Lee was noncontroversial. Imagine a U.S. presidential candidate making similar statements praising Lee. The political fallout would be fierce.

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This change in the political culture is due in large measure to contemporary scholarship simplistically framing the entire Confederate cause as the perpetuation and expansion of slavery. We are told that slavery would not have eroded in the Confederacy due to “strenuous guarantees set out in the Confederate Constitution to protect the peculiar institution. . . . The Confederate Constitution forbade the passage of any law ‘denying or impairing the right of property in negro slaves.’” 7 We are not told that the Confederate Constitution left the issue of slavery to the States, that it included language anticipating the inclusion of free States in the C.S.A., and that Lee was instrumental in the passage of laws freeing slaves that fought for the C.S.A. and their immediate family members. There is no getting around the fact that the slavery issue haunts reflections about the Confederacy and, by association, Lee. However, an undue focus on slavery, or worse yet a politicized focus, blinds us to the complexities of Lee the man and the cause for which he fought. This is understandable, because clarity raises uncomfortable issues. If Lee acted appropriately, then the cause of the Union against which he fought is called into question. Consequently, the legitimacy of the Union’s victory and its political/constitutional legacies are also called into question. Moreover, perhaps the war was not a civil war at all, but a constitutional defensive war for Southern independence. To concede or even consider this explains why pundits supportive of the U.S. government’s war against the Confederate States of America correctly contend that “The stakes in controlling Lee's memory continue to be high.” 8 As one writing for the Washington Post recently mused, that it’s time to “finally tell the ‘Lost Cause’ to get lost. Now it should be Lee’s turn. . . . He deserves no honor—no college, no highway, no high school. In the awful war (620,000 dead) that began 150 years ago this month, he fought on the wrong side for the wrong cause. It’s time for Virginia and the South to honor the ones who were right.” 9 Why are the stakes high in controlling contemporary Americans’ memory of Lee? Could it be that he represents a decentralized America, one procuring the consent of the governed through their respective States, a decentralized power structure that the ruling class disdains? As will be discussed in the pages that follow, Lee favored a Christian-based America, grounded in a federal republic of sovereign States. 10 To resurrect Lee’s America in the political consciousness of Americans would call into question the legitimacy not only of Abraham Lincoln’s war against the Confederacy, but also the nationalism through which the ruling class benefits. In this regard C.S.A. Vice President Alexander H. Stephens foretold the importance of Lee’s memory to future generations of Americans when he eulogized Lee:

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Partisans and leaders, aiming at the overthrow of our institutions, may, while temporarily in high places, by fraud and usurpation, keep up the false cry of rebel and traitor; but these irrepressible outburstings of popular sentiment, regarding no restraints on great-occasions which cause Nature to speak, show clearly how this cry and charge are regarded and looked upon by the masses of the people everywhere. Everywhere Lee is honored; not only as a hero, but as a patriot. This is but the foreshadowing of the general judgment of the people of the whole United States, and of the world, not only upon Lee, but upon all of his associates who fought, bled, and died in that glorious cause in which he won his immortality. That cause was the sovereign right of local self-government by the people of the several States of this continent. That cause is not dead! Let it never be abandoned; but let its friends rally to its standard in the forum of reason and justice, with the renewed hope and energy from this soulinspiriting sign that it lies deeply impressed upon the hearts of the great majority of the people in all sections of this country. In these popular manifestations of respect and veneration for the man who won all his glory in maintaining this cause, present usurpers should read their doom, and all friends of constitutional liberty should take fresh courage in all political conflicts, never to lower their standard of principles. 11

The foreshadowing Stephens anticipated has not been realized. Americans’ view of the war, and increasingly Lee, is the final stages of an immutable pro-Union bias. A January 2011 Harris Poll reveals some of the disparate opinions about how the war should be remembered and commemorated: 68 percent consider a parade with a mock swearing-in of President Davis to be inappropriate; 58 percent consider parades and events celebrating secession and the Confederacy to be inappropriate; 61 percent consider flying the Confederate flag to be inappropriate; 53 percent consider designated a Confederate history month to be inappropriate; whereas a mere 9 percent consider the reading of Lincoln’s Gettysburg Address to be inappropriate. There was not meaningful variation across regions (East, Midwest, South, or West) or Civil War affiliation (Union, Confederacy, non-State). There is a divergence between whites living in the States of the former Confederacy and the rest of Americans regarding flying the Confederate flag and designating a Confederate history month; 51 percent and 57 percent, respectively, considered both to be inappropriate. Interestingly, all Americans, 91 percent, approved the reading of Lincoln’s Gettysburg Address to be appropriate. 12 The significance of the Harris Poll data should not be overlooked. The data suggest that the survival of the Confederate mind and culture is not merely at bay, but in desperate retreat when it is most needed. As early as 1952 Richard Weaver forewarned Americans that “[i]f we are in for a time of darkness and trouble, the Southern [Confederate] philosophy, because it is not based upon optimism, will have better power to console than the national dogmas.” 13 In other words, as Americans confront significant questions regarding the role of the national government vis-à-vis the States, the Confed-

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erate experience is still relevant. And because of his pivotal role in the Confederacy, Lee still matters. To fully appreciate why Lee still matters it is necessary to look beyond his military record and into the American civilization he fought to preserve. Regarding the latter, Russell Kirk provides invaluable insights. 14 According to Kirk, the pillars of any civilization are the moral, political, and economic convictions of the people. The moral convictions include the ideas a people hold about the relationship between God and man, virtue and vice, and honor and dishonor. In his groundbreaking work, The Conservative Mind, Russell Kirk made the observation that the “affection for state sovereignty, the duties of a gentleman, and the traditions of society which Randolph and Calhoun extolled found their finest embodiment in General Lee; and with Lee, these ideas yielded to superior force at Appomattox.” 15 The conservative Kirk’s phrase “these ideas yielded to a superior force at Appomattox” has somewhat of a disheartening tone. Kirk understood that by defeating traditional America’s last armed defender, General Lee, the ideas of the founding generation were also vanquished. Kirk’s observation is an important pathway to understanding Lee and the cause for which he stood. That cause is reconciling the claims of liberty and order. Of course, the peculiar institution leads many to dismiss this claim. Without saying so outright, it is abundantly clear that Lee stood for what Kirk referred to as the American Mission, which is a mission providentially ordained to reconcile order and liberty. 16 Kirk’s 1953 commentary about the “modern South” is an exhortation that if American civilization is to be preserved, the South and Robert E. Lee must play pivotal roles. He wrote, “[i]n any culture worthy of the name, men must be something better than the flies of a summer; generation must link with generation.” 17 By linking our generation with Lee we will not only better appreciate what was lost at Appomattox, but also what took its place. Lee, like Kirk, was a traditionalist—that is, conservative—and his objective was to conserve the patrimony of the founding generation. That patrimony included State sovereignty and freedom to sustain and develop the public orthodoxies 18 of the various States based upon the consent of the governed. After the war he confided, “I had no other guide, nor had I any other object than the defense of those principles of American liberty upon which the constitutions of the several states were originally founded. . . . I was not in favor of secession, and was opposed to war; in fact . . . I was for the Constitution and the Union established by our forefathers. No one now is more in favor of that Constitution and that Union; and, as far as I know, it is that for which the South has all along contended . . . whereas the consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at

Introduction

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home, will be the certain precursor of that ruin which has overwhelmed all those that have preceded it.” 19 Lee’s opposition to “the consolidation of the States into one vast Republic” was in essence angst over impending tyranny, the same concern of the founding generation. Opposition to the centralization of political power was the basis of the 1776 secession from the British Empire and the subsequent establishment of the 1789 decentralized federative republic. In the foreword to his 1986 edition of The Conservative Mind, Kirk observed that “For the present state of this world is an advanced decay. . . . The egalitarian dystopias of Jacquette Hawkes, Robert Graves, Aldous Huxley, and George Orwell have taken on flesh.” 20 For Kirk, the avant-garde of egalitarian dystopias is the enemy of order, justice, and freedom. The Confederate political class, Lee included, suspected that the election of 1860 was a watershed development in dismantling the traditional notions of order and liberty, ushering into America the very egalitarian dystopia Kirk observed. As a defender of traditional notions of the American mission, Kirk recognized in Lee a defender of tradition against the challenges of radical change. Standing at the threshold of the twenty-first century, core conservative principles are mostly distant memories among the ruling classes. A consideration of Kirk’s six canons of conservatism will not only reveal how distant those memories are, but also disclose how Lee and Kirk are of kindred conservative spirits. • Belief in a transcendent order, or body of natural law, which rules society as well as conscience. Political problems, at bottom, are religious and moral problems. • Affection for the proliferating variety and mystery of human existence, as opposed to narrowing uniformity, egalitarianism, and utilitarian aims of most radical systems. • Conviction that civilized society requires orders and classes, as against the notion of a “classless society.” • Persuasion that freedom and property are closely linked: separate property from private possession, and Leviathan becomes master of all. Economic leveling is not economic progress. • Faith in prescription and distrust of “sophisters, calculators, and economists” who would reconstruct society upon abstract design. Custom, convention, and old prescription are checks both upon man’s anarchic impulse and upon the innovator’s lust for power. • Recognition that change may not be salutary reform: hasty innovation may be a devouring conflagration, rather than a torch of progress. Society must alter, for prudent change is the means of social preservation; but a statesman must take Providence into his calculations, and a statesman’s chief virtue is prudence. 21

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Contrasting Kirk’s canons of conservatism with President Roosevelt’s call for a second bill of rights is instructive. FDR’s new bill of rights requires the expansion and empowerment of the central government far beyond the Framers’ original intentions: In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed. Among these are: The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation; The right to earn enough to provide adequate food and clothing and recreation; The right of every farmer to raise and sell his products at a return which will give him and his family a decent living; The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; The right of every family to a decent home; The right to adequate medical care and the opportunity to achieve and enjoy good health; The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; The right to a good education. All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being. America's own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. 22

The “New Deal” mentality can be traced back to 1865. For example, a North Carolina newspaper urged North Carolinians to “rejoin the Union and enjoy the government handouts that had been created . . . by Lincoln and the Republican Party.” 23 The newspaper’s editors were responding to the new reality of centralized political power. Centralized political power was developing into the vehicle for the legal plunder plaguing France that Frederick Bastiat wrote about in 1850. 24 But this is only part of the picture. Behind the curtain of legal plunder was a war of ideas. Kirk versus Roosevelt on the battlefield of ideas is a continuation of Lee versus Grant on the battlefield. Both battles were over the future of America. Kirk and Lee were American traditionalists, while Roosevelt and Lincoln were innovators relying on centralized political power to enforce their humanitarian agendas. Kirk correctly viewed the contest as fundamentally affecting the American mission. He maintained that the struggle is a competition between two very different concepts of what the American mission ought to be . . . the traditionalists’ understanding of the American mission [is] to maintain and improve a Republic in which the claims of freedom and the claims of order are balanced and reconciled—a Republic of liberty under law, endowed with diversity and opportunity, an example to the world. There exists also a humanitarian, or social democratic, understanding of

Introduction

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the American mission, which has already brought upon us disastrous consequences, in domestic policy and foreign policy. . . . The humanitarian believes in brotherhood: that is, “Be my brother,” he says, “or I’ll kill you.” He aspires to assimilate others to his mode and substance. 25

These are strong words, forewarning about an impending paradigmatic shift in the course of America’s public orthodoxy. This raises the question, for our purposes, what role did the Civil War play in facilitating this shift and was Lee cognizant of it? New England intellectual and activist Orestes Brownson, a contemporary of Lee and, according to Lord Acton, “the most penetrating thinker of his day,” and according to Kirk, “one of the shrewder observers of American character and institutions,” provides valuable insights. Brownson observed that the “tendency to a centralized democracy had more to do with provoking secession and rebellion than the anti-slavery sentiments of the Northern, Central, and Western States.” The significance of this observation should not be overlooked. If the Confederacy and its “great men” such as Lee were not fighting for the cause of slavery per se, then why did they fight? What was the primary motivation behind their efforts? Brownson continues, “They fought for personal democracy, under the form of State sovereignty, against social democracy; for personal freedom and independence against social or humanitarian despotism.” 26 Brownson was overly hopeful that the greatness and instincts of the American people and the American federative system of government would “render it impossible for political theorists, no matter of what school or party” to deceive them.” 27 But he did concede that if the American people were to be deceived, it would be by the social humanitarians. He maintained that [t]he humanitarians are more dangerous in principle than the egoists, for they have the appearance of building on a broader and deeper foundation, of being more Christian, more philosophic, more generous and philanthropic; but Satan is never more successful than under the guise of light. His favorite guise in modern times is that of philanthropy. He is a genuine humanitarian, and aims to persuade the world that humanitarianism is Christianity, and that man is God; that the soft and charming sentiment of philanthropy is real Christian charity; he dupes both individuals and nations, and makes them do his work, when they believe they are earnestly and most successfully doing the work of God. 28

Brownson cautioned that the U.S. government “has acquired by the [Civil] war new strength, and is not without menace to our future.” In the hands of the social humanitarian, who “scorns all geographical lines . . . and professes to plant itself on humanity alone,” 29 the American experiment in selfgovernment could be undone. Is there evidence that Lee discerned this men-

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ace and fought to protect the traditional public orthodoxy of the founding generation against it? The answer is an emphatic yes, as the following pages aim to substantiate. NOTES 1. Robert Penn Warren, The Legacy of the Civil War: Mediations on the Centennial (New York: Random House, 1961), 15. 2. Leo Strauss, Persecution and the Art of Writing (Westport, CT: Greenwood Press Publishers, 1973; originally published by The Free Press, 1952), 23. 3. American Heritage 61, no. 1 (Spring 2011), www.americanheritage.com/content/whycivil-war-still-matters. 4. Russell Kirk, The Conservative Mind (Washington, DC: Regnery Books, 1986; first edition, 1951), 239. 5. Legacy Of Disunion: The Enduring Significance of the American Civil War, Susan-Mary Grant and Peter J. Parish, eds. (Baton Rouge: Louisiana State University Press, 2003), 34. 6. General Robert E. Lee obituary, The New York Times, October 13, 1870 www.nytimes.com/learning/general/onthisday/bday/0119.html. 7. Legacy of Disunion, 39–40. 8. “Robert E. Lee in Memory,” contributed by Encyclopedia Virginia staff, Virginia Foundation for the Humanities, accessed at www.encyclopediavirginia.org/ Lee_Robert_E_in_Memory#start_entry. 9. Richard Cohen, “Dispelling the Myth of Robert E. Lee,” Washington Post Opinions, accessed at www.washingtonpost.com/opinions/dispelling-the-myth-of-robert-e-lee/2011/04/ 25/AFrXC1kE_story.html. 10. “It is federal, because it is the government of States united in political union, in contradistinction to a government of individuals socially united; that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national, because it is the government of a community of States, and not the government of a single State or nation.” See John C. Calhoun, “A Discourse on the Constitution and Government of the United States,” in Union and Liberty: The Political Philosophy of John C. Calhoun, Ross M. Lence, ed. (Indianapolis, IN: Liberty Fund Press, 1992), 82. 11. John Esten Cooke, A Life of Gen. Robert E. Lee (New York: D. Appleton and Company, 1883), 577. 12. “150 Years Later: Remembering the American Civil War,” Harris Poll, January 2011; accessed at www.harrisinteractive.com/NewsRoom/HarrisPolls/tabid/447/ctl/Read Custom%20Default/mid/1508/ArticleId/739/Default.aspx. 13. Quoted in Donald Davidson’s preface to Richard Weaver’s The Southern Tradition at Bay: A History of Postbellum Thought (New Rochelle, NY: Arlington House, 1968), 14. 14. Russell Kirk, The American Cause, Gleaves Whitney, ed., (Wilmington, DE: ISI Books, 2002). The book was originally published in 1957, at the request of his friend and publisher Henry Regnery. It was written during the early stages of the Cold War when Americans needed to be reminded of their core civilization values vis-à-vis totalitarian rhetoric. 15. Russell Kirk, The Conservative Mind (Washington, DC: Regnery Books, 1986), 182. 16. See Russell Kirk, Redeeming the Time, Jeffrey O. Nelson, ed. (Wilmington, DE: Intercollegiate Institute press, 2006), chapter xiii, pp. 168–80. The collection of writings were public lectures Kirk delivered at The Heritage Foundation, from 1980 to 1994. See editor’s Introduction, pp. xiii–xxii. 17. Russell Kirk, “The Common Heritage of America and Europe,” accessed at http://www. kirkcenter.org/index.php/detail/the-common-heritage-of-america-and-europe/. 18. Public orthodoxy is “the way of life the community enshrines . . . convictions concerning the existence of God or of the gods, the good life, and the destiny of man and of society” (Frederick D. Wilhelmsen and Willmoore Kendall, “Cicero and the Politics of the Public Orthodoxy,” Intercollegiate Review (Winter 1968–1969): 86).

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19. Douglas Southall Freeman, R. E. Lee: A Biography, vol. IV (New York: Charles Scribner’s Sons, 1949), 303–5. 20. Kirk, The Conservative Mind, v. 21. Ibid., 8–9. 22. State of the Union Address, January 11, 1944; accessed at www.presidency.ucsb.edu/ ws/index.php?pid=16518. 23. Thomas J. DiLorenzo, Lincoln Unmasked: What You Are Not Supposed to Know About Dishonest Abe (New York: Random House, Inc., 2006), 106. 24. See Federick Bastiat, The Law (Auburn, AL: Ludwig von Mises Institute, 2007). 25. Kirk, id., 174–75. 26. Orestes A. Brownson, The American Republic (Wilmington, DE: ISI Books, 2003), 7-8. 27. Id., 7–8. 28. Id., 229–30. 29. Id., 223.

Chapter One

Defense of Traditional American Principles

I grieve for posterity, for American principles and American liberty. Our boasted self-government is fast becoming the jeer and laughing stock of the world. —Robert E. Lee, 1868

Lee realized that the Union’s victory over the Confederacy did not bode well for a government grounded in the consent of the governed. The displacement of the antebellum decentralized federative republic with an innovative political centralization was incompatible with the traditional American model of government based upon the consent of the governed within their respective States. Postbellum America superficially resembled the decentralization hoped for by the Framers of the 1789 Constitution, but according to Lee the superficial obscured the deeper reality. The older America was a federative republic in which the constitutional rule of law was consequentially grounded in the consent of the States, in contradistinction to the sort of national supremacy in which the States are ultimately subordinated to national power. In other words, Lee’s America was a federative republic of sovereign States, not a collection of States subordinate to centralized authority. This is an important distinction. The locus of political power is critical to a proper understanding of Lee’s perspective. Lee realized that if political power is centralized in the national government, political actors will indubitably focus their efforts in capturing that power and utilizing it to their advantage. All countervailing forces, including the U.S. Constitution, will be eventually overpowered by centralized political power. Lee’s cause was not the simplistic perpetuation of slavery, but in the preservation of liberty from a national government poised to usurp the sove1

2

Chapter 1

reignty of the States. The C.S.A. Congress acknowledged as much when it forewarned the Northern States about the “loss of liberties by the despotism engendered in an aggressive warfare against the liberties of another and kindred people.” 1 In other words, all the States, not just the Southern ones, would be at the mercy of centralized power. For most contemporary Americans such sentiments are discomforting if not unthinkable. The source of this discomfort has been succinctly explained by Clyde Wilson: The very point of the Civil War was to decide between two alternative ways of understanding the meaning of America . . . the nature of the war as a contest of alternative symbolizations meant that history would have to be orchestrated to support the winning side. The losers must not only be conquered on the field of battle and disenfranchised in the body politic, but they must be discredited. The competitive legitimacy of their alternative view must be suppressed. If history is not so reconstructed, the victor must argue, it will fail in its mission of providing symbols for social cohesion for the new regime. In terms of historical understanding, the new regime must be given a justification. 2

Robert E. Lee’s legacy serves as a symbol for the quickly fading alternative view of American principles and liberty within the context of limited and decentralized political power. For those concerned about the principles of 1776, the unalienable rights of life, liberty, property, and a government genuinely based upon the consent of the governed, Lee’s actions and thoughts are important, not because others prior to and after Lee did not and do not share his views, but because he was and is at the center of the storm during which those principles faced (and are facing through reconstructed history) their most substantial assault. A critical aspect of this reconstructed history is the teaching that Mr. Lincoln warred against the Confederate States of America to fulfill the core purpose of the America experience, equality. In Lincoln’s America, which is the America in which we live today, equality, or what Brownson and Kirk referred to as egalitarian humanism, has become the national government’s touchstone for exercising supremacy over the States. Lincoln and his Republican Party tapped into that tendency by, in Machiavellian fashion, displacing the constitutional rule of law with the rule of men dressed up in the rhetoric of egalitarian humanism. 3 The public policy consequences were concisely stated by Professor M. E. Bradford when he opined, “Let us have no foolishness indeed. Equality as a moral or political imperative, pursued as an end in itself—Equality, with the capital ‘E’—is the antonym of every legitimate conservative principle.” 4 Alexis de Tocqueville anticipated this development a generation prior to the outbreak of the war: “After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the su-

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preme power then extends its arm over the whole community. It covers the surface of society with a network of small, complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. . . . [I]t compresses, enervates, extinguishes, and stupefies a people . . . to nothing better than a flock of timid and industrious animals of which the government is the shepherd.” 5 Members within the flock may indeed be equal, but not free in the traditional sense. They are managed by, and ultimately for, the benefit of the shepherds. The speech that has come to serve as the rationale for the corralling of Americans into the national flock was delivered on November 19, 1863, by President Lincoln on the horrific battlefield in Gettysburg, Pennsylvania. In that speech Lincoln transformed the Declaration of Independence as the founding document, placing equality as the golden calf to which all Americans must bow. This swindle was well known at the time. In his 1865 eulogy for the assassinated president, U.S. Senator Charles Sumner (MA) surmised that the “battle itself was less important than the speech.” 6 And Republican Illinois Governor Richard Yates, a strong supporter of Lincoln and the war against the Confederacy, acknowledged in an 1865 speech to the Illinois General Assembly that the “war . . . has tended, more than any other event in the history of the country to militate against the Jeffersonian idea, that “the best government is that which governs least.” 7 In the Gettysburg Address Lincoln launched an “intellectual revolution” remaking America. 8 Lincoln’s “equality” revolution rationalized the centralization of political power abhorred by the Framers, with few exceptions, of the U.S. and C.S.A. constitutions. This revolution, what one noted historian referred to as “the greatest social and political revolution of the age,” 9 was made possible by an intellectual coup against the Constitution. “Lincoln's vision of nationalism made the Declaration of Independence, rather than the Constitution, the foundational national document.” 10 Relying on a distorted notion of the Declaration’s commitment to equality, the central government began in earnest to accumulate more and more power unto itself. The Jeffersonian and U.S. Constitution’s equality before the law, designed to protect an individual’s unalienable rights of life, liberty, and property, has been swallowed up by Lincoln’s rhetorical spin of the Declaration’s quest for equality. As stated by Lincoln, the war launched “a new birth of freedom” in which “government of the people, by the people, and for the people shall not perish from the earth.” 11 Lincoln’s rhetorical “[f]ourscore and seven years ago our fathers brought forth on this continent a new nation” refounded America on a deception. The deception not only helped to rationalize the war for the Union, but also placed America on track toward the consolidation of national power as the guarantor of equality.

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Lee and his fellow Southerners knew that the Declaration did not establish a nation, but nations. Its historical context and the concluding paragraph make this unambiguously clear: We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies solemnly publish and declare, That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor. 12

The American Revolution established thirteen sovereign independent States, that is, nations, which shortly thereafter joined together under the Articles of Confederation. Article II of that document reaffirms the united (sic) States’ individual sovereignty, by declaring that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” 13 It was common knowledge that the Articles did not “expressly delegate” to the central government the power to prevent a State from exiting the Union, which would have been antithetical to the States’ sovereignty. It does stipulate a “perpetual Union.” 14 But the word “perpetual” was standard legal language used in contracts among parties. If one of the parties deemed the contract to be breached, then the contract between the parties could be dissolved. The compact between the States was perpetual only as long as the parties complied with its terms. Lincoln knew this well, so he disingenuously claimed that the 1789 U.S. Constitution’s Preamble clause “in order to form a more perfect Union” made the Union indissoluble. In his first inaugural address he stated “in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union. But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.” 15 But the Framers would respond that the vital element of the 1789 U.S. Constitution was not the Union per se, but the vital liberty interests of its member States. As noted in the Declaration, governments, including the U.S. government, derive “their just powers from the consent of the governed” in

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their respective States. 16 This was the basis of the American Revolution, the Articles of Confederation, and the U.S. and C.S.A. Constitutions. In the same inaugural address Lincoln repeatedly refers to the “people”. Lincoln postulated that the Preamble’s “We the People” established a unitary democracy, through which the American people were sovereign, not the individual States. Once again a deception utilized for political purposes about which Southerners were fully cognizant, including Lee. In the antebellum era it was a known historical fact that the second to last draft of the Constitution’s preamble reads, “We the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.” The Convention’s Committee of Detail deleted the States by name, anticipating that not all the States would ratify the document, a prerogative of sovereignty. Rhode Island, for example, did not ratify the document until May 29, 1790, thirty-four votes for and thirty-two against ratification. 17 Lincoln was a “seductive rhetorician . . . using phrases whose power is almost entirely emotional. . . . There is little constitutional theorizing in Lincoln’s incantatory shaping of Union as a transcendent value.” 18 His deceptions were and continue to be rationalizations for concentrating political power by usurping powers that originally belonged to the people in their respective States. 19 “In effect, Lincoln's vision of nationalism made the Declaration of Independence, rather than the Constitution, the foundational national document. Thus, Lincoln displaced the Constitution from center stage, tying national identity much more closely to the Declaration as the initial collective statement of American nationhood.” 20 Antebellum Southerners such as Lee were alarmed that Lincoln and the Republican Party were trampling on the Constitution in their quest for converting the U.S. government into a consolidated nation. “Lee also remarked before the election of Lincoln that it appeared the country was doomed to ‘run the course of democracy.’ By this he meant that the sovereign force of law . . . was soon to be replaced by unrestrained popular whim, as manipulated by the demagogue. Lincoln’s victory proved him to be correct.” 21 This consolidated nation would readily be used as a tool for the special interests benefiting from Senator Henry Clay’s American System, at the expense of the South’s political and social institutions in the event that its political class could not be co-opted to support that system. The Great Seal of the Confederacy, Deo Vindice [“God Will Vindicate” with the image of George Washington riding his horse, Nelson] and the preamble to the C.S.A. Constitution [invoking the favor and guidance of Almighty God] manifest the Confederacy’s hope to defend within its borders

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the decentralized America of Washington, Jefferson, and Madison. As General Washington symbolized American opposition to British political domination over the colonies qua States, Lee eventually filled the same role for the Confederacy and the defeated postbellum South. Similar to the eighteenth-century war for independence, the South’s opposition to northern fiscal policies informed its commitment to self-government. The South was convinced it was on constitutional terra firma and connected its quest for independence to the founding generation. But 1861 was not 1776. By 1861 northern political elites adopted a political realism impatient with the old Constitution. If the national government were to be instrumental in transforming American society, it had to be set free from its traditional constitutional moorings. The Gettysburg Address was tantamount to the clarion call to rally around equality as the core American political principle. This clarifies how equality has taken “on a sacred aspect among many minds today [and has rapidly acquired] dogmatic status, at least among the minds of a great many philosophers and social scientists.” 22 This transformation was aided by the fact that the conflict between North and South was not simply political, but civilizational, with religious, cultural, fiscal, and political dynamics. The religious dynamic was fundamental, because it struck at the core of the South’s Christian identity. Southerners concurred with Northerners in equality before God in the Christian doctrine of final judgment and equality before the law. But Southern elites did not concur that government had a right or duty to utilize public policy to advance egalitarianism as the core principle of the American experience. The egalitarian impulse had been percolating within the American experience for generations. In his classic Democracy in America, Tocqueville discerned the emerging Northern democratic pulse of American politics. He explained that democratic nations are menaced by a “species of oppression.” Its primary feature is “an innumerable multitude of men, all equal and all alike, incessantly endeavoring to procure the petty and paltry pleasure with which they glut their lives. . . . Above this race of men stands an immense and tutelary power, which takes upon itself to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks the contrary, to keep them in a perpetual state of childhood. For their happiness government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them of all the care of thinking and all the trouble of living?” 23

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Theodore Parker, a leading antebellum northern intellectual, also viewed the conflict between North and South as a conflict between value systems. “As he saw it, the North represented democracy, and the South represented despotism.” He advocated for “a government of all, for all, and by all.” 24 Parker’s “government of all, for all, and by all,” a precursor of Lincoln’s “government of the people, by the people, for the people,” 25 contains three important political elements. First, a core ideology centered on equality; second, the political mobilization of Americans dedicated to that ideology, i.e., dedicated to the proposition; and third, the empowerment of a national ruling class anathema to the traditional rule of law and the federative republic. We can go even further, as the historical evidence suggests, that the concentration of political power in the hands of such a ruling class puts Americans on the road toward totalitarianism. As instructed by Robert Nisbet, The total State [nation] is rational in that it recognizes in human personality certain basic needs for security and recognition and strives through every art and technique to satisfy those needs in calculated political terms. It is rational in that it seeks to eliminate from culture all those ceremonial, ritualistic, or symbolic features inherited from the past that constitute by their existence obstructions to the achievements of a perfect mobilization of popular will. . . . There are two central elements of totalitarianism: the first is the existence of the masses; the second is the ideology, in its most extreme form, of the political community. . . . What works toward the creation of the masses works also toward the establishment of the omnicompetent, absolute State [nation]. And everything that augments the power and influence of the State [nation] in its relation to the individual serves also to increase the scope of the masses. 26

There is no denying the fact that the antebellum Southern States presented political and cultural obstructions to the establishment of the centralized power Republicans such as Parker and Lincoln strove to achieve, and what Tocqueville and Nisbet warned against. The displacement of the Christian values of the founding generation by the politics of equality is critical to our understanding political centralization’s slide toward totalitarianism and Lee’s reaction against it. The displacement got its footing in the antebellum period, and Southerners were very cognizant of the development. This development in the North has been described as Yankee social consciousness, the fusion of politics and religion to achieve power. South Carolina cited this fusion of politics and religion as a principal reason for its decision to secede. In its Declaration of Causes, its secession convention noted “Sectional interest and animosity will deepen the irritation, and all hope of remedy is rendered vain, by the fact that public opinion at the North has invested a great political error with the sanction of more erroneous relig-

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ious belief.” 27 Nisbet’s “mobilization of the popular will” was taking shape in the North, and that shape was deemed by many in the Southern ruling class to be inherently anti-Christian. The fusion had been brewing decades prior to the war. Yankee social consciousness coincided with the Second Great Awakening and envisioned an America organized along its terms. Southern institutions, interests, and traditions would either be transformed in a spirit of cooperation or, if necessary, under coercion. Abolition, negrophobia, nativism, prohibition, and other rallying cries were in the mix of Yankee social consciousness and were instrumental in the formation and early success of the Republican Party. As pointed out by Kevin Phillips, “New England’s intertwined religious and civic ambitions—Yankees believed that government’s principal purpose was moral—would help to shape not just the Republican Party but the coming war. . . . The politics of commerce and the politics of moral righteousness eventually fused . . . with the emergence of the Republican Party.” 28 The fusion of politics and religion initially politicized churches and then converted politics into a quasi-religious function. It’s well known that politics and religion can be divisive. A Northern-based religious movement in alliance with Northern political operatives, having at their disposal the national government’s coercive capabilities, would necessarily be alarming for their Southern opponents. This helps explain why Southern Protestant denominations began splitting along the Mason-Dixon Line in the 1840s. 29 Senator Henry Clay, the great compromiser, noted in 1852 that “this sundering of the religious ties which have bound our people together I consider the greatest source of danger to our country.” 30 Clay realized that politicized religion was infiltrating political discourse in New England and was forcing the South to respond accordingly. These were not your eighteenth-century Bible-thumping preachers aiming to convert the individual for salvation. Many of the leaders were deists and freethinkers opposed to orthodox Christianity. 31 The prominent Whig Clay was prescient. The emerging Yankee social consciousness provoked a response in the South which contributed to secession and the formation of the Confederate States. By 1860 the clash between North and South reached a critical phase. As explained by a noted pro-North historian, “[m]any antebellum Americans certainly thought that North and South had evolved separate societies with institutions, interests, values, and ideologies so incompatible, so much in deadly conflict that they could no longer live together in the same nation. Traveling through the South in the spring of 1861 London Times correspondent William Howard Russell encountered this Conflict of Civilizations theme everywhere he went. ‘The tone in which [Southerners] alluded to the whole of the Northern people indicated the clear conviction that trade, commerce, the pursuit of gain, manufacture, and the base mechanical arts, had so

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degraded the whole race’ that Southerners could no longer tolerate association with them.” 32 Northern elites realized that the Union was unraveling and went on a heightened offensive aimed at “northernizing” the South. For example, William Seward maintained that it was the responsibility of “the free and vigorous North and West to work out the welfare of the country and drag the reluctant South up to participate in the same glorious destiny.” 33 Albeit, Seward’s vision of a “glorious destiny” was first and foremost one of economic might, not spiritual righteousness. Northern politicians and intellectuals were seeking to establish the “spirit of a collective American identity,” the former for economic purposes and the later for humanitarian reasons. Both agendas required centralized authority, which in turn is the substance of Northern nationalism. Using language copied from Parker, Lincoln advocated for “a government of all the people, by all the people, for the people.” Like Parker he insisted on supplanting the U.S. Constitution with a new understanding of the Declaration of Independence. Because the former obstructed the centralization of power requisite to his new nationalism, it had to be supplanted. By 1854 Lincoln was a true believer: Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us turn and wash it white, in the spirit, if not the blood, of the Revolution. Let us turn slavery from its claims of "moral right," back upon its existing legal rights, and its arguments of "necessity." Let us return it to the position our fathers gave it; and there let it rest in peace. Let us re-adopt the Declaration of Independence, and with it, the practices, and policy, which harmonize with it. Let north and south—let all Americans—let all lovers of liberty everywhere— join in the great and good work. If we do this, we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving. We shall have so saved it, that the succeeding millions of free happy people, the world over, shall rise up, and call us blessed, to the latest generations. 34

Lincoln used his ahistorical Declaration of Independence as a means to repurify the “republican robe,” that is, the Constitution. A new American nationalism, not the outdated States’ sovereignty of a federative republic, and will promote the happiness of people “the world over” who shall rise up “and call us blessed.” Of course nine years later in his Gettysburg Address Lincoln surveyed and justified the repurification process. 35 America’s civic religion was birthed. Neoconservative Irving Kristol, an enthusiastic supporter of Lincoln’s actions, claimed that the United States is a “creedal nation” founded on an ideological commitment to the rights of man. The most fundamental right is that of equality. Change, even radical change, is a positive good insofar as it

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progresses toward greater equality. Citizenship in this creedal nation is open to anyone that adheres to the creed. Moreover, this nation lacks traditional territorial boundaries. It expands and contracts along with the influence of the creed. 36 In academia this is known as the teleocratic view of the Constitution, which is anathema to the Constitution of 1789. As explained by Forrest McDonald, This is the notion that the design of the Constitution was to achieve a certain kind of society, one based upon the abstract principles of natural rights or justice or equality or democracy or all of the above. It holds that the specific provisions of the document are of secondary importance or none at all; what counts are the “principles” it supposedly embodies, usually principles based upon the Declaration of Independence or Lincoln’s Gettysburg Address, neither of which has any standing in law. 37

Adherents to the traditional, conservative, and/or nomocratic Constitution prefer “the familiar to the unknown . . . the tried to the untried, fact to mystery, the actual to the possible, the limited to the unbounded, the near to the distant, the sufficient to the super-abundant, the convenient to the perfect, present laughter to utopian bliss.” As pointed out by Professor Kerwick, this view “is in keeping with an enduring reading of the Christian tradition; it is motivated, first and foremost, by an aversion not just to change as such but to the rapid change characteristic of contemporary Western societies, a phenomenon simultaneously driven by and reflective of greed and the penchant to exploit.” 38 Similar sentiments were common in the Confederacy. Consider Reverend Pierce’s 1862 comments to the Confederate Bible Convention: Loose and licentious notions of liberty are the legitimate out-growth of ignoring the supremacy of God[.] Vicious maxims in trade become current; capital is invested in enterprises which war against morality; vice puts on the livery of fashion and becomes bold by patronage; the administration of justice grows lax, in morbid sympathy with a false philanthropy; unpunished crime gangrenes society; and deified wealth rides over principle and merit and talent, and a hollow, heartless selfishness holds carnival over the wreck of every virtue.

And, There is one other departure from the word of the Lord, common to the policy of the country, adopted and pursued by well nigh all, which demands and deserves rebuke. I mean the greed of gain, the deification of money. The subject is too large for discussion now, but a word to the wise will not be amiss. 39

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Southerners, Lee included, were the conservatives and were reacting to what they perceived to be Northern radicalism. With a traditional Christian perspective, they understood the Constitution to be a “structural and procedural document, specifying who is to exercise what powers and how. It is a body of law, designed to govern, not the people, but government itself; and written in language intelligible to all, that all might know whether it is being obeyed.” 40 In the “creedal nation” of Lincoln, Kristol, and even the likes of Presidents George Bush and Barack Obama, men play gods and dissatisfied with the world as they find it, attempt to remake it. American imperialism has roots in the creedal nation mentality. Lincoln’s war against the Confederate States, the Spanish-American War, Wilsonian Democracy, and more recently in U.S. engagements in Iraq and beyond stem from a hegemonic creedal nation. Lee the realist knew better. During the Hungarian Revolution of 1848, the revolutionary Louis Kossuth turned to America for support. Lee was cautious, warning that supporting Kossuth “would not advance republican institutions or the principles of self-government.” 41 Men and women like Lee accept the world as created and make the best of it, guided by Christianity and not by a human crafted ideologically inspired civic religion. Of course, Lincoln’s creedal nation could simply be a tool to mobilize public support for more mundane political and economic exploitation. As affirmed by Southern theorists such as James Madison, political actors are motivated by “self-love . . . sown in the nature of man.” These activists, “united and actuated by some common impulse of passion, or of interests, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community,” form factions. Competing factions are “much more disposed to vex and oppress each other than to cooperate for their common good.” 42 If oppression is to be mitigated, then government must be denied the means and the centralized power to achieve certain political objectives, including the use of power on behalf of the creedal nation’s core principle equality. The original aim of the U.S. Constitution was to delegate to the U.S. government the power to promote the general welfare of the States, but not the power to oppress the States and Southern society against their will. The 1860 election alarmed Southerners that a factious political party, the Republican Party, had elevated to power a ruling class with the intent and capacity to oppress them. The “pestilential influence of party animosities,” about which Madison had forewarned, 43 had taken over the political process. Legislative and electoral battles morphed into war, that is, politics by other means. 44 The animosity between North and South were originally not between the Northern and Southern people per se, but between competing elites aiming to secure their collective interests aligned along the Mason-Dixon Line. The

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conflict was at root a struggle between Northern and Southern ruling classes. The vast majority of antebellum Americans, North, South, and West, were oblivious to the nuances and motives hedging toward war. They were swept along, and reluctantly so as the war dragged on, with the tides of political and militaristic warfare. The emergence of a regionally based Republican Party and the centralization of political power made conflict highly probable, as the mechanisms for political compromise broke down. As elite theory maintains, organizations eventually become dominated by a small group of leaders controlling the decision making and direction of the organization. The group that captures control of the government is referred to as the ruling class. A Northern ruling class with political carte blanche had few reasons to compromise and this justifiably alarmed its Southern counterpart. The assertion that a national democracy can be based upon the consent of the governed is truly nonsense on stilts. The emergence of a nationally based ruling class is inevitable. Organizations, especially political ones, require the delegation of authority to those responsible for the operations of the organization. The organization becomes hierarchical. The self-interests of the ruling class, in contradistinction to the public good, become the driving force in decision making. Those outside the leadership circle are co-opted, suppressed, or ignored. Eventually the organization becomes authoritarian and corrupt. Political scientists refer to this phenomenon as the “iron law of oligarchy.” 45 There will always be a ruling class, as history teaches and the iron law of oligarchy confirms. Experience had taught this lesson to the Southern ruling class, and they responded accordingly. A ruling class constrained by the constitutional rule of law would by necessity respect life, liberty, and property of its political adversaries. In the absence of constitutional constraints, the Northern ruling class would necessarily resort to coercive national powers at its disposal and under its direction. The irony of invading Union armies marching southward singing “As he died to make men holy, let us die to make men free,” while Confederate armies marched to “The despot’s heel is on my shore,” should not be lost on Americans today. 46 Anyone who doubts the reality and effects of the fusion of religion and politics needs to turn to the “high-minded morality” sentiments in a recent speech by President Obama: We can’t leave our values at the door. If we leave our values at the door, we abandon much of the moral glue that has held our nation together for centuries, and allowed us to become somewhat more perfect a union. . . . [T]he majority of great reformers in American history did their work not just because it was sound policy, or they had done good analysis, or understood how to exercise good politics, but because their faith and their values dictated it, and called for

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bold action—sometimes in the face of indifference, sometimes in the face of resistance. 47

President Obama was simply articulating the proactive role of government Lincoln set into motion. In his 2012 State of the Union Address he confessed “I’m a Democrat. But I believe what Republican Abraham Lincoln believed: That government should do for people only what they cannot do better by themselves, and no more.” 48 Of course, there is no constitutional mandate providing the national government with the authority or the power to be “our brothers’ keepers.” And as explained by de Tocqueville, dependence on government is a “species of oppression.” The Framers would be highly alarmed by the fusion of religion and national politics as a path toward the consolidation of power at the expense of the States. They hoped that the ruling class would consist of God-fearing “men of superior talents,” but they also insisted that the “Congress (i.e., national government) shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” 49 The police powers, that is, the health, safety, and morals of the people within the States, were the policy domains of the States, not the national government. Murray Rothbard exposed this ruling class, the “new coercive elite,” for what it really is: When we confront the egalitarian movement, we begin to find the first practical, if not logical, contradiction within the program itself: that its outstanding advocates are not in any sense in the ranks of the poor and oppressed, but are Harvard, Yale, and Oxford professors, as well as other leaders of the privileged social and power elite. What kind of “egalitarianism” is this? If this phenomenon is supposed to embody a massive assumption of liberal guilt, then it is curious that we see very few of this breast-beating elite actually divesting themselves of their worldly goods, prestige, and status, and go live humbly and anonymously among the poor and destitute. Quite the contrary, they seem not to stumble a step on their climb to wealth, fame, and power. Instead, they invariably bask in the congratulations of themselves and their like-minded colleagues of the high-minded morality in which they have all cloaked themselves. 50

As the Southern ruling class would concur and was fully aware, the fundamental issue was the locus of political power and the character of those entrusted with that power. Southerners knew, as instructed by Madison, the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” 51 Power must be decentralized, not merely between the branches of government, but between the national and State governments. The critical

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issue of the war was the subordination of the States to the national government, the accumulation of powers Madison warned against in 1787. This is why Lincoln is crucial to our understanding of Lee and the causes for which they both fought. Thanks to Lincoln, “the nature of the Union . . . is thus always at stake in every major election, in every refinement of our civil theology; the Constitution is still to be refined by the latest wave of big ideas, the most recent mass [democratic] emotion.” 52 Consequently, Lincoln’s “second founding” of America met stiff resistance from the Jeffersonian C.S.A. The “Trojan horse of our homegrown [Lincolnesque] Jacobinism was rolled away to some back stall within the stable of received American doctrines.” 53 But when expedient, it could be trotted out to justify usurping national power. The important point to keep in mind is that [c]oncentrations of power in the national and executive branches of government, brought about by Lincoln in the name of the people, were processes that conceivably complemented each other to the detriment of free government. Lincoln’s administration thus opened the way for the development of an omnipotent national executive who as a spokesman for the people might consider himself entitled to do whatever he felt was good for the Nation, irrespective of the interests and rights of states, Congress, the judiciary, and the individual. 54

Although many conservative commentators acknowledge that in contemporary America the ruling class is increasingly empowered, unaccountable to the American people, and oppressive, they still consistently idolize Lincoln. When convenient they dust off the Jeffersonian principle of decentralization, but when in power they continue to harken back to Lincoln and by default the America he re-founded. 55 Consequently, they are in the liberal camp of centralized power, unwittingly aiding and abetting the very policies they supposedly oppose. The same cannot be said of Lee. In 1860 Lee was not an active member of the ruling class, but still a member. He was a soldier, more or less catapulted into being an active member of the ruling class by the course of events. But he was a keen observer of his surroundings. As war broke out, he could have chosen to be within the inner circle of either ruling class. His decision to join the Southern ruling class was not an error in judgment, unless one considers siding with the losing side is by default the wrong decision. It was a conscious decision to stand with tradition in the face of unconstitutional and uncertain innovation. We are currently inhabiting an America birthed by Lincoln and, one might add, approaching an oppressiveness anticipated by de Tocqueville and feared by Lee and his fellow Confederates. The centralized political power that saddled Americans with a national debt in excess of seventeen trillion dollars, financial obligations in excess of one hundred trillion dollars, a secu-

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larized unitary democracy undercutting the foundational principles of life, liberty, and property, a dependency on government among all strata of society, and unprecedented wealth accumulation by the ruling class at the expense of the middle and lower classes should alarm all Americans. This is why Robert E. Lee still matters. He lived in a decentralized federative republic that for all intents and purposes no longer exists. He represents an America hoped for by most of the Framers and fought for by the Confederacy. Not only do his words and actions make this abundantly clear, but so too does the banishment of the factual Confederate cause from American political consciousness. To put it otherwise, the historical Lee must be destroyed if Lincoln’s creedal nation is to survive. NOTES 1. Public Laws of the Confederate States of America, Second Congress, Sess. I, Res. 13, 1864. 2. Clyde N. Wilson, Defending Dixie: Essays in Southern History and Culture (Columbia, SC: The Foundation for American Education, 2006), 6. 3. See M. E. Bradford, A Better Guide Than Reason: Federalists & Anti-Federalists (New Brunswick, NJ: Transaction Publishers, 1994), 29–57. 4. M. E. Bradford, A Better Guide Than Reason: Federalists & Anti-Federalists (New Brunswick, NJ: Transaction Publishers, 1994), 29. 5. Robert Nisbet, The Quest For Community: A Study in the Ethics of Order & Freedom (San Francisco, CA: ICS Press, 1990), 170. 6. Abraham Lincoln Online, Speeches & Writings, accessed at http://showcase.netins.net/ web/creative/lincoln/speeches/gettysburg.htm. 7. “Message of His Excellency, Richard Yates, Governor of Illinois, to the General Assembly, Jan. 2, 1865,” accessed at www.archive.org/stream/messageofhisexce00illi/ messageofhisexce00illi_djvu.txt, 13. 8. See Garry Wills, Lincoln At Gettysburg: The Words That Remade America (New York: Simon & Schuster, 1992), 40. The political culture in the North had been primed for this revolution. The Republican Party had been promoting the Declaration of Independence as a founding document from its beginning. Its 1856 party platform resolved “That the maintenance of the principles promulgated in the Declaration of Independence, and embodied in the Federal Constitution are essential to the preservation of our Republican institutions, and that the Federal Constitution, the rights of the States, and the union of the States, must and shall be preserved” (Republican Party Platforms: “Republican Party Platform of 1856,” June 18, 1856. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. www.presidency.ucsb.edu/ws/?pid=29619). Its 1860 party platform resolved “That the maintenance of the principles promulgated in the Declaration of Independence and embodied in the Federal Constitution, “That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,” is essential to the preservation of our Republican institutions; and that the Federal Constitution, the Rights of the States, and the Union of the States must and shall be preserved” (Republican Party Platforms: “Republican Party Platform of 1860,” May 17, 1860. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. www.presidency.ucsb.edu/ws/?pid=29620). 9. Allan Nevins, The War for the Union, vol. II (New York: Konecky & Konecky, 1960), 241.

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10. Daniel A. Farber, Symposium, “Union and States’ Rights: Secession, 150 Years after Sumter. The Fourteenth Amendment and the Unconstitutionality of Secession,” Akron Law Review 45, 479: 5. 11. The Gettysburg Address, accessed at http://avalon.law.yale.edu/19th_century/gettyb. asp. 12. The Declaration of Independence, July 4, 1776, accessed at http://avalon.law.yale.edu/ 18th_century/declare.asp. In the eighteenth century the word “State” connoted nation. 13. The Articles of Confederation, 1781, accessed at http://avalon.law.yale.edu/18th_ century/artconf.asp. 14. The preamble reads “Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia,” http://avalon.law.yale.edu/18th_century/artconf.asp. 15. First Inaugural Address of Abraham Lincoln, March 4, 1861, accessed at http://avalon. law.yale.edu/19th_century/lincoln1.asp. 16. The Declaration of Independence, July 4, 1776, accessed at http://avalon.law.yale.edu/ 18th_century/declare.asp. 17. U.S. Constitution Online, Ratification Dates and Votes, accessed at www.usconstitution. net/ratifications.html. 18. Ralph Waldo Emerson acknowledged as much in his cryptic eulogy to Lincoln: “Then his broad good-humor, running easily into jocular talk, in which he delighted and in which he excelled, was a rich gift to this wise man. It enabled him to keep his secret; to meet every kind of man and every rank in society; to take off the edge of the severest decisions; to mask his own purpose and sound his companion; and to catch with true instinct the temper of every company he addressed,” accessed at http://www.rwe.org/xv-abraham-lincoln.pdf. 19. See M. E. Bradford, Remembering Who We Are: Observations of a Southern Conservative (Athens: GA: The University of Georgia Press, 1985), 143-156. 20. Daniel A. Farber, Symposium, “Union and States’ Rights: Secession, 150 Years after Sumter. The Fourteenth Amendment and the Unconstitutionality of Secession,” Akron Law Review 45, 479: 5–6. 21. M. E. Bradford, A Better Guide Than Reason: Federalists & Anti-Federalists (New Brunswick, NJ: Transaction Publishers, 1994), 164. 22. Richard Nisbet, “The Pursuit of Equality,” The Public Interests 35 (1974):103; cited in Murray N. Rothbard, “Egalitarianism and the Elites,” The Review of Austrian Economics 8, no. 2: 41. 23. Cited in Robert Nisbet, The Quest For Community: A Study in the Ethics of Order & Freedom (San Francisco, CA: ICS Press, 1990), 169–70. 24. Susan-Mary Grant, North Over South: Northern Nationalism and American Identity in the Antebellum Era (Lawrence: University Press of Kansas, 2000), 31. 25. Gettysburg Address, accessed at http://avalon.law.yale.edu/19th_century/gettyb.asp. 26. Nisbet, The Quest For Community: A Study in the Ethics of Order & Freedom,175-176. 27. Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union, accessed at http://avalon.law.yale.edu/19th_century/csa_ scarsec.asp. 28. Kevin Phillips, The Cousins’ Wars: Religion, Politics, and the Triumph of Anglo-America (New York: Basic Books, 1999), 357, 360. 29. Confirming Senator Clay’s insights, in his 1893 scholarly study of the Union Woodrow Wilson noted that the religious ties holding the Union together began snapping in earnest in the 1840s: “National churches had already broken asunder because of this issue of morals. The Baptist Church had split into a northern and southern branch as long ago as 1845; and still an earlier year, 1844, had seen the same line of separation run through the great Methodist body,” Woodrow Wilson, Division and Reunion, 1829–1909 (New York: Longmans, Green, and Co., 1909), 209. 30. Phillips, 401. 31. Phillips, 655.

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32. James M. McPherson, “Antebellum Southern Exceptionalism: A New Look at an Old Question,” Civil War History 50, no. 4 (December 2004): 421–422. 33. James C. Cobb, Away Down South: A History of Southern Identity (New York: Oxford University Press, 2007), 37–38. 34. Peoria Speech, October 16, 1854, accessed at www.nps.gov/liho/historyculture/ peoriaspeech.htm. 35. See Susan-Mary Grant, North Over South: Northern Nationalism and American Identity in the Antebellum Era (Lawrence: University Press of Kansas, 2000), 159–60. 36. See Jack Kerwick, “Kristol vs. Oakeshott,” Modern Age 53, no. 1 & 2 (Winter/Spring 2011): 20–28. 37. Cited in Marshall L. DeRosa, The Ninth Amendment and the Politics of Creative Jurisprudence: Disparaging the Fundamental Right of Popular Control (New Brunswick, NJ: Transaction Publishers, 1996), 7. For a more robust discussion see ibid., especially pp. 1–27. 38. Kerwick, 21. 39. Reverend Pierce, 9, 15. 40. Forrest McDonald, cited in DeRosa (1996), 150. 41. Lee’s January 12, 1852 letter to his son Custis, Virginia Historical Society; cited in Michael Fellman, The Making of Robert E. Lee (Baltimore, MD: The John Hopkins University Press, 2000), 78–79. 42. #10. 43. #37. 44. See Carl von Clausewitz, On War, trans. Col. J. J. Graham (London: Kegan Paul, Trench, Trubner & C., 1918), Vol. 1, Chapter: 1. 45. See Robert Michels, Political Parties (1911). 46. The misnamed “Battle Hymn of the Republic” would be more accurately titled the “Battle Hymn of the Emerging Unitary Democracy.” 47. “Remarks by the President at the National Prayer Breakfast,” February 2, 2012 www.whitehouse.gov/the-press-office/2012/02/02/remarks-president-national-prayer-breakfast. 48. Remarks by the president in State of the Union Address, January 24, 2012, accessed at www.whitehouse.gov/the-press-office/2012/01/24/remarks-president-state-union-address. 49. First Amendment to the U.S. Constitution. 50. Rothbard, 45. 51. The Federalist Papers, #47. 52. Bradford, 1985, 154. Civil theology can be defined as a country’s political religion, that is, its core belief or beliefs. In this case it includes “equality (with a capital E)” and “perfectibilitarian enthusiasm” for achieving it; see Bradford, id., 50–53. 53. Ibid., 48. “Jacobinism” is a term used to describe the radicals of the French Revolution. Their efforts established a centralized government, resulting in a war against the Catholic Church, the aristocracy, capped off with the reign of terror, civil war, and dictatorship. See Betrand De Jouvenal, On Power: The Natural History of its Growth (Indianapolis, IN: Liberty Fund Press, 1993), Book V. 54. Gottfried Dietze, America’s Political Dilemma: From Lincoln to Unlimited Democracy (Baltimore: John Hopkins University Press, 1968), 58; cited in Bradford, id., 154. 55. See Mark R. Levin, Liberty and Tyranny: A Conservative Manifesto (New York: Simon & Schuster, 2009) and Ameritopia: The Unmaking of America (New York: Threshold Editions, 2012); John Marini and Ken Masugi, eds., The Progressive Revolution in Politics and Political Science: Transforming the American Regime (Lanham, MD: Rowman & Littlefield, 2005); Thaddeus G. McCotter, Seize Freedom! American Truths and Renewal in a Chaotic Age (Wilmington, DE: ISI Books, 2011);Matthew Spalding, We Still Hold These Truths: Rediscovering Our Principles, Reclaiming Our Future (Wilmington, DE: ISI Books, 2009).

Chapter Two

Confederate Constitutional Principles

I had no other guide, nor had I any other object than the defense of those principles of American liberty upon which the constitutions of the several States were originally founded. —Robert E. Lee The consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at home, will be the certain precursor of that ruin which has overwhelmed all those that have preceded it. —Robert E. Lee

The widespread misapprehension that the Confederacy’s raison d'être was slavery casts a dark shadow over Lee’s legacy. This contributes to Lee being portrayed as an enthusiastic and inhumane slave owner “when his power and authority were challenged.” 1 The credibility of this characterization is based upon a frequently cited but seldom analyzed account by a former slave. The source of this account is the National Anti-Slavery Standard 1866 report of its interview of former Lee slave, Wesley Norris. Norris claimed that Lee ordered the unmerciful laceration of recaptured runaway slaves. Anyone believing the veracity of the report would understandably dismiss Lee as a contemptible man. But such reports do not hold up under scrutiny. The Standard was a long-standing abolitionist polemic, in which its editors exercised editorial license designed to stoke public opinion against slavery and the South. 2 Lee dismissed the charges as untrue and wrote, “I have not thought proper to publish a contradiction, being unwilling to be drawn into a newspaper discussion, believing that those who know me would not credit it; and those who do not, would care nothing about it.” And “[n]o servant, soldier, or citizen that was ever employed by me can with truth charge me with bad treatment.” One noted Lee biographer dismissed the charge of cruelty by Lee toward any slave as not credible and concluded “that Lee personally beat Mary Norris seems extremely unlikely.” 3 19

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Because Lee is inextricably linked to the Confederacy, it is necessary to delve into its primary purpose as manifested in the C.S.A. Constitution. If its overriding purpose was not the expansion and/or perpetuation of slavery, but the defense of the constitutional federal republican model of government, then Lee the man can be more fully understood. For Lee, his 1865 surrender to General Grant was not merely a personal setback, but more importantly marked the destruction of a system of government embodied in the original U.S. and the C.S.A. constitutions. Lee made clear that the one positive result of the war was the end of the slavery curse. The C.S.A. and U.S. Constitutions shared a common approach toward slavery. In neither document was slavery the core principle. Just as Lee’s support for the Union was not centered on slavery, neither was his support for the Confederacy. As long as the Union was a means toward the preservation of American liberty properly understood, Lee was a Unionist. But the Union was not an end in itself. When the Union threatened that liberty, Lee withdrew his support for it. The same is true for the South in general. In 1866 Lee maintained that “All that the South has ever desired was the Union, as established by our forefathers, should be preserved; and that the government, as originally organized, should be administered in purity and truth.” 4 This does not mean that slavery was unimportant. It was an important issue leading to war, but it was not in and of itself a sufficient cause for the war. The slavery issue was constitutionally a States’ rights issue, as it had been in all the States that had previously outlawed the peculiar institution. The high-salient, high-conflict issues of national fiscal policy, slavery, and longstanding cultural divisions converged to form the perfect storm known as the Civil War. For Southerners, Lee included, the fundamental issue was not slavery, but the unconstitutional centralization of political power that placed the Southern States in a subordinate position to Northern public policy interests. When the Southern States seceded they brought with them their political principles and preferences for a small, frugal, and a constitutionally limited central government. Moreover, they incorporated those principles and preferences in the Confederate Constitution. Lee’s postbellum acknowledgment that he was supportive of the C.S.A. Constitution is indicative of his preference for a decentralized federative republic, one of States’ rights supremacy over the U.S. government. He was not oblivious to the years of mounting tension between the North and South and the Southern States’ growing awareness that continued membership in the Union was not necessarily in their collective interests. The decision to withdraw from the Union and form a Southern Confederacy did not happen in one fell swoop following the election of 1860. The regional diversity of the South along cultural, political, and economic lines

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resulted in a variety of responses to the election. What unified the Border States with the deeper Southern States was the move by Lincoln to raise 75,000 troops to drag South Carolina and six other States back into the Union. Within weeks four other States, including Lee’s Virginia, cast their lots with the Confederacy. As Southern states seceded from the Union they did not reject unionism per se. They realized the benefits of membership in the Union where the common interests of all the states were secured. But that membership had to be consensual. 5 They were also convinced that the Union from which they recently seceded provided a constitutional blueprint from which to structure a new union, or confederacy, of states. Most scholarship about the C.S.A. considers the acceptance of the 1789 constitutional blueprint as evidence that Southern secession was merely the result of sour grapes stemming from their actual and anticipated declining influence in national politics, thereby culminating in the demise of slavery. 6 There is truth in that understanding. However, it is not correct that their concerns focused exclusively on the slavery issue. Slavery was an important issue, but not the exclusive issue. And for Lee it was not slavery per se that was the issue, but the centralization of power that marginalized or even excluded the consent of the southern states in the Union. Because the C.S.A. Constitution has been mistakenly dismissed as a replication of the U.S. Constitution, with some minor editorial changes and a heightening of slavery’s constitutional status, Lee has been tarnished for siding with and fighting for slavery. It is true that much of the C.S.A. Constitution is a word-for-word copy of the U.S. Constitution, but it is also true that the structural and linguistic deviations from the U.S. Constitution have profound implications for the depth and breadth of national powers vis-à-vis the States. Moreover, the C.S.A. Constitution did not mandate the perpetuity of slavery, but rather clarified its constitutional status within the federal framework and left its fate the prerogative of the individual States. The C.S.A. Constitution’s text makes this clear. It is a tenet of American jurisprudence that constitutional text is important. Beginning with Chief Justice John Marshall, the U.S. Supreme Court has pedantically scoured the wording of the U.S. Constitution in order to legitimize various aspects of centralized governmental power. In the Court’s earliest opinions, from which judicial review and national supremacy originate, interpreting the meaning of the text of the U.S. Constitution was critical. Words do matter. The textual deviations from the U.S. Constitution to be found in the C.S.A. Constitution substantively curtail the trend toward the centralization of power. The C.S.A. Constitution enhanced the constraints on its central government’s capacity to expand beyond the consent of the States by specific

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textual modifications. A close analysis of the C.S.A. Constitution makes clear that it constrains centralized authority much more effectively than is the case with the U.S. Constitution. This includes leaving to the States the manner and extent in which to cope with the issue of slavery. A brief overview of the document makes this clear: PREAMBLE “We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America.” 7 The C.S.A. Constitution’s preamble contains five substantive qualifications to the U.S. Constitution’s preamble. First, it uses the word sovereign. As John Taylor of Caroline explained in 1820, the word sovereign is not to be found in the U.S. Constitution or any State constitution. In one instance a State included the word in its bill of rights, declaring the State “to be free, sovereign and independent.” The reference was to other nations, States, and the United States. Sovereignty in this context “implies superiority and subordination.” But within a State’s own jurisdiction, the government is not sovereign, that is, superior to divine, natural, or constitutional laws. This is the meaning the word has in the C.S.A. Constitution, the States are superior to the C.S.A. government. 8 Second, it affirms that the people of the Confederacy ordained and established the C.S.A. Constitution through their respective States. Centralizing national apologists such as Chief Justice John Marshall, Associate Justice Joseph Story, Senator Daniel Webster and President Lincoln, have dubiously maintained that the U.S. Constitution was ordained and established by the American people, not the States. If the U.S. Constitution was ordained and established by the American people in contradistinction to the peoples within their respective States, a State lacks the constitutional prerogative to secede from the Union when it determines secession to be in its interests. In the absence of the independence and sovereignty of each State, as expressed in both the Declaration of Independence and the Articles of Confederation, a State or minority of States will inevitably be swallowed up by the aggregation of the sovereign American people. According to this view, because the American people are sovereign only the American people can release a portion of itself, that is, the people within a particular State or States, from the binding obligations of membership in the Union.

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Building upon this distorted view of the supremacy of the American people over the States, in his first inaugural address President Lincoln announced that he would base his administration’s legitimacy on the policy preferences of the American people, not the States. He insisted that “The Chief Magistrate derives all his authority from the people.” 9 He viewed the fracturing of the Union not between northern and southern States, but a division among the American people into the people of the North, the majority, and the people of the South, the minority. For Lincoln and his Republican Party the break-up of the Union would be resolved “by the judgment of this great tribunal—the American people.” 10 This approach gave his coercive war policies to hold the Union intact the constitutional cover it needed. Third, the C.S.A. preamble recovers the traditions of the Declaration of Independence, the Articles of Confederation, and an original view of the U.S. Constitution that the States are the sources of authority for the national government. 11 The C.S.A. Framers deleted the phrases “provide for the common defense” and “promote the general Welfare,” in the attempt to particularize the document’s application to the States, in contradistinction to a general application to the American people. Whereas the U.S. preamble reads “We the People of the United States,” the C.S.A. preamble reads “WE, the People of the Confederate States, each State acting in its sovereign and independent character,” reaffirms that the sovereign States, not the people of the C.S.A. in the aggregate, are the principals and the C.S.A. government their agent. The preamble and Article I, section 8, clause 1, lack the “general Welfare” as an objective of the Confederate government. The Confederate government was not charged with promoting the general welfare of the southern people, the States notwithstanding, but the collective welfare of the States and indirectly through the States the welfare of the people within the Confederacy. Fourth, the purpose of the C.S.A. Constitution was to form a “permanent federal government, not a “more perfect Union.” Representing the nationalist interpretation of the U.S. Constitution, 12 President Lincoln equated a perfect Union with an indissoluble and perpetual Union. The title of the Articles of Confederation is: “Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.” Lincoln asserted that the transition from the Articles of Confederation, which established a “perpetual Union,” to the U.S. Constitution, which established a “more perfect Union,” necessitated a perfectly perpetual indissoluble Union. In his inaugural address he put the Southern States on notice that “if destruction of the Union, by one, or by a part only, of the States, be lawfully possible, the Union is less perfect than before; the Constitution having lost the vital element of perpetuity.”

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Lincoln’s reasoning, however, is fundamentally flawed. As the Confederate Framers insisted, a perfect Union is one that is based upon the consent of its members, the States. Accordingly, the permanent C.S.A. federal government stemmed from a consensual agreement among the States to join the C.S.A. If a State were to withdraw its consent the compact between that State and the C.S.A. would be dissolved. If all the States were to withdraw their consent, the C.S.A. government would by default cease to exist. Under Lincoln’s view only a majority of the American people could dissolve the central authority, thereby leaving States wanting out at the mercy of an overbearing national majority. The C.S.A. Framers made the Lincoln view untenable: (a) the States individually and voluntarily acceded to the C.S.A.; (b) States are subject to the jurisdiction of the C.S.A. government’s delegated powers while members of the C.S.A.; (c) a State’s secession from the C.S.A. placed the seceded State outside the jurisdiction of the C.S.A.’s delegated powers; and (d) coercively maintained membership, against the consent of its members, would be a very imperfect union/confederacy of States. And fifth, the preamble invokes “the favor and guidance of Almighty God.” Such an invocation is not necessarily consistent with the thrust of abolitionism, which placed its faith in the higher law of human reason. The fact that the C.S.A. Framers prayed for God’s favor and guidance manifest a dependence on and subordination to Divine Providence. Through their respective States Southerners had a covenant with the Divine that had conditions attached. The terms of association among the States are articulated in the C.S.A. Constitution, which is subordinated to biblical mandates to submit to God’s guidance. God’s guidance is not to be found in burning bushes or latter-day prophets, but in the text of the Bible. To deviate from the constitutional mandates was to break one’s word and to act in bad faith. Such behavior had consequences, such as the withdrawal of Divine favor. Because the transcendental order is directly incorporated into the C.S.A. Constitution with God as a guarantor of its terms, it is more than a legal obligation compulsively enforced, it is a covenant among the States contingent upon their willingness to morally and ethically interact with one another. 13 The motto of the C.S.A., Deo Vindice (i.e., God Vindicates), is an expression of the C.S.A.’s reliance on the Divine as a sanction on human actions in maintaining the permanency of the C.S.A. Article I, section 2, clause 1, stipulates that the “House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall be citizens of the Confederate States, and have the qualifications requisite for electors of the most numerous branch of the State Legislature; but no person of foreign birth, not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political, State or Federal. This qualification manifests an apprecia-

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tion of Southern distinctiveness. The C.S.A. Framers anticipated immigration from Northern and Western States and abroad as the Confederacy prospered. In an attempt to maintain Southern distinctiveness, the franchise was not to be lavishly conferred. However, as stipulated in Article IV, section 3, Other States may be admitted into this Confederacy by a vote of two thirds of the whole House of Representatives and two thirds of the Senate, the Senate voting by States. So non-Southern States could have a voice in C.S.A. politics, once admitted into the C.S.A., but the admission hurdle was set higher. A State could only be admitted to the C.S.A. by a two-thirds vote, whereas in the U.S. Constitution admission to the Union requires only a majority vote. Clause 5 stipulates that “The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment, except that any judicial or other Federal officer, resident and acting solely within the limits of any State, may be impeached by a vote of two-thirds of both branches of the legislature thereof.” The C.S.A. Congress could circumvent this state impeachment power by assigning C.S.A. judicial and other federal officers beyond the limits of any one State. But such circumvention was unlikely, given the strong States’ rights mindset of the Confederacy. Nevertheless, the provision is a strong indication that the States were not to be subservient to C.S.A. judges and bureaucrats. For example, C.S.A. district court judges were for all intents and purposes held accountable to the state legislatures, but the two thirds vote requirement made that accountability juridically stable. Article I, section 6, clause 2, provides that the Congress may, by law, grant to the principal officer in each of the executive departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department. This innovation was a move (or more accurately a turn) toward cabinet government, in which meaningful dialogue between the two branches of government was enhanced. Unlike a committee hearing where executive department heads are questioned by legislators, this arrangement was more conducive to providing the executive branch opportunities to address the Congress on executive branch terms, while also allowing members of Congress to question executive branch officials outside the highly structured committee system. Article I, section 7, clause 2, provides the C.S.A. president with the lineitem veto on appropriation bills. It stipulates that The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in case of other bills disapproved by the President. Legislative pork-barrel riders to appropriation bills would be subjected to executive scrutiny and, if vetoed, subjected to a congressional override.

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Article I, section 8, clause 1, stipulates that “The Congress shall have the power to lay and collect taxes, duties, imposts, and excises, for revenue necessary to pay the debts, provide for the common defense, and carry on the Government of the Confederate States; but no bounties shall be granted from the Treasury; nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry; and all duties, imposts, and excises shall be uniform throughout the Confederate States.” Notably absent (also absent in the preamble) is reference to the “general Welfare” as a congressional objective. This provision put to rest the bugbears of national politics by constitutionally prohibiting protectionism and internal improvements. Article 1, section 8, clause 3, stipulates the congressional power “To regulate commerce with foreign nations, and among the several States, and with Indian tribes; but neither this, nor any other clause contained in the Constitution, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce; except for the purpose of furnishing lights, beacons, and bouys, and other aid to navigation upon the coasts, and the improvement of harbors and the removing of obstructions in river navigation, in all which cases, such duties shall be laid on the navigation facilitated thereby, as may be necessary to pay the costs and expenses thereof.” This provision is a balanced approach to the internal improvements congressional battles, through which revenues from import duties generated by Southern exports were being disproportionately expended in the North and West. The provision did not prohibit federally funded internal improvements, but based those improvements along the lines of a user-pay system. Article 1, section 8, clause 4, stipulates the congressional power “To establish uniform laws of naturalization, and uniform laws on the subject of bankruptcies, throughout the Confederate States; but no law of Congress shall discharge any debt contracted before the passage of the same.” The change from uniform “rules” to “laws” shifted the naturalization process to the national government. 14 This mitigated confusion stemming from Article IV’s privileges and immunities clause, by statutorily standardizing the naturalization process throughout the Confederacy. The bankruptcy provision reassured creditors, within and outside the C.S.A., that debts would not be discharged due to secession. Article 1, section 8, clause 7, stipulates the congressional power “To establish post-offices and post routes; but the expenses of the Post-office Department, after the first day of March, in the year of our Lord eighteen hundred and sixty-three, shall be paid out of its own revenue.” This provision was designed to wean the C.S.A. postal service from governmental subsidies toward a user-pay system.

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Confederate Constitutional Principles

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This modification was designed to remove a huge source of patronage, by removing C.S.A. subsidies for the C.S.A. postal service. This obscure but important change manifests the Confederacy’s attitude toward government’s appropriate role in the economy. C.S.A. Representative William W. Boyce (SC), the sponsor of this change, expressed the Confederate view toward government’s proper role: The Department should be self-sustaining, I assume as axiom; for why should one man be taxed to carry the letters of another? There is no justice in it. Let those who send letters pay for them. It is very convenient, doubtless, for the merchants, literary men, and professional men, to have the hard-working masses pay for their letters; but it is not right . . . Let letters, like merchandise, be carried by private enterprise. The service, I have no doubt, would be well and cheaply done, for private enterprise is always more efficient than Government action. Indeed, when I consider the immense patronage of this Department, as a State-rights man, opposed to too strong a Federal Government, I see great advantage in getting rid of this patronage, and thus simplifying the Government. 15

Article I, section 9, stipulates that “1. The importation of negroes of the African race, from any foreign country other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.” This provision was in response to Northern States that were essentially deporting African-Americans from their jurisdictions, such as Illinois. The prohibition is not only to slaves, but Negroes of African origin. Article I, section 9, clause 2, stipulates that “Congress shall have the power to prohibit the introduction of slaves from any State not a member of, or Territory belonging to, this Confederacy.” This provision specifically refers to slaves. Similar to Article 1, section 9, clause 1, of the U.S. Constitution, without the twenty-year grace period for importing slaves, the C.S.A. Congress was immediately authorized to ban the importation of slaves. Article I, section 9, clause 4, stipulates that “No bill of attainder, ex post facto law, law denying or impairing the right of property in negro slaves shall be passed.” This prohibition applied to the C.S.A. Congress, not to the States. Manumission was a State option. The provision reflects the anticipation that free States would eventually be members of the Confederacy, but unable to use the national government to impose manumission on a minority of States. Article I, section 9, clause 6, stipulates that “No tax or duty shall be laid on articles exported from any State except by a vote of two thirds of both Houses.” Unlike its U.S. counterpart, Article I, section 9, clause 5, that prohibits any export tax or duty, this provision allows for such taxes and duties if approved by a supermajority two-thirds congressional vote. Consis-

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tent with Article I, section 8, clause 3, duties and taxes on exports were consequences of the user-pay policy of such duties shall be laid on the navigation facilitated thereby, as may be necessary to pay the costs and expenses thereof. Article I, section 9, clause 9, stipulates that “Congress shall appropriate no money from the Treasury, except by a vote of two-thirds of both Houses, taken by nays and yeas, unless it be asked and estimated by some one of the heads of departments, and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the Confederate States, the justice of which shall have been judicially declared by a tribunal for the investigation of claims against the Government, which it is hereby made the duty of Congress to establish.” Clauses 9, 10, and 20 were designed to impose fiscal responsibility on the C.S.A. government and to avoid the inefficiencies and abuses of its U.S. counterpart. Distrust of legislative politics is manifested in a new tribunal to be created by the C.S.A. Congress. The anticipated innumerable claims against the C.S.A. government were taken outside the legislative process and made the responsibility of a C.S.A. tribunal to investigate, adjudicate, and pay the settlements. Article I, section 9, clause 10, stipulates that “bills appropriating money shall specify, in Federal currency, the exact amount of each appropriation, and the purpose for which it is made; and Congress shall grant no extra compensation to any public contractor, officer, agent, or servant, after such contract has been made or such service rendered.” This provision effectively prohibits cost overruns, thereby enhancing the credibility of the negotiating process for government contracts. Article I, section 9, clause 20, stipulates that “Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.” This provision restricted the use of omnibus bills, thereby requiring that each bill stand or fall on its own merits. Article I, section 10, clause 3, stipulates that “No State shall, without the consent of Congress, lay any duty on tonnage, except on sea-going vessels for the improvement of its rivers and harbors navigated by the said vessels; but such duties shall not conflict with any treaties of the Confederate States with foreign nations. And any surplus revenue thus derived shall, after making such improvement, be paid to the common Treasury; . . . But when any river divides or flows through two or more States, they may enter into compacts with each other to improve the navigation thereof.” This provision empowered States sharing a common border, 16 by permitting States, without the consent of Congress, to place duties on sea-going vessels, the proceeds of which were to be used to improve river transportation and harbors. Moreover, States connected by a river could also enter into compacts to improve navigation. This compliments the Confederacy’s commitment to free trade

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[i.e., surplus revenue was to paid into the Confederate treasury thereby mitigating against the practice of using duties to promote unrelated internal improvements and protectionism] within the context of a user-pay system [those businesses that benefited from the public expenditures paid for those benefits]. Article II, section 1, stipulates that “The Executive power shall be vested in a President of the Confederate States of America. He and the Vice President shall hold their offices for the term of six years; but the President shall not be reeligible.” Limited to one six-year term, the hope was to elevate the statesmanship of the C.S.A. president, while limiting the opportunities for patronage, coincident with unlimited terms. 17 Article II, section 2, clause 3, stipulates that “The principal officer in each of the executive departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. All other civil officers of the executive department may be removed by the President at any time, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and, when so removed, the removal shall be reported to the Senate, together with the reasons therefor.” By serving at the pleasure of the president, those executive department officials would be more accountable to the president, and less accountable to congressional committees and/or interest groups with agendas working against the president’s policy agenda. 18 Article II, section 2, clause 4, stipulates that “The President shall have the power to fill up vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. But no person rejected by the Senate shall be reappointed to the same during their ensuing recess.” This provision strengthened the hand of the Senate, especially in light of the fact that a Senate recess would stretch for months, not for weeks as the job of a senator evolved to full-time occupation. Article III, section 2, stipulates that “The judicial power shall extend to all cases arising under this Constitution, the laws of the Confederate States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the Confederate States shall be a party; to controversies between two or more States; between a State and citizens of another State, where the State is plaintiff; between citizens claiming lands under grants of different States; and between a State or the citizens thereof, and foreign states, citizens, or subjects; but no State shall be sued by a citizen or subject of any foreign state.” The Confederate Framers incorporated the U.S. Constitution’s Eleventh Amendment sovereign immunity protection into Article III, thereby prohibiting the States from being sued in national courts without the State’s consent.

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Article IV, section 2, clause 1, stipulates that “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.” This provision not only incorporated the Dred Scott ruling that slave property throughout the C.S.A. was constitutionally protected, but, perhaps more importantly, also acknowledged that free States could be members of the C.S.A. Article IV, section 3, clause 1, stipulates that “Other States may be admitted into this Confederacy by a vote of two thirds of the whole House of Representatives and two thirds of the Senate, the Senate voting by States.” Expansion of the C.S.A. was not only anticipated, but encouraged. But unlike the U.S. Constitution that required only a majority vote, the two-thirds vote required by the C.S.A. facilitated greater consensus within the C.S.A. regarding the rate and character of expansion. Article IV, section 3, clause 3, stipulates that “The Confederate States may acquire new territory; and Congress shall have the power to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States, lying without the limits of the several States; and may permit them, at such times, and in such manner, as it may by law provide, to form States to be admitted into the Confederacy. In all such territory, the institution of negro slavery, as it now exists in the Confederate States, shall be recognized and protected by Congress and by the territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.” This provision resolved the territory crisis that had plagued the United States. Resolving it along lines and consistent with the U.S. Supreme Court’s Dred Scott ruling, the provision, as is the case with clause 1 of sections 2 and 3 of this article, does not require slavery as a constitutional prerequisite for admission into the C.S.A. Article V, section 1, clause 1, stipulates that “Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a Convention of all the States, to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made; and should any of the proposed amendments to the Constitution be agreed on by the said Convention—voting by States—and the same be ratified by the Legislatures of two thirds of the several States, or by conventions in two-thirds thereof—as one or the other mode of ratification may be proposed by the general Convention–they shall thence forward form a part of this Constitution. But no State shall, without its consent, be deprived of its equal representation in the Senate.” This provision is designed to protect the interests of a minority of States from being

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victimized by a majority of States. Whereas its U.S. counterpart, Article V, requires a two-thirds majority of the Congress or a national convention called by two-thirds of the States to propose, and three-fourths of either state legislatures or conventions to ratify proposed amendments, the C.S.A. Constitution requires only a small minority, three States, and two-thirds of all the States to ratify. This C.S.A. constitutional innovation is substantial and merits further elaboration. 19 The C.S.A. amendment process stems from the Confederate compact ideal in which the States were the principals and the central government their agent. Defending that principle is defending Jeffersonian decentralized democracy, that is, a central government based upon the consent of the governed. The issue with the compact theory, then and now, is that it is too democratic and therefore presents the most serious challenge to the policy objectives of the national ruling class. 20 This issue is as old as the Union. Publius’s argument for ratification of the 1787 Constitution hinged on his critique of overbearing state majorities, that is, too much democracy in the States. The States of the C.S.A. considered the old Union and their newly established Confederacy to be a compact among the States. The titles of the ordinances of secession reaffirmed the compact theory of the U.S. Constitution. South Carolina set the standard: An Ordinance to Dissolve the Union between the State of South Carolina and the Other States United with her under the Compact Entitled “The Constitution of the United States of America.” 21 The Confederate Framers were determined to remove ambiguity surrounding the nature of the ties connecting the States. The C.S.A. Preamble explicitly refers to the “sovereign and independent character, in order to form a permanent federal government [in contradistinction to a “more perfect Union”]. Excluding the Preamble’s “general Welfare” reference removed another hook upon which to hang centralizing aspirations. As instructed by Calhoun, Southerners did not equate union with consolidation: Having ratified and adopted it [the U.S. Constitution], by mutual agreement, they stand in relation of parties to a constitutional compact; and, of course, it is binding between them as a compact, and not on, or over them, as a constitution . . . the people of the several States, in their sovereign capacity, agreed to unite themselves together, in the closest possible connection that could be formed, without merging their respective sovereignties into one common sovereignty. 22

What held the Confederacy together was the mutual consent of the States, not coercion. As a consensual association, a State’s membership in the Confederacy was contingent upon its consent. A State could procedurally withdraw and reorganize as a free and independent State.

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The compact theory behind the Confederacy is articulated in South Carolina’s secession declaration: “We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that, when no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.” 23 The parties to the compact were the States, and the Confederate government was their common agent, with each State reserving the prerogative to determine whether there is a material breach concerning the obligations of the compact and how to remedy any such breach. Remedies included impeachment of C.S.A. officials by state legislatures, constitutional conventions, nullification, interposition, and even secession. The Confederate compact theory was well within the American political tradition, as evidenced by the 1798 Kentucky and Virginia Resolutions, written by Thomas Jefferson and James Madison, respectively: “[T]he Government created by this compact (the U.S. Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself . . . But in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as the mode and measure of redress.” 24 The C.S.A.’s amendment process is a procedural mechanism to maintain the compact nature of the C.S.A. Constitution and is a modified version of Calhoun’s concurrent majority. The concurrent majority is a constitutional mechanism designed to facilitate compromise, maximize the consent of the governed, and preserve the consensual union of States. Providing the States with the constitutional means to resist usurpations of the central government may [and assuredly would as the union became increasingly economically, socially, and culturally heterogeneous] substantially limit the policy prerogatives of the central government. Calhoun expressed the Southern perspective: The more extensive and populous the country, the more diversified the condition and pursuits of its population; the richer, the more luxurious, and dissimilar the people, the more difficult it is to equalize the action of the government, and the more easy for one portion of the community to pervert its powers to oppress and plunder the other. 25

Even though the prospects for “plunder” under the C.S.A. Constitution, with its augmented internal checks and balances on the central government, were much lower, the C.S.A. Framers were very cognizant of the momentum towards centralization once a central government is established. As instructed by Calhoun, a dominant political party will eventually emerge making constitutional checks and balances nugatory, unless the States’ rights were procedurally and constitutionally guaranteed:

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A written constitution certainly has many considerable advantages, but it is a great mistake to suppose that the mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powers. Being the party in the possession of the [central] government, they will, from the same constitution of man which makes government necessary to protect society, be in favor of the powers granted by the constitution and opposed to the restrictions intended to limit them. 26

The emergence of the national two-party system overwhelmed the U.S. Constitution’s internal checks and balances. Centralization of political power at the national level by definition is problematical for the checks and balances designed to preserve a decentralized federal system. The election of Lincoln personified the sort of centralization Southerners had long feared. As a reaction, some of the Southern States (South Carolina, Florida, Mississippi, Louisiana, Alabama, Georgia, and Texas) resorted to the ultimate exercise of States’ rights, secession from the union, as the only effective way to secure their regional minority interests from the hostile policy objectives of the sectional Republican Party. Other southern States (Virginia, North Carolina, Tennessee, Kentucky, and Arkansas) took a waitand-see attitude and eventually sided with the States forming the Confederacy when they determined that Lincoln’s Republican Party was determined to use coercive means to secure a centralized end, an end incompatible with the compact theory of the Union. In his first inaugural address President Lincoln rejected the compact theory of the Constitution and rebuked the seceded States. He maintained that “no State, upon its own mere motion, can lawfully get out of the Union; that resolves and ordinances to that effect, are legally void; and that acts of violence within any State or States against the authority of the United States, are insurrectionary or revolutionary, according to the circumstances.” 27 The South’s position was that “the whole question is whether or not the State can release her citizens from their obligations to the federal authority, and protect them under the sufficient shield of her own sovereign authority! . . . Hapless would be the condition of these States if their only alternative lay between submission to a government of self-construed, or, in other words, unlimited powers, and the certainty of coercion, in the case of withdrawal, by force of arms. The way of escape from both extremes is the acknowledged right of secession.” 28 The compact theory of the C.S.A. Constitution was bolstered by its covenantal qualities. Although the States were consensually united together within the Confederacy, it was more of a brotherhood based upon the good faith 29 of the parties than an expedient association for mutual exploitation. In this context “a covenant differs from a compact in that its moral dimensions take

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precedence over its legal dimensions. In its heart of hearts, a covenant is an agreement in which a higher moral force, traditionally God, is either a direct party to or guarantor of a particular relationship. Whereas, when the term compact is used, moral force is only indirectly involved. A compact, based upon its mutual pledges rather than guarantees by or before a higher authority, rests more heavily on a legal though still ethical grounding for its politics.” 30 The original U.S. Constitution was most certainly a compact document with a strong covenant component. But the constitution adhered to by President Lincoln was a secular legal contract, in which no State “can lawfully get out of.” This Lincoln view is what so alarmed Southerners. If strictly a legal document the U.S. Constitution was amenable to the malice and dishonesty of the majority Republican Party, twisting its terms to defraud the Southern States when opportunities to do so arose. Coercion displaced good faith as the primary force keeping the Union intact. In the absence of that good faith there was a de facto disunion between the North and South. Secession merely made the separation de jure. Taking confidence in the C.S.A. Constitution’s specific reference to the “favor and guidance of Almighty God,” Thomas R. R. Cobb “acknowledged the overruling providence of God” as the guarantor of the good faith of the parties to the C.S.A. Constitution. 31 The three-State minimum to convene a constitutional convention would, in a confederacy of bickering antagonistic States, probably be regularly resorted to and utilized as a council of revision augmenting routine normal checks and balances and separation of powers. But when considered within the context of the Confederacy, a context of state sovereignty and the good faith of the parties, the streamlined amendment process was a constitutional mechanism at the disposal of the States to update and/or clarify the terms of their association. For example, what would have been the effect of this amendment process under the U.S. Constitution when the U.S. Supreme Court issued rulings objectionable to several of the States, or the U.S. Congress passed fiscal policies detrimental to a number of States? A State or States would have the constitutional means to address such matters in a convention of the States and propose remedies. If remedies were not forthcoming, and a pattern of clashing irreconcilable interests becomes the rule rather than the exception, then the States could reevaluate the value of their continued association and act accordingly. The C.S.A.’s streamlined amendment process may not necessarily be an efficient way to check the advance and expansion of its central government, but the consent/interest of the States, not efficiency, was the primary objective of the C.S.A. Framers. Furthermore, a limited central government commensurately reduces the potential for political conflict between the States. Calhoun articulated the Southern view:

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The moment Government is put into operation, as soon as it begins to collect taxes, and make appropriations, the different portions of the community, must, of necessity, bear different and opposing relations in reference to the action of the Government. There must inevitably spring up two interests--a direction and stockholding interest; and interest profiting by the action of the Government, and interested in increasing its powers and action; and another at whose expense the political machine is kept in motion. 32

There may be dissatisfaction among those seeking to utilize the central government to promote their economic and social agendas, being frustrated by obstacles placed in the paths of self-aggrandizement by those who would otherwise incur the expenses of such policies. By curtailing the central government’s capacity to coerce compliance with policies contrary to the interest of certain States, decentralization is enhanced. In the Confederacy there would not be federally funded internal improvements, funded by regionally biased tariffs, and sustained by Jacksonian force bills, because the C.S.A. central government lacked both the constitutional prerogatives to legitimatize such policy and the capacity to overcome determined state resistance to such policies. The normative question of the States’ proclivity and capacity to effectively function in a decentralized setting is an important one. Distrust of the States’ capacity for judicious self-government that respects fundamental rights is as old as the U.S. Constitution. This is why Federalists insisted that the national bill of rights apply to the States. While discussing a bill of rights in the U.S. House, Madison maintained that “I think there is more danger of those [governmental] powers being abused by the State Governments than by the Government of the United States. The same may be said of the other powers they may possess, if not controlled by the general principle, that laws are unconstitutional which infringe upon the rights of the community.” 33 This explains the proposed Federalist amendment (which was passed in the House but defeated in the Senate), to be inserted in Article I, section 10: “No State shall violate the equal rights of conscience, or freedom of the press, or trial by jury in criminal cases.” 34 Madison articulated the Federalist position in the Virginia ratifying convention. When discussing religious liberty he stated “That it is better that his [Virginian citizen] security be depended upon from the general [national] legislature, than from one particular state. A particular state may concur in one religious project. But the United States abound in such a variety of sects, that it is a strong security against religious persecution; and it is sufficient to authorize a conclusion, that no one sect will ever be able to outnumber or depress the rest.” 35 The Antifederalist response to national supremacy in the areas of political and civil rights was voiced by Representative Thomas Tudor Tucker: “It seemed to him [Tucker] as if there was a strong propensity in this Govern-

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ment to take upon themselves the guidance of the State Governments, which to his mind implied a doubt of their capacity to govern themselves, and deserved more to be trusted than this did, because the right of the citizen was more secure under it.” 36 Taking the Antifederalist side of the argument, the C.S.A. Framers did trust state governments more than the central government to judiciously govern without violating fundamental rights. This is reflected in their rewrite of the Ninth Amendment to the U.S. Constitution and its location in the C.S.A. Constitution: U.S. Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. C.S.A. Article Six, clause 5: The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people of the several States.

Rights “retained by the people” is general and has been distorted to mean a general standard of rights applicable to the national community, whereas rights “retained by the people of the several States” is particular, and denotes a diversity of standards to be established by the political processes in the respective States. Moreover, the state political processes were augmented by the C.S.A. Constitution’s reserved powers clause: U.S. Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. C.S.A. Article VI, clause 6: The Powers not delegated to the Confederate States, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.

In the C.S.A., the reserved powers are reserved to the States or to the people thereof. In other words, the people within the States still reserved certain powers, with the exercise of those powers not contingent upon the approval of the political branches of the central government exercising the reserved powers of the American people. Outside the States there are no reserved powers, neither in the U.S. territories, the District of Columbia, nor in the American people. The constitutional mandate to apply the C.S.A. bill of rights to the C.S.A. central government and the reserved powers being the exclusive prerogative of the States are reinforced by its placement in Article I, section 9. Counterparts to the U.S. Constitution’s first eight amendments were incorporated

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into that ninth section of Article one. In short, the C.S.A. Constitution restricts the C.S.A. government much more extensively than the U.S. Constitution restricts the U.S. government. This constitutional arrangement was necessitated by the constitutional status of the States vis-à-vis the C.S.A. central government. In the aftermath of over half a century of wrangling over the status of the States vis-à-vis the U.S. government, the C.S.A. Framers placed the C.S.A. government firmly under the heels of the States. The C.S.A. Constitution moved towards the constitutional resolution of the political monster that tormented the Union, the imperium in imperio. There was much less ambiguity about divided sovereignty in the C.S.A. Sovereignty remained where it originated, in the States. Because sovereignty resided with the respective States, the C.S.A.’s central government was the agent of the States and the state governments the agents of their respective citizens. If C.S.A. policies were permitted to coercively prevail over the vehement objections of a State, then the citizens of that State would cease to be self-governing regarding those national policies. Under the C.S.A. model of federalism a state legislature, with a two-thirds vote, could impeach any “judicial or other federal official acting solely within the limits of any State,” 37 or convene a constitutional convention with two other States. 38 If these measures proved to be inadequate, a State could secede with the option to accede back into the Confederacy under new arrangements. A State’s right to secede was implicit in both the U.S. and C.S.A. Constitutions. The C.S.A. Framers concluded that to make that right explicit in the C.S.A. Constitution would be yielding to the Republican Party’s argument that if such a right is not expressly granted it does not constitutionally exist. Southerners maintained that it is a reserved right of the compact and acknowledged in the law of nations. 39 But the C.S.A. Framers were also realists. The seven States that had initially seceded from the Union had the practical problem of attracting the support of the border states and certain European powers. To constitutionally mandate the right of secession would give the appearance of a loose league of disparate States held together by a feeble central government. In reference to the U.S. Constitution, Jefferson Davis contended: The simple truth is that it would have been a very extraordinary thing to incorporate into the Constitution any express provision for the secession of the States and the dissolution of the Union. Its founders undoubtedly desired and hoped that it would be perpetual; against the proposition for power to coerce a State, the argument was that it would be a means, not of preserving, but of destroying the Union. It was not for them to make arrangements for its termination—a calamity which there was no occasion to provide for in advance . . . . It was not necessary in the Constitution to affirm the right of secession, because it was an attribute of sovereignty, and the States had reserved all they had not delegated. 40

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There was no need for the C.S.A. Framers to explicitly insert a right of secession. By explicitly recognizing the “sovereign and independent character” of the States in acceding to join the C.S.A., it was implicit that secession was a reserved power. St. George Tucker 41 stated what was obvious to the Framers of the U.S. and C.S.A. Constitutions: The powers delegated to the federal government being all positive, and enumerated according to the ordinary rules of construction, whatever is not enumerated is retained; for expressum facit tacere tacitum [that which is expressed makes that which is implied to cease] is a maxim in all cases of construction: it is likewise a maxim of political law, that sovereign states cannot be deprived of any of their rights by implication; nor in any manner whatever by their own voluntary consent, or by submission to a conqueror. 42

Moreover, by substantially augmenting the constitutional constraints on its central government, even if the C.S.A president aimed to coercively prevent a State or States from seceding, he lacked not only constitutional authority but also the power to do so. Under the protection of the C.S.A. Constitution, States could much more effectively thwart at every turn an aggressive C.S.A. chief executive. In conclusion, to appreciate some probable policy implications of the C.S.A. Constitution consider those U.S. Supreme Court policies that in the absence of the States acquiescence are precluded under the C.S.A. model: (a) an expansive interpretation of Congressional commerce powers, 43 (b) national judicial supremacy, 44 (c) militarily coerced membership in the Union, 45 (d) the supremacy of U.S. treaties and international agreements over the States’ Tenth Amendment reserved powers, 46 (e) presidential imperial powers, 47 (f) incremental secularization of the States, 48 (g) an electorally entrenched U.S. Congress, 49 (h) due process privacy rights of abortion, sexuality, and so on. 50 The C.S.A. model does not preclude the States from individually adopting and/or rejecting these and other policies within their respective jurisdictions. States’ rights is amenable to such an arrangement. But it does preclude such policies from being imposed upon an unwilling and, for that matter, indifferent State. For a state government to act it must have the tacit or active consent of its citizenry; it cannot frustrate that consent by acting through the central government and/or acquiesce to central government policies the people of the State reject. This is well armed States’ rights republicanism, that is, self-government, as opposed to centralized supremacy, that is, government by a mostly unaccountable centralized ruling class. If Lee’s cause was lost, then so too was the original American quest for a limited and frugal central government accountable to the States.

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NOTES 1. See Bruce Levine, The Fall of the House of Dixie: The Civil War and the Social Revolution That Transformed the South (New York: Random House, 2013), 11. 2. See Stanley M. Elkins, Slavery: A Problem in American Institutional and Intellectual Life, 2nd ed. (Chicago University Press, 1968), 3, cited in “Using the Testimony of Ex-Slaves: Approaches and Problems,” by John W. Blassingame, The Journal of Southern History XLI, no. 4 (November 1975): 473. 3. Michael Fellman, The Making of Robert E. Lee (New York: Random House, 2000), 67. 4. Freeman, IV, 303. Many Union supporters acknowledged that slavery was not the primary motive behind Southern independence. For example, Francis H. Pierpont, the Union war governor of Virginia and West Virginia’s first governor, stated in his June 17, 1861 speech to the Wheeling Convention that “Now, sir, it has been said that the protection of negro slavery was the great object of this revolution. I deny, Sir, the whole proposition from beginning to end. And I assert that slavery was only the occasion, the pretext for the rebellion, and for steps taken to bring it on. . . . They were dissatisfied with the Union. . . . They wanted a different government—one more suited to their tastes and habits of life.” Charles H. Ambler, Francis H. Pierpont: Union War Governor of Virginia and Father of West Virginia (Chapel Hill: The University of North Carolina Press, 1937), 369. 5. As stated by Senator Jefferson Davis, “I do not regard the failure of our constitutional Union, as very many do, to be the failure of self-government; to be conclusive in all future time of the unfitness of man to govern himself. Our State governments have the charge of nearly all the relations of personal property. This Federal Government was instituted mainly as a common agent for foreign purposes, for free trade among the States, and for common defense.” Senator Jefferson Davis, January 10, 1861, U.S. Senate; see Marshall L. DeRosa, The Politics of Dissolution (New Brunswick, NJ: Transaction Publishers, 1998) 227. 6. One legal scholar asserts that the C.S.A. Constitution is “suspiciously like the federal Constitution in many details.” Lawrence M. Friedman, A History of American Law, 2nd ed. (New York: Simon & Schuster, 1985), 342. 7. Text in italics is not in the original. 8. John Taylor, Construction Construed and Constitutions Vindicated (Richmond, VA: Shepherd and Pollard, 1820). Chapter: Section 3: Sovereignty; accessed at http://oll. libertyfund.org/title/899/43608 on 2013-07-12. 9. The Politics of Dissolution, 342. 10. The Politics of Dissolution, 342. 11. The same commitment to States’ rights is found in article II of the Articles of Confederation: “Each State retains its sovereignty, freedom and independence, and every Power, Jurisdiction and rights, which is not by this confederation expressly delegated to the United States, in Congress assembled.” It is noteworthy that the powers were delegated to the Congress assembled, and not to the chief magistrate. 12. The 1830 U.S. Senate debate between Senators Haynes (SC) and Webster (MA) in all probability shaped Lincoln’s politics. See “The Great Debate between Hayne and Webster,” The Library of Congress, www.archive.org/details/greatdebatebetwe00hayn. 13. This was an important topic in the 1787 Philadelphia convention. The nationalist Governour Morris commented that the difference between a “federal” and a “national” government is that the former is a “mere compact resting on the good faith of the parties” whereas the latter has a “compleat (sic) and compulsive operation” (Madison’s journal of May 30, in Farrand, 34). 14. A rule is a “prescribed guide for conduct or action, regulation or principle,” whereas a law is ordained and established, in effect a statute; see Black’s Law Dictionary. 15. Quoted in Marshall L. DeRosa, The Confederate Constitution of 1861: An Inquiry into American Constitutionalism (Columbia: University of Missouri Press, 1991), 97. 16. The U.S. Constitution permitted the States, with congressional consent, to “lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws” (Article I, section 10, clause 2).

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17. Similar reasons were behind the ratification of the Twenty-second Amendment to the U.S. Constitution in 1951, which limited the U.S. president to two terms. 18. The impeachment proceedings in the House against President Andrew Johnson would not have been possible in the C.S.A. President Johnson would have been able to purge his administration of Radical Republicans, if he desired to do so. 19. It is important to keep in mind that the C.S.A. Framers expect the confederacy to expand, eventually included States northward along the Mississippi Valley and westward. Their confidence in limited government and free trade led them to believe that many of the free States in the old Union would join to participate in the economic prosperity of the C.S.A., leaving the Northeastern States to wither on the vine of economic stagnation. Senators in those States shared that concern and bemoaned competing against their C.S.A. rivals. See my Politics of Dissolution. 20. Richard Posner repeatedly and correctly contends that “state governments were (and are) more democratic than the federal government.” Richard A. Posner, Law, Pragmatism, And Democracy (Cambridge, MA: Harvard University Press, 2003), 148. 21. Journal of the Congress of the Confederate States of America, 1861–1865, Volume I:7, accessed at http://memory.loc.gov/cgi-bin/ampage?collId=llcc&fileName=001/llcc001.db& recNum=6&itemLink=r?ammem/hlaw:@field(DOCID+@lit(cc0011))%230010001& linkText=1. 22. John C. Calhoun, A Discourse on the Constitution and Government of the United States, in Union and Liberty: The Political Philosophy of John C. Calhoun, Ross M. Lence, ed. (Indianapolis, IN: Liberty Fund Press, 1992), 194–95. 23. The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies; Volume 1:3; accessed at http://ebooks.library.cornell.edu/m/moawar/ waro.html. 24. Commager, ed., Documents of American History (New York: F. S. Crofts & Co., 1943), 1:178-79. 25. Calhoun: Basic Documents, ed., John M. Anderson (University Park: Penn State University Press, 1993), 155. 26. Basic Documents, 47, 48, 49. 27. First Inaugural Address of Abraham Lincoln, March 4, 1861, The Avalon Project, http:// avalon.law.yale.edu/19th_century/lincoln1.asp. 28. J. K. Spaulding, State Sovereignty and the Doctrine of Coercion, Charleston, 1860, 6, 28. 29. “In common usage the term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation” (Black’s Law Dictionary). 30. Daniel J. Elazar and John Kincaid, eds., Covenant, Polity, and Constitutionalism (New York: University Press of America, 1980), 11. 31. A. L. Hull, “The Making of the Confederate Constitution,” Southern Historical Society Papers, 28 (1900): 291. 32. Basic Documents, 176. 33. Annals of Congress of the United States (Washington, DC: Gales and Seaton, 1834), 1:458. 34. Annals of Congress, 1:452. 35. Elliot, ed., Debates, 3:330. This is essentially Madison’s “extended republic” argument; see TFP, #10. 36. Annals of Congress, 1:800–1. 37. Article I, section 2, clause 5. 38. Article V. 39. See chapter 1, infra. 40. Jefferson Davis, The Rise and Fall of the Confederate Government, 2 vols. (New York: D. Appleton and Company, 1881), 1:172–73. 41. The credentials of St. George Tucker as an authority on the meaning of the U.S. Constitution are impeccable. In 1803 he published an expanded and annotated edition of William Blackstone’s Commentaries on the Laws of England. Tucker became known as the American

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Blackstone. Recently editors have noted that “For lawyers and scholars alike, Tucker’s Blackstone remains a key source for understanding how Americans viewed English common law in the years following the adoption of the Constitution and Bill of Rights. Moreover, his work offers significant insights into the understanding of the meaning of the Constitution and Bill of Rights at the time of their adoption. In The Founders’ Constitution, for example, Professors Philip Kurland and Ralph Lerner use passages from volumes one and two of Tucker to help explain the meaning of free speech, freedom of the press, and the right to petition. They also quote portions of Tucker to illustrate the contemporary meaning of the Second, Third, Fourth, and Tenth Amendments. In other volumes they cite Tucker to elucidate much of the rest of the Constitution.” St. George Tucker’s Blackstone’s Commentaries, eds. Paul Finkelman and David Cobin (Union, NJ: The Lawbook Exchange, Ltd., 1996), i–ii. 42. St. George Tucker, View of the Constitution of the United States; With Selected Writings, Clyde N. Wilson, ed. (Indianapolis, IN: Liberty Fund Inc., 1999), 94. 43. McCulloch v. Maryland (1819), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/1792-1850/1819/1819_0; Gibbons v. Ogden (1824), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/1792-1850/ 1824/1824_0. 44. Cohens v. Virginia (1821), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/1792-1850/1821/1821_0 and Martin v. Hunter’s Lessee (1816), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/ cases/1792-1850/1816/1816_0. 45. Texas v. White (1869), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/1851-1900/1868/1868_0. 46. Missouri v. Holland (1920), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/1901-1939/1919/1919_609. 47. United States v. Curtiss-Wright Export Corp. (1936), The Oyez Project at IIT ChicagoKent College of Law, accessed at www.oyez.org/cases/1901-1939/1936/1936_98. 48. Engel v. Vitale (1962)," The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/1960-1969/1961/1961_468; Lemon v. Kurtzman (1971), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/1970-1979/1970/ 1970_89. 49. U.S. Term Limits v. Thorton (1995), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/1990-1999/1994/1994_93_1456. 50. United States v. Carolene Products Co. (1938), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/1901-1939/1937/1937_640; Griswold v. Connecticut (1965)," The Oyez Project at IIT Chicago-Kent College of Law, accessed at www. oyez.org/cases/1960-1969/1964/1964_496; Roe v. Wade (1973), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/1970-1979/1971/1971_70_18; Lawrence and Garner v. Texas (2003), The Oyez Project at IIT Chicago-Kent College of Law, accessed at www.oyez.org/cases/2000-2009/2002/2002_02_102.

Chapter Three

Political Obligation in a Federal Republic

I had no other guide, nor had I any other object than the defense of those principles of American liberty upon which the constitutions of the several States were originally founded. —Robert E. Lee, 1866 While I have considered the preservation of the constitutional power of the General Government to be the foundation of our peace and safety at home and abroad, I yet believe that the maintenance of the rights and authority reserved in the states and to the people, [is] not only essential to the adjustment and balance of the general system, but the safeguard to the continuance of a free government. I consider it as the chief source of stability to our present system, whereas the consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at home, will be the certain precursor of that ruin which has overwhelmed all those that have preceded it. —Robert E. Lee, 1869

The antebellum America in which Robert E. Lee lived and served was a federal republic, in which the powers of the U.S. government were substantially constrained and those of the States paramount. 1 It was an America where States were sovereign over the U.S. government which was their collective agent. Importantly, it was also an America in which the States’ continued membership in the Union was voluntary. In short, the Union was a compact among the several States. But political expediency more often than not trumped support for the original constitutional design. Whether the issue was central banking, internal improvements, fiscal policy, foreign policy, and/or slavery, political operatives resorted to the level of government which provided them with the best prospects for achieving their policy objectives. By the 1850s demographic trends favored States north of the Mason-Dixon Line as the dominant 43

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region in national politics. It was becoming increasingly clear to the Southern States that their interests were being marginalized in national politics. The prospect of being dominated by hostile political forces placed the South in increasingly precarious political circumstances, not only regarding the peculiar institution but also national fiscal policy. Aware of the Southern States’ pending marginalization in national politics, in 1852 South Carolina seriously contemplated seceding from the Union and noted as much in its December 24, 1860, Declaration of Causes: The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue. 2

The election of Lincoln confirmed South Carolina’s worse fears: The guaranties of the Constitution will then no longer exist; the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy. Sectional interest and animosity will deepen the irritation, and all hope of remedy is rendered vain, by the fact that public opinion at the North has invested a great political error with the sanction of more erroneous religious belief. 3

In February 1861 Texas also cited its marginalization in national politics as a rationale for its secession from the Union: The controlling majority of the Federal Government, under various pretences and disguises, has so administered the same as to exclude the citizens of the Southern States, under odious and unconstitutional restrictions, from all the immense territory owned in common by all the States on the Pacific Ocean, for the avowed purpose of acquiring sufficient power in the common government to use it as a means of destroying the institutions of Texas and her sister slaveholding States. . . . By consolidating their [the northern States] strength, they have placed the slave-holding States in a hopeless minority in the federal congress, and rendered representation of no avail in protecting Southern rights against their exactions and encroachments. 4

Mississippi declared:

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Utter subjugation awaits us in the Union, if we should consent longer to remain in it. It is not a matter of choice, but of necessity. We must either submit to degradation, and to the loss of property worth four billions of money, or we must secede from the Union framed by our fathers, to secure this as well as every other species of property. For far less cause than this, our fathers separated from the Crown of England. 5

As the religious, economic, and political ties between North and South began to snap, one of the last unifying ties was the U.S. army. With officers and enlisted men throughout the Union bound together in the traditions and duties of the U.S. military, Lee felt the tremors shaking the Union’s foundations. As a U.S. army officer he was understandably publically detached from the brewing political storm. Nevertheless, his public demeanor should not be mistaken for personal aloofness from or ignorance of the events surrounding him. As the events came to a head and transitioned toward war, Lee was prepared to act. He understood that to be complicit with the Republican Party’s determination to war against the Confederacy would require the abandonment of what he held most dear, including his faith, family, and Virginia. In other words, he would have to cease being the man he was. Lee did not live in a vacuum and realized that much of the enmity between the North and South was at root religious. The constitutional order of 1789 and the truth of biblical revelation were under assault by intellectuals, most of whom were north of the Mason-Dixon Line and concentrated in New England. 6 Although Americans, North and South, shared a common religion, that is, Protestantism, and the antebellum Great Awakening was national in scope, a substantial divide concerning Christianity opened up among intellectuals along regional lines. Political rhetoric reflected the radical intellectual arguments that alarmed Southerners. For example, on June 16, 1858, U.S. Senate candidate Lincoln began his speech to the Illinois Republican Party with the following warning that either the Southern or Northern civilization will prevail: If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it. We are now far into the fifth year, since a policy was initiated with the avowed object, and confident promise, of putting an end to slavery agitation. Under the operation of that policy, that agitation has not only not ceased, but has constantly augmented. In my opinion, it will not cease, until a crisis shall have been reached and passed. “A house divided against itself cannot stand.” I believe this government cannot endure permanently half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its

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Chapter 3 advocates will push it forward, till it shall become alike lawful in all the States, old as well as new—North as well as South. 7

As explained by Robert Penn Warren, this type of rhetoric is political insanity, “a step towards fanaticism; it tends to sharpen controversy to some exclusive and vindictive point.” 8 If Lincoln is to be believed, what decent Northerner would not be justified in taking up arms against an hegemonic southern slavocracy. And what sort of Southerner could be content to remain in a Union in which he is villainized, especially when the villainization was due to his conservative worldview? On October 19, 1858, Jefferson Davis noted as much when he delivered a speech in New York City warning, You have among you politicians of a philosophic turn, who preach a higher morality; a system of which they are the discoverers, and it is hoped will long remain the exclusive possessors. They say, it is true the Constitution dictates this, the Bible inculcates that; but there is a higher law than those, and call upon you to obey that higher law, of which they are the inspired givers. Men who are traitors to the compact of their fathers-men who have perjured the oaths they have themselves taken-they who wish to steep their hands in the blood of their brothers; these are the moral law-givers who proclaim a higher law than the Bible, the Constitution and the laws of the land. This higher-law doctrine, it strikes me, is the most convenient one I ever heard of for the criminal. You, no doubt, have a law which punishes a man for stealing a horse or a bale of goods. But the thief would find convenient a higher law which would justify him in keeping the stolen goods. The doctrine is now advanced to you only in relation to property of the Southern States, thus it is the pill gilded, to conceal its bitterness; but it will react deeply upon yourselves if you accept it. What security have you for your own safety if every man of vile temper, of base purpose, can find in his heart a higher law than that which is the rule of society, the Constitution, and the Bible?...The man who with syncophantic face and studied phrase, and with assumed philosophic morality, preaches treason to the Constitution and the dictates of all human society, is a fit object for a lynch law that would be higher than he could urge. 9

On October 25, W. H. Seward responded: Shall I tell you what this collision means? They who think that it is accidental, unnecessary, the work of interested or fanatical agitators, and therefore ephemeral, mistake the case altogether. It is an irrepressible conflict between opposing and enduring forces, and it means that the United States must and will, sooner or later, become either entirely a slaveholding nation, or entirely a freelabor nation. . . . . It is the failure to apprehend this great truth that induces so many unsuccessful attempts at final compromises between the slave and free States, and it is the existence of this great fact that renders all such pretended compromises, when made, vain and ephemeral. . . . . I know, and you know,

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that a revolution has begun. I know, and all the world knows, that revolutions never go backward. 10

Northern politicians such as Lincoln and Seward were instrumental in sowing the seeds of a revolution that had its origins in an intellectual revolt against tradition and the constitutional status quo predicted on tradition. With Southerners relying on the Bible and the U.S. Constitution, the Republican Party resorted to higher law, with an emphasis on transcendent equality—not equality before the law, a concept the Southerners adhered to and embodied in the C.S.A. and state constitutions. This was a rhetorical abstract proposition promoting a type of U.S. government—orchestrated equality. This is, in embryonic form, the refounding of America placed into motion by the quest for the humanitarian egalitarianism that Brownson and Kirk identified. Seward incorporated this thinking into the Republican Party, trumping the U.S. Constitution with a higher law, the “law of divine equality”: [A]s a general truth, communities prosper and flourish, or droop and decline, in just the degree that they practice or neglect to practice the primary duties of justice and humanity. The free-labor system conforms to the divine law of equality, which is written in the hearts and consciences of man, and therefore is always and everywhere beneficent. 11

An intellectual revolution was gaining full-throttled entry into partisan politics, 12 hampering the capacity of parties to curb extremism via the channels of common sense. 13 Professor Genovese provided insight into what was at stake and why the traditional South was alarmed: This debate constituted part of a larger debate over religious orthodoxy and the steady retreat of the northern theologians into a watering down, not to say abandonment, of the doctrines of original sin, human depravity, and the nature of God as a God of Wrath—“a jealous God.” From the perspective of the leading southern theologians, the increasingly liberal religious doctrines of the northern divines—those “baptized infidels,” as they were known in the South—complemented the cancerous doctrines of radical democracy and egalitarianism. 14

However, this quest for equality was not color blind. The leaders of the Republican Party suffered from what has been described as “negrophobia” and did not consider blacks the equals of whites. Lincoln, for example, in his August 21, 1858, debate with Senator Douglas affirmed, I have no purpose to introduce political and social equality between the white and black races . . . I, as well as Judge Douglas, am in favor of the race to which I belong having the superior position. . . . Free them [slaves] and make

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Chapter 3 them politically and socially our equals? My own feelings will not admit of this. We cannot, then, make them equals. I have never said anything to the contrary, but I hold that, notwithstanding all this, there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness. 15

Many in the Southern ruling class, including Lee, would concur with Lincoln regarding the place of blacks in American society and the quandary presented by the Declaration’s commitment to unalienable rights. For many Southerners the problem with Lincoln’s framing of the slavery issue was its inconsistency with the U.S. Constitution. Yes, slavery was anathema to the Declaration’s commitment to the unalienable rights of life, liberty, and the pursuit of happiness. Nevertheless, slavery was not anathema to the U.S. Constitution, which secured to the States the right to settle the slavery issue. This is why, in 1832, William Lloyd Garrison described the constitutional compact as “wicked and ignominious” and advised the New England States to leave the Union. 16 The Republican Party would not tolerate the breakup of the Union for several reasons, beyond its profitability for Northern interests. The focus was on human progress, in which a unitary democratic form of “government over all the people, by all the people, for the sake of all” is essential. 17 In other words, it aimed to destroy the old order, and if that meant subordinating the States to nationally based ruling class, so be it. As explained by Genovese, the liberation of African Americans from slavery had a deeper politically transformative meaning for Northern intellectuals. The “struggles of black people have had a double aspect throughout the course of American history—as distinct struggles for black liberation and as an integral part of the American people against reaction” (i.e., the Marxists’ alleged class exploitation of the haves against the have nots). It was part and parcel of an ideological quest to “effect a deep structural transformation in American society,” 18 using higher law arguments within a religious context. If this religious context did not conform to orthodox Christianity, then the adoption of a progressive Christianity which would conform was the solution. This helps to explain why many of the theologians supportive of the Republican Party ceased to be Christian in any real sense. This development posed a profound challenge to an American civilization grounded in Christianity. As observed by De Tocqueville, “Religion, which never intervenes directly in the government of American society, should therefore be considered as the first of their political institutions . . . it singularly facilitates their use of [liberty].” Thus, using a progressive religion as a means to achieve a new political end, that is, the transformation of American society, would ultimately undermine traditional American liberty. 19

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Lee was aware of this development. He acknowledged the role of Christianity in maintaining political institutions and the Union. In January 1861, while traveling from Texas to Virginia, in a letter to his wife he reflected on the state of the Union. He observed that “we are between a state anarchy and civil war” and prayed that God would “avert us from both.” Noting that it “has been evident for years that the country was doomed to run the full length of democracy” has brought the country to this “fearful pass.” Lee was echoing the concerns of many that the Constitution had a tendency toward an elected tyranny. 20 He contended that the people were not “sufficiently Christian to bear the absence of restraint and force” provided by adherence to the system of government, that is, republicanism and the constitutional rule of law, for which George Washington labored. 21 Combined with the politicization of higher law, the constitutional checks against an elected tyranny would be substantially weakened. In another letter written the same day he conceded that he was for preserving the Union and abhorred the impending revolution secession was igniting. Nevertheless, he acknowledged that “the South . . . has been aggrieved by the acts of the North” and feels “the aggression” and is “willing to take every proper step for redress” and “would defend any State if her rights were invaded.” Anticipating the emergence of an “elected tyranny” while hoping for the restoration of the Union of “Washington, Hamilton, Jefferson, Madison and the other patriots of the [American] Revolution,” Lee knew his duty. He confided that a Union that can only be maintained by swords and bayonets, and in which strife and civil war are to take the place of brotherly love and kindness, has no charm for me. I shall mourn for my country and for the welfare and progress of mankind. If the Union is dissolved, and the government disrupted, I shall return to my native State and share the miseries of my people, and save in defence will draw my sword on none. 22

Lee’s sentiments reflect his awareness that the Union was at the crossroads of fundamental change. Proponents of using the U.S. government to promote “human progress” cared little about maintaining the traditional American Christian republic and the States’ rights federalism underpinning that republic. As was the case in revolutionary France, radicals “look on republican institutions as a temporary expedient for their own aggrandizement.” If de Tocqueville is correct, that “despotism may be able to do without faith, but freedom cannot,” 23 then the Confederacy’s reaction, including Lee’s, was a defense of the American Christian civilization and American liberty. Karl Marx was also a keen observer of the conflict and the ideas behind it. In correspondence between Marx and leaders in the Republican Party, he encouraged President Johnson “to uproot by the law what has been felled by the sword, to preside over the arduous work of political reconstruction and

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social regeneration.” Marx wrote to Lincoln and others that abolition was a first step in liberating black and white working classes from oppression. According to Marx, Southerners were the conservatives and Northerners the revolutionaries. 24 Similar to Lord Acton, who considered the Confederate cause as the cause for Christian values, Marx, an adherent of Hegel’s dialectical materialism, viewed the outcome as inevitable. Convinced that American capitalism contained the seeds of its own destruction, he viewed the Confederacy’s defeat as an important step toward ending America’s attachment to capitalism and Christianity. This is not meant to imply that Lincoln shared Marx’s optimism or end game, but both acknowledged the war was a critical turning point in America’s development. Marxism had its counterparts in antebellum America. It’s not happenstance that nineteenth century experiments in socialism and atheism were Northern and not Southern phenomena, such as New Harmony and Brook Farm. The former, established in 1825 in Indiana, rebelled against the “trinity of evils of private property, irrational systems of religion, and marriage founded on property and religion.” 25 The latter, established in 1841 on the outskirts of Boston, stipulated in its constitution that in “order to more effectually promote the purposes of the human culture” it would apply the principles of “justice and love to [its] social organization” and “substitute a system of brotherly cooperation for one of selfish competition.” 26 These northern experiments in human progress were endorsed by influential Northern intellectuals. An associate of Lincoln put it this way: “First comes the sentiment—the feeling of liberty; next the idea—the thought becomes the thing. Buds in March, blossoms in May, apples in September—that is the law of historical succession.” 27 Lee was no fool, fighting to preserve the enslavement of Africans in the South. To the contrary, he was fighting to preserve what by 1860 can be accurately described as Southern civilization, the moorings of which were Christianity, against Northern reformers out to remake the South in their quest to remake America. 28 This helps to explain why one of the leading theologians of the United States, but particularly of the South, summarized the conflict between North and South as more of a clash of civilizations, one Christian and the other antiChristian. Stonewall Jackson’s chief of staff Major Reverend R. L. Dabney viewed the Southern cause as the cause for preserving American civilization from its enemies: “The anti-scriptural, infidel, and radical grounds upon which our assailants have placed themselves, make our cause practically the cause of truth and order.” 29 The conflict had been brewing for generations, so it was not necessarily unexpected when it breached the walls of the Constitution. Within the Protestant family there was a divide dating back to the Enlightenment; “an orthodox Christian—though not necessarily fundamentalist—branch and a secu-

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larized and relativist one.” 30 Divided along the Mason-Dixon Line the South represented Christian orthodoxy, the North liberal relativism. Lord Acton also understood the historical forces in motion which divided North and South, and the cause of the South. In 1866 he wrote to Lee, I saw in State Rights the only availing check upon the absolutism of the sovereign will, and secession filled me with hope, not as the destruction but as the redemption of Democracy. The institutions of your Republic have not exercised on the old world the salutary and liberating influence which ought to have belonged to them, by reason of those defects and abuses of principle which the Confederate Constitution was expressly and wisely calculated to remedy. I believed that the example of that great Reform would have blessed all the races of mankind by establishing true freedom purged of the native dangers and disorders of Republics. Therefore I deemed that you were fighting the battles of our liberty, our progress, and our civilization; and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo. 31

As the conflict reached its antebellum climax, Lee’s public “silence upon the great political issues of his time” 32 was broken on April 20, 1861, not so much in words, but by actions. On that day Lee officially resigned his commission in the U.S. Army. Significantly, his resignation was not a formality requisite to step out of the U.S. Army in order to step into the military command structure of the Confederacy. His resignation converted him back into a private citizen, with the hope that the drums of war would soon abate and he could quietly live out his life with his family in Virginia. The begging question is why would Lee, a man with strong nationalistic biases who “was profoundly conservative” 33 in his political views, make such a decision? The key to understanding Lee’s decision is an appreciation of his conservatism. What was it that Lee aimed at conserving? Lee aimed at preserving a Virginian way of life that could be preserved only under the traditional constitutional order. It is highly probable that had Virginia remained neutral and not come under attack by Union forces, the name Robert E. Lee would be tied to the Mexican War and long forgotten. In all probability Lee would not have taken up arms against the United States in the absence of Virginia’s vital interests being at stake, nor would he had sided with the North against the Confederacy. For Lee, U.S. military service was ideally public service for all Americans, North and South, in contradistinction to being a tool for sectional oppression. Nevertheless, Lee was prescient about the future role of the U.S. Armed Forces.

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By the late antebellum period Lee was aware of the shifting political winds in the country and military. As a career military man he witnessed firsthand the corrupting effects of sectional animosity within the military. 34 Since John Brown’s raid in 1859, under his command were men that were increasingly coalescing along sectional lines. The pending election of 1860 exacerbated the divide. “Men all around Lee were talking of secession if the ‘Black Republicans’ carried the presidential election.” 35 In Texas the Knights of the Golden Circle were pushing for secession, organizing militias, and, by November 1860, easily outnumbered pro-Union military assets in the State. During this time Lee was preoccupied with tracking down the notorious Mexican bandit Juan Cortinas who, until Lee’s arrival, had a free hand in murdering and plundering American citizens. Lee’s pursuit of Cortinas was complicated by the Mexican government, which provided sanctuary for Cortinas. Lee informed the Mexican authorities that he would hold them accountable for their complicity in protecting the bands of banditti perpetrating “outrages against the persons and property of American citizens.” 36 Lee acknowledged having a “divided heart.” His divided heart was not that of Union versus secession. He was for the Union, but a Union free of sectional rivalries and mutual antipathies. An August 1860 letter to his son Rooney provides insight into the Union Lee envisioned: “We want little. Our [Virginia’s] happiness depends upon our independence, the success of our operations, prosperity of our plans, health, contentment, and the esteem of our friends.” 37 Lee was not referring to independence resulting from secession, but the independence Virginia experienced under the Constitution of 1789. This is the country that Lee “would lay down his life for its safety.” 38 As the Union was unraveling, Lee’s military duty versus his responsibility to his family and Virginia troubled him. He wrote that “My military duties require me here [Texas], whereas my affections and urgent domestic [familial] claims call me away. And thus I live and am unable to advance either. But while I live I must toil and trust.” 39 Lee’s realism made it clear to him that the course of events was beyond his control, and regrettably the traditional Union was in peril. Being a Virginian, Lee would have had to renounce who he was to abandon his State, his extended family writ large, during such a crisis. On December 5, 1860, he wrote to Custis Lee, “If the Union is dissolved, which God in his mercy forbid, I shall return to you.” 40 In April 1861 three governments were claiming Lee’s allegiance, the United States, the Confederate States of America, and Virginia. On April 4 Virginia’s secession convention voted against secession. On April 12 the bombardment of Fort Sumter commenced. On April 14 the fort was evacuated. On April 15 President Lincoln issued his proclamation for 75,000 soldiers, a fivefold increase, “to suppress combinations” in order “to cause the laws to be duly executed.” 41 On April 17 the convention voted in favor of secession

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and approved a popular vote on the issue to Virginian voters. It was during this tumultuous alignment of North versus South that Lee was called to Washington and offered the command of the 75,000 Union soldiers being organized to suppress the Confederacy. 42 Lee declined the offer and headed toward Richmond, where the secession convention was meeting. The convention, in Lee’s absence, made him a major general and commander of Virginia’s armed forces. This was a formidable assignment. Lee was essentially charged with defending Virginia with the Virginia militia, which was considered a social organization, not a professional fighting force. 43 John Janney, a Southern Whig Unionist, mostly responsible for Lee’s appointment to command Virginia’s armed forces, acknowledged as much. “Janney believed that Virginia was not prepared to meet the army and navy of the United States and pointedly asked former U.S. President John Tyler, who had voted for secession on April 4, whether Tyler would have asked Congress for a declaration of war if the United States was equally unprepared.” 44 Consensus among unionists and secessionists in the Virginia convention was coalescing around the position that Virginia could not stand idly by if one of her sister Southern States were to be coerced back into the Union. And most certainly “that no spot of [Virginia’s] soil shall be polluted by the foot of an invader.” 45 Under the high tensions of the moment, Lee was asked to address the convention. His remarks were brief but informative: Mr. President and Gentlemen of the Convention: Profoundly impressed with the solemnity of the occasion, for which I must say I was not prepared, I accept the position assigned me by your partiality. I would have much preferred had your choice fallen on an abler man. Trusting in Almighty God, an approving conscience, and the aid of my fellow citizens, I devote myself to the service of my native State, in whose behalf alone will I ever again draw my sword. 46

Lee’s pro-Virginia stance was not mere rhetoric. All knew this. C.S.A. Vice President Alexander Stephens insisted upon meeting with Lee a few hours after his remarks. The purpose of the meeting was to assure the vice president that Lee’s pro-Virginia stance would not impede the Confederacy’s military objectives. 47 What was it about Virginia that Lee would be willing to kill and be killed? Lee was not a supporter of secession, but his resignation from the U.S. Army was ipso facto personal secession from the United States. But it was not Lee who had changed, but the Union. The changed Union threatened what Lee held most dear, his family, immediate and extended. Virginians were part and parcel of the latter. On April 20, he expressed the following sentiments in a letter to his sister, whose husband was a Unionist and whose son was a captain in the U.S. army:

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Chapter 3 Now we are in a state of war which will yield to nothing. The whole south is in a state of revolution, into which Virginia, after a long struggle, has been drawn; and, though I recognize no necessity for this state of things, and would have forborne and pleaded to the end for a redress of grievances, real or supposed, yet in my own person I had to meet the question whether I should take part against my native state. With all my devotion to the Union and feeling of loyalty and duty of an American citizen, I have not been able to make up my mind to raise my hand against my relatives, my children, my home. . . . I know you will blame me; but you must think kindly of me as you can, and believe that I have endeavored to do what I thought right. 48

Did Lee’s posture toward the Union and decision to side with Virginia during this political crisis make him a rebel, a traitor, to the United States? Was his decision immoral, illegal, and/or self-serving opportunism? Lee was not a secessionist per se; he was a Virginian who deferred to the judgment of his State in matters pertaining to Virginia’s relationship to the Union. In his sworn testimony before the Congressional Joint Committee on Reconstruction, Lee was questioned about his stance toward secession. Senator Howard (MI) 49 asked Lee if he was “wheedled and cheated” into siding with the secessionist. Lee’s response was that not he personally, but the “great masses of the people” were “wheedled and cheated” by “politicians of the country” from both sections, into secession. If the people understood “the real question,” they would have avoided secession. Be that as it may, “the [secession] act of Virginia, in withdrawing herself from the United States, carried me along as a citizen of Virginia, and that her laws and her acts were binding on me.” When Howard asked Lee if that was his justification in taking the course he did, Lee answered “yes.” 50 Did Lee’s justification absolve him from the charge of and subsequent conviction for treason? Consider Virginia’s actions which “carried” Lee along as a citizen of Virginia. On April 17, 1861, on behalf of all Virginians, a state convention began the process of severing ties with the Union and the other States, including southern States. On May 23, 1861, by a popular vote, Virginia became a free and independent state, that is, a nation. 51 Following the secessionist logic of the Declaration of Independence, Virginia assumed “among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” When Lee was commissioned in 1829 as brevet second lieutenant in the Corps of Engineers, he was required to take the following oath: “I, Robert E. Lee, do solemnly swear (or affirm) to bear true faith and allegiance to the United States of America, and to serve them honestly and faithfully against all their enemies or opposers whomsoever, and to observe and obey the orders of the president of the United States of America, and the orders of the officers appointed over me, according to the articles of war.” On April 17,

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1861, the Virginia secession convention passed its ordinance of secession; three days later Lee resigned from the U.S. Army. Lee’s decision to resign from the army and return to Virginia reveals much about the man. After thirty-one years of faithful and exemplary service to the United States, Lee’s decision to resign his commission and return to Virginia was not only consistent with his Christian belief system, but also the right thing to do. It was also an agonizing decision. Mrs. Lee wrote to a friend that “My husband has wept tears of blood over this terrible war; but he must, as a man and a Virginian, share the destiny of his State, which has solemnly pronounced for independence.” 52 Although his letter of resignation from the U.S. Army released him from his oath of allegiance to the U.S. Army, the emotional ties could not have been expunged by such a formality. Lee wrote two letters tendering his resignation; one perfunctory letter to Secretary of War Cameron 53 and another to his mentor and friend General Winfield Scott, who a few days earlier had offered Lee the command of the U.S. army. General Scott’s appeal to Lee was personal and lucrative: It is known that General Scott used every argument to persuade Lee not to resign. To retain him in the service, he had been appointed, on his arrival at Washington, a full colonel, and in 1860 his name had been sent in, with others, by Scott, as a proper person to fill the vacancy caused by the death of Brigadier-General Jessup. To these tempting intimations that rapid promotion would attend his adherence to the United States flag, Scott added personal appeals, which, coming from him, must have been almost irresistible. ‘For God's sake, don't resign, Lee!’ the lieutenant-general is said to have exclaimed. And, in the protracted interviews which took place between the two officers, every possible argument was urged by the elder to decide Lee to remain firm. 54

Lesser men would, and did, fold under the pressure and lucrative offers. Not Lee, which rather than a mark on his character should be considered for what it is, that is, a man with the courage of his convictions. Unfortunately, many view his decision through the lens of an indivisible Union and that secession was unconstitutional. Consequently, a correct understanding of the constitutionality of secession is critical to our understanding of Lee’s actions. Grounded in State sovereignty vis-à-vis the U.S. government, “there never seems to have been a time in the early decades of American history under the Constitution when secession of one section or another was not considered to be a real possibility.” 55 The Louisiana Purchase, the War of 1812, tariffs, the Mexican-American War, fugitive slave laws all stoked secession talk from mostly Northern States. Referencing New England States’ secession threats stemming from the War of 1812, Jefferson wrote “If any state in the Union

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will declare that it prefers separation . . . to continuance in the Union . . . I have no hesitation in saying, Let us separate.” 56 Even Lincoln, early in his political career, acknowledged the right of secession: Any people anywhere being inclined and having the power have the right to rise up and shake off the existing government, and form a new one which suits them better. This is a most valuable, a most sacred right—a right which we hope and believe is to liberate the world. Nor is the right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people may revolutionize and make their own so much of the territory as they inhabit. 57

Because the decision to secede had a strong political dynamic, Lee’s options were multifaceted. First, he could have accepted the offer to command the U.S. Army for the prestige, power, and financial opportunities attendant with the command. Such opportunities may have been too much for most military careerists to resist. Throughout his career Lee was hopeful for promotion and expressed disappointment when others less qualified were promoted over him. The fact that he refused the Lincoln administration’s offer is evidence that he placed principle over personal advancement. Second, he could have accepted the command and used the position to undermine the Union’s military operations against Virginia and the Confederacy. That would have required a level of duplicity uncharacteristic of Lee. Third, he could have accepted the command to preserve the Union with minimal damage to the Southern economy, institutions, and the Lees’ family name in the American hall of legends. Once again, such artifice was incompatible with his character. The path chosen by Lee was to resign his commission, with the hope to return to his native Virginia and quietly live out his remaining years. However, if Virginia were to be attacked he would fight, and fight hard. And fourth, he could have applied his well-known tactical and strategic military talents to a swift and total defeat of the Confederacy. Such fratricidal warfare, not to mention the destruction of self-government, was beyond the pale for Lee. If there was one thing that united Virginia’s fire-eaters and conservatives it was that Virginia was not to be coerced. Lee’s letter to his friend and fellow Virginian General Scott is informative: Since my interview with you on the 18th Inst: I have felt that I ought not longer to retain any Commission in the Army. I therefore tender my resignation which I request you will recommend for acceptance. It would have been presented at once but for the struggle it has Cost me to separate myself from a Service to which I have devoted all the best years of my life, & all the ability I

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possessed. During the whole of that time, more than a quarter of a century, I have experienced nothing but kindness from my superiors & the most Cordial friendships from any Comrades. To no one Genl have I been as much indebted as to yourself for kindness & Consideration & it has always been my ardent desire to merit your approbation. I shall carry with me, to the grave the most grateful recollections of your kind Consideration, & your name & fame will always be dear to me. Save in the defense of my native state shall I ever again draw my sword. 58

Lee’s reference to “in the defense of my native state” is the key to understanding his decision to resign. It involves the highly important issue of political obligation and reveals that Lee, given his character, had little choice even though he opposed secession on practical grounds. Lee did not base his decision on some amorphous commitment to the South or the Confederacy. Prior to the war the typical American considered his State to be his country. A strong Southern identity, as correctly noted by Robert Penn Warren, did not “bloom” until after Appomattox. 59 Many Virginians, including George Washington, considered Virginia in many ways to be more of a Northern state in climate, history, and destiny. For Lee the Confederacy was a means to end, protecting Virginia from invasion, coercion and the national dominance that would follow. Lee directed his political obligation to Virginia, a non-issue in less turbulent times when his devotion to Virginia and the Union could peacefully coexist. Because political obligation is the moral duty to obey the laws of one’s country, 60 Lee ultimately decided that because Virginia was his country, he made the proper choice. The federal republic of the United States of America complicates this decision for its citizens when a choice must be made in times of crisis. When Virginia voted for secession Lee made the conservative choice by siding with Virginia. Contrast Lee’s decision with that of General Winfield Scott, also a native Virginian, Lee’s protégé, onetime Whig presidential candidate, and commander of the Union army at the outbreak of the war. General Scott was decidedly pro-Union. Although his military career had placed Lee in similar pro-Union circumstances, his Virginian mindset was too deeply rooted. These roots found nourishment in the historical Declaration of Independence, rather than the innovative higher law rendition of the document utilized by Lincoln and his supporters to augment national power over the States. Lee was cognizant of Lincoln’s innovations. He understood that the Continental Congress consisted of representatives of “the united States of America,” with “united” being an adjective. Independence from the United Kingdom resulted in the colonies becoming “Free and Independent States,” is another way referring to free and independent nations. The States respectively had “full power . . . to do all other Acts and Things with Independent

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States [i.e., nations] may of right do.” For Lee the word State was synonymous with nation and through Virginia’s secession from the Union Virginia had assumed “among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them.” 61 Lee and the South understood that the ratification of the U.S. Constitution did not merge the individual States into a unitary nation. The Constitution four times uses the plural “them,” the States, in reference to the United States. 62 In the Eleventh Amendment the use of the word “one” refers not to an individual citizen but to a State. In other words, the States were the constituent members of the United States. Rather than being a nation of individuals first and foremost, the United States was a compact among sovereign States. Nor was it the intention of the Framers to use the Preamble and/or the Article VI supremacy clause to convert the federal republic of States into a unitary nation. The preamble initially listed each State, but not knowing which States would ratify the Constitution the Committee of Style edited out the States’ names. The original draft reads: WE the People of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity. 63

The importance of this fact cannot be over-stressed, because the distorted view leads to the error that the U.S. Constitution established a unitary system of government consisting primarily of individuals, rather than a federal republic of States. To follow is a typical misuse of the ahistorical Preamble, one popularized by Lincoln in the Gettysburg Address and perpetuated to this day. A website sponsored by lawyers manifest the dominance of the Lincoln position: The Constitution, on the other hand, by opening up with “We the People” immediately affirms that the Constitution is of the people, for the people, and by the people of the United States. This interpretation, which arises most strongly from the presence of “We the People” in the Preamble, effectively leads to an understanding of the Constitution as affecting the people directly and not through regulations imposed on the States. In other words, those words define that the interaction between the Constitution and the citizens of the United States is direct and immediate, meaning that the Constitution, and the government it creates, supersedes any State government. 64

If this ahistorical rendition of the Preamble were true, Virginia and Lee (and Americans today) would have owed their political obligation to the U.S.

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government, making them rebels if not traitors. Consequently, in the popular mind Lee was a traitor and was obligated to defend the Union against the rebellious Southern States. The Article VI supremacy clause is used to the same effect. It instructs state judges to make the U.S. Constitution and the laws, and treaties of the United States “made in pursuance thereof” supreme over State constitutions and laws if a conflict arises. Importantly, it was left to the determination of judges in the respective States to decide the meaning of the U.S. Constitution and if U.S. laws and treaties were sanctioned by the U.S. Constitution. 65 As a citizen of Virginia, a State no longer a member of the United States, his 1829 oath was no longer binding. Officer Oath: I, A.B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any officers whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God. 66

If Lee had not resigned his commission in April of 1861, he certainly would have been tested again in July of 1862. The oath, and especially the catchall vagueness of the word “countenance,” that is, appearance of sympathy toward the Confederacy, either suppressed the freedom of thought and sentiment of many officers or turned them into mendacious loyalists to the Union. This leaves begging a more fundamental question. Following Lee’s decision to resign his commission and return to his native Virginia, what was his “new” relationship to the U.S. government? Two weeks prior to Lee’s resignation, on March 4, 1861, President Lincoln in his first inaugural address established the U.S. government’s posture toward Lee and all Southerners. Lincoln declared all ordinances and resolves severing ties between the U.S. government and the States as legally void. Consequently, by executive fiat all Southerners owed political obligation to the U.S. government. Acts of resistances to that authority are either insurrection or revolution. Lincoln claimed that “no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against

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the authority of the United States are insurrectionary or revolutionary, according to circumstances.” 67 Based upon Lincoln’s nullification of the States’ acts of secession, Lee was an insurrectionist, revolutionary, and traitor to the U.S. government. If Lincoln’s nullification of secession was unconstitutional, then Lincoln was an aggressive imperialist and disdainful of government based upon the consent of the governed within their respective States. Sorting out the difference between the two hinges on whether Virginia’s decision to secede was constitutional. The consensus of antebellum Americans was that secession was constitutional, which is not necessarily the same as practical. Secession was part and parcel of the American experiment in self-government. In 1776 the American colonies individually seceded from the British Empire and became “Free and Independent States” and were thereby “Absolved from all Allegiance to the British Crown.” 68 The States individually seceded from the confederation organized under the 1781 Articles of Confederation, and individually reorganized under the 1789 U.S. Constitution. As previously noted, subsequent to the formation of the 1789 Union of States, States had occasionally threatened secession. The disregard Lincoln had for this longstanding State prerogative hardened the South’s posture toward Lincoln, the Republican Party, and the Union they were remaking. This is especially true for those U.S. Military Academy at West Point Southern graduates, such as Lee who also served as its superintendent from 1852 to 1855. The significance of the West Point experience regarding secession stems from the curriculum. William Rawle, the Pennsylvanian Quaker and author of the constitutional law book in use at West Point, explained what at the time was uncontroversial, the States’ prerogatives to withdraw from the Union and once withdrawn the U.S. government lacks any jurisdiction over them. According to Rawle, such States could even establish non-republican forms of government. In chapter XXXII, titled “The Permanence of the Union,” he wrote: The Union is an association of the people of republics; its preservation is calculated to depend on the preservation of those republics. The people of each pledge themselves to preserve that form of government in all. Thus each becomes responsible to the rest, that no other form of government shall prevail in it, and all are bound to preserve it in every one. . . .Yet it is not to be understood, that its interposition would be justifiable, if the people of a state should determine to retire from the Union, whether they adopted another or retained the same form of government, or if they should, with the, express intention of seceding, expunge the representative system from their code, and thereby incapacitate themselves from concurring according to the mode now prescribed, in the choice of certain public officers of the United States. 69

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In other words, if a State or States were to withdraw from the Union, the U.S. government would lack the constitutional mandate to intervene in that State’s or States affairs. The lack of constitutional authority on the part of the U.S. government to intervene into the affairs of a seceded State is twofold. First, the U.S. government would lack jurisdiction over that State, because it would be outside the Union. And second, if a State decides to secede, for the U.S. government to quash that decision is anathema to its raison d’êtres. According to Rawle, to “deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.” 70 Rawle is emphatic, that representative governments are designed to procure and secure the consent of the governed. Regarding political obligation, what Rawle refers to as allegiance, secession marks the termination of political obligation toward that general government: This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood, and the doctrine heretofore presented to the reader in regard to the indefeasible nature of personal allegiance, is so far qualified in respect to allegiance to the United States. It was observed, that it was competent for a state to make a compact with its citizens, that the reciprocal obligations of protection and allegiance might cease on certain events; and it was further observed, that allegiance would necessarily cease on the dissolution of the society to which it was due. 71

For Lincoln to “void” the States’ “resolves and ordinances” used to withdraw from the Union was tantamount to thrusting a dagger in the heart of the American experiment of the compact form of government. In the words of Alexander Hamilton, “It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” 72 Lincoln’s actions toward the Southern States fulfilled, at least partially, Hamilton’s prophecy. For Lee to side with Lincoln’s assault on republican forms of government would have been the height of political hypocrisy. When properly understood Lincoln was the traitor to the U.S. Constitution, relying on force to war against the constitutional federal republic of Washington, Jefferson, and Madison, whereas Lee was the conservative siding with tradition. Following defeat, Lee never denounced his decision to side with Virginia. In an attempt to have his U.S. citizenship restored, on June 13, 1865, Lee sent

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an application to General Grant and President Johnson for amnesty and pardon: Being excluded from the provisions of amnesty & pardon contained in the proclamation of the 29th Ulto; I hereby apply for the benefits, & full restoration of all rights & privileges extended to those included in its terms. I graduated at the Mil. Academy at West Point in June 1829. Resigned from the U.S. Army April ’61. Was a General in the Confederate Army, & included in the surrender of the Army of N. Va. 9 April ’65. 73

Refusing to sign the mandated amnesty oath, on October 2, 1865, Lee submitted to Secretary of State Seward the following application: I, Robert E. Lee of Lexington, Virginia, do solemnly swear in the presence of almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States, and the Union of the states there under, and that I will, in like manner, abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves, so help me God.” 74

Lee’s response to Southerners who viewed the application as an admission of guilt was direct. With Virginia and the U.S. government in the hands of politicians basking in the aftermath of their victory over the Confederacy, the political realist Lee aimed at reconciliation. His August 24, 1865, letter conditionally accepting the office of Washington College president explains his position: I think it the duty of every citizen in the present Condition of the Country, to do all in his power to aid in the restoration of peace & harmony, & in no way oppose the policy of the State or Genl Governments, directed to that object. It is particularly incumbent on those charged with the instruction of the young, to set them an example of submission to authority, & I could not Consent to be the Cause of animadversion upon the college. 75

This August 24 letter is instructive. First, the “present Condition” of the “Country” alludes to the dire political and economic conditions in the former Confederacy. Second, supporting the Virginian and U.S. governments was contingent on those governments working toward a “restoration of peace & harmony.” There was not a duty to support policies not directed toward those ends. In a January 1866 letter to a New York editor, Lee was emphatic on this point: My Dear Sir: I am very much obliged to you for your letter of the 27th ult., and for the number of the 'Old Guard' which you kindly sent me. I am glad to know that the intelligent and respectable people at the North are true and conservative in their opinions, for I believe by no other course can the right interests of

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the country be maintained. All that the South has ever desired was that the Union, as established by our forefathers, should be preserved, and that the government as originally organised should be administered in purity and truth. If such is the desire of the North, there can be no contention between the two sections, and all true patriots will unite in advocating that policy which will soonest restore the country to tranquility and order, and serve to perpetuate true republicanism. 76

And third, as college president he had a responsibility to help students succeed in the America they lived in, not in the ideal world of a free and independent South lost after four long years of struggle. The acceptance of defeat, what Lee referred to as the “truth” in a February 1866 letter to Varina Davis, was the proper course: I HAVE THOUGHT, FROM THE TIME OF THE CESSATION OF THE HOSTILITIES, THAT SILENCE AND PATIENCE ON THE PART OF THE SOUTH WAS THE TRUE COURSE; and I think so still. CONTROVERSY OF ALL KINDS will, in my opinion, only serve to continue excitement and passion, and will prevent the public mind from the acknowledgement and acceptance of the truth. These considerations have kept me from replying to accusations made against myself, and induced me to recommend the same to others. 77

This does not mean that Lee was passive in defeat. He was biding his time, tapping down acrimonious Southern and Northern passions and doing his part under extremely difficult circumstances. In an 1865 letter to a former Confederate soldier he wrote “This war, being at an end, the Southern States having laid down their arms, and the questions at issue between them and the Northern States having been decided, I believe it to be the duty of everyone to unite in the restoration of the country and the reestablishment of peace and harmony.” 78 By example and through education Lee was working for the restoration of the “Union established by our forefathers.” The conclusion that “[a]nger and frustration were the root emotions that drove Southerners to secede, a visceral response to a collective sense of degradation and disgrace,” 79 may be descriptive of many Southerners but not Lee. Lee was in part motivated by emotion, but not emotion against the Union. It was his strong attachment to his family, to his State, and to the Union of 1789 which informed his political obligation. NOTES 1. Lee’s 1866 and 1869 remarks quoted infra indicate Lee’s commitment to that antebellum America. See Freeman, IV, 303 and 304. 2. Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union, accessed at http://avalon.law.yale.edu/19th_century/csa_

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scarsec.asp. See Charles Adams, When in the Course of Human Events: Arguing the Case for Southern Secession (Lanham, MD: Rowman & Littlefield, 2000) for a definitive treatment of secession. 3. Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union, accessed at http://avalon.law.yale.edu/19th_century/ csa_scarsec.asp. 4. A Declaration of the Causes which Impel the State of Texas to Secede from the Federal Union, accessed at http://avalon.law.yale.edu/19th_century/csa_texsec.asp. 5. A Declaration of the Immediate Causes which Induce and Justify the Secession of the State of Mississippi from the Federal Union, http://avalon.law.yale.edu/19th_century/csa_ missec.asp. 6. See Susan-Mary Grant, North Over South: Northern Nationalism and American Identity the Antebellum Era (University Press of Kansas, 2000). 7. House Divided Speech, Abraham Lincoln: Speech before the Republican State Convention, Springfield, June 16, 1858, accessed at http://teachingamericanhistory.org/library/index. asp?document=103. 8. Warren, 43. 9. Cited in Jesse T. Carpenter, The South as a Conscious Minority, 1789-1861 (University of South Carolina Press, 1990), 157. 10. William Henry Seward, “On the Irrepressible Conflict”; delivered at Rochester, New York, October 25, 1858; accessed at www.nyhistory.com/central/conflict.htm. 11. Ibid. 12. Garry Wills, Lincoln At Gettysburg: The Words that Remade America (New York: Simon & Schuster, 1992), 121–47. 13. Robert Penn Warren, The Legacy of the Civil War: Meditations on the Centennial (New York: Random House, 1961), 43. 14. Eugene D. Genovese, The Southern Front: History and Politics in the Culture War (Columbia: University of Missouri Press, 1995), 155. 15. First Debate: Ottawa, Illinois, accessed at www.nps.gov/liho/historyculture/debate1. htm. 16. The Liberator 2, no. 52 (December 29, 1832), accessed at http://fair-use.org/theliberator/1832/12/29/on-the-constitution-and-the-union. 17. Wills, 108. 18. Genovese, 212. 19. For Christianity’s contribution to the formation of American federalism see Donald Livingston’s “American Republicanism and the Forgotten Question of Size,” in Rethinking the American Union for the Twenty-Fist Century (Gretna, LA: Pelican Publishing Company, 2012), 129–33. 20. In TFP #47, Madison wrote that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.” 21. Freeman, 420, I. 22. Freeman, 420–21, I. 23. Alexis de Tocqueville, Democracy In America, J. P. Mayer, ed. (New York: Anchor Books, 1969), 292, 294. 24. Gerald Runkle, “Karl Marx and the American Civil War,” Comparative Studies in Society and History 6, no. 2 (January 1964): 117–41, 127, accessed at www.jstor.org/stable/ 177903. 25. America and the Utopian Dream, accessed at http://beinecke.library.yale.edu/utopia/ uc07.html. 26. Henry Steele Commager, ed., Documents of American History (New York: F.S. Crofts & Co., 1940), 300. 27. Wills, 109. 28. The South’s instinct that Lincoln’s rhetoric was placing America on the trajectory of unconstitutional radicalism was insightful. Lincoln has become the hero of modern-day leftwing reformers. A case in point is President Obama’s 2012 State of the Union Address during

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which he invoked the spirit of Lincoln: “I believe what Republican Abraham Lincoln believed: That government should do for people only what they cannot do better by themselves.” Remarks by the president in the State of the Union Address, January 24, 2012, accessed at www. whitehouse.gov/the-press-office/2012/01/24/remarks-president-state-union-address. In a 2001 interview then Illinois State Senator Obama was more specific. Criticizing the acknowledged liberal Warren Court for being too conservative, he complained that the “Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as people tried to characterize the Warren court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted, and the Warren court interpreted it in the same way that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you, it says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted.” “Obama’s ‘Redistribution of Wealth’ Radio Interview, 2001, written on Friday, July 22, 2011 by Ann-Marie Murrell, accessed at http://patriotupdate.com/articles/ obama%E2%80%99s-%E2%80%98redistribution-of-wealth%E2%80%99-radio-interview2001. 29. Robert L. Dabney, D. D., A Defence of Virginia, and Through Her, of the South (Harrisonburg, VA; Sprinkle Publications, 1991; originally published in 1867), 22. 30. Erik Von Kuehnelt-Leddihn, “The Western Dilemma: Calvin or Rousseau?” in Modern Age: The First Twenty-Five Years, George A. Panichas, ed. (Indianapolis, IN: Liberty Press, 1988), 523. 31. The Lord Acton–General Robert E. Lee Correspondence, November 4, 1866, accessed at Free Republic website, www.freerepublic.com/focus/news/828843/posts. 32. Thomas, 80. As a U.S. Army officer, Lee was not at liberty to make public statements about policy. But he certainly had his political opinions and expressed them in private correspondence. For example, his opinion regarding the political remedy for Mexico’s was to introduce to it “free opinions of government & religion.” Free opinions are reminiscent of the First Amendment’s guarantees of free expression and exercise of religion. As he wrote to a friend, Mexico “is a beautiful country & in the hands of the proper people would be a magnificent one.” Thomas, 137. 33. Thomas, 79. 34. Lee’s April 16, 1860, letter to Custis Lee and his July 3, 1860, letter to Major Van Dorn. Freeman, vol. 1, 411, 413. 35. Freeman, vol. 1, 413. 36. Freeman, vol. 1, 408. 37. Freeman, vol. 1, 410. 38. Freeman, vol. 1, 414. 39. Freeman, vol. 1, 410-411. 40. Freeman, vol. 1, 415. 41. To put these numbers into perspective, when the Mexican War broke out in 1846 the size of the regular army was approximately seven thousand strong. 42. Freeman, vol. I, 435. 43. Thomas, 194. 44. www.virginiamemory.com/online_classroom/union_or_secession/doc/janney_speech. 45. Thomas, 193. 46. Thomas, 193. 47. Freeman, 470, Thomas, 193–94. 48. Freeman, vol. I, 443. 49. Senator Jacob M. Howard was chairman of the Committee on Pacific Railroads in the Thirty-eighth through Forty-first Congresses. The only other member on the committee to question Lee was Congressman Henry T. Blow, a former Virginian, an unconditional unionist, and a highly successful businessman. He asked Lee the following question: “Can capitalists and workingmen from the north go into any portion of Virginia with which you are familiar and go to work among the people?” Lee’s reference to “the real question” behind secession mani-

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fests an appreciation that northern economic interests was a prominent motivating factor in the Republican Party’s policy toward the southern States. This topic will be fully addressed in chapter 6. 50. Joint Committee on Reconstruction, 39th Congress, first session, (February 17, 1866), 133, accessed at www.archive.org/stream/jointreconstruct00congrich/jointreconstruct00congrich_djvu.txt]. 51. “Now, therefore, we, the people of Virginia, do declare and ordain, That the ordinance adopted by the people of this State in convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, whereby the Constitution of the United States of America was ratified, and all acts of the General Assembly of this State ratifying and adopting amendments to said Constitution, are hereby repealed and abrogated; that the union between the State of Virginia and the other States under the Constitution aforesaid is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong and appertain to a free and independent State. . . . And they do further declare, That said Constitution of the United States of America is no longer binding on any of the citizens of this State. . . . This ordinance shall take effect and be an act of this day, when ratified by a majority of the voter of the people of this State cast at a poll to be taken thereon on the fourth Thursday in May next, in pursuance of a schedule hereafter to be enacted. Adopted by the convention of Virginia April 17, 1861 . . . ratified by a vote of 132,201 to 37,451 on May 23, 1861.” Source: Official Records, Ser. IV, vol. 1, p. 223, accessed at www.constitution.org/csa/ordinances_secession.htm#Virginia. 52. Cooke, 17. 53. The letter to Cameron states, “Sir, I have the honor to tender the resignation of my Commission of Colonel of the 1st Regt. of Cavalry. Very respectfully your Ob’t servant, R. E. Lee, Col 1st. Cavalry.” Accessed at the National Archives website, www.archives.gov/ education/lessons/civil-war-docs/images/lee-letter.gif. 54. John Esten Cooke, A Life of General Robert E. Lee (1876), accessed at the Project Gutenberg website, www.freeinfosociety.com/media/pdf/4752.pdf. (There is some confusion whether Lee met with Scott in person about taking over the command of the Union Army. After the war Lee wrote to Reverdy Johnson that his discussions were with journalist Francis Preston Blair, at the behest of General Scott. General Scott was in poor health unable to take an active role as commander and had great personal and professional respect for Lee [See Freeman, vol. 1, 432]). 55. Carl Swisher, American Constitutional Development, 2d ed. (Boston: Houghton Mifflin, 1954), 127; cited in Donald W. Livingston, Philosophical Melancholy and Delirium: Hume’s Pathology of Philosophy (The University of Chicago Press, 1998), 321. 56. Livingston, 1998, p. 321. 57. Rupert Emerson, From Empire to Nation (Harvard University Press, 1960), 450; cited in Thomas H. Naylor and William H. Willimon, Downsizing the U. S. A. (Grand Rapids, MI: William B. Eerdmans Publishing Company), 243. 58. Paper. L 32.7, W 29.3 cm., Arlington House, The Robert E. Lee Memorial, ARHO 5623. 59. Robert Penn Warren, Jefferson Davis Gets His Citizenship Back (University Press of Kentucky, 1980), 58–59. 60. Accessed at the Stanford Encyclopedia of Philosophy website, http://plato.stanford.edu/ entries/political-obligation/. 61. As was the case in 1776 when the American people through their respective States declared their independence from England; see the last paragraph of the 1776 Declaration of Independence. 62. Art I, section 9, clause 8, Art. II, cl. 8, Art. III, sec. 3, c. 1, Art. IV, sec. 4. 63. Accessed at the American Patriot website, www.civil-liberties.com/pages/draft.html. 64. Accessed at the Laws.Com website, http://constitution.laws.com/we-the-people. 65. Art. VI, cl. 2, stipulates that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary

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notwithstanding.” In 1819 and 1820 the U.S. Supreme Court read a nationalistic meaning into the supremacy clause, placing U.S. courts over the State court. See DeRosa, The Ninth Amendment and the Politics of Creative Jurisprudence. 66. Lt. Col. Kenneth Keskel, “The Oath of Office: A Historical Guide to Moral Leadership,” Air & Space Power Journal (Winter 2002), accessed at www.airpower.au.af.mil/ airchronicles/apj/apj02/win02/keskel.html. 67. First Inaugural Address of Abraham Lincoln, Monday, March 4, 1861, accessed at http:/ /avalon.law.yale.edu/19th_century/lincoln1.asp. 68. Declaration of Independence, 1776. 69. Accessed at the Constitution Society website, www.constitution.org/wr/rawle_32.htm. 70. Ibid. 71. Id. 72. The Federalist Papers, #1. 73. Accessed at National Archives website, www.archives.gov/publications/prologue/2005/ spring/piece-lee.html. 74. Ibid. 75. Accessed at Freedom Shrine Historic American Document Collection website, www. freedomshrine.com/historic-documents/robert-e-lee-letter.php. 76. Accessed at Familytales website, www.familytales.org/dbDisplay.php?id=ltr_rel591& person=rel. 77. Ibid., www.familytales.org/dbDisplay.php?id=ltr_rel599&person=rel. 78. Cited in President Ford’s remarks on August 5, 1975, commemorating the posthumous restoration of Lee’s citizenship; accessed at Gerald R. Ford Library website, www.fordlibrarymuseum.gov/library/speeches/750473.htm. 79. Betram Wyatt-Brown, The Shaping of Southern Culture: Honor, Grace, and War (University of North Carolina Press, 2001), 155.

Chapter Four

The Discerning Christian

The great duty in life is the same, the promotion of the happiness and welfare of our fellow men. —Robert E. Lee We are leading the great battle for the sum of modern history—for the regulated liberty and civilization of the age. It is conservative religion against atheism—constitutional law against higher law—social stability against destructive radicalism. —Reverend William A. Hall, C.S.A. chaplain, Army of Northern Virginia, 1864

In his book The Confederacy, Charles P. Roland acknowledged that a “major buttress of the Confederacy was religion. The mind of the Old South was wrought largely of orthodox Christianity; theologians had formed the vanguard of secession. The Confederate war effort received the unstinting support of Southern clergy. . . . Expounding the righteousness of the Southern cause, thousands of ministers of the Gospel urged members of their congregations to selfless sacrifice in behalf of the Confederacy. God would uphold the arms of the faithful against Northern infidelity.” 1 At first glance Professor Roland would appear to characterize all of America. After all, America was in the midst of the Second Great Awakening. But that national religious revival took different forms north and south of the Mason-Dixon Line. “In the North, it veered toward a general reform of society as a prelude to the Second Coming of Jesus Christ. Evangelical Protestantism in the South was more concerned with individual conversion, and its adherents looked with alarm on the mixture of religion and politics brewing toxic potions in the North.” 2 Whereas in the North “[c]hurches provided a model of how to organize people . . . and how the world might be changed through systematic public agitation.” 3 In the South the focus was on individual salvation, not social reformation. 69

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In the antebellum era the desire of Northern evangelicals for governmentsponsored societal reform segued into heightened national political party activism. That activism was instrumental in the formation and viability of the Republican Party’s coalition of sectional interests. The City of God and the City of Man were being bridged. Politics and religion were merging into a “seamless whole.” 4 Leading Northern evangelicals considered this to be America’s destiny, its “manifest destiny” to make America from sea to shining sea safe for their brand of religion and politics. Originally focused on Roman Catholic immigrants, the “pagan” Native Americans on the western plains, slavery and its extension into the territories, temperance, and gambling, in the effort to enhance their influence they branched out into the realm of fiscal and monetary policies. In the South, on the other hand, clerical “[p]olitical quietists increasingly denounced the ‘meddling’ political pulpit, urging Christians to render unquestionably unto Caesar what belonged to him.” 5 The convergence of religion and politics was particularly irksome to Virginians, who had a longstanding “habit of mind” toward religious liberty. 6 Article XVI of its 1776 Declaration of Rights stipulated that “religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity toward each other.” 7 Converting the slavery issue into a national religious/political crusade drove North and South further apart. In what has been described as a “vast abyss between the nation’s Christian and democratic ideals,” attempts by the likes of Stephen A. Douglas to bridge the abyss were futile. 8 At the insistence of abolitionists, Northern churches began to sever ties with their Southern counterparts. Southern churches responded by clinging to scriptural defenses of slavery. 9 It became apparent that although they read the same Bible and U.S. Constitution, biblical and constitutional exegeses regarding slavery divided the nation into distinct Northern and Southern sections. 10 In other words, what once united the sections now divided them. Through his friendships and affiliations with men of the cloth, Lee was aware of the widening schism between Northern and Southern churches. The religious schism was a prelude to the war Southerners believed was necessary to preserve Southern Christian civilization from meddling Northerners that had politicized religion as a whip against Southerners. The election of 1860 was a perfect storm of fiscal policies (such as protectionism for northern manufacturing and subsidies for Northern railroad corporations), the extension of slavery into the territories, and the religious schism that had preoccupied America for years. 11

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As Roland points out, General Robert E. Lee and most of the South’s greatest generals were devout Christians. Significantly, they were also the South’s “spiritual captains from whom advice was taken not only on military, but also on political, social, educational, and even religious matters.” 12 These political and religious developments led the Northern ruling class to become ardent nationalists and the Southern ruling class to become ardent defenders of States’ rights. 13 Significantly, the religious divide made compromise among the clashing sections less likely. Whether evangelicals coopted politicians or vice versa is immaterial. The battle between North and South was being joined, and religion was a prominent motivating and organizing factor. Lee’s Christian faith was a powerful influence both personally and as a role model for Southerners. Christianity was the prism through which he viewed his duties, including his duty as a military careerist. One close observer of Lee noted that he was “one of the noblest specimens of the Christian soldier that the world ever saw.” 14 It is difficult to contemplate Lee siding with the North against the South, when such a decision would require that he compromise his religious convictions. Although nominally a Whig while serving in the U.S. army, 15 Lee was not focused on the party’s domestic policy agenda. His interest in national politics, including presidential elections, stemmed from his interest in the Department of War and more specifically the army. His focus was on what today is referred to as national security. Appreciating the corrupting influence of party politics, “he had seen enough to view it without illusion.” 16 As the national party system became sectionalized and the nation moved toward war, Lee remained true to his core principles. He placed his trust in God first and foremost and stayed true to American founding principles. On January 30, 1861, he wrote to his son Custis that the “country seems to be in a lamentable condition and may have been plunged into civil war. May God rescue us from the folly of our own acts, save us from selfishness and teach us to love our neighbors as ourselves.” 17 Lee was a patriot who viewed politics as statecraft, which is the sublime art of the proper ordering society. But for a man who takes his religion seriously, that ordering required high deference to his Christian principles. Axioms of Lee’s Christian faith include the following: First, the Bible is the divine word of God. Second, biblical teachings instruct how one is to live a purposeful life. Third, man is not God, but a fallible being dependent upon God’s grace and mercy. Fourth, man has a duty to act mercifully and charitably toward his fellows. Fifth, man must respect and accept the human condition as divinely ordained. Eden was lost, not to be regained in this world. And sixth, upon death each individual will face an infinitely just God, and be

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rewarded or punished accordingly. Absent from this list is the belief that politics is to be used as an instrument of coercion in the quest for utopia. Lee’s Christianity led him to conclude that the human condition is flawed, with the fatal flaw being the absorption with self. In such a world the Christian’s duty is “the promotion of the happiness & welfare of our fellow man.” 18 That “promotion” must emanate from willing individuals with faith as their moral compass, rather than governmental mandates. Lee’s Christianity is most evident in his personal ongoing struggle over slavery. He confided to his wife in 1856 that “slavery as an institution, is a moral and political evil in any Country.” 19 In an ideal world, Lee would probably concur with Lincoln’s sentiment that “the right to eat the bread without the leave of anybody else, which his own hands earn.” 20 However, in the racist America in which he lived, an America in which the inferiority of blacks was largely unquestioned and blacks unwelcomed, Lee understood that such platitudes were not realistic. For Lee the war did have the positive outcome of emancipation. He acknowledged that he had always been in favor of gradual emancipation, but also acknowledged that the former slaves would not be easily integrated into American society, nor that they were the equal of whites. Lee was comforted that the cursed peculiar institution was finally ended, not that he concurred with the measures taken to end it. 21 Adherence to biblical teachings, such as the theological virtues of faith, hope, and charity, most accurately describes Lee’s hope for the future. As he instructed his son Custis, “I hold to the belief that you must act right whatever the consequences.” 22 His instructional guide for acting right was the Bible, which for him was “the book of books.” A daily reader of Scripture, he confided I prefer the Bible to any other book. There is enough in that to satisfy the most ardent thirst for knowledge; to open the way to true wisdom; to teach the only road to salvation and eternal happiness. It is not above human comprehension, and is sufficient to satisfy all its desires. . . . I accept it as the infallible word of God and receive its teachings as inspired by the Holy Ghost. 23

Lee believed that the manner and extent to which Americans generally, and the South specifically, adhered to biblical teachings would determine their individual and collective destinies. This helps to explain Lee’s gravitas among his contemporaries and what later historians have attempted to understand. Words such as nobility, honor, duty, chivalry, courage, and Christian have been variously used to describe Lee. Winston Churchill captured the consensus about Lee when he wrote that Lee’s “noble presence and gentle, kindly manner were sustained by religious faith and exalted character.” 24 Churchill was correct in noting the ambiance

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of Lee’s “religious faith and exalted character.” All acknowledged as much, North and South. Lee’s exalted character stemmed from his religious faith. Lee’s faith was that “still small voice” 25 burning within which forged his character through the trials and tribulations of his life. The Civil War 26 illuminated and validated Lee’s aura on a national stage that, though diminishing, still persists. Some have dismissed this as Lee’s “rise to sainthood [and] deification [placing Lee] at the apex of the Lost Cause Pantheon.” 27 Lee would certainly object to this elevation to sainthood. But he would also emphatically object to the characterization of the Confederacy’s efforts as a lost cause. Lee would probably agree with T. S. Eliot that in this world “There are no lost causes because there are no gained causes.” 28 For Lee, God is ultimately in control. This is why Lee’s status in the minds and hearts of his countrymen did not simply stem from his military endeavors, which is a mixed record. He did have his share of military triumphs, but ultimately he failed militarily and the Confederacy was not only defeated but conquered and laid waste. But Lee did not believe that the South’s cause was lost, because in his mind the Confederacy’s cause transcended the temporal and partook in the eternal. In his opinion it was, in effect, the cause of Christianity. This perspective finds expression in an 1860 pamphlet titled “The Bible or Atheism” addressed to “The Young Soldiers of the South” by an unidentified onetime Christian skeptic. The pamphlet is in response to “the world’s skepticism . . . the delusions supposed rationalism . . . infidelity, and even atheism . . . the dreary gloom of a cheerless materialism” intruding upon the “peaceful ways of the Christian’s life.” 29 Its author goes through a step-bystep refutation of atheism’s critique of Christianity. He warns the Southern soldier not to be swayed by the flawed reasoning of Hume and Comte. He cautions Southern soldiers, Beware, young men, that your minds do not become the slaves of corrupt and rebel wills—making the imagination wild and wayward—blinding the reason—darkening the understanding—unseating the judgment—corroding the conscience—until your thoughts, words, and actions become only the manifestations of a perverse antagonism to the God who created you. 30

He encourages Confederate soldiers to choose between “the cheering radiance of Christianity . . . or the dreary gloom of Atheism.” He closed with the following admonition: “Soldiers of the South! In your devoted fidelity to your country, remember to be faithful to your God. Enlisted under the flag of the Confederacy, let me pray you to enlist under the banner of the cross. The Nation or People that will not serve God shall perish: But blessed is that People whose God is the Lord.” 31

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This pamphlet manifests the author’s concern that atheism was gaining traction throughout the United States. It also manifests the opinion that the formation of the Confederacy was an opportunity to stem atheism’s influence in the South. The heightened concern over Northern atheism was widespread and enduring in the Confederacy. For example, in March and April 1864, Reverend William A. Hall, Chaplain, Battalion Washington Artillery, delivered a series of lectures in Petersburg and Richmond. The series was titled “The Historic Significance of the Southern Revolution.” The lectures were so well received that nineteen high-ranking officers, after hearing the lectures, requested copies for publication, “[b]elieving that a wide-spread dissemination . . . will be conducive of much good to our great cause.” 32 Reverend Hall acknowledged that America is in the midst of a revolution. The revolution stems from the human mind, that the “nature and the bearings of the philosophy, the inmost ideas, which make up and control” the national life. This is the story of human history, which is essentially the manifestation of philosophical conflicts. In the case of the current war, the conflict between North and South has its “various aspects, social, political, economic, through thought and blood.” But Hall seeks to explain a “distinct and wider view . . . considered as a movement in history.” Hall is convinced that the war “deserves to be studied as a great historic movement, inferior to none preceding” it. 33 Reverend Wall contended that “God and man are the two great factors in history” and that history, “in a higher sense [is] the manifestation of God in his Providence.” He conceded that the inquiry into the “higher sense” of history is a difficult one. “It demands that we divest ourselves of all that is temporary or special. We must rise above the present if we would reach the highest solution of our case. We must survey this great movement, not as politicians merely, not as religionists, not even as Southrons, but as thinkers, controlled by the noble spirit of the philosophy of history.” 34 Hall’s position was not that all Northerners were tending toward atheism, but the trajectory of Northern intellectual and moral developments were. Slavery manifested the more obvious religious divergence between North and South. Southerners, relying on the providence and word of God, were convinced that slavery was of divine ordinance and circumstancially “in the interests of his creatures.” The institution, according to Hall, was intertwined with the South’s right to practice its version of Christianity, against the “senseless fanaticism controlling most of the leading minds in Christendom.” If the South failed to act, the North’s Godless fanaticism would “master and desolate the church of the living God.” He explained that the war rises to the moral sublime. This explains why the southern clergy, standing aside for the time from all their previous practice, have shown such an active

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sympathy with this political revolution. It is not only from the impulse of lofty patriotism, as grand as that sentiment may be; but out of loyalty to God against whose rightful supremacy a wicked infidelity has lifted its rebellious arm. Of all men they are best qualified to appreciate the moral bearings of this controversy. 35

Reverend Hall and likeminded clergy viewed the war as the culminating struggle between modern philosophy, what he referred to as “the combined infidelity of the ages,” and Christianity. The Northern crusade against the South was an attack upon the latter’s “age-laid pillars of society,” biblical slavery included. These pillars “determine their whole inward and outward life, their character, form of government, of society, and of religion—and decide their destiny.” 36 Southerners with this mindset would be hard pressed to find comfort in a Union in which they believed that the dominant Northern section was determined to destroy Southern Christian civilization. This belief was shared by Lee and informed his approach to war and politics. In the wake of defeat and destruction of his homeland Lee confided that The dominant [Republican] party cannot reign forever, and truth and justice will at last prevail. . . . I look forward to better days, and trust that time and experience, the great teachers of men, under the guidance of an ever-merciful God, may save us from destruction and restore to us the bright hopes and prospects of the past. . . . We failed, but in the good providence of God, apparent failure often proves a blessing. . . . The truth is this: The march of Providence is so slow and our desires so impatient; the work of progress is so immense and our means of aiding it so feeble; the life of humanity is so long, that of the individual so brief, that we often see only the ebb of the advancing wave and are thus discouraged. It is history that teaches us to hope. 37

Lee acknowledged the presence of an omniscient and omnipresent God, in contrast to the hubris of men pretending to possess such powers in their efforts to remake the social order. In the aftermath of that devastating war, there was Lee, still standing with his honor intact and the high esteem of both friend and adversary. 38 They must have detected in Lee the personification of what they valued and a sort of apprehension about what was to come. Of course both armies had their honorable leaders, God-fearing men who carried and read their Bibles and believed to have their Christian God on their respective sides. But it was the South that was the conservative section. Confederates viewed the war was a clash of civilizations, with Northern intellectuals progressively dismissing the relevance of biblical teachings, especially in regards to slavery. Southern intellectuals, mostly theologians, detected, rejected, and reacted accordingly. Even defeat was cast in conservative biblical terms. The leading Southern theologian concluded that “A

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righteous God, for our sins towards Him, has permitted us to be overthrown by our enemies and His.” 39 Lee certainly was aware of religion’s disruptive potential. The avoidance of sectarian divisiveness was an attribute of Lee’s belief system. He was not a religious zealot fighting to force his religion on others. For example, in 1844 when the Episcopalians were splitting along high church/low church lines over the teachings of Oxford theologian Edward Bouverie Pusey, Lee was a vestryman at Saint John’s, the church at Fort Hamilton. He advised a second lieutenant to “beware of Pussyism! Pussyism is always bad, and may lead to unchristian feeling; therefore beware of Pussyism.” Lee’s “warning and his inflection sharpened the point of his little pun: there was less discussion of Puseyism around the post and less Pussyism. Lee’s own views were never revealed to the curious amateur theologians of Fort Hamilton. He was, however, in practice and faith, definitely “low church” all his life.” 40 As he would not force his religion on others, he would not let others force their religion on him. As Washington College president, Lee revealed his tolerant stance. Seeking to fill the Chair of Moral and Mental Philosophy at Washington College, in a letter to Reverend Gibson he suggested that [t]he occupant should not only be a man of true piety, learning, & science; but should be so thoroughly imbued with the Heavenly principles of the blessed Gospel of Christ; as to make His Holy religion attractive to the young, to impress it upon their hearts, & to make them humble Christians. He should not only be free from bigotry, but clear of Sectarianism, & not a participator in Controversy; having for his whole object the teaching of wisdom, & the conversion of all the students from sin to the religion of Christ, of whatever sect or denomination. I hope we shall be able to obtain such an one. 41

Lee’s letter reveals a commitment to traditional theological precepts, such as the concept of sin, a commitment to the Gospel, non-sectarianism, tradition (i.e., the successful candidate will not be a participator in controversy), an openness to science, and evangelization. It also reveals an acceptance of diversity within the Christian fold, by requiring the successful candidate to be free from bigotry and sectarianism. Lee’s deportment concerning religion at Fort Hamilton and Washington College could be dismissed as managerial acumen, that is, effective leadership, rather than stemming from a core Christian belief. The last thing a leader wants is bickering among subordinates, and Lee’s policies mitigated religious divisiveness and the resulting bickering in both instances. However, there was an event in Lee’s life which cannot be explained away by ulterior motives. The decision to resign his U.S. Army commission reveals his belief system. The decision juxtaposed potential power, glory, and wealth with the

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impending trials and tribulations of defending one’s own against a formidable enemy. His decision to defend Virginia at all cost indicates that he was prepared to abide by his religious convictions regardless of the costs. When the few remaining ties holding the Union together began to snap, Lee held a prominent position in one of the most durable of those ties, the U.S. Army. His devotion to duty as a highly respected officer in the army made him an important link between the warring sectional factions. His choice to side with his native Commonwealth of Virginia was not a knee-jerk preference for Southern institutions as they stood. He was a progressive in the sense that he welcomed technological advances, appreciated the value of the Union, and disdained the prospect of anarchy that the impending war conjured up. He even questioned the constitutionality and practicality of secession. But if Virginia were to change, it would be on her terms and at her pace. His decision to resign his commission and return to Virginia transcended mundane politics. Certainly duty and honor played their roles. But duty and honor could have just as well led to siding with the Union, as was the case for many Southern military careerists. To understand Lee’s decision and, most importantly, his conduct during the war and the relevance of that conduct today, it is essential to focus on what was important to Lee. Honor, duty, family, and Virginia are high on the list. Nevertheless, the paramount motivating factor for Lee was his Christian faith. His Christian faith provided the lens from which he viewed life and shaped his conduct. In order to appreciate the influence Christianity had on Lee’s it is important to keep in mind that he was not always a devout and studied Christian. While a young man Lee was exposed to a variety of religious and irreligious views. His father was a deist, his mother a rationalist, and his older brothers were humanists. As a consequence of his classical and scientific education, along with his upbringing in a family of deists, rationalists, and humanists, Christianity was not a prominent part of his life. Married at the age of twenty-four, June 1831, his wife Mary Custis Lee was a devoted evangelical Christian. It’s reasonable to assume that she had a profound influence on his Christian development, which was a work in progress for some twenty years. The sudden death of his mother-in-law in 1853 marked a turning point in his life. He called it “the most affecting calamity that has ever befallen us” and struggled to find comfort. The swiftness of her departure—“one day in the garden with her flowers, the next with her God”—impressed him with an understanding that each moment was precious. “The blow was sudden & crushing,” he told his wife in sympathy, “that I shudder at the shock & feel as if I had been arrested in the course of life, and had no power to resume my onward march.” Markie Williams accompanied her cousin when Lee visited Mrs. Custis’s grave a few months later and was startled to see him sobbing uncontrollably. “It was a scene for pity to behold,” she confided to her diary,

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to see that man weep so bitterly.” Lee advised Markie and his children that the best way to honor Molly Custis was to emulate her, and he appears to have been determined to do so himself. “May God give me the necessary strength, & above all the power to live, that when I die, my last end may be like her.” 42 This “blow” spurred Lee, at the age of forty-six, to formally join the church. One of Lee’s best biographers provides some insight as to why it took so long: Lee was a very private person, and his religious response was private as well. He avoided sectarian exclusivity and believed expansively. . . . [H]is piety was practical, grounded in this world. . . . Lee certainly believed in sin. Had the church not taught the doctrine of original sin, Lee would have invented it. The human condition was flawed, he believed, and the fatal flaw was the absorption with self. Conversely Lee believed that “the great duty of life” is the promotion of the happiness & welfare of our fellow men. Good Christians, Lee believed, attempted to make selflessness a habit and eventually an instinctive response to any situation. But even the best Christians failed in this effort because of the evil inherent in human beings. So God resolved this dilemma with His grace and forgiveness. . . . Although Lee couched his beliefs in evangelical rhetoric, he believed beyond evangelism. Lee’s response to God was selflessness, self-control, and service to others. God’s response to Lee was freedom. 43

This is Christianity qua Robert E. Lee. Even as the masterful conductor in the symphony of a terrible war, directing men to kill and to be killed, Lee was motivated by the Christian responsibility to promote the happiness and welfare of humanity. While calling upon God’s grace for direction and success, Lee was doing what he believed to be his Christian duty. That duty included protecting his fellow Virginians, slaves included, and promoting their happiness and welfare from Northern aggressors who aimed to impose their will on the South. If not thwarted, the Christian foundation of Virginia’s culture would be undermined. This is not meant to imply that Lee was adverse to progress per se. He was, however, adverse to men playing God or knowing God’s divine plan independent of Scripture. To capitulate to such men would be capitulation to evil. Southern preachers reiterated time and again that subjugation of the South by the North, many of whom disdained Christianity, was to turn one’s back on his Christian obligations. In a letter to his wife in 1863, from his camp in Fredericksburg, we can catch a glimpse of how this was the sheet anchor of his military science. Greatly outnumbered in men and firepower he confessed that “I pray our merciful father in heaven may protect & direct us . . . In that case I fear no odds & no numbers.”

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Realizing the importance of his Christian faith in his own life and that of his troops, he reaffirmed “the obligation of a proper observance of the Sabbath [and] its importance not only as a moral and religious duty, but as contributing to the personal health and well being of the troops.” Toward that end he directed “that none but duties strictly necessary shall be required to be performed on Sunday, and that all labor, both of men and animals, which it is practicable to anticipate or postpone, or the immediate performance of which is not essential to the safety, health, or comfort of the army, shall be suspended on that day.” 44 In the war General Lee had a single-mindedness that was variously described as audacious, reckless, and a determination to obliterate the enemy, that enemy being the Union Army and not Northern civilians. Unlike the war policy of his counterparts in the U.S. Army, neither civilians nor their property were targeted. He realized that the Union army had to be brought to the brink of annihilation, not the Northern people per se, if his people were to be spared the humiliation and oppression of subjugation. In 1862, Reverend George F. Pierce revealed how the South, Lee included, viewed the war: Our republican fathers wisely separated the Church from the State; their degenerate successors madly separated the State from Heaven. It has been the fashion to theorise (sic) and decide on politics, as if Christianity were not a superior, supreme law, and as though God had abandoned his book and his rights to the chances of a doubtful contest. Statesmanship has become an earthly science, a philosophy without religion, and a system of expediency without a conscience. 45

The typical view of Lee’s role in the war is often preoccupied with the imagery of battles and battlefields. Lee has come to personify the shooting war from the Confederate perspective, as has General Grant for the Union. 46 But within the personifications are deeper realities, neither easily penetrated nor completely appreciated. The shooting war manifests the effects of a more important culture war, real or imagined, the one Christian and the other tending toward atheism. If it is true that General Grant’s “alcoholism made him a better general,” 47 it is also true that Lee’s Christian faith made him who he was. The contrast could not be more striking. An admiring Grant biographer commented that “Unlike the monolith of rectitude Robert E. Lee, Grant was vulgar, was thought to drink, and was not known to be a student of anything.” 48 If Grant was “not the student of anything, including the Bible, the Bible toting Lee found his strength in his Christian faith. It was through the prism of his faith that Lee viewed and participated in the war. It was his Christian character that elevated Lee in the eyes of the Southern people, because they recognized in him the character they aspired to emulate.

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As one noted Lee biographer concluded, Lee’s ground of “action may be summed up in a single sentence. He went with his State because he believed it was his duty to do so, and because, to ascertain what was his duty, and perform it, was the cardinal maxim of his life.” 49 However, it was his Christian discernment—avoid evil and do good—that is key to understanding Lee. His life was guided by his Christian faith. Put otherwise, the cardinal maxim of his life was doing his Christian duty, not a secular duty either uninformed by or at odds with his Christian faith. The distinction between Grant and Lee should not be overlooked and may help to explain the current attacks against Lee. Grant personifies an emerging modernity where faith, indeed piety, is ridiculed. As explained by Richard Weaver, modern man is egotistical, and seeks to “destroy what is different because it is different.” 50 That is, the modern man for all the clamor about his toleration is the least tolerant of those who fail to conform to his “creative” powers. Based upon modernity’s standards Lee is certainly different and, as explained by Weaver, a target for destruction. To follow is a recent example, funded by the National Endowment for the Humanities: 51 Nor is there any gainsaying that Lee’s installation in first the southern then the national pantheon owes much to the efforts of those who were also bent on restoring and preserving white supremacy in the postbellum South, or that he has been the namesake of many a klavern of Kluxers, or that, of all his contemporary champions, none sing his praises more lustily than the belligerent representatives of neo-Confederate secessionist groups. . . . For all his apparent personal virtues, there is no denying Robert E. Lee’s direct connection with the cause of slavery or his symbolic appropriation by those who succeeded in replacing slavery with Jim Crow. 52

This type of character assassination is not only bad rhetorical manners, but an example of “argument post hoc, propter hoc—disguising legitimate choices, or distorting causal connections.” 53 In other words, because undesirables have adopted Lee as one of their own, Lee and those having anything positive to write about him are by default supportive of, if not party to, the agenda of the undesirables. But the question left begging is why resort to such tactics and why now? To paraphrase Richard Weaver, to destroy Lee is a giant leap toward the destruction of the principles he personifies, principles such as the antebellum constitutional rule of law and a Christian-based civilization. NOTES 1. Charles P. Roland, The Confederacy (The University of Chicago Press, 1960), 158–59.

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2. David Goldfield, America Aflame: How the Civil War Created a Nation (New York: Bloomsbury Press, 2011), 4–5. 3. Richard J. Carwardine, Evangelicals and Politics in Antebellum America (Knoxville, TN: The University of Tennessee Press, 1997), xvii. 4. Carwardine, 30. 5. Carwardine, 30. 6. See Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: The University Press of Kansas, 1985), 41–45, for a brief discussion about how religious liberty in Virginia was unique in early America. 7. Virginia Declaration of Rights, accessed at http://avalon.law.yale.edu/18th_century/ virginia.asp. 8. Goldfield, 72. 9. Carwardine, 173. 10. Catholicism had for centuries condemned slavery and the trafficker and owner of slaves risk excommunication. See Rodney Stark, “The Truth About the Catholic Church and Slavery,” Christianity Today July, 2003, accessed at www.christianitytoday.com/ct/2003/julyweb-only/ 7-14-53.0.html?paging=off. 11. Endemic regional hostilities date back to the eighteenth century. See Kevin Phillips, The Cousins’ Wars: Religion, Politics, and the Triumph of Anglo-America (New York: Basic Books, 1999) and Marc Egnal, The Clash of Extremes: The Economic Origins of the Civil War (New York: Farrar, Straus, Giroux, 2009), for a solid analysis of how economic interests, more so than the slavery issue, drove Northern politics and its war policy. 12. Richard Weaver, The Southern Tradition At Bay: A History of Postbellum Thought (Washington, DC: Regnery Gateway, 1989), 161. 13. See Egnal. 14. J. William Jones, Christ in Camp or Religion in Lee’s Army (Richmond, VA: B. F. Johnson & Co., 1887; reprinted by Diggory Press, 2007, accessed at the British Library, www.diggorypress.com), 784–85. According to Jones, “[i]n this age of hero-worship there is a tendency to exalt unduly the virtues of great men, to magnify the religious character of one professing to be a Christian, even to manufacture ‘Christians’ out of those of notoriously irreligious lives.” Such is not the case here. Those who came into contact with Lee can “doubt the genuineness of his piety.” Lee’s “vital godliness was a precious reality” (ibid, 797). 15. The Whig Party was formed in opposition to the excesses of Jacksonian democracy. The “Whig” label was adopted for its well-known British precedent as being opposed to tyranny. In the mid-1850s it formed the basis of the Republican Party. Some of the well-known Whig members include as Daniel Webster, William Henry Harrison, John Quincy Adams, Henry Clay, Zachary Taylor, Winfield Scott, John Tyler, Millard Fillmore, and Abraham Lincoln. In its 1844 Party Platform, the party resolved that its “principles may be summed as comprising, a well-regulated currency; a tariff for revenue to defray the necessary expenses of the government, and discriminating with special reference to the protection of the domestic labor of the country; the distribution of the proceeds of the sales of the public lands; a single term for the presidency; a reform of executive usurpations;—and, generally—such an administration of the affairs of the country as shall impart to every branch of the every branch of the public service the greatest practicable efficiency, controlled by a well regulated and wise economy.” Whig Party platform of 1844, accessed at www.presidency.ucsb.edu/ws/index.php?pid=25852#axzz1kavtSRBd. 16. Freeman, I, xxiv, 413–14. 17. Freeman, I, xxiv, 425. 18. Emory M. Thomas, Robert E. Lee: A Biography (New York: W. W. Norton & Company, 1995), 160. 19. Ibid., 173. 20. Lincoln made the comment during his debate with Senator Douglas in 1858. 21. See his sworn testimony to the Joint Committee on Reconstruction, on February 17, 1866, in Washington, DC, accessed at www.archive.org/stream/jointreconstruct00congrich/ jointreconstruct00congrich_djvu.txt.

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22. H. W. Crocker III, Robert E. Lee on Leadership: Executive Lessons in Character, Courage, and Vision (New York: Three Rivers Press, 1999), 190. 23. Freeman, IV, 299. 24. Winston Churchill, The American Civil War (New York: Fairfax Press, 1985). 25. “And after the earthquake a fire; [but] the LORD [was] not in the fire: and after the fire a still small voice.” I Kings 19:12. 26. It needs to be reiterated that the so-called American Civil War was not a civil war. A coalition of Southern States was not attempting to conquer the U.S. government by force and violence. The Southern States seceded from the Union, formed a separate nation, and fought for sustaining that nation’s independence. The American Civil War was factually a war between two nations, the United States and the Confederate States of America. 27. See Lloyd A. Hunter, “The Immortal Confederacy: Another Look at Lost Cause Religion,” in The Myth of the Lost Cause and Civil War History, Gary W. Gallagher, ed. (Indiana University Press, 2000), 185–218, 196. 28. Lancelot Andrewes, Essays on Style and Order by T. S. Eliot (Garden City, NY: Doubleday, Doran and Co., 1929), 78. 29. “The Bible or Atheism,” Special Collections, Richmond Public Library, 1–2. 30. Ibid., 6. 31. Id., 25. 32. Reverend William A. Hall, Chaplain, “The Historic Significance of the Southern Revolution,” Richmond Public Library, Special Collections, 2. 33. Ibid., 3. 34. Id., 4. 35. Id., 14. 36. Id., 13. 37. Freeman, IV, 483–84. 38. A Kentucky abolitionist eulogized about Lee that he “was not a man of one section of the country or of one time, but rather a man who belonged to all of the country and all ages.” The remarks were made by John W. Finnell. Finnell “had been a strong Union supporter during the Civil War. He had proudly proclaimed himself an abolitionist. As a state legislator, he had authored a resolution calling for the state to "expel the invaders" when Confederate troops entered the commonwealth in September 1861. Moreover, he served as adjutant general for the commonwealth during the war in charge of Home Guard defenses against rebel troops.” Accessed at the Free Republic website, www.freerepublic.com/focus/f-news/966553/posts. 39. Robert L. Dabney, D. D., A Defence of Virginia, and Through Her, of the South (Harrisonburg, VA; Sprinkle Publications, 1991; originally published in 1867), 356. 40. Freeman, 193, vol., 1. 41. Accessed at Washington and Lee University Special Collections website, http://home.wlu.edu/~stanleyv/24jan66.htm. 42. Elizabeth Brown Pryor, Reading The Man: A Portrait of Robert E. Lee Through is Private Letters (New York: Penguin Books, 2007), 231–32. 43. Emory M. Thomas, Robert E. Lee: A Biography (New York: W. W. Norton & Company, 1995), 160. 44. General Orders, No. 15, cited in The Wartime Papers of R. E. Lee, Clifford Dowdey and Louis H. Manarin, eds. (New York: Bramhall House, 1961), 668–69. 45. Reverend George F. Pierce, March 19, 1862, Confederate Bible Convention, Augusta, Georgia, March 19–21, 1862, p. 9; accessed at the University of North Carolina’s Documenting the American South website, http://docsouth.unc.edu/imls/biblconv/biblconv.html. 46. See Richard H. Bonekemper, III, Ulysses S. Grant: A Victor Not A Butcher: The Military Genius of the Man Who Won the Civil War (Washington, DC: Regnery Publishing, 2004). 47. James McPherson, Battle Cry of Freedom, 588; Bonekemper, 252. 48. William S. McFeely, Grant: A Biography (New York: W. W. Norton & Company, 1981), 138. 49. John Esten Cooke, www.freeinfosociety.com/media/pdf/4752.pdf, 19. 50. Richard M. Weaver, Ideas Have Consequences (Chicago: University of Chicago Press, 1948), 175.

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51. In its own words, “[b]ecause democracy demands wisdom, the National Endowment for the Humanities serves and strengthens our Republic by promoting excellence in the humanities and conveying the lessons of history to all Americans” (accessed at www.neh.gov/whoweare/ overview.html). In fact, the NEH only funds national government sanctioned “lessons in history” and is well known for its liberal/leftist biases and has been the target of defunding by Conservatives. See “The NEH vs. America: PC propaganda at the National Endowment for the Humanities,” Criterion (December 2010). 52. James C. Cobb, Humanities 32, no. 4 (July/August 2011). Cobb’s book Away Down South: A History of Southern Identity was supported by a $40,000 grant from NEH (accessed at www.neh.gov/news/humanities/2011-07/RobertELee.html). 53. M. E. Bradford, Remembering Who We Are: Observations of a Southern Conservative (Athens: University of Georgia Press, 1985), 16.

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Soldiers! We have sinned against Almighty God. We have forgotten his signal mercies, and have cultivated a revengeful, haughty, and boastful spirit. We have not remembered that the defenders of a just cause should be pure in his eyes; that “our times are in his hand”-and we have relied too much on our own arms for the achievement of our independence. God is our only refuge and our strength. Let us humble ourselves before him. Let us confess our many sins, and beseech him to give us a higher courage, a purer patriotism and more determined will: that he will convert the hearts of our enemies: that he will hasten the time when war, with its sorrows and sufferings, shall cease, and that he will give us a name and place among the nations of the earth. —R. E. Lee, General Orders, No. 83, August 13, 1863

If one had to choose a word to best describe the Southerners’ quest for independence, disharmony may that word. Southerners were largely united in their desire for independence, but the quest to fulfilling that desire was racked with disharmony. The disharmony stemmed from the political culture of the Southern people. Southern political culture placed high premiums on the individual liberty of whites and State sovereignty. This made the Confederate war effort difficult to galvanize and direct from Richmond. By 1862 “enactment of the first conscription law and the suspension of habeas corpus raised questions that revealed anew the intimate and complex relationship between Confederate policies and state politics, as well as fundamental differences over the meaning of the Confederate revolution.” 1 The tensions between Confederate and State politicians were somewhat offset by the Southern people’s animus toward the Northern invaders. This resulted in a watch-and-wait attitude toward C.S.A. officials. But Richmond’s authority over individuals and the States was always tenuous. That authority had to be legitimized, which necessitated a steadfast commitment to the rule of law. Any substantial deviation from the rule of law would be 85

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viewed as a betrayal of the Confederacy’s raison d’être. Although conscription was an understandable attempt to organize the independent-minded Southerners under a unified command structure, it was met with stiff resistance. Robert E. Lee was acutely aware that the rule of law was the yardstick by which Richmond’s legitimacy would be measured. As the war dragged on the C.S.A. conscription was the fulcrum upon which the Confederacy’s commitment to the constitutional rule of law rested. Was the rule of law embodied in C.S.A. Constitution a “suicide pact” 2 or did the need for Confederacy survival temporarily trump that commitment? Because the political culture under which Lee persevered was highly individualistic with a jealous regard for civil liberties, 3 conscription was very controversial. Southern political culture had an aversion to the exercise of political power generally, whether exercised by Richmond or the States. 4 With Confederate conscription being the preeminent exercise of political power over the States and individuals, much was at stake. The C.S.A. Constitution had a strong bias toward States’ rights and an individualistic political culture. 5 Even when a reasonable argument was made for its constitutionality, conscription stoked hostility against Richmond. Naturally, C.S.A. conscription alarmed many in the South that the Confederacy was heading down the same path of centralization that perverted the U.S. Constitution. Southerners had been complaining about this trend for generations. Patrick Henry, Thomas Jefferson, John Randolph, John Taylor of Caroline, and John C. Calhoun, among others, were their guiding lights. Many were unwilling to yield their theoretical principles to the exigencies of war, even if that meant losing the war. The C.S.A. Constitution’s constraints on the exercise of centralized power provided those opposed to conscription, including governors, state legislators, and conscripts, to thwart its execution at every turn. When Southern delegates convened in February 1861, in Montgomery, Alabama, to draft national provisional and permanent constitutions they were Americans, albeit Southern, determined to improve upon what they considered to be the defects of the U.S. Constitution. The defects were both structural and interpretive. An example of a structural defect is the unlimited terms for the chief executive. An example of an interpretive defect is the ambiguity surrounding the breadth and depth of the Congressional powers. They realized that these defects paved the way for an accumulation of power by the central government incompatible with the republican principles of limited government. The Confederate Framers maintained that their constitutional principles were not in opposition to the objectives of the 1789 Framers, but with the policies of Northern politicians who misconstrued those principles for uncon-

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stitutional policy objectives. Political patronage, protectionism for Northern manufacturing, internal improvements such as public funds for railroads, abolitionist attacks on slavery, the fusion of politics and religion, were fresh in their minds. Rather than preventing these policies, the U.S. Constitution was manipulated to promote them to the detriment of the Southern States. Many viewed the C.S.A. Conscription Act as a repeat of manipulating the C.S.A. Constitution to the benefit of some States at the expense of others. The C.S.A. framers grounded the C.S.A. Constitution in the fundamental premise that men must not be trusted with political power and that political power must be constrained by written constitutions, both State and national. But they did not have a blind faith in written constitutions. For them the tendency toward tyranny is real, omnipresent, and part of the human condition. Even when confronted with constitutional limits, political operatives will diligently work toward surmounting those limits. Even though the C.S.A. Framers concluded that the U.S. Constitution had proven to be a failure, they did not believe that the demise of the American experiment in self-government was inevitable. They would redeem and secure it within the Confederacy. In the words of Jefferson Davis, I do not regard the failure of our constitutional Union, as very many do, to be the failure of self-government; to be conclusive in all future time of the unfitness of man to govern himself. Our State governments have the charge of nearly all the relations of personal property. This Federal Government was instituted mainly as a common agent for foreign purposes, for free trade among the States, and for common defense. 6

The political culture of the Confederate States was solidifying around decentralization of national power in favor of States’ sovereignty and free markets, at a time when the survival of the Confederacy required reinforcing central authority. This tension between theory and reality is not new. It led Jefferson Davis to conclude that the Confederacy “died of a theory,” the theory of States’ sovereignty. 7 Lee certainly felt the tension. On the one hand he confronted an enemy he was determined to defeat, with all the prerogatives and advantages of centralized power in waging war; on the other, he tangled with a Southern political culture highly wary of centralized power. As a States’ rights man and national military leader Lee needed extraordinary political skills to fight what was essentially a two-front war, the domestic political turmoil and the war against the Union. To simultaneously fight this two-front war required extraordinary leadership. Lee was walking a political tightrope, while the political landscape upon which Lee stood was shifting. It was a landscape in which “personal ambition and disappointment, a constant sense of crisis, and a narrow vision focused on immediate or

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merely local problems had discouraged clear thinking about the political needs of this nebulously defined Southern nation. The immediate future seemed to promise little but confusion, conflict, and perhaps political disintegration.” 8 The political landscape’s instability reverberated throughout the C.S.A. army. Secessionists versus Unionists, Deep South States versus the Upper South States, pro-slavery versus anti-slavery, aristocrat versus yeoman were manifested in the ranks and made Southern nationalism a thing to be grasped at but difficult to hold. For most Southerners, including Lee, his State was his nation. The C.S.A. was essentially an association of States, serving at the behest and pleasure of the States. This reality made the Confederacy a genuine federal republic, based upon the consent of its member States. Neither President Davis nor Lee could effectively lead without respectful deference to the States and the politicians who dominated State politics. 9 If the C.S.A. government attempted to coerce the States into compliance with conscription laws, it probably would have failed sooner rather than later. Supported by Southern political culture, the Southern political class was full of strong-willed men, sensitive of their honor, policy prerogatives, and personal interests. The Confederacy’s political order was a reaction against what the Southern ruling class understood to be the shortcomings of the U.S. political system. The rise of the sectional Republican Party, catering to sectional interests at the expense of the South was the tipping point. Because conscription was cast as catering to sectional interests within the C.S.A., its enforcement was extremely problematical. The South’s animus towards the Republican Party resulted in an antiparty republicanism taking shape in the Confederacy. Southern leaders were attempting to recover the eighteenth-century political principle that “[p]arty loyalty was thought of as an insidious alternative to that disinterested good judgment on behalf of the public welfare that might be expected, in the absence of party forces, from the good citizens.” 10 The Confederacy’s antiparty republicanism stressed civic virtue over crafty politicians’ ability to win elections by promising to deliver on campaign promises of preferential treatment. This antiparty sentiment made State politicians even more difficult to control from Richmond. Moreover, the war derailed the hope of placing the best in men in office. The consensus was that the best men, those with the most civic virtue, were in uniform. Most politicians were deemed to be mediocrities that finagled their way out of uniformed service. 11 Consequently, the Southern people placed the most trust in military leadership, rather than stay at home politicians. This created a crisis of confidence in the elected officials that the C.S.A. military partially filled. But it also heightened antagonisms between elected officials and the military leadership.

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These developments contributed to the elevation of Lee in the hearts and minds of Southerners, including his support for conscription. But it also had the major drawback of making governing at the national level much more difficult. In the absence of a national party, most Southern officials were free agents focused on their respective States’ interests. With weak political parties, especially at the national level, political power was much more fragmented. And rather than a national strong party system led by the C.S.A. president being the locus of political power, governors became the leaders of a decentralized weak party system. Consequently, the governors’ support for Richmond was circumstantial. If Richmond’s policies, both domestic and military, were deemed to be favorable to his State, the governor was supportive. If not, recrimination and obstruction were the norms. The absence of a strong national party system hampered President Davis’s capacity to control uncooperative governors. This was especially the case with conscription. Bickering among the States and between the States and the C.S.A. government escalated as C.S.A. resources and success waned. “In the Spring of 1862, Confederates were confronting probable defeat and an early end to the dream of a Southern nation. Davis had failed to solve the command problems in the army, and the need for more men and supplies had reached a crisis point. . . . the Confederates had in many ways reverted to the politics of the 1790s—to the intensely personal and vicious pre-party politics of the founding fathers.” 12 The Confederacy’s conscription acts exacerbated State and C.S.A. relations to the breaking point. It was Lee that held the fragile Confederate states intact. Lee understood that conscription struck at the heart of C.S.A. political culture. Unlike volunteering, conscripting a man into service was an affront to his individualism, whether the mandate came from his State or the Confederacy. The Partisan Ranger Act, passed by the C.S.A. Congress on April 21, 1862, 13 was a concession to Southern political culture. The Act established independent military units. It authorized President Davis to commission officers and have them organize bands of partisan rangers into companies, battalions, or regiments; entitled to the same privileges and subject to the same regulations as regulars in the C.S.A. Army. Section 3 of the Act is most instructive: Section 3. Be it further enacted, That for any arms and munitions of war captured from the enemy by any body of partisan rangers and delivered to any quartermaster at such place or places may be designated by a commanding general, the rangers shall be paid their full value in such manner as the Secretary of War may prescribe. 14

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Section 3 provided an additional incentive for rangers to go on the offensive against the enemy. On February 17, 1864, the Congress repealed the Act, at the insistence of Lee, due to the charge that the units were running amok over the rights of civilians. The repeal had the aim of bringing the rangers “under the general provisions of the general conditions of the provisional army as to discipline, control, and movements under such regulations as the Secretary of War may prescribe.” Two units under Lee’s command, Mosby’s Raiders and the McNeill’s Rangers, were allowed to continue due to their reputations for effectiveness while maintaining military discipline. 15 With those two exceptions, on April 1, 1864, Lee wrote to General Samuel Cooper advising the immediate disbanding of the rangers: Experience has convinced me that it is almost impossible, under the best officers even, to have discipline in these bands of Partisan Rangers, or to prevent them from becoming an injury instead of a benefit to the service, and even where this is accomplished the system gives license to many deserters & marauders, who assume to belong to these authorized companies & commit depredations on friend & foe alike. Another great objection to them is the bad effect upon the discipline of the army from the constant desire of the men to leave their commands & enjoy the great license allowed in these bands. . . . I hope the order will be issued at once disbanding the companies & battalions serving in this department. 16

Lee would not tolerate lawlessness toward “friend or foe.” As the Confederacy’s economic and military prospects declined, Richmond lost the capacity to enforce its will regarding recruitment as well as other military objectives. It was getting increasingly difficult for the C.S.A. government to execute its war policies. Desertion from C.S.A. armies in large measure stemmed from the love of one’s own and a preference for one’s State over the Confederacy. As tortuous homesickness plagued the ranks, declining reenlistment and desertion bled the Confederacy of much of its vigor. Davis admitted as much in September 1864, when he lamented that “It is not proper for me to speak of the number of men in the field. But this I will say, that two-thirds of our men are absent—some sick, some wounded, but most of them absent without leave.” 17 Conscription laws were passed in the attempt to centralize command and control of the Confederacy’s military human assets. As the war dragged on maintaining morale for the Southern cause became increasingly problematical. “Neither religion nor propaganda, however, could suffice to keep the South united in the face of military defeat and economic collapse. In the battle regions, families were forced to abandon their homes to become refugees, and in the mountain districts lived many who had always been opposed to the southern cause. Defeat and hardships contributed to the development

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of a discontent that found expression in secret societies opposed to the war.” These societies collaborated with the enemy and actively facilitated desertion from the Confederate armies. A weak central government made these developments possible if not probable. 18 Lee confronted head-on the growing problems stemming from a weak central government and a decentralized military command structure. He wrote to Adjutant General Cooper, I believe the troops of this army have been called upon in winter, spring, and summer to do almost as active service as those of any other department, and I do not see the good of the service will be promoted by scattering its brigades and regiments along all the threatened points of the Confederacy. It is only by the concentration of our troops that we can hope to win any decisive advantage. 19

Lee was swimming upstream against the strong currents of declining morale, political opposition, and enemy forces, both domestic (C.S.A.) and foreign (U.S.). Depending upon how it was implemented, conscription would either enhance or stem the force of those currents. Initially conscription drafted into service men between the ages of eighteen and thirty-five. A revised law was passed on September 27, 1862, and raised the age to forty-four. The Conscription Act of February 1864 called all men between seventeen and fifty. By 1864 conscripts accounted for onefourth to one-third of the Confederate armies east of the Mississippi River. Considering that the life expectancy for men and women in 1860 was forty-three, a young man who volunteered in early 1861 at the age of eighteen would be middle-aged by 1863. Furthermore, conscription forced into C.S.A. service many who were physiologically old men, requiring them to leave behind wives, parents, relatives, and friends in their twilight years. Moreover, Confederate soldiers that were AWOL had their political obligation priorities validated by their respective state courts and in all probability their families and communities. Families’ safety nets were the men of the family, and C.S.A. conscription policies stretched those safety nets to their limits. 20 Making matters worse were controversial conscription policies such as the purchase of substitutes, exemptions, and its forceful enforcement, which were affronts to southern honor, a sense of fairness and ultimately morale. A Tennessean soldier’s dissatisfaction was not atypical: [S]oldiers had enlisted for twelve months only, and had faithfully complied with their volunteer obligations; the terms for which they had enlisted had expired, and they naturally looked upon it that they had a right to go home. They had done their duty faithfully and well. They wanted to see their families; in fact, wanted to go home anyhow. War had become a reality; they were

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One should not underestimate the pull toward home these and other nineteenth-century wartime realities, such as men in blue ravaging their homes, the prospects of a slave rebellion, economic deprivations, a poorly fed and equipped army, interstate rivalries/jealousies, and the like, presented to the men in gray. Lee was sensitive to the trials and tribulations of the private soldier. For example, “a court martial condemned to death a private who had deserted on receipt of a distressing letter from his wife. When he reached home and his wife found that he had come without leave, she sent him back. Lee confirmed the sentence of death but had the man pardoned promptly.” 22 Others were not so fortunate. Those who deserted to the Union army were not treated with such magnanimity. Such men were particularly loathsome to the military high command. When captured, these deserters were summarily court martialed and hanged. 23 In a sermon following the hanging of twentytwo such deserters, Chaplain Paris of the Fourth Regiment of North Carolina Troops pondered, But who were those twenty-two men whom you hanged upon the gallows? They were your fellow-beings. They were citizens of our own Carolina. They once marched under the same beautiful flag that waves over our heads; but in an evil hour, they yielded to mischievous influence, and from motives or feelings base and sordid, unmanly and vile, resolved to abandon every principle of patriotism, and sacrifice every impulse of honor; this sealed their ruin and enstamped their lasting disgrace. 24

The failure to execute deserters would not only encourage desertion, but, and perhaps more importantly, be an injustice to nondeserters and their families. In the words of Chaplain Paris, When I have seen our brave men in winter’s cold and summer’s heat, marching from battle-field to battle-field, bare-footed as they were born, and without a murmur, I could not doubt our final success. Such men as these, were never born to be slaves. Again when I have turned my eye homeward from the camp, and witnessed the labors of our fair country women, in preparing clothing to meet the wants of the suffering in the field, and witnessed their untiring devotion to the relief of the sick and wounded in the hospitals, I knew that the history of no country, and of no age afforded anything like a parallel, and my faith assured me we never were born to be slaves of the Yankees. Then let your trust to-day be strong in the God of nations. 25

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Lee concurred. In an August 1863 letter to President Davis, Lee wrote that “The number of desertions from this army is so great and still continues to such an extent, that unless some cessation of them can be caused, I fear success in the field will be seriously endangered. . . . In one corps the desertions of North Carolinians and to some extent of Virginians has grown to be a very serious matter. . . . Great dissatisfaction is reported among the good men in the army at the apparent impunity of deserters . . . and that nothing will remedy this great evil which so much endangers our cause except the rigid enforcement of the death penalty in future cases of conviction.” 26 There was a manpower crisis that had to be addressed. As volunteerism waned, conscription was the only recourse. As a student of military science, Lee was aware that European armies, with the exception of Great Britain, resorted to conscription to fill the ranks. He also realized that the prospect of being conscripted prompted an increase in volunteers. Not only was volunteering deemed patriotic, but it provided the volunteer with options the conscript lacked, such as enlisting in his State militia. The latter exacerbated Lee’s problems, because the C.S.A. military forces were highly decentralized consisting of national armies and State militias. The problem was Lee’s to solve, because although President Davis was the de jure C.S.A. commanderin-chief, Lee, serving as Davis’s chief military advisor, was the de facto commander-in-chief. Davis increasingly relied on Lee for advice. He confided “On my arrival in Richmond, General R. E. Lee, as commander of the Army of Virginia, was found there. . . . He possessed my unqualified confidence, both as a soldier and a patriot.” Lee had “that special knowledge which at the time was most needful.” 27 Governors were commanders-in-chief of their respective State militias, with their own chiefs of staff. Lee’s responsibility to defend Richmond, as commander of the Army of Northern Virginia, heightened his national profile on both sides of the Mason-Dixon Line. However, with Union forces on the march throughout the Confederacy, it also heightened charges of partiality towards Virginia at the expense of other parts of the Confederacy as they were threatened and/or overtaken by Union armies. This quandary was at the core of Lee’s two-front war, the one against Union armies and the other a domestic political war between the States and the C.S.A. government. Conscription exacerbated the domestic political warfare. As anticipated by Lee, the mere prospect of being conscripted into the C.S.A. ranks led many to preemptively enlist in a State militia. This preemptive move did not prevent the C.S.A. conscription officers from attempting to track down unwilling conscripts and force them into the C.S.A. ranks. Enforcement was difficult and resistance was fierce. Some conscription officers were killed, others driven away, and in some States the Conscription Acts faced interposi-

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tion from State governors, legislatures and courts. Davis maintained that the primary purpose of the act was designed to bring a “harmony of cooperation . . . between the General and the State governments.” The act charged General Lee “with the conduct of the military operations of the armies of the Confederacy” under the president’s direction. The act “was assailed with unexpected criticism in various high quarters . . . advanced principally by the Governor of Georgia, Hon. Joseph E. Brown.” 28 Governor Brown essentially interposed the enforcement of the second conscription act pending state legislative action or a decision by the Georgia Supreme Court declaring its constitutionality. 29 “Great pressure was brought to bear on the President from different sections to suspend conscription, but he steadfastly refused to do it.” C.S.A. Senator Phelan of Mississippi advised President Davis to enforce conscription “with iron and unrelenting firmness.” Secretary of War Seddon advised him that conscription was a test of whether the C.S.A. had the power to make the Southern people “submit to the laws or not.” 30 Conscription policies risked weakening the Confederacy by emboldening domestic political opposition to President Davis on constitutional grounds. President Davis turned to Lee to make the administration’s case. This was one of the few times that Lee dealt directly with Congress. This was a particularly distasteful assignment for Lee, because of his preoccupation with military matters and an “ineradicable distrust of politicians.” He was convinced that “Congress was more interested in exemptions than in the inclusions of conscript laws” and that “the lawmakers were playing politics when the existence of the Confederacy depended upon the enlistment of every able-bodied man.” 31 Lee realized that the C.S.A. Congress was fiddling while the Confederacy was burning. In his opinion battlefield successes were wasted due to the lack of manpower and resources to follow-up battlefield victories with pursuit and destruction of Union armies. He maintained, Most promising opportunities have been lost for want of men to take advantage of them, and victory itself has been made to put on the appearance of defeat because of our diminished and exhausted troops have been unable to renew a successful struggle against fresh numbers of the enemy. . . . In view of the vast increase of the forces of the enemy, of the savage and brutal policy he has proclaimed, which leaves us no alternative but success or degradation worse than death, if we would save the honor of our families from pollution, our social system from destruction, let every effort be made, every means employed, to fill and maintain the ranks in our armies, until God, in His mercy, shall bless us with the establishment of our independence. 32

Lee castigated the Congress for its unwillingness to meet the challenge. He wrote to his son Custis, “What has our Congress done to meet the exigency, I

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may say extremity, in which we are placed? As far as I know, concocted bills to exclude a certain class of men from service, and transfer to another class in service, out of service, where they hope to never do service.” 33 Lee’s frustration with the Congress increased as the war continued. He confided to Custis that “I’ve been up to see the Congress and they do not seem to be able to do anything except eat peanuts and chew tobacco, while my army is starving. I told them the condition the men were in, and that something must be done at once, but I can’t get them to do anything, or they are unable to do anything.” 34 The qualification “unable to do anything” reflects Lee’s disappointment in the Southern people and the Congress. According to Lee, “Everything . . . has depended and still depends upon the disposition and feelings of the people.” 35 Lee realized the limits of government action, including the conscription laws, “unless every man should do his duty.” When informed that the Congress had passed a bill raising an additional 15,000 men, Lee responded that “getting the men is another matter.” 36 C.S.A. conscription officers “were frequently met with shotguns.” 37 Attempts to enforce conscription were met with higher rates of desertions. Desertions from the Confederate army exceeded 100,000 men. 38 “Thousands crossed into the Federal lines and ‘volunteered’ for service in the Union Army; but a much larger number were impartial, nonbelligerent creatures who refused to fight for either side. They hid in caves numerous in the mountain country; frequently they carved out dugouts in the sides of hills, betook themselves to the everglades of Florida or the cane brakes of Mississippi. But the time came when they made no pretense of concealment; desertion developed into so popular a practice that men could be found on most Southern highways, or the streets of cities—they even openly displayed themselves in Richmond.” 39 “Getting the men” was problematical not simply due to the rule of law framework that constrained the Congress’ options. That framework placed the C.S.A. government in a subordinate position toward the States. Georgia Governor Brown’s 1862 correspondence to President Davis about C.S.A. conscription is revealing and gives credence to Davis’s lament that the Confederacy died of a theory, the theory of States’ rights. Brown informed Davis that his noncompliance with the 1862 Conscription Act was to avoid a “probable collision with Confederate authorities.” 40 He claimed that there was a gentleman’s agreement between himself and C.S.A. General Lawton, C.S.A. commander of the Military District of Georgia. According to the agreement Georgian regiments would remain intact and remain in Georgia. Brown insisted that this privilege be honored and complained that Georgia had exceeded her quota of troops, while other States have not met their quotas. The request for an additional 20,000 troops would not be forthcoming, because Georgia has fulfilled her obligations. He admon-

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ished Davis that the “plea of necessity . . . in defense of the Conscription Act” is not applicable to Georgia. Georgia met her obligation to the Confederacy and must look after her own defense. Brown conveyed to Davis a stern warning about forcing the issue: "When the Government of the United States disregarded and attempted to trample upon the rights of the States, Georgia set its power at defiance and seceded from the Union, rather than submit to the consolidation of all power in the hands of the central or Federal government.” 41 Brown not only questioned the constitutionality of the Conscription Act, but provided a long list of Georgians exempt from enrollment into the C.S.A. armies. That list included legislators, judges, executive branch officials, quartermasters, commissary, ordnance and engineer department employees, officers in the state militia, railroad managers and employees, cadets attending the Georgia Military Institute, overseers, mechanics and persons engaged in the various branches of manufacturing, and “there are doubtless other important interests not herein enumerated which will readily occur to you, which must be kept alive or the most serious consequences must ensue.” 42 Brown essentially interposed enforcement of the Conscription Act and informed Davis that, I notice by a perusal of the Conscription Act that the President may, with the consent of the Governors of the respective States, employ State officers in the enrolment of the conscripts. While I shall throw no obstacle in the way of the general enrolment of persons embraced within the Act, except as above stated, I do not feel that it is the duty of the Executive of a State to employ actively the officers of the State in the execution of a law which virtually strips the State of her constitutional military powers, and, if fully executed, destroys the legislative department of her government, making even the sessions of her General Assembly dependent upon the will of the Confederate Executive. I therefore respectfully decline all connection with the proposed enrolment, and propose to reserve the question of the constitutionality of the Act, and its binding force upon the people of this State, for their consideration at a time when it may less seriously embarrass the Confederacy in the prosecution of the war. 43

On April 28 Davis responded to Governor Brown in a perfunctory fashion by including a copy of the 1862 Conscription Act and informing him that “The constitutionality of the Act you refer to as the ‘Conscription Bill’ is clearly not derivable from the power to call out the militia, but from that to raise armies.” 44 On May 9 Governor Brown responded in lengthy letter. He informed Davis I cannot consent to commit the State to a policy which is in my judgment subversive of her sovereignty and at war with all the principles for the support of which Georgia entered into this revolution. It may be said that it is no time

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to discuss constitutional questions in the midst of revolution, and that State rights and State sovereignty must yield for a time to the higher law of necessity. If this be a safe principle of action it cannot certainly apply till the necessity is shown to exist; and I apprehend it would be a dangerous policy to adopt were we to admit that those who are to exercise the power of setting aside the Constitution are to be the judges of the necessity for so doing. 45

The balance of Brown’s letter is used to denounce the Conscription Act as unconstitutional, concluding with the following warning: Should you at any time need additional troops from Georgia to fill up her just quota, in proportion to the number furnished by the other States, you have only to call on the Executive for the number required, to be organized and officered as the Constitution directs, and your call will, as it ever has done, meet a prompt response from her noble and patriotic people, who, while they will watch with a jealous eye, even in the midst of revolution, every attempt to undermine their constitutional rights, will never be content to be behind the foremost in the discharge of their whole duty. 46

On May 29, Davis detailed at length to the governor his view of the act’s constitutionality. “The constitutionality of the law was sustained by very large majorities in both houses. This decision of the Congress meets the concurrence, not only of my own judgment, but of every member of the Cabinet; and a copy of the opinion of the Attorney-General, herewith enclosed, develops the reasons on which his conclusions are based.” 47 Relying on the C.S.A. Constitution’s “necessary and proper clause” Davis explained to Governor Brown that the States delegated to the C.S.A. Congress “the whole war power” in “the common defense of the States.” 48 On June 29 Governor Brown replied that “Entertaining, as I do, the highest respect for your opinions and those of each individual member of your Cabinet, it is with great diffidence that I express the conviction, which I still entertain, after a careful perusal of your letter, that your argument fails to sustain the constitutionality of the Act. . . . Looking to the magnitude of the rights involved, and the disastrous consequences which, I fear, must follow what I consider a bold and dangerous usurpation by Congress of the reserved rights of the States, and a rapid stride towards military despotism.” 49 For Governor Brown, the fundamental problem with conscription was its reliance on coercion, which is anathema to self-government and the individualistic political culture upon which it rests. He admonished Davis that patriotism and valor to prompt them to respond by voluntary enlistment, and to offer themselves under officers of their own choice, through their State authorities, to the Confederacy, just as they did in the offensive war against Mexico, when many more were offered than were needed, without conscription or coercion; and just as they have done in our present defensive war, when almost

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Chapter 5 every State has responded to every call, by sending larger numbers than were called for, and larger than the government can arm and make effective. There is no danger that the honor of the intelligent free-born citizens of this Confederacy will ever suffer because the government has not the power to compel them to vindicate it. They will hold the government responsible if it refuses to permit them to do it. To doubt this, would seem to be to doubt the intelligence and patriotism of the people, and their competency for self-government. 50

Quoting James Madison, Governor Brown reminds Davis that centralized power in the hands of the executive, especially during wartime, posed a substantial threat to the Confederacy’s raison d’etre: War is, in fact, the true nurse of Executive aggrandizement. In war a physical force is to be created, and it is the Executive will which is to direct it. In war the public treasures are to be unlocked, and it is the Executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied, and it is the Executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the Executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast--ambition, avarice, vanity, the honorable or venial love of fame—are all in conspiracy against the desire and duty of peace. 51

According to Brown, Davis’s doctrine “not only makes Congress supreme over the States, at any time when it chooses to exercise the full measure of its power to ‘raise armies,’ but it places the very existence of the State governments subject to the will of Congress.” 52 President Davis responded that Governor Brown’s “alarm and concern about State rights” seem to him to be quite unfounded: 53 You conclude your letter by saying, “you cannot share the alarm and concern about State rights which I so evidently feel.” I regret that you cannot. The views and opinions of the best of men, are, however, influenced more or less by the positions in which they are placed, and the circumstances by which they are surrounded. It is probably not unnatural that those who administer the affairs and dispense the patronage of a confederation of States should become, to some extent, biased in favor of the claims of the Confederacy when its powers are questioned; while it is equally natural that those who administer the affairs of the States, and are responsible for the protection of their rights, should be the first to sound the alarm, in case of encroachments by the Confederacy, which tend to the subversion of the rights of the States. This principle of human nature may be clearly traced in the history of the government of the United States. While that government encroached upon the rights of the States from time to time, and was fast concentrating the whole power in its own hands, it is worthy of remark, that the Federal Executive, exercising the vast powers and dispensing the immense patronage of his position, has seldom, if ever, been able to “share in the alarm and concern about State rights,” which

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have on so many occasions been felt by the authorities and people of the respective States. 54

Whether volunteer and conscript, the Confederate soldier had a duty to the central government. To desert and violate that duty was a capital offense. Many deserters had no intention of returning and remained AWOL under the cover and sanction of their respective States. Loyalty to one’s State was reciprocated with the States protecting their citizens against the C.S.A. government. This is evident in state courts issuing writs of habeas corpus on behalf of their citizens when the Confederacy attempted to conscript state citizens away from their home States and/or punish deserters. For many States the exigencies of war were not valid reasons to set aside what they considered to be the constitutional rule of law. For example, in 1864 the Supreme Court of Virginia declared that “Considerations of expediency and policy cannot be permitted to control our judgment. We must expound the constitution according to what appears to be its true meaning; and if it be clear that no power to pass the [conscription] acts in question has been conferred by it, we are bound to declare them void and of no effect, however disastrous may be the consequences of our decision.” It is notable that C.S.A. officials neither threatened state judges nor ignored their rulings under the guise of national interests. 55 Lee had been instrumental in promoting C.S.A. conscription and getting conscription laws passed through the C.S.A. Congress. His frustration with the lack of compliance did not result in the reliance of extra-legal means to force compliance, such as the mass arrest of those supporting non-compliance. He deferred to the rule of law, in spite of the critical manpower crisis. Although this deference made the enforcement of conscription increasingly difficult, he was not reticent about advocating for its enforcement. In an October 4, 1864, letter to Secretary of War Seddon a few days after a Union victory in the Richmond-Petersburg campaign, Lee laid the facts on the table: Sir: I beg leave to inquire whether there is any prospect of my obtaining any increase to this army. If not, it will be very difficult for us to maintain ourselves. . . . The men at home on various pretexts must be brought out and be put in the army at once, unless we would see the enemy reap the great moral and material advantages of a successful issue of his most costly campaign. I know it will produce suffering, but that must be endured, as all people engaged in a struggle like ours have done before. If we can get out our entire armsbearing population in Virginia and North Carolina, and relieve all detailed men with negroes, we may be able, with the blessing of God, to keep the enemy in check to the beginning of winter. If we fail to do this the result may be calamitous. 56

Secretary Seddon replied,

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Chapter 5 General: I have the honor to acknowledge your letter of the 4th instant. It causes grave anxiety, and has received full consideration. I appreciate the full import of your inquiries and the consequences that may result from the failure to recruit your army. I have been employing, and, under the warning of your letter, shall, if possible, with zeal and energy strain the powers and means of the Department to accomplish an efficient recruitment. 57

This correspondence marks the convergence of six responses to the manpower crisis confronting the Confederacy. The C.S.A.’s Congress passage of conscription; the lack of compliance by substantial numbers of conscripts; some States’ constitutional argument that conscription is unconstitutional; President Davis’s argument that conscription is constitutional; Secretary Seddon’s concession that “efficient enforcement” is problematical; and Lee’s realistic acknowledgment that under the circumstances an impending calamity will soon engulf the Confederacy. In January 1864 Lee informed President Davis that due to lax execution the conscription laws had failed to raise the requisite number of troops. He intimated that men were evading conscription by enlisting in commands in their respective States as a right with the hope to avoid the “principal theatres of hostilities.” He implored Davis to obtain those men in order to “fill up the depleted regiments of this [his] army.” 58 Some governors, anticipating the collapse of the Confederacy, looked to their own State’s defense. On December 20, 1864, North Carolina Governor Vance issued a proclamation encouraging North Carolinians to defend Wilmington under his command, “where arms and rations will be furnished.” 59 These were the very men and supplies Lee insisted upon. Within a matter of weeks “Richmond was in a frenzy” and rumors were circulating that the only hope for the Confederacy was the establishment of a dictatorship. “Lee was to be the man.” 60 On December 21, 1864, Lieutenant General Longstreet wrote to Lee, Whilst on the subject of organization, I would also suggest that you take the matter and arrange our in hand entire system, beginning with the department of conscription. We still have it in our power to organize and put out handsome armies in the spring, if we will only go to work with proper feeling and spirit. I fear that too much time will be taken up in considering the past unless you take the matter in hand and give our minds the right direction. 61

As his army faced destruction, Lee understood that a military dictatorship was not the answer. Unless “every man should do his whole duty, they (the Southern people) would repent.” 62 Based upon his Christian realism, Lee concluded that Southerners would either suffer for the noble cause of procuring their independence, or they would suffer the consequences for the failure to do so.

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NOTES 1. George C. Rable, The Confederate Republic: A Revolution Against Politics (Chapel Hill: The University of North Carolina Press, 1994), 132. 2. The “suicide pact” question is attributed to Lincoln, as his justification for suspending the writ of habeas corpus without congressional authorization. Justice Jackson more famously used the phrase in the 1949 First Amendment free speech case Terminiello v. Chicago. 3. Emory M. Thomas, The Confederate Nation, 1861–1865, 150. 4. Rable, 141. 5. The three dominant American political cultures were moralistic, individualistic, and traditional. The moralistic political culture was dominant in New England, and made government ultimately responsible for determining the common good and empowered to pursue it. The individualistic political culture was dominant in the middle States and relied upon individual liberty and market forces to achieve the common good. The traditionalist political culture was dominant in the Deep South, and trusted the natural aristocracy, as embodied in familial and personal ties, to maintain and when necessary adjust the social order through political means. The primary difference between the moralistic and traditionalist political cultures is the latter’s conservative posture toward tradition, whereas the former was fixated upon social experimentation. Both shunned individual liberty as an obstacle to be overcome when at odds with their respective objectives. See Daniel J. Elazar, Building Toward Civil War: Generational Rythms in American Politics (New York: Madison Books, 1992), 193–222. 6. Marshall L. DeRosa, The Politics of Dissolution: The Quest for a National Identity & the American Civil War (New Brunswick, NJ: Transaction Publishers, 1998), 227–28. 7. On November 7, 1864, President Davis informed the C.S.A. Congress that “[i]f the Confederacy falls, there should be written on its tombstone, ‘Died of a theory’” [The Project Gutenberg EBook of The Rise and Fall of the Confederate Government 1 (of 2), by Jefferson Davis, accessed at www.gutenberg.org/cache/epub/19831/pg19831.txt. His “died of a theory” sentiment seems to have stemmed from his increasing frustration with governors, especially in Georgia and North Carolina, not to mention his own vice president, obstructing C.S.A. objectives. In my opinion, the entire Confederate endeavor would have splintered in 1863 without the military, moral, and political gravitas provided by Lee. Late in the war, Davis was politically a dead man walking and his political opponents knew this. Davis, rather than accepting at least some responsibility for blowback from the States and some members within his administration, blamed the States for defeat. The States were blameworthy, but not exclusively. The Confederacy died of theories, that is, hypernationalism in the North (for the times) and a peculiar nationalism in the Confederate states. As the protracted war progressed, both types were ratcheted upwards. 8. Rable, 19. 9. Lincoln, to a certain extent, faced the same dilemma but responded differently. Those who opposed his policies were replaced, deported, or threatened with or actually imprisoned. See Thomas J. DiLorenzo, Lincoln Unmasked: What You’re Not Supposed to Know About Dishonest Abe (New York: Crown Forum, 2006), 160–69. 10. Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840 (Berkeley: University of California Press, 1969), 13. 11. Rable, 99–100. 12. Rable, 131. 13. Journal of the Confederate Congress, 1861–1865, vol. 2, 220. The Library of Congress: American Memory website, accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/ hlaw:@field(DOCID+@lit(cc0021)). 14. Public Laws of the Confederate States of America Passed at the First Session of the First Congress; 1862, James M. Matthews, ed. (Richmond, VA: R. M. Smith, Printer to Congress, 1862), 48. 15. Ibid., chapter LIV, p. 202. To bring criminal rangers to justice, on the same day the C.S.A. Congress broadened the jurisdictions of military court martials, to “extend to any person connected with the army of which the corps to which the court is attached may be a part,

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without being limited to members of the particular corps to which the said court may be attached” (id., chapter XLIX, 194–95). 16. The Wartime Papers of Robert E. Lee, Clifford Dowdey and Louis H. Manarin, eds. (New York: Bramhall House, 1961), 689. 17. The Papers of Jefferson Davis, Volume 11, 61–63, transcribed from the Macon Telegraph, September 24, 1864. 18. Wiliam B. Hesseltine, The South in American History (New York: Prentice-Hall, Inc., 1943), 464–65. 19. The Wartime Papers of Robert E. Lee, 588. 20. "[In the Confederate Army] absences of short duration were often unpunished and in other cases offenders received such trivial sentences as reprimand by a company officer, digging a stump, carrying a rail for an hour or two, wearing a placard inscribed with the letters AWOL." Even though it carried a penalty of death, leniency from commanding officers reflected an empathy not found in other countries. This is because the officers shared the sentiments and loyalties of their men.” H. L. Mencken, in The American Language, 1945, records “AWOL” as originating during the [American] Civil War. 21. “CO. Aytch,” Maury Grays, First Tennessee Regiment, Sam R. Watkins, accessed at www.fullbooks.com/Co-Aytch-1.html. 22. Freeman, II, 497. 23. Lee was fully aware of the “inadequacy of the exiting court-martial system.” He was instrumental in restructuring the system. See William M. Robinson, Justice In Grey: A History of the Judicial System of the Confederate States of America (Cambridge, MA: Harvard University Press, 1941), 366–68. 24. “A Sermon: Preached before Brig.-Gen. Hoke’s Brigade, at Kinston, N. C., on the 28th of February, 1864, by Rev. John Paris, Chaplain Fifty-Fourth Regiment N. C. Troops, upon the Death of Twenty-Two Men, Who Had Been Executed in the Presence of the Brigade for the Crime of Desertion,” accessed at Documenting the American South, http:// docsouth.unc.edu/imls/paris/paris.html, 7. 25. Ibid., 14. 26. The Wartime Papers of Robert E. Lee, 591. 27. Jefferson Davis, The Rise and Fall of the Confederate Government, 341. 28. Davis, The Rise and Fall of the Confederate Government, 507. 29. Albert Burton Moore, Conscription and Conflict in the Confederacy (Columbia: University of South Carolina Press, 1996), 155. 30. Moore, 154. 31. Freeman, IV, 181. 32. Freeman, II, 481. 33. Freeman II, 482. 34. Freeman, III, 538. 35. Freeman, III, 537. 36. Freeman, III, 538. 37. Burton J. Hendrick, Statesmen Of The Lost Cause: Jefferson Davis And His Cabinet (New York: The Literary Guild of New York, Inc., 1939), 335. 38. Ella Lonn, Desertions During the Civil War (New York, 1928), 231; cited in Hendrick, 336. 39. Hendrick, 336. 40. “Correspondence Between Governor Brown and President Davis, on the Constitutionality of the Conscription Act,” accessed at Documenting the American South, 3, http://docsouth. unc.edu/imls/govbrown/brown.html. 41. Ibid., 4. 42. Id., 6. 43. Id., 7. 44. Id., 8. 45. Id., 9. 46. Id., 15. 47. Id., 15.

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48. Id., 16. 49. Id., 25. 50. Id., 29. 51. Id., 30. 52. Id., 35. 53. Id., 48. 54. Id., 51. 55. See chapter II, “Confederate Justice,” in Marshall DeRosa, Redeeming American Democracy: Lessons from the Confederate Constitution (Gretna, LA: Pelican Publishing Company, Inc., 2007), 51–89. 56. War of the Rebellion, Series I—Volume XLII—In Three Parts. Part HI-Correspondence, Etc., 1134, accessed at Cornell University Library, http://ebooks. library.cornell.edu/m/moawar/waro.html. 57. Ibid., 1135. 58. The Wartime Papers of Robert E. Lee, 650–51. 59. War of the Rebellion, Series I—Volume XLII—In Three Parts. Part III- Correspondence, Etc., 1284–285. 60. Freeman, III, 533. 61. War of the Rebellion, Series I—Volume XLII—In Three Parts. Part III- Correspondence, Etc., 1286–287. 62. Freeman, III, 538.

Chapter Six

Lee Under Hostile Political Fire

So far from engaging in a war to perpetuate slavery, I am rejoiced that Slavery is abolished. I believe it will be greatly for the interest of the South. So fully am I satisfied of this that I would have cheerfully lost all that I have lost by the war, and have suffered all that I have suffered to have this object attained. — General Robert E. Lee, May 1, 1870

In the war’s aftermath, the Republican Party began the task of reconstructing the defeated Southern States. The consensual Union of States was buried alongside the Confederate States of America and the Radical Republicans acted accordingly. Their actions were not necessarily benign. Democratic President Johnson’s conciliatory Reconstruction policies were adamantly resisted by Radical Republicans. The cliché “to the victor goes the spoils” describes the radicals’ reconstruction agenda. They were determined to get and secure their spoils, and the U.S. Constitution would not impede them in their quest. The Radicals’ posture toward the defeated South was fueled by the political opportunities opened up to the victors as a consequence of the Confederacy’s collapse and the resulting subjugation of the Southern States. Madison’s greatest fear, his “political truth” that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may very justly be pronounced the very definition of tyranny,” was the new reality. 1 There was, however, some unfinished work to tend to, both in the nation’s capital and in the defeated States. The work of Reconstruction began early in the Lincoln administration. Lincoln took a more pragmatic approach, recognizing the States as States, not territories, hoping to restore the Union with inducements of political patronage. This was unacceptable to the Radicals. When in 1864 Lincoln vetoed the Wade-Davis bill, the Radicals’ response was forceful. They accused Lincoln of dictatorial “personal ambition” and 105

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offered up impeachment as a possible remedy for his “usurpation” of Congressional powers. 2 With Lincoln dead and the war over, President Andrew Johnson became the target of the Radical Republicans iron-fisted punitive posture toward the South. Like Lincoln, Johnson aimed at a restoration of the antebellum Union, minus its tolerance toward slavery. In their efforts to tighten the Republican Party’s grasp on power, the Radicals proceeded to impeach Democrat Johnson and reconstruct the South. Although they failed by one vote in their attempt to muster the two-thirds vote in the Senate to convict Johnson, 3 they succeeded in stripping his Democratic Party of influence by disenfranchising his political allies in the South. In response to this power grab, on February 16, 1866, Democratic U.S. Senator Thomas Hendrick (IN) remarked “[e]leven States are absent from our councils; they are not here to be heard. We say they shall not come in, and we, the men of the North, propose to make a Government for the whole country. We, without the hearing, without the counsel of the men of the South, propose to make a Government which they shall respect and obey.” 4 Senator Hendrick’s concerns stemmed from the formation of various congressional joint committees, the rules of which were fundamentally consolidating legislative powers into the hands of Republican Party’s radical operatives. 5 It was in this climate of Radical dominance, bent on revenge and profit, that the South in general and Lee in particular faced their fate in a reconstructed Union. The primary concern of Hendrick was the November 1865 formation of the Joint Committee of Fifteen on Reconstruction (JCR). In December 1865 the JRC subdivided into four subcommittees, the most important of which had jurisdiction over Virginia, North Carolina, and South Carolina, chaired by Radical Republican William P. Fessenden, a Radical Republican from Maine and former secretary of the treasury in the Lincoln administration. 6 Due to Fessenden’s illness, Radical Republican Senator Jacob M. Howard of Michigan took charge of the subcommittee. 7 But the facts of Senator Fessenden’s absence are a bit more complicated. On February 17, the day Lee testified before the subcommittee, Fessenden was on the floor of the Senate defending himself against accusations of fraud. 8 Fraud was not unique to Fessenden, but pervasive throughout the Union. In 1864 Lincoln’s attorney general commented that “the demoralizing effect of the war is plainly visible in every department of life. The abuse of official powers and the thirst for dishonest gain are now so common that they cease to shock.” 9 Early in the war the Republicans passed legislation authorizing the Treasury secretary, at the time Fessenden, to make “rules and regulations by which certain persons might be licensed to trade in cotton and other articles . . . cotton was the thing most had in view.” 10

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As Treasury Secretary he oversaw the “commercial intercourse” in cotton with parties in the “rebel States.” He justified his fraudulent policies accordingly: I wish to call the attention of Senators to the fact that very early in the rebellion it became manifest to the Government that it was of great consequence to get control of the cotton in the South. . . . It was deemed important to affect our exchanges, and to get the use of cotton for our own people. The more of it we could get out of the southern country, it was conceived, the better off we were. 11

Lee and the C.S.A. leadership were aware of the illicit trade in cotton. Suggesting to Secretary of War James A. Seddon that cotton should be the basis of a barter system in procuring supplies for Southerners, he maintained that benefits outweighed the argument that the “cotton would find its way to the enemy.” 12 The irony must not have been lost on Lee that on the day he testified the absent chairman of the subcommittee was preoccupied on the floor of the Senate defending himself against accusations of defrauding his own government out of $10 million, most of which was the product of the illicit cotton trade. 13 Senator Howard, Fessenden’s political ally, was also an influential founding member of the Republican Party in 1854. As one of the more influential radical Republican spokesmen, Howard was determined to further weaken the Democratic Party by punishing C.S.A. leaders via treason convictions and disenfranchisement. In his capacity as a leader of the JCR, he argued on the floor of the Senate: One thing is certain, that if there be any expectation which has been more prevalent than among the loyal people of the United States, it is that due to our dignity as a nation, it is due the obligation which we owe to the Constitution and to the nation, that there should be an arraignment and punishment according to the forms of law at least of the ringleaders of this rebellion. . . . [U]nless some bona fide endeavor shall be made . . .the feeling of disappointment, not to say disgust, will be very strong and pervading throughout the United States. 14

Howard mocked the constitutional mandate that the treason trial would have to take place in Southern States, such as Virginia. He claims that such an opinion is “ridiculous, miserable, and pitiable,” and “dangerous to the public security and interests.” Consequently, “[i]f such be the law of the land, it surely demands the attention of not only of the judiciary but of the American people at large.” In other words, the Article VI requirement that such trials take place in the State where the alleged crime took place needs to be circumvented. 15 Otherwise, according to Howard, there would be “no prosecutions [convictions] for treason.” 16

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His plan was for the Congress to either pass legislation that would allow jurors to be drawn from all parts of the country or change the venue of trials to Northern States. In opposition Democratic Senator McDougall (CA) remarked “Sir, this is not consistent with the common law; it is a violation of the common law. If old Lord Coke could rise here he would denounce all of you who affirm it, as being of the breaking up of the foundations of that ancient system upon which the liberties of the English and the American people rest. The right of the trial by jury has been guarded with the most exact care. . . . It has been understood to be one of the bulwarks of American liberty, not national freedom, but individual liberty. [This] is one of the most heinous violations of the principles of the right of trial by jury that has ever been suggested in history.” 17 Howard’s dismissive reply was that the terrors that seem to haunt the senator from California’s imagination are groundless. 18 To appreciate the tension between Senators McDougall and Howard, one has to get past the superficial view that the “Republicans generally were committed to ensuring that the ‘slave power’ would not rise from the ashes of its defeat in the Civil War to once again dominate the governments of the Southern states.” 19 The “slave power” smear was political code for Southern principles of a limited, frugal, and a lassiez-faire U.S. government. Senator Howard favored abandoning the core of the American constitutionalism. His objective was to replace the States’ rights republicanism with what the U.S. and C.S.A. Framers most feared, a national democracy. His motives were not a single-minded commitment to protect the freedmen. His aim was the promotion of the patronage interests of the Republican Party faithful. As was the case in antebellum politics, the “slave power” threat continued to be useful in discrediting the Democratic Party during and after the war. Consider Howard’s May 23, 1866, remarks about how to achieve the Reconstruction political objective of Republican Party national political dominance: The State Legislature may be made up of entirely disloyal elements, in consequence of being elected by a rebel constituency. That Legislature when assembled has the right, under the Constitution, to appoint presidential electors itself if it shall choose to do so, and to refuse to refer that question to the people. It is the right of every State. It is very probable that the power of the rebel States would be used in exactly that way. We should therefore gain nothing as to the election of the next or any future President of the United States. Rather than this, I should prefer a clause prohibiting all persons who have participated in the rebellion, and who were over twenty-five years of age at the breaking out of the rebellion, from all participation in offices, either Federal or State, throughout the United States. I think such a provision would be a benefit to the

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nation. It would ostracize the great mass of the intelligent and really responsible leaders of the rebellion. 20

Howard makes clear that he aimed at removing the “aristocratic tendency” of the electorate by extending the “right of suffrage to the whole negro population as a class.” He argued that “numbers and numbers only is the only true and safe basis; while nothing is clearer than that property qualifications and educational qualifications have an inevitable aristocratic tendency—a thing to be avoided.” 21 The aristocratic tendency of the old constitution, as especially embedded in the Southern States, needed to be neutralized if the Republican Party were to consolidate power. In Howard’s own words, the Republicans “should therefore gain nothing as to the election of the next or any future president of the United States.” 22 In other words, the South’s seasoned ruling class needed to be decimated. As explained by Professor Johnson, “the chronic Negrophobia that overspread the North” strengthened the Republicans’ political prospects of dismantling the South’s ancien régime by conjuring up fears of the reemergence of the South’s slave power. 23 Howard’s duplicity in using Negro suffrage to bolster the Republican Party’s gains in the South, the “aristocratic” section of the country, is revealed in his 1867 vote on the admission of Nebraska. On States’ rights grounds, he argued and voted against an amendment that stipulated “Nebraska shall not be admitted as a State except upon the fundamental condition . . . there shall be no denial of the elective franchise or any other right to any person by reason of race or color.” He reasoned, “Is there any power in the Constitution, express or implied, authorizing Congress to interfere with the domestic rights and privileges of the States of the Union? None whatever.” 24 Because Nebraska was not a Southern State and posed no risk to the Republicans, Howard was fine with denying blacks the right to vote. It was the Southern States, not Nebraska, which needed to be reconstructed. The reconstruction process included neutralizing the influence of the Southern States’ ruling class in national politics. If that meant the displacement of constitutional republicanism with a national democracy, so be it. Moreover, if extending the franchise to blacks was a means toward that end, then extend the franchise to them. The policy implications of shifting from constitutional republicanism toward a national democracy was explained by Russell Kirk: Subjection to King Numbers produces taxation without representation; for property will inevitably be exposed to the desires of the unpropertied. The theory that taxation is a voluntary grant for common welfare, which is expressed repeatedly by Burke, thus will be undone; taxation will become once more what it was under despotisms, an arbitrary assessment for the benefit of particular persons and classes. 25

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The defeated South was being set up to be taxed without representation, or to paraphrase Kirk, taxation in the South will become what it was under the despotism of King George. The JCR and its subcommittees were laying the groundwork for the political and economic subjugation of the South. Howard’s subcommittee was the most important of the four, because of its jurisdiction not only over Virginia but of the South’s most notable aristocrat, General Lee. Lee was the last man standing representing the South’s cause. A reluctant participant in the JRC charade, Lee realized that his testimony before the subcommittee constituted a defense of Southern principles and a statement to posterity. Five days after his appearance before the subcommittee, Lee wrote to Jefferson Davis’s wife: I HAVE THOUGHT, FROM THE TIME OF THE CESSATION OF THE HOSTILITIES, THAT SILENCE AND PATIENCE ON THE PART OF THE SOUTH WAS THE TRUE COURSE; and I think so still. CONTROVERSY OF ALL KINDS (sic) will, in my opinion, only serve to continue excitement and passion, and will prevent the public mind from the acknowledgement and acceptance of the truth. These considerations have kept me from replying to accusations made against myself, and induced me to recommend the same to others. 26

“Patience” is crucial to understanding Lee’s postbellum words and actions. He realized that a vengeful political storm was brewing and about to wreak havoc not only in the former Confederacy, but on the antebellum constitutional system. The Republican Party and its emissaries were busy scaring Northerners about the dangers of a pro-Confederate conspiracy to convert military defeat into political victory. Democrats favoring a restoration of the antebellum Union, along with the pre-war constitutional system, were accused of being partners in the conspiracy. 27 Howard’s subcommittee could either prove to be a trap for Lee and a boon to the radical transformation of America, or an important step toward a recovery of the principles of 1776 and 1789. A misstep on his part risked not only placing the entire C.S.A. leadership, civilian and military, on the gallows for treason, but also the entrapment of posterity to their radical agenda. The JRC and Howard’s subcommittee focused on Lee’s status in the minds and hearts of the Southern people. Through testimony they learned that Virginians considered Lee equal to or greater than Washington and that the South “looked upon Lee as the greatest man of the nation, the best man.” 28 They were also informed that Lee could never be convicted of treason in Virginia, without packing the jury with pro-Unionists. 29 The radicals feared a resurgence of Confederate principles through the political channels of States’ rights and elections, with Lee at its head. This fear was a constant thread that ran through Howard’s questioning of witnesses. A typical example is his questioning of pro-Union Virginian Lew-

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is McKenzie. McKenzie informed Howard that if permitted, Southerners would “affect a coalition with the democrats of the north [and] they will finally control the government, and will certainly never pay the public debt. . . They have no love for the government of the United States.” Howard asked, “do the people of Virginia and elsewhere respect the power of the United States?” McKenzie’s response, “No sir, but they are afraid of it. . . . They will give the government trouble some of these days. They will try to get into power before 1868.” 30 Radical Senator Benjamin Wade (OH) went even further. On the floor of the Senate, a few days after Lee’s testimony to the JCR sub-committee he threatened Democrats, including President Johnson with the treason charge: I lay down the rule here, and I defy contradiction, that if there is any man, be he high or low, who is an advocate for bringing unwashed traitors into the councils of the nation, that man is a traitor in his heart; he is an enemy to the nation, to the Government, and nothing can wipe it out. He who invokes the aid of an unrepentant rebel to come into the councils of the nation and participate with us in its administration is no better than a rebel, and he is a rebel at heart. 31

To forestall the emergence of a Democratic Party coalition of Northern and Southern Democrats, in its final report the JCR proposed the following: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no person shall “be eligible to any office under the government of the United States . . . who acted as officers of the Confederate States of America, so called, above the grade of colonel in the army or master in the navy.” 32 Radical fears were not unfounded. Union witness George Tucker, from New Hampshire, informed the subcommittee that Virginians intended to elect Lee as their next governor and that he ought to run for the U.S. presidency. 33 In the 800-plus-page JRC report, Lee is omnipresent. Whether the concern is the charge of treason for C.S.A. leaders, the plight of the freedmen, the receptivity of Southerners to Northern business interests, or the prospects of the Southern States politically rising from the ashes of military defeat, there is Lee, bigger than life as the last man standing for the antebellum constitutional system. Consequently, it is well worth the time to permit Lee to speak for himself on these issues. 34 Never wavering and firm in his convictions, this event was Lee’s political Thermopylae. WASHINGTON, D.C., February 17, 1866. Robert E. Lee sworn and examined.

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By Mr. HOWARD : Question. Where is your present residence? Answer. Lexington, Virginia. Question. How long have you resided at Lexington? Answer. Since the first of October last; nearly five months. Question. Are you acquainted with the state of feeling among what we call secessionists in Virginia, at present, toward the government of the United States? Answer. I do not know that I am. I have been living very retired, and have had but little communication with politicians. I know nothing more than from my observation, and from such facts as have come to my knowledge. Question. From your observation, what is your opinion as to the feeling of loyalty toward the government of the United States among the secession portion of the people of that State at this time? Answer. So far as has come to my knowledge, I do not know of a single person who either feels or contemplates any resistance to the government of the United States, or, indeed, any opposition to it. No word has reached me to either purpose. Question. From what you have observed among them, is it your opinion that they are friendly toward the government of the United States, and that they will co-operate to sustain and uphold the government for the future? Answer. I believe that they entirely acquiesce in the government of the United States, and, so far as I have heard any one express an opinion, they are for co-operating with President Johnson in his policy. [Lee’s choice of the word “acquiesce” is significant. It denotes silent submission without protest. It also implies a potential for conflict under different circumstance. Aligning with President Johnson’s policy places Lee and the South at odds with the Radicals, especially Howard.] Question. In his policy in regard to what? Answer. His policy in regard to the restoration of the whole country. I have heard persons with whom I have conversed express great confidence

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in the wisdom of his policy of restoration, and they seem to look forward to it as a hope of restoration. [Lee’s reference to “restoration of the whole country” makes clear Lee‘s concern that the radicals do not intend to restore the Union as a compact of coequal States, but for the States of the former C.S.A. to be placed in a colonial posture vis-à-vis the Northern States.] Question. How do they feel in regard to that portion of the people of the United States who have been forward and zealous in the prosecution of the war against the rebellion? Answer. Well, I do not know. I have heard nobody express any opinion in regard to it. As I said before, I have not had much communication with politicians in the country, if there are any. Everyone seems to be engaged in his own affairs, and endeavoring to restore the civil government of the State. I have heard no expression of a sentiment toward any particular portion of the country. [Lee may not have been privy to discussions among Southern politicians about Northerners that were “zealous in the prosecution of the war,” for his stated reason, that is, ex-Confederates were excluded from politics. This is not to say that discussions about the occupation of the South and the motives and behavior of the occupiers were not plentiful among the Southern people. Lee understood the southern people and they understood and accorded him tremendous deference, thereby making such discussions unnecessary.] Question. How do the secessionists feel in regard to the payment of the debt of the United States contracted in the prosecution of the war? Answer. I have never heard any one speak on the subject. I suppose they must expect to pay the taxes levied by the government. I have heard them speak in reference to the payment of taxes, and of their efforts to raise money to pay the taxes, which I suppose are for their share of the debt. I have never heard any one speak in opposition to the payment of taxes, or of resistance to their payment. Their whole effort has been to try and raise the money for the payment of the taxes. Question. From your knowledge of the state of public feeling in Virginia, is it your opinion that the people would, if the question were left to them, repudiate and reject that debt?

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Answer. I never heard any one speak on that subject, but from my knowledge of the people I believe that they would be in favor of the payment of all just debts. [The war debt was of great concern to the Radicials. Many invested in war bonds and stood to make substantial profits. Howard’s “if left to them” manifest the fear of the Radicals that if President Johnson’s conciliatory approach to the Southern States was to stand, the South would be in a position to “repudiate and reject” payment on those war investments. Lee’s reference to “just debts” implies that if the debts are determined to be unjust that they should be repudiated. Howard realizes this and follows up on the implication.] Question. Do they, in your opinion, regard that as a just debt? Answer. I do not know what their opinion is on the subject of the particular debt. I have never heard any opinion expressed, but I have never heard any expressed contrary to it. Indeed, as I said in the beginning, I have had very little discussion or intercourse with the people. I believe that the people would pay the debts they are called upon to pay. I say that from my knowledge of the people generally. [Lee’s answer that the people “would pay debts they are called upon to pay” leaves begging the question of whether the war debt is just. His silence on that point is indicative of his opinion that it is unjust.] Question. Would they pay that debt, or their portion of it, with as much alacrity as people ordinarily pay their taxes to their government? Answer. I do not know that they would make any distinction between the two. The taxes laid by the government, so far as I know, they are prepared to pay to the best of their ability. I never heard them make any distinction. [Howard’s assumption that people pay their taxes with alacrity, i.e., cheerfulness, is rejected by Lee. Paired with his previous supposition that the war debt is unjust, with the Southerners not making a distinction between unjust and just taxes, implies that they regard all taxes as unjust and reluctantly pay them.] Question. What is the feeling of that portion of the people of Virginia in regard to the payment of the so-called confederate debt?

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Answer. I believe, so far as my opinion goes, (I have no facts to go upon, but merely base my opinion on the knowledge I have of the people,) they would be willing to pay the confederate debt too. [Lee’s response that Virginians would willingly pay the Confederate debt stokes the ire of Howard, and understandably so from his perspective. The willingness to pay the Confederate war debts indicates that the South viewed that the C.S.A. war debt was legitimately incurred for a just cause.] Question. You think they would? Answer. I think they would if they had the power and ability to do it. I have never heard anyone in the State with whom I have conversed speak of repudiating any debt. Question. I suppose the confederate debt is almost entirely valueless, even in the market of Virginia? Answer. Entirely, as far as I know. I believe the people generally look upon it as lost entirely. I never heard any question on the subject. Question. Do you recollect the terms of the confederate bonds when they were made payable? Answer. I think I have a general recollection that they were made payable six months after a declaration of peace. Question. Six months after the ratification of a treaty of peace between the United States and the confederate government? Answer. I think they ran in that way. Question. So that the bonds are not due yet by their terms? Answer. I suppose, unless it is considered that there is peace now, they are not due. [Howard was well aware of the terms and was determined that C.S.A. war debts go unpaid. He authored the Fourteenth Amendment, which mandated the repayment of public and private debts incurred for “suppressing insurrection or rebellion, while prohibiting the United States or any State to assume or pay any debt “incurred in aid of insurrection or rebellion against the United States” or for the” loss or emancipation of any slave.” Howard realized that to impoverish the South would effectively strip it of

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economic and political independence. This was political and economic warfare, acknowledged by Lee’s reply “unless it is considered that there is peace now.”] Question. How do the people in Virginia, the secessionists more particularly, feel toward the freedmen? Answer. Every one with whom I associate expresses kind feelings toward the freedmen. They wish to see them get on in the world, and particularly to take up some occupation for a living and to turn their hands to some work. I know that efforts have been made among the farmers, near where I live, to induce them to engage for the year at regular wages. Question. Do you think there is a willingness on the part of their old masters to give them fair, living wages for their labor? Answer. I believe it is so. The farmers generally prefer those servants who have been living with them before. I have heard them express their preference for the men whom they know, who had lived with them before, and their wish to get them to return to work. Question. Are you aware of the existence of any combination among the whites to keep down the wages of the negroes? Answer. I am not. I have heard that, in several counties, land owners have met in order to establish a uniform rate of wages; but I never heard, nor do I know, of any combination to keep down wages, or establish any rate which they did not think fair. The means of paying wages in Virginia are very limited now, and there is a difference of opinion as to how much each person is able to pay. Question. How do they feel in regard to the education of the blacks? Is there a general willingness or a general unwillingness to have them educated? Answer. Where I am, and have been, the people have exhibited a willingness that the blacks should be educated, and they express an opinion that that would be better for the blacks and better for the whites. Question. General, you are very competent to judge of the capacity of black men for acquiring knowledge: I want your opinion on that capacity, as compared with the capacity of white men?

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Answer. I do not know that I am particularly qualified to speak on that subject, as you seem to intimate; but I do not think that he is as capable of acquiring knowledge as the white man is. There are some more apt than others. I have known some to acquire knowledge and skill in their trade or profession. I have had servants of my own who learned to read and write very well. Question. Do they show a capacity to obtain knowledge of mathematics and the exact sciences? Answer. I have no knowledge on that subject. I am merely acquainted with those who have learned the common rudiments of education. Question. General, are you aware of the existence among the blacks of Virginia, anywhere within the limits of the State, of combinations having in view the disturbance of the peace, or any improper and unlawful acts? Answer. I am not. I have seen no evidence of it, and have heard of none. Wherever I have been they have been quiet and orderly, not disposed to work, or rather not disposed to any continuous engagement to work, but just very short jobs, to provide them with the immediate meals of subsistence. Question. Has the colored race generally as great a love of money and property as the white race possesses? Answer. I do not think it has. The blacks with whom I am acquainted look more to the present time than to the future. Question. Does that absence of a lust of money and property arise more from the nature of the negro than from his former servile condition? Answer. Well, it may be, in some measure, attributable to his former condition. They are an amiable, social race. They like their ease and comfort, and, I think, look more to their present than to their future condition. Question. In the event of a war between the United States and any foreign power, such as England or France, if there should be held out to the secession portion of the people of Virginia, or the other recently rebel States, a fair prospect of gaming their independence and shaking off the government of the United States, is it, or is it not, your opinion that they would avail themselves of that opportunity?

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Answer. I cannot speak with any certainty on that point. I do not know how far they might be actuated by their feelings. I have nothing whatever to base an opinion upon. So far as I know, they contemplate nothing of the kind now. What may happen in the future I cannot say. Question. Do you not frequently hear, in your intercourse with secessionists in Virginia, expressions of a hope that such a war may break out? Answer. I cannot say that I have heard it. On the contrary, I have heard persons, I do not know whether you would call them secessionists or not, I mean those people in Virginia with whom I associate, express a hope that the country may not be led into a war. Question. In such an event, do you not think that many of that class of persons whom I call secessionists would join the common enemy? Answer. It is possible. It depends upon the feelings of the individual. Question. If it is a fair question, you may answer it, or not, as you choose, what, in such an event, might be your own choice? Answer. I have no disposition now to do it, and I never have had. Question. And you cannot foresee that such would be your inclination in such an event? Answer. No. I can only judge by the past. I do not know what circumstances may produce. I cannot pretend to foresee events. So far as I know the feeling of the people of Virginia, they wish for peace. Question. During the civil war, was it not contemplated by the government of the confederacy to form an alliance with some foreign nation, if possible? Answer. I believe it was their wish to do so if they could. It was their wish so have the confederate government recognized as an independent government. I have no doubt that, if it could have made favorable treaties, it would have done so. But I knew nothing of the policy of the government. I had no hand or part in it. I merely express my own opinion. [By pointing to the future, Lee implies that the South’s attachment to the Union hinges on Reconstruction policies. Bad “feelings” may be ameliorated if judicious reconstruction policies are implemented. If not, those feelings may be “actuated” in the future and foreign alliances to gain

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Southern independence may be an option. His reference to his “disposition” in 1861 makes clear that should Virginia renew its attempt at independence his actions would be the same, i.e., he would follow Virginia’s lead.] Question. The question I am about to put to you you may answer, or not, as you choose: Did you take an oath of fidelity or allegiance to the confederate government? Answer. I do not recollect having done so; but it is possible that, when I was commissioned, I did. I do not recollect whether it was required. If it was required, I took it; or, if it had been required I would have taken it; but I do not recollect whether it was or not. [Howard is attempting to ensnare Lee for the charge of treason.] By Mr. BLOW: Question. In reference to the effect of President Johnson s policy, if it were adopted, would there be anything like a return of the old feeling? I ask that because you used the expression "acquiescing in the result." Answer. I believe it would take time for the feelings of the people to be of that cordial nature to the government that they were formerly. Question. Do you think that their preference for that policy arises from a desire to have peace and good feeling in the country, or from, the probability of their regaining political power? Answer. So far as I know the desire of the people of the south, it is for the restoration of their civil government, and they look upon the policy of President Johnson as the one which would most clearly and most surely re-establish it. [Lee’s response indicates his opposition to the Radicals and indicates that Johnson’s policies would heal the torn Union, whereas the Radicals’ policy would prolong the bad feelings between the sections.] Question. Do you see any change among the poorer classes in Virginia in reference to industry? Are they as much, or more, interested in developing their material interests than they were? Answer. I have not observed any change. Everyone now has to attend to his business for his support.

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[This is an important question for the Radicals. All realized that the “development of their material interests,” that is, industry, would be orchestrated by and the North and ipso facto make the South the colonial pawns of Northern economic interests. The very thing the C.S.A. was designed to prevent. The following line of questioning, regarding capitalists invading the South, makes this clear.] Question. The poorer classes are generally hard at work, are they? Answer. So far as I know, they are; I know nothing to the contrary. Question. Is there any difference in their relations to the colored people, is their prejudice increased or diminished? Answer. I have noticed no change. So far as I do know the feelings of all the people of Virginia, they are kind to the colored people. I have never heard any blame attributed to them as to the present condition of things, or any responsibility. Question. There are very few colored laborers employed, I suppose? Answer. Those who own farms have employed them more or less one or two. Some are so poor that they have to work themselves. Question. Can capitalists and workingmen from the north go into any portion of Virginia with which you are familiar and go to work among the people? Answer. I do not know anything to prevent them. Their peace and pleasure there would depend very much on their conduct. If they confined themselves to their own business, and did not interfere to provoke controversies with their neighbors, I do not believe they would be molested. Question. There is no desire to keep out labor and capital? Answer. Not that I know of. On the contrary, they are very anxious to get capital into the State. Question. You see nothing of a disposition to prevent such a thing? Answer. I have seen nothing, and do not know of anything. As I said before, the manner in which they would be received would depend entirely upon the individuals themselves. They might make themselves obnoxious, as you can understand.

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[Lee acknowledges the need for capital, but not necessarily immigrant labor or capitalists. They “might make themselves obnoxious,” i.e., harmful or liable to harm. Howard picks up on Lee’s warning and Lee does not bend to the pressure.] By Mr. HOWARD: Question. Is there not a general dislike of Northern men among secessionists? Answer. I suppose they would prefer not to associate with them. I do not know that they would select them as associates. Question. Do they avoid and ostracize them socially? Answer. They might avoid them. They would not select them as associates, unless there was some reason for it. I do not know that they would associate with them until they became acquainted. I think it probable they would not admit them into their social circles. By Mr. BLOW: Question. What is the position of the colored men in Virginia with reference to the persons they work for? Do you think they would prefer to work for Northern men or for Southern men? Answer. I think it very probable that they would prefer the Northern man, although I have no facts to go upon. Question. That having been stated very frequently in reference to the cotton States, does it result from a fear of bad treatment on the part of the resident population, or from the idea that they will be more fairly treated by the newcomers? What is your observation in that respect in regard to Virginia? Answer. I have no means of forming an opinion; I do not know any such case in Virginia; I know of numbers of the blacks engaging with their old masters, and I know of a good many who prefer to go off and look for new homes. Whether it is from any dislike of their former masters, or from a desire of change, or that they feel more free and independent, I do not know.

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Question. What is your opinion in regard to the material interests of Virginia? Do you think they will be equal to what they were before the rebellion under the changed aspect of affairs and government? [Material interests in this context is synonymous with gross domestic product. Blow is acknowledging that postbellum Virginia’s economy is in shambles. He is asking Lee about Virginia’s posture towards the new economic reality. Lee concedes that under this new reality Virginians for a long while will have a much lower standard of living.] Answer. It will take a long time for them to reach their former standard. I think that after some years they will reach it, and I hope exceed it; but it cannot be immediately, in my opinion. Question. It will take a number of years? Answer. It will take a number of years, I think. Question. On the whole, the condition of things in Virginia is hopeful, both in regard to its material interests and the future peace of the country? Answer. I have heard great hope expressed, and there is great cheerfulness and willingness to labor. [Virginians’ hope is tied to President Johnson’s reconstruction policies, as acknowledge by Blow’s next question.] Question. Suppose that this policy of President Johnson should be all that you anticipate, and that you should also realize all that you expect in the improvement of your material interests, do you think that the result of that would be the gradual restoration of the old feeling? Answer. That would be the natural result, I think, and I see no other way in which that result can be brought about. [Lee acknowledges that should the Radicals prevail, the restoration of “old feelings” would not be realized. Blow’s next question manifests the Radicals’ concern that a resurgent South jeopardizes their monopoly of political power.] Question. There is a fear in the public mind that the friends of the policy in the South adopt it because they see in it the means of regaining the political position which they lost in the recent contest: do you think that that is the main idea with them, or that they really look to it, as you say, as

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the best means of restoring civil government and the peace and prosperity of their respective States ? Answer. As to the first point you make, I do not know that I ever heard any person speak upon it. I never heard the points separated. I have heard them speak generally as to the effect of the policy of President Johnson. The feeling, so far as I know, is that there is not that equality extended to the Southern States as is enjoyed by the North. [Blow’s “friends of the policy in the South” is a reference to President Johnson’s reconstruction policy. Lee’s answer is a warning to the South. Should the Radicals prevail the South’s future prospects are very dim.] Question. You do not feel down there that while you accept the result, that we are as generous as we ought to be under the circumstances ? Answer. They think that the North can afford to be generous. [The North can afford to be generous not only economically, but ethically, Southerners being the injured party.] Question. That is the feeling down there? Answer. Yes, and they think it is the best policy, those who reflect upon the subject and are able to judge. [According to Lee, some are unable to judge due to a lack of capacity and/or material biases.] Question. I understand it to be your opinion that generosity and liberality toward the entire South would be the surest means of regaining their good opinion? Answer. Yes, and the speediest. [Implicit in Blow’s question is that the Radicals prefer, or are considering, ungenerous and illiberal reconstruction policies.] By Mr. HOWARD : Question. I understood you to say, generally, that you had no apprehension of any combination among the leading secessionists to renew the war, or anything of the kind? Answer. I have no reason in the world to think so.

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[How could they. They are either in federal custody or on the run. But new leaders, including posterity, could.] Question. Have you heard that subject talked over among any of the politicians? Answer. No, sir, I have not. I have not heard that matter even suggested. Question. Let me put another hypothetical state of things: Suppose the executive government of the United States should be held by a president who, like Mr. Buchanan, rejected the right of coercion, so-called, and suppose a Congress should exist here entertaining the same political opinions, thus presenting to the once rebel States the opportunity again to secede from the Union, would they or not, in your opinion, avail themselves of that opportunity, or some of them? Answer. I suppose it would depend upon the circumstances existing at the time. If their feelings should remain embittered, and their affections alienated from the rest of the States, I think it very probable they might do so, provided they thought it was to their interest. [The “very probable” sentiment must have comforted Lee, because it manifests the Spirit of 1776 and 1861 percolating within the hearts of Southerners.] Question. Do you not think that at the present time there is a deep-seated feeling of dislike toward the government of the United States on the part of the masses of the secessionists and government? Answer. I do not know that there is any deep-seated dislike. I think it is probable there may be some animosity still existing among some of the people at the South. Question. Is there not a deep-seated feeling of disappointment and chagrin at the result of the war? Answer. I think that, at the time, they were disappointed at the result of the war. Question. Do you mean to be understood as saying that there is not a condition of discontent against the government of the United States among the secessionists generally? Answer. I know of none.

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Question. Are you prepared to say that they respect the government of the United States and the loyal people of the United States so much, at the present time, as to perform their duties as citizens of the United States and of the States faithfully and well? Answer. I believe that they will perform all the duties that they are required to perform. I think that is the general feeling, so far as I know. [Lee’s “required to perform” is the acknowledgment that coerced compliance, not the consent of the governed, it the current paradigm in the South.] Question. Do you think that it would be practicable to convict a man in Virginia of treason for having taken part in this rebellion against the government, by a Virginia jury, without packing it with direct reference to a verdict of guilty? Answer. On that point I have no knowledge, and I do not know what they would consider treason against the United States. If you mean past acts. Mr. HOWARD. Yes, sir. Answer. I have no knowledge as to what their views on that subject of the past are. Question. You understand my question: Suppose a jury was impanelled in your own neighborhood, taken up by lot; would it be practicable to convict, for instance, Jefferson Davis for having levied war upon the United States, and thus having committed the crime of treason? Answer. I think it is very probable that they would not consider he had committed treason. Question. Suppose the jury should be clearly and plainly instructed by the court that such an act of war upon the United States, on the part of Mr. Davis, or any other leading man, constituted in itself the crime of treason under the Constitution of the United States; would the jury be likely to heed that instruction, and if the facts were plainly in proof before them, convict the offender? Answer. I do not know, sir, what they would do on that question. Question. They do not generally suppose that it was treason against the United States, do they?

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Answer. I do not think that they so consider it. Question. In what light would they view it? What would be their excuse or justification? How would they escape in their own mind? I refer to the past. Answer. I am referring to the past and as to the feelings they would have. So far as I know, they look upon the action of the State, in withdrawing itself from the government of the United States, as carrying the individuals of the State along with it; that the State was responsible for the act, not the individual. Question. And that the ordinance of secession, so-called, or those acts of the State which recognized a condition of war between the State and the general government, stood as their justification for their bearing arms against the government of the United States? Answer. Yes, sir. I think they considered the act of the State as legitimate; that they were merely using the reserved right which they had a right to do. Question. State, if you please—and if you are disinclined to answer the question you need not do so—what your own personal views on that question were? Answer. That was my view; that the act of Virginia, in withdrawing herself from the United States, carried me along as a citizen of Virginia, and that her laws and her acts were binding on me. Question. And that you felt to be your justification in taking the course you did? Answer. Yes, sir. Question. I have been told, general, that you have remarked to some of your friends in conversation that you were rather wheedled or cheated into that course by politicians? Answer. I do not recollect making any such remark. I do not think I ever made it. [Lee’s response manifests his unwavering view that his political obligation is first and foremost to his State.]

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Question. If there be any other matter about which you wish to speak on this occasion, do so freely. Answer. Only in reference to that last question you put to me. I may have said, and I may have believed, that the position of the two sections which they held to each other was brought about by the politicians of the country; that the great masses of the people, if they understood the real question, would have avoided it; but not that I had been individually wheedled by the politicians. Question. That is probably the origin of the whole thing? Answer. I may have said that; but I do not even recollect that. But I did believe at the time that it was an unncessary condition of affairs, and might have been avoided if forbearance and wisdom had been practiced on both sides. [This response is Lee’s clearest verdict on the war. If statesmen had been in positions of political authority the war would have been avoided. Moreover, had the American people been better informed and resisted the “wheedling” by politicians, there would not have been war. His acknowledgment that he had not been so wheedled but still sided with and valiantly fought for Virginia, indicates which sectional ruling class was most culpable for the war.] Question. You say that you do not recollect having sworn allegiance and fidelity to the confederate government? Answer. I do not recollect it, nor do I know that it was ever required. I was regularly commissioned in the army of the Confederate States, but I really do not recollect that that oath was required. If it was required, I have no doubt I took it; or if it had been required, I would have taken it. [Howard is once again attempting to entrap Lee, setting him up for the charge and conviction of treason against the United States. Lee provides the same answer, verbatim. Lee’s response that he may have or would have taken the oath if required, manifest that his primary political obligation was to Virginia. When Virginia joined the C.S.A., he was obligated to follow her into the C.S.A.] Question. Is there any other matter which you desire to state to the committee?

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Answer. No, sir; I am ready to answer any question which you think proper to put to me. Question. How would an amendment to the Constitution be received by the secessionists, or by the people at large, allowing the colored people or certain classes of them to exercise the right of voting at elections? Answer. I think, so far as I can form an opinion, in such an event they would object. Question. They would object to such an amendment? Answer. Yes, sir. Question. Suppose an amendment should, nevertheless, be adopted, conferring on the blacks the right of suffrage, would that, in your opinion, lead to scenes of violence and breaches of the peace between the two races in Virginia? Answer. I think it would excite unfriendly feelings between the two races. I cannot pretend to say to what extent it would go, but that would be the result. [Lee’s view was the typical American view. For example, Lincoln commented that “I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races; that I am not, nor ever have been, in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say, in addition to this, that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality. And in as much as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race. 35 ] Question, Are you acquainted with the proposed amendment now pending in the senate of the United States? Answer. No, sir; I am not. I scarcely ever read a paper. [The substance of the proposed amendment was here explained to the witness by Mr. CONKLING.] So far as I can see, I do not think the State of Virginia would object to it.

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Question. Would she consent, under any circumstances, to allow the black people to vote, even if she were to gain a larger number of representatives in Congress? Answer. That would depend upon her interests. If she had the right of determining that, I do not see why she should object. If it were to her interest to admit these people to vote, that might overrule any other objection that she had to it. Question. "What, in your opinion, would be the practical result? Do you think that Virginia would consent to allow the negro to vote? Answer. I think that, at present, she would accept the smaller representation. I do not know what the future may develop. If it should be plain to her that these persons will vote properly and understandingly, she might admit them to vote. By Mr. BLOW: Question. Do you not think it would turn a good deal, in the cotton States, upon the value of the labor of the black people upon the amount which they produce? Answer. In a good many States in the South, and in a good many counties in Virginia, if the black people now were allowed to vote, it would, I think, exclude proper representation; that is, proper, intelligent people would not be elected; and rather than suffer that injury they would not let them vote at all. [Lee is acknowledging that recklessly extending suffrage is not in Virginia’s interest and the she would resist. Incentivizing her to accept the extension of suffrage to freedmen by increasing Virginia’s representation in the U.S. House would only exacerbate the problem.] Question. Do you not think that the question, as to whether any Southern State would allow the colored people the right of suffrage in order to increase representation, would depend a good deal on the amount which the colored people might contribute to the wealth of the State in order to secure two things: first, the larger representation, and, second, the influence derived from these persons voting? Answer. I think they would determine the question more in reference to their opinion as to the manner in which those votes would be exercised, whether they consider those people qualified to vote. My own opinion is,

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that, at this time, they cannot vote intelligently, and that giving them the right of suffrage would open the door to a great deal of demagogism, and lead to embarrassments in various ways. What the future may prove, how intelligent they may become, with what eyes they may look upon the interests of the State in which they may reside, I cannot say more than you can. [Lee is reiterating the bad consequences stemming from the manipulation of uniformed voters by politicians. “Demagogism” is synonymous with “wheedling by politicians.” Lee realizes that extending suffrage to those who “cannot vote intelligently,” whether white or black, makes “wheedling by politicians” more problematical.] Question. Is there any sympathy felt in the South for those schemes of emigration to Mexico? Answer. I believe that the masses of the people have not any sympathy with them. There are individuals who think that their interest would be benefited, and, touted, that their prospects at home are so poor now that it is like losing their lives to remain. That feeling was stronger at the first cessation of hostilities than it is now. At this time it seems to be subsiding. By Mr. HOWARD: Question. I will put one question to you to which you may respond or not, as you please: I wish to inquire whether you had any knowledge, while you were in command at Richmond, of the cruelties practiced towards the Union prisoners at Libby prison and Belle Isle? Answer. I never knew that any cruelty was practiced, and I have no reason to believe that it was practiced. I can believe, and I had reason to believe, that privations may have been experienced among the prisoners, because I know that provisions and shelter could not be provided them. Question. Were you not aware that those prisoners were dying from cold and starvation? Answer. I was not. Mr. HOWARD.

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I desire that you shall speak your mind fully and freely on this subject, for it is useless to conceal from you the fact that those scenes have created a sad feeling in the hearts of the people at the North. [The Radicals were using the treatment of Union POWs by the C.S.A. as a high salient issue in the North to discredit President Johnson conciliatory Reconstruction policies.] Answer. As regards myself, I never had any control over the prisoners, except those that were captured on the field of battle. It was my business to send them to Richmond to the proper officer, who was then the provost marshal general. In regard to their disposition afterwards I had no control. I never gave an order about it. It was entirely in the hands of the War Department. Question. And not in your hands? Answer. Not in mine. Question. Did these scenes come at all to your knowledge? Answer. Never. No report was ever made to me about them; there was no call for any to be made to me. I did hear (it was mere hearsay) that statements had been made to the war department, and that everything had been done to relieve them that could be done; even, finally, so far as to offer to send them to some points (Charleston was one point named) if they would be received by the United States authorities and taken to their homes; but whether that is true or not I do not know; it was merely a report that I heard. Question. Were you in the same ignorance of the scenes at Andersonville and Salisbury? Answer. I never knew who commanded at Andersonville until I saw by the papers, after the cessation of hostilities, that Captain Wirz had been arrested on that account, nor do I know now who commanded at Salisbury. Question. And of course you knew nothing of the scenes of cruelty, about which complaints have been made, at those places? Answer. Nothing in the world. As I said before, I suppose they suffered from the want of ability on the part of the Confederate States to supply their wants. At the very beginning of the war I knew that there were

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sufferings of prisoners on both sides, but, as far as I could, I did everything in my power to relieve them, and urged the establishment of the cartel which was established. By Mr. BLOW: Question. It has been frequently asserted that the Confederate soldiers feel more kindly toward the government of the United States than any other portion of the people of the South. What is your observation on that point? Answer. From the Confederate soldiers I have heard no expression of any other opinion. They looked upon the war as a necessary evil and went through it. I have seen them relieve the wants of federal soldiers on the field. The orders always were that the whole field should be treated alike. Parties were sent out to take in the federal wounded as well as the confederate, and the surgeons were told to treat the one as they did the other. These orders have been given by me repeatedly on every field. Question. Do you think that the good feeling on their part toward the rest of the people has continued since the close of the war? Answer. I know nothing to the contrary. I made several efforts to exchange the prisoners after the cartel was suspended; I did not know why it was suspended; I do not know to this day which side took the initiative; I knew that there were constant complaints made on both sides; I merely knew it from public rumor. I offered to General Grant, around Richmond, that we should ourselves exchange all the prisoners in our hands. There was a committee from the Christian Association, I think, which reached Petersburg and made an application to me for a passport to visit all the prisons at the south. My letter to them I suppose they have. I told them that I had not that authority; that it could be only obtained from the war department at Richmond, but that neither they nor I could relieve the sufferings of the prisoners; that the only thing to be done for them was to exchange them; and to show that I would do whatever was in my power, I offered then to send to City Point all the prisoners in Virginia and North Carolina, over which my command extended, provided they returned an equal number of mine, man for man. I reported this to the War Department, and received an answer that they would place at my command all the prisoners at the South, if the proposition was accepted. I heard nothing more on the subject. [Lee does not question that POWs suffered. However, the deplorable conditions at the camps were due to the conditions of war. But, more

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importantly, the unwillingness of the Lincoln administration to receive the POWs in prisoner exchanges was the major contributing factor to the horrors of the POW camps.] Question. Has there been any considerable change in the number of the negro population in Virginia during the first four years? Answer. I suppose it has diminished, but I do not know. Question. Diminished in consequence of more negroes going south than was made up by the natural increase? Answer. My general opinion is that the number has diminished, and for the reason you give. Question. I suppose that the mass of the negroes in Virginia, at the present time, are able to work; that there are not many helpless ones among them? Answer. There are helpless ones, certainly, but I do not know to what extent. Question. What is your opinion about it being an advantage to Virginia to keep them there at all? Do you not think that Virginia would be better off if the colored population were to go to Alabama, Louisiana, and the other Southern States? Answer. I think it would be better for Virginia if she could get rid of them. That is no new opinion with me. I have always thought so, and have always been in favor of gradual emancipation. Question. As a question of labor alone, do you not think that the labor which would flow into Virginia, if the negroes left it for the cotton States, would be far more advantageous to the State and to its future prosperity? Answer. I think it would be for the benefit of Virginia, and I believe that everybody there would be willing to aid it. Question. Do you not think that the State of Virginia is absolutely injured and its future impaired by the presence of the black population there? Answer. I think it is. [The Radicals were interested in cheap black labor, as were the railroad corporations. The latter needed laborers and the former could provide a subsidized work force. 36 With Virginia’s economy in ruins, Lee acknowl-

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edged that the prospects for the freedmen and their families staying in Virginia were bleak. Moreover, Lee was of the opinion that the bad effects of extending suffrage to freedmen in Virginia would be ameliorated if they were to emigrate to the West.] Question. And do you not think it is peculiarly adapted to the quality of labor which would flow, into it, from its great natural resources, in case it was made more attractive by the absence of the colored race? Answer. I do. With the hearing concluded, Lee returned to Lexington a marked man. His enemies in the North and former friends in the South were dissatisfied with his efforts to reconcile the two sections. He wrote “I am now considered such a monster that I hesitate to darken with my shadow the doors of those I love best, lest I should bring them misfortune.” 37 Reconstruction policies would exacerbate the tension. In reaction to the 1867 Reconstruction Act, by which Virginia was designated as Military District No. 1, Mrs. Lee wrote that “It is bad enough to be the victims of tyranny, but when it is wielded by such cowards as Butler, Thaddeus & Turner it is indeed intolerable. The country [Virginia] that allows such men to rule them must fast be going to destruction. . . . My indignation cannot be controlled and I wonder if our people, helpless and disarmed as they are, can bear it. Oh God how long?” 38 Sensing the brewing storm of a Southern resurgence of resistance, the topic of Lee’s arrest reemerged in the U.S. Senate on February 19, 1868. Responding to criticism for not arresting Lee in the spring of 1861, then Secretary of War Simon Cameron boasted that he “arrested the Legislature of Maryland to keep them from taking that State out.” But Lee evaded arrest by assuring General Scott that he would like to have command of the [Union] Army. “In regard to General Lee’s case, I think he behaved worse than any of the men who acted so treacherously to the Government.” 39 In a letter to Senator Johnson, Lee promptly responded to the charge: My Dear Sir: My attention has been called to the official report of the debate in the Senate of the United States, on the 19th instant, in which you did my the kindness to doubt the correctness of the statement made by the Honorable Simon Cameron, in regard to myself. I desire that you may feel certain of my conduct on the occasion referred to, so far as my individual statement can make you. I never intimated to any one that I desired the command of the United States Army; nor did I ever have a conversation with but one gentleman, Mr. Francis Preston Blair, on the subject, which was at his invitation, and, as I understood, at the instance of President Lincoln. After listening to his

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remarks, I declined the offer that he made me, to take command of the army that was to be brought into the field; stating, as candidly and courteously as I could, that, though opposed to secession and deprecating war, I could take no part in an invasion of the Southern States. I went directly from the interview with Mr. Blair to the office of General Scott; told him of the proposition that had been made to me, and my decision. Upon reflection after returning to my home, I concluded that I ought no longer to retain the commission I held in the United States Army, and on the second morning thereafter I forwarded my resignation to General Scott. At the time, I hoped that peace would have been preserved; that some way would have been found to save the country from the calamities of war; and I then had no other intention than to pass the remainder of my life as a private citizen. Two days afterward, upon the invitation of the Governor of Virginia, I repaired to Richmond; found that the Convention then in session had passed the ordinance withdrawing the State from the Union; and accepted the commission of commander of its forces, which was tendered me. These are the ample facts of the case, and they show that Mr. Cameron has been misinformed. 40

Lee’s fate was tied to Davis’s pending trial. A few weeks after Lee’s testimony to the JCR former C.S.A. President Jefferson Davis would be in Richmond to be tried in a federal court for treason. The trial would be postponed to November 1868, during which Lee was interrogated for two hours. 41 Davis argued that being tried for treason violated his Fifth Amendment protection against double jeopardy. Claiming that the Fourteenth Amendment, section 3, already punished him by preventing him from holding public office, he moved for dismissal. A divided court certified the motion to the U.S. Supreme Court. Fearing an unfavorable opinion, on December 25, 1868, President Johnson preempted the court by issuing a pardon to all those who participated in the “rebellion.” 42 President Johnson’s pardon may have removed the threat of arrest and legal harassment from Lee’s life, but not political vitriol. As recently as 2001, Lee’s presence was once again felt in the U.S. Senate. During the Senate Judiciary Committee confirmation hearing of U.S. attorney-designate former U.S. Senator John Ashcroft (MO), Senator Joseph Biden (DE) questioned Ashcroft’s fitness for the office based on Ashcroft giving an interview to the Southern Partisan magazine. Biden charged that’s “a magazine to which you gave an interview and it’s a magazine that has been characterized by the Associated Press and other mainstream publications as a "Southern, part neo-Confederate publication that regularly vilifies Abraham Lincoln as a tyrant, helps" and so and so on— I won’t go into all the detail.” Biden criticized Ashcroft for “defending Southern patriots like Robert E. Lee.” The questioning continued, with Ashcroft acknowledging his pro-Union position and yet an admirer of Lee:

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BIDEN: John, if I’m wrong, you should tell me because I’m operating on this. If it’s factually wrong, then I’d be happy to hear what . . . ASHCROFT: Well, you know, that’s not my purpose. Let me express to you that I believe that racism is wrong. I repudiate it. I repudiate racist organizations. I’m not a member of any of them. I don’t subscribe to them. And I reject them. And had I been fighting in the Civil War, I would have fought with Grant. I probably would have, at Appomattox, winced a little bit when Grant let Lee keep his sword and take his horse home with him. But I think that was the right decision. It was a signal at that time by the people on the ground that they recognized that some people who fought on both sides were people of decent will, and it is not time for us to find out who we should be able to hate now, that there’s a long time gone by. You know why we should respect Grant. You know why we should respect Lee. This Congress has acted to restore the citizenship of Robert E. Lee, and there are a series of members on this panel that voted in favor of restoring the citizenship of Robert E. Lee, and at that time they did so, they said the entire nation has long recognized the outstanding virtues of courage, patriotism and selfless devotion to the duty of General Robert E. Lee. 43 Ashcroft was confirmed by a 58 to 42 vote, with Biden voting against confirmation. 44 NOTES 1. The Federalist Papers, #47. 2. “Wade–Davis Manifesto.”American History Online. Facts On File, Inc. www.fofweb.com/activelink2.asp? ItemID=WE52&iPin=E14258&SingleRecord=True (accessed August 10, 2013). 3. See Rable, George C. “Forces of Darkness, Forces of Light: The Impeachment of Andrew Johnson and the Paranoid Style,” Southern Studies 17, no. 2 (1978): 151–73. The Radicals’ rationale for the impeachment was the 1867 Tenure in Office Act, designed to protect the Radicals in the executive branch from removal by President Johnson. Radical Secretary of War Edwin M. Stanton was the focus of the Republicans’ protection scheme. The act was later declared to be unconstitutional; see Myers v. United States, 272 U.S. 52 (1926). 4. 39th Congress, 1st session, p. 876. 5. Ibid., 876-877. 6. Radical Republicans was a designation chosen by a faction within the Republican Party during the party’s formation. A de facto leader of the Radicals was U.S. Senator Benjamin Davis (OH). Davis was the leading sponsor of the 1864 Wade-Davis bill, which was an earlier version of the Radicals’ Reconstruction program. In 1860 Davis informed “the commercial of the North” that slavery is an obstacle to “building up an empire.” With an imperialistic eye toward Mexico, he claimed that even if Southern secession were to be successful, the North “will be seven-fold indemnified by the trade and commerce of that country [Mexico] for what

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[they] lose by secession.” The financial losses incurred from losing control over the South would be compensated seven-fold by dominating Mexico. The presence of slavery in the South makes the fiscal domination of Mexico, what Wade refers to as a “protectorate over them,” more problematical, because the Mexicans fear that the United States intends to “enslave them.” Abolish slavery and the “glorious Union” becomes much more prosperous. See DeRosa, The Politics of Dissolution, 35. 7. Earl M. Maltz, “Radical Politics and Constitutional Theory: Senator Jacob M. Howard of Michigan and the Problem of Reconstruction,” Michigan Historical Review 32, no. 1 (Spring 2006): 27. 8. The illicit trade in cotton was rampant. As Lincoln’s Treasury Secretary Senator Fessenden was at the pivot of this trade. “Again and again the President’s friends and supporters appeared at the military frontier with passes signed by the President allowing them to trade through the lines. Congressmen, past and present, state governors, newspaper editors, wellknown business men—all were involved. Those not trading themselves peddled their influence with the Treasury Department or the White House. Traders without passes bought their way in and out of Union lines, sometimes paying tolls to generals of high rank. Corruption filtered down and infected every level of the civil and military bureaucracy.” The problem was so widespread that the Confederates increasingly relied on this trade, exchanging cotton for bacon, munitions, and clothing. Ludwell H. Johnson, North Against South: The American Illiad, 1847–1877 (Columbia, SC: The Foundation for American Education, 1993; originally published by John Wiley & Sons, Inc., as Division and Reunion: America 1848-1877 in 1978), 118–19. 9. Ludwell H. Johnson, North Against South: The American Iliad, 1848–1877 (Columbia, SC: The Foundation for American Education, 1993), 120. 10. Ibid., 1212. 11. 40th Congress, 2nd session, 1211, accessed at http://memory.loc.gov/cgi-bin/ampage? collId=llcg&fileName=080/llcg080.db&recNum=190. 12. The Wartime Papers of Robert E. Lee, 672–73. 13. Ibid., 1216 14. 39th Congress, 1st session, 567, accessed at http://memory.loc.gov/cgi-bin/ampage. 15. Ibid., 567–69. 16. Id., 568. 17. 39th Congress, second session, Cong. Globe., 1241, accessed at http://memory.loc.gov/ cgi-bin/ampage. 18. Ibid., 1241. 19. Maltz, 19-32, 19. 20. Congressional Globe, Senate, 39th Congress, 1st session, 2768, accessed at http:// memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=072/llcg072.db&recNum=849. 21. Ibid., 2767. 22. Id., 2767. 23. Johnson, 129. 24. Congressional Globe, 39th Cong., 2nd sess., 333-334. 25. Russell Kirk, Randolph of Roanoke: A Study in Conservative Thought (The University of Chicago Press, 1951), 44. 26. Accessed at FamilyTales, www.familytales.org/dbDisplay.php?id=ltr_rel599. 27. See Johnson, 123–42. 28. Report of the Joint Committee on Reconstruction at the First Session of the Thirty-Ninth Congress, pp. 1, 44, 87. 29. Ibid., 10. 30. Report of the Joint Committee on Reconstruction: Part II, Sub-Committee on Virginia, North Carolina, South Carolina Report of the JCR, p. 14 (174 of 836) 31. Congressional Globe, 39th Congress, 1st session, February 20, 1866, 932. 32. Id., 5. 33. Id., 24. 34. Bracketed text are the author’s comments.

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35. Lincoln-Douglas Debate, 1858, accessed at http://archive.org/stream/lincoln douglasde00link/lincolndouglasde00link_djvu.txt. 36. See Claude F. Oubre, Forty Acres and a Mule: The Freedmen’s Bureau and Black Land Ownership. 37. Marshall W. Fishwick, Lee After The War: The Greatest Period In The Life Of A Great American (New York: Dodd, Mead & Company, 1963), 125. 38. Freeman, IV, 312–13. 39. Congressional Globe, Senate, 40th Congress, 2nd Session, accessed at http://memory. loc.gov/cgi-bin/ampage?collId=llcg&fileName=080/llcg080.db&recNum=249. 40. Project Gutenberg Etext Recollections and Letters of General Lee by Captain Robert E. Lee, His Son, accessed at www.familytales.org/dbDisplay.php?id=ltr_rel497. Lee was being overly generous towards Cameron, by characterizing him as being “misinformed.” On April 22, Lee met with Cameron and informed him of his intentions to resign his commission and return to Virginia. See Allen Nevins, The War for the Union, Vol. I (New York: Konecky & Konecky, 1971), 108–9.” 41. Fishwick, 149. 42. Accessed at Encyclopedia of Virginia website, www.encyclopediavirginia.org/ Jefferson_Davis_s_Imprisonment. 43. U.S. Senate Judiciary Committee Hearing on the Nomination of John D. Ashcroft to be Attorney General of the United States, January 17, 2001, accessed at www.csdp.org/news/ news/biden.pdf. 44. U.S. Senate Roll Call Votes 107th Congress - 1st Session, accessed at www.senate.gov/ legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=107&session=1&vote=00008.

Conclusion

There is no question that Lee is a bane to those determined to use the sesquicentennial of the war to, in celebratory fashion, legitimatize the Union’s victory over the Confederacy. His presence, although waning, is still felt. 1 It is also clear that it is risky business, in the current climate of political correctness, 2 to write about Lee in a positive light. Centralizers on both the Right and Left have little tolerance for Lee and his efforts to thwart the centralization of power modern-day Republicans and Democrats are determined to advance. Nevertheless, there are signs that Lee’s cause is having a resurgence, which defenders of centralized power fear. Consider the concerns of a recent academic gathering marking the sesquicentennial of the war: [S]ecession was on the political mind of some Americans. Nullification and Interposition became a rallying cry for Tea Party Patriots and others disgruntled by Federal legislation. . . . In 2009, Governor Rick Perry of Texas twice adverted to whether Texas might lawfully secede from the Union. His comments were noteworthy because they came from the governor of a large and influential State and because of Governor Perry’s interest in the Republican Presidential nomination. But his comments are not unique. While there have been few explicit calls for secession from the Union, there have been both recent and past calls for secession from States and formation of new States. Calls for States to nullify Federal actions, particularly legislative actions, or to interpose the States between the Federal government and the people, have been frequent in recent years. Organizations that support nullification and interposition hold rallies, sponsor tours, distribute literature, and maintain websites. 3

The alarm of these academics over a resurgence of pushback against centralization emanates from an underlying fear of States’ rights. They realize that Americans concerned about the breadth and depth of centralized political 139

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power have traditionally turned to States’ rights as a check on that power. That political disposition formed the core of the 1776 Revolutionaries, the 1789 U.S. Framers, especially for the Anti-Federalists, and the 1861 C.S.A. Framers. When the defeated Southern States were dragged back into the “indissoluble” Union at the points of bayonets, the centralizers’ hope was that national supremacy over the States was settled once and for all. In other words, the Lost Cause of robust States’ rights was buried and dead. But such is not necessarily so. As instructed by T. S. Eliot, “If we take the widest and wisest view of a Cause, there is no such thing as a Lost Cause because there is no such thing as a Gained Cause. We fight for lost causes because we know that our defeat and dismay may be the preface to our successors’ victory, though that victory itself will be temporary; we fight rather to keep something alive than in the expectation that anything will triumph.” Lee would agree. This is not meant to imply a return to the America in which Lee lived. But it is meant to imply a recovery of what motivated Lee and Kirk referred to as the permanent things which makes America exceptional. Kirk wrote, “My friend Eliot did not expect to turn back the clock by any social or literary magic; nor did he fancy that we would be pleased by the result, even if it were possible; for we are all creatures of the age into which we have been born. As he expressed this hard truth . . . We cannot restore old policies or follow an antique drum.” 4 As explained by Kirk, not only can the clock not be turned back, but the drum is beating a more ominous tune: “To most observers . . . it has seemed far more probable that we are stumbling into a new Dark Age, inhumane, merciless, a totalist political domination in which the life of the spirit and the inquiring intellect will be denounced, harassed, and propagandized against.” 5 Lee, with his trust in the guiding hands of Providence, would most certainly concur. Lee fought to secure, to keep permanent in the American experience, Christian civilization and its bulwark States’ rights. Kirk’s admonition that “cult of Progress, whose votaries believe that everything new necessarily is superior to everything old,” 6 is especially worrisome when those votaries control the government. Lee acknowledged as much when, in 1866, he advised his fellow Southerners that patience on the part of the defeated Confederacy was the best course of action. The Confederacy lost the shooting war, to be sure, but Lee’s admonition for patience reveals an ongoing perseverance in the Confederacy’s cause. As the foregoing pages explain, that cause was the recovery of the principles of 1776 and 1789. Lee’s call for patience did not preclude fellow Virginians from turning to him for leadership in the extremely trying postbellum conditions in which they found themselves. In 1867 he was asked by Judge Robert Ould to accept the nomination for governor. Lee declined, explaining “my election as

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Governor of Virginia . . . would be used by the dominant party [Radical Republicans] to excite hostility toward the State bringing distress and hostility upon those whose prosperity and happiness are so dear to me.” As a private citizen he continued to exhort his fellow Virginians to work toward the supremacy of the Constitution, the just administration of the laws, and the “perfect equality of rights of all the states [and] the exclusive right of each to regulate its internal affairs.” This, in essence, was the reemergence of Confederate principles sub rosa. 7 In Lee’s mind this would determine Virginia’s and America’s future. He acknowledged as much in an 1866 letter to Lord Acton, in which he maintained that States’ rights is essential to “the continuance of free government . . . whereas the consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at home, will be the certain precursor of that ruin which has overwhelmed all those that have preceded it.” 8 The Secession Symposium academics implicitly agree with Lee’s assessment. Where they disagree is the type of America they favor, with Lee favoring a federal republic and the Secession academics a centralized unitary nation. This explains the latter’s efforts to “provide an important critique of the arguments for Secession and Secession’s connection to States’ Rights, both 150 years ago and today.” 9 The stakes are high and Lee symbolically plays a critical role in the ongoing battle of determining the proper limits of the U.S. government’s power. Here is why. The decentralized federal republic is not amenable to the machinations of the ruling class committed to the “cult of equality.” 10 This is not the equality under the law, but equality of condition with the U.S. government as the procurer and guarantor of that equality. This is a very far cry from Madison’s admonition that the “diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government.” 11 Madison’s “first object of government” necessitates a minimal role for the U.S. government, whereas the pursuit of equality of condition necessitates an omnipotent and omnipresent role for the U.S. government. For the Framers of the 1789 U.S. Constitution, the national government was intended to be a negative force, protecting private property and not proactively confiscating it for redistribution. Lee appreciated the limited constitutional role for the U.S. government. He confided to a friend “I was for the Constitution and the Union established by our forefathers. No one now is more in favor of that Constitution and that Union; and, as far as I know, it is that for which the South has all along contended.” 12 The U.S. government was intended to be grounded in the consent of the governed within their respective States, rather than under the control of a ruling class cut loose from constitutional constraints. Representing the cur-

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rent ruling class, Mr. Obama expressed his disdain for constitutional constraints when he opined that the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf, and that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was, um, because the civil rights movement became so court focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that. I’m not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn’t structured that way (sic). 13

As explained by Kirk, the power to bring about “major redistributive change” would be not only unconstitutional but also inherently unjust: For complete equality of condition in this world can be established only if a society is willing to penalize the better natures in order to benefit the less gifted natures. If we believe in the idea of justice that lies at the root of classical and Christian thought, such an undertaking would be not justice, but gross injustice; it would deny to most of the better men and women the things that belong to their nature—the rewards of private integrity. 14

The Civil War deconstructed Madison’s “first object of government” to protect private property and the Radical Republicans reconstructed on its ruins a constitutional order that made the redistribution agenda not only possible but the new political reality. Lincoln’s Gettysburg Address marks a vital step towards postbellum reconstruction and its ongoing effects. As explained by Professor Giovanni Sartori, Lincoln’s government of the people, by the people, and for the people . . . defies exact analysis . . . only for the people appears unambiguous: for the people means, clearly, in their interests, for their benefit, to their advantage. But many regimes that never claimed, in the past, to be democracies, did declare themselves government for the people. And, today, many communist dictatorships claim to be democracies precisely on that account. 15

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Lincoln’s words did, indeed, remake America. Professor Wills explains the new America Lincoln ushered into the political culture: The proponents of states’ rights may have arguments, but they have lost their force, in courts as well as in the popular mind. By accepting the Gettysburg Address, its concept of a single people dedicated to a proposition, we have been changed. Because of it, we live in a different America. 16

The naysayers of Lincoln’s America, disparagingly referred to as Neo-Confederates, those opposed to a “single people dedicated to a proposition,” 17 are unwelcomed in Lincoln’s “different America.” They prefer the original Constitution and the political order it established. They share, perhaps unwittingly, Lee’s vision for America; an America set into motion by the Founders and the best hope for genuine liberty via a federal republic. Of course, the slavery issue and the later civil rights movement throw a wet blanket over this fact. Lee, the gradual emancipator, has been casted by pro-Lincoln apologists as fighting to perpetuate and expand slavery. Lincoln has been cast as the great emancipator. The truth is that “after two years of military disasters, Lincoln brought out the slavery abolition purpose. Now the war had become God’s war of punishment. In reality, all these ‘purposes’ were, as Charles Dickens said, ‘specious humbug’ designed to conceal the North’s desire for economic control over the South.” 18 The same “specious humbug” is used by those promulgating the smear that to advance a pro-States’ rights position is covert advocacy for a return to slavery and/or Jim Crow. They fail to mention that slavery and Jim Crow were initially ended through States’ rights. They also absurdly argue that had it not been for the Civil War there would still be slavery in the South. 19 Unlike their nineteenth-century predecessors, contemporary apologists for the war refuse to concede fundamental principles underpinning political behavior. Through their speeches and policies the Radical Republicans confirmed Dickens’s observation that economic control over the South was the primary motivating factor behind the war. For example, and there are numerous such examples, on the floor of the U.S. Senate, Michigan Senator Thomas W. Ferry confirmed the obvious to his Republican Party operatives: We have been through a great war. It has come to its close. It had a cause, and that cause should be cast out of the body politic and removed forever. What was it? We are accustomed to say that it was slavery. Sir, it was not because black men were slaves that this country got into war. It was because white men were oligarchs. It was because slavery fed and supported oligarchy. I use the word oligarchy advisedly in contradistinction from aristocracy; for aristocracy is in theory the government of the best, while oligarchy is government of the few without reference to qualifications. . . . [I]t was inevitable that in the progress of events, the democracy of the North and the oligarchy of the South

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The problem with the South’s “oligarchical” ruling class was its persistent obstruction toward the North’s ruling-class policy agenda, such as public funds for corporate railroad interests. By attacking Southern slavery, the Northern ruling class removed an important prop of the South’s economic/ political power. In other words, the North’s ruling class would rule for all Americans, now that Southern opposition has been obliterated. In other words, as the ruling class spouts egalitarian rhetoric as justification for the centralization of political power, it busily uses that power for their own personal enrichment. With the demise of the antebellum Southern ruling class America lost its staunchest defenders of the federal republic. Its demise facilitated the rise of an increasingly omnipotent ruling class exercising power through the U.S. government. Lee was fully aware of this development. An important cause of this sad state of affairs is the education qua socialization of Americans, or more specifically the dominant ideas that shape political socialization. In the new America there is no gainsaying that Lincoln is great and that those who opposed him were not merely misguided but evil. Lee understood the function of education in the war of ideas. In 1866, writing to a potential benefactor of Washington College, he explained “I consider the proper education of [the South’s] youth one of the most important objects now to be obtained.” 21 Once the shooting stopped, the war of ideas commenced in earnest. Controlling Lee’s legacy is a good example how that process is still ongoing. In 1975, during the signing ceremony in which Lee’s full rights of citizenship were posthumously restored by a joint congressional resolution, President Gerald R. Ford remarked that “General Lee’s character has been an example to succeeding generations, making the restoration of his citizenship an event in which every American can take pride.” 22 Thirty-six years later, marking the 150th anniversary of the war, National Public Radio (NPR) informs us that “Southern leaders turned Lee into an icon as a way to save face after the destructive war. . . . That explanation reframed the war and their losses in terms of the South’s pride and perceived moral high ground, and cast the North’s win as simply about their greater numbers. They needed that iconic leader at the top of the heap, and Lee was the one they chose.” 23 Contrasting President Ford’s acknowledgment of Lee’s exemplary character with NPR’s derisive caricature of Lee’s honor as a fiction utilized for bad purposes does not bode well for Lee’s future reputation or the principles for which he stood. As the sesquicentennial of the war refocuses Americans’ attention on the conflict, Lee’s military achievements are overshadowed by the officially

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approved cause for which those achievements were supposedly aimed. A case in point is Lee’s home State, Virginia. For obvious reasons Lee’s military role cannot be avoided, so the alleged purpose of that role is used to discredit him. The discrediting is grounded in the claim that Lee’s efforts were for the abominable perpetuation of slavery, thereby making him persona non grata in the public mind. The Virginia Foundation for the Humanities (VHF) epitomizes the official spin about Lee. Relying almost exclusively on scholarship highly critical of Lee, the VHF informs us about its motives: The stakes in controlling Lee’s memory continue to be high. At the extremes, he represents both the South’s finest face and its ugliest. He was proud, honorable, and stoic; he was a gentleman. But he also fought to defend a country founded on chattel slavery. . . The battle over Lee’s memory is about the demands of the present-day politics as much as it was about history, however. Glorifying Lee on the battlefield was tantamount to defending the Lost Cause interpretation of the war, which denied slavery’s central role in causing the war and which, by 1900, was used to justify a social and racial order in the South that had replaced slavery with black disfranchisement and segregation. The Lee faithful, in other words, acted as guardians not only of a vision of the past, but also of a vision of the turn-of-the-century South. 24

This inflammatory rhetoric, especially within the context of twenty-firstcentury political correctness, is effective but highly misleading. Simplistically casting Lee as the symbol of a vision that failed, with that vision being slavery and racial oppression, Lee’s vision of a decentralized federal republic is completely ignored. This means two things. First, Lee is an increasingly controversial figure in contemporary political discourse. The “high stakes” in controlling Lee’s memory is an indication that the historiography has been politicized, validating Voltaire’s dictum that “history is nothing but a pack of tricks that we play upon the dead.” But the question left begging is why the tricks? Could it be that Lee might be a spark that ignites renewed interest in the legitimacy of the U.S. government’s expanding domestic and global policy agendas? In the words of former New York Governor Mario Cuomo, Lincoln speaks today not only to his own countrymen but also to his brothers and sisters worldwide. He does it with timeless words that may be the most eloquent an American political figure has ever produced. It is little wonder that ambitious politicians claim him as their inspiration, that studious politicians seek his guidance, and that audacious politicians seek his imprimatur. Shouldn’t we be equally interested in measuring our potential decisions against those he might have made? 25

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Referencing Lincoln, Mr. Cuomo maintains that Lincoln is the role model for achieving egalitarian policy objectives in the United States and globally: “Whatever is calculated to advance the condition of the honest, struggling, laboring man, so far as my judgment will enable me to judge of a correct thing, I am for that thing.” But the advancement is now global, with the U.S. government taking the lead. Cuomo postulated that “to the extent that we deem ourselves comfortable here at home, should we not consider devoting a larger portion of our abundance than we have so far to those desperately needy in foreign lands living on the same globe we all occupy as the great family of men.” 26 According to Cuomo, Lincoln’s legacy matters because it is instrumental in legitimizing the centralization of political power in the quest for the redistribution of wealth. Providing the U.S. government with ever increasing powers cannot be squared with the democratic-republican ideals of the Framers, but only rationalized to promote so-called noble humanitarian purposes of global egalitarianism via the redistribution of wealth. As this book has argued, Lee was not a supporter of slavery in the abstract, that is, as a positive good in and of itself. Both personally and from a public policy perspective he was a conservative abolitionist. Due to his Christian and political realism he understood the complexity of intractable cultural and political problems and the limits of politics in resolving societal problems. Lee was a genuine conservative and, perhaps, it is his version of conservatism that makes him so distasteful to many during the Civil War’s sesquicentennial. The slavery issue was on the periphery of Lee’s conservatism, as was the case for Lincoln’s progressivism. The fundamental issue for both was the locus of political sovereignty. Lee adhered to the decentralization of political power within the federal republic framework, whereas Lincoln was the innovative, audacious according to Cuomo, centralizer. Lee favored a central government based upon the consent of the States, with their respective republican forms of government. 27 Lincoln, on the other hand, favored a supreme central government over subordinate States. Whereas Lee was no believer in the perfectibility of society through public policy, Lincoln sought to remake America by the coercive application of political, and if necessary military, power. Lee realized that humanity has fallen from grace and we must accept it as it is, making improvements where we can. Such human action must be within the context of a free society, made sustainable by the Christian civilization the early American settlers sought to establish and the Confederacy hoped to perpetuate. Lee’s Christian faith not only sustained him, but also provided him with hopeful guidance in the turbulence of human affairs. Late in life he confided,

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My experience of men has neither disposed me to think worse of them, nor indisposed me to serve them; nor in spite of failures, which I lament, or errors, which I now see and acknowledge, do I despair of the future. The march of Providence is so slow, and our desires so impatient, the work of progress is so immense, and our means of aiding it so feeble, the life of humanity so long, and that of the individual so brief, that we often see only the ebb of the advancing wave, and are thus discouraged. It is history that teaches us to hope. 28

If “history teaches us to hope,” it also teaches us that it is highly unlikely that Lee’s portrait will anytime soon hang in the halls of power. It did in the not too distant past. President Eisenhower captured the genuine Lee and personified a much more temperate America, when he was queried by a New Yorker why a portrait of Lee hung in his office. President Eisenhower unhesitatingly responded, that in my estimation, one of the supremely gifted men produced by our Nation. . . . selfless almost to a fault . . . noble as a leader and as a man, and unsullied as I read the pages of our history. From deep conviction I simply say this: a nation of men of Lee’s caliber would be unconquerable in spirit and soul. Indeed, to the degree that present-day American youth will strive to emulate his rare qualities . . . we, in our own time of danger in a divided world, will be strengthened and our love of freedom sustained. 29

President Obama, on the other hand, used Lee as the butt of a joke when addressing a crowd at the Alfalfa Club. Founded in 1913 to commemorate Lee’s birthday, today the club’s exclusive membership consist of the nation’s most powerful among the ruling class. 30 President Obama poked fun at Lee, remarking that “[i]f he [Lee] were with us tonight, the general would be 202 years old and very confused.” 31 Not so, Mr. President. Lee anticipated the long-term consequences of the war, and for that reason “grieve[d] for posterity, for American principles and American liberty”? 32 President Obama is not the problem. The problem is that ambitious politicians have at their disposal centralized power to do what they will. Like Lee, Kirk looked to the future. He exhorted, “let us hope that the rising generation of conservatives may have the courage and the imagination required to avert the triumph of the centralizers; for that triumph would be followed swiftly enough by the decay of the American Republic.” 33 This is the same cause for which Lee fought and why his relevance endures. NOTES 1. Professor Marshall Fishwick, a Lee scholar, observed, “In 1865 the North had the victory. Social and economic control of the nation was plainly in Yankee hands. But the South had Robert E. Lee. Nothing could alter that. Up until 1870, the South had Lee in the flesh. After

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that, they looked upon him as to a guardian angel. In the second role he was, if anything, more powerful and persuasive.” Professor Fishwick’s comments about Lee’s powerful posthumous presence, written in 1963, does not holds true in 2013. For example, over the last several decades Lee’s name has been stripped from Southern public schools as a means to show that the public’s growing disfavor with the man. See Marshall W. Fishwick, Lee After The War: The Greatest Period in the Life of a Great American (New York: Dodd, Mead & Company, 1963), 223. 2. Political correctness is a symptom of what Kirk referred to as the new Dark Age. See Russell Kirk, Redeeming the Time, (Intercollegiate Studies Institute, 2006), 4. 3. Neil H. Cogan, Symposium, “Union and States’ Rights: Secession, 150 Years After Sumpter,” Akron Law Review (2012): 390–91. 4. Russell Kirk, The Politics of Prudence (Bryn Mawr, PA: Intercollegiate Studies Institute, 1993), 96. 5. Russell Kirk, Redeeming the Time (Wilmington, DE: Intercollegiate Studies Institute, 2006), 4. 6. Kirk, The Politics of Prudence, 25. 7. Freeman, IV, 310–11. 8. Freeman, IV, 304–5. 9. Ibid., 393. 10. See DeRosa, The Ninth Amendment and the Politics of Creative Jurisprudence (New Brunswick, NJ: Transaction Publishers, 1996), 147–90, and especially note 56, pp. 187–88. 11. The Federalist Papers, #10. 12. Freeman, IV, 303–4. 13. American Thinker, March 10, 2012, accessed at www.americanthinker.com/blog/2008/ 10/obama_2001_scrap_the_constitut.html. 14. Russell Kirk, The American Cause (ISI Books, 2002), 105. 15. Giovanni Sartori, The Theory of Democracy Revisted (Chatham House, NJ: Chatham House Publishers, Inc., 1987), 35. 16. Garry Wills, Lincoln at Gettysburg: The Words That Remade America (New York: Touchstone, 1992), 147. 17. See Weaver, 1–17, for an explanation on the power of ideas in shaping policy. 18. Charles Adams, When in the Course of Human Events: Arguing the Case for Southern Secession (Lanham, MD: Rowman & Littlefield Publishers, Inc., 2000), 207. 19. A recent example occurred in Virginia, when a Confederate heritage group announced that it would fly a 10-by-15-foot Confederate flag along Interstate 95. The group explained that “the flag is being erected as a memorial to the memory and the honor of the Confederate soldiers who sacrificed, bled and died to defend Virginia from invasion.” The Virginia NAACP executive director King Salim Khalfani responded that had the Confederacy been successful “I’d still be in chains” (The Richmond Times Dispatch, August 7, 1013, accessed at www. timesdispatch.com/news/local/city-of-richmond/confederate-flag-will-fly-along-i/article_ 14dcfb38-3535-5016-a110-7e786b8817e2.html). 20. The Congressional Globe, February 3, 1866, 926. 21. Freeman, IV, 258. 22. “General Robert E. Lee’s Parole and Citizenship,” Prologue Magazine 37, no. 1 (Spring 2005), accessed at www.archives.gov/publications/prologue/2005/spring/piece-lee.html. 23. “Robert E. Lee Revisited, 150 Years After Civil War,” National Public Radio, January 19, 2011, accessed at www.npr.org/2011/01/19/133054861/gen-lee-revisited-150-years-afterthe-civil-war. 24. “Robert E. Lee in Memory,” Encyclopedia Virginia, accessed at www. encyclopediavirginia.org/Lee_Robert_E_in_Memory. 25. Mario Cuomo, Why Lincoln Matters Today More Than Ever (New York: Harcourt, Inc., 2004), 27, 28. 26. Ibid., 169–70. 27. See Article IV, section 4, of the U.S. Constitution. 28. Richard Weaver, The Southern Tradition At Bay (Rochelle, NY: Arlington House, 1968), 209–10.

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29. James C. Cobb, Humanities: The Magazine for the National Endowment of the Humanities 32, no. 4 (July/August 2011), accessed at http://www.neh.gov/humanities/2011/julyaugust/feature/how-did-robert-e-lee-become-american-icon. 30. See “President Obama cracks jokes at elite Alfalfa Club dinner,” The Washington Post, January 1, 2012, accessed at www.washingtonpost.com/blogs/reliable-source/post/presidentobama-attends-elite-alfalfa-club dinner/2012/01/28/gIQATk33YQ_blog.html. 31. Ibid. 32. Washington and Lee University Library, accessed at http://leearchive.wlu.edu/papers/ letters/transcripts-carter/a%20c005.html. 33. Russell Kirk, The Politics of Prudence (Bryn Mawr, PA: Intercollegiate Studies Institute, 1993), 238.

Index

Acton, Lord, xvii, 51, 140 Alfalfa Club, 147 amendment process, 31 American Civil War, misnomer, 82n26 American Experience, ix American Mission, xvi American Revolution, 4 American System, 5 Antifederalists, ix, 36 antiparty republicanism, 88 aristocratic tendency, 109 Articles of Confederation, 4, 16n14, 23, 39n11, 60 Ashcroft, Senator John, 135–136 AWOL, 91, 92, 99, 102n20 Bastiat, Federick, xvi “Battle Hymn of the Republic,” 17n46 “The Bible or Atheism,” 73 Biden, Senator Joseph, 135–136 Blow, Henry T., 65n49 Boyce, William W., 27 Bradford, M. E., 2, 17n52 Brook Farm, 50 Brown, John, 52 Brown, Joseph E., 93, 95–98 Brownson, Orestes, xvii Bush, George W., 11 Calhoun, John C., xviiin10, 32–33, 34–35, 86

Cameron, Simon, 134 Christianity, 48–49, 70, 75. See also South’s Christian identity Churchill, Winston, 72 civil theology, 17n52 Clay, Henry, 5, 8, 16n29 Clausewitz, Carl von, 17n44 Cohen, Richard, xviiin9 Cohens v. Virginia (1821), 41n44 Committee of Detail, 5 compact theory, 32, 33–34, 43 Confederacy: expansion of, 40n19; Great Seal of, 5 Confederate Bible Convention, 10 Confederate flag, xiii, 148n19 Confederate States of America. See Congress, C.S.A.; Constitution, C.S.A Congress, C.S.A., 1, 94, 97 conscription, 86, 95 Conscription Act of 1864, 91 Constitution, C.S.A., 4, 20–38, 86, 87; Preamble, 5 Constitution, U.S., 3, 4, 11, 58; Article VI, 59, 66n65, 107; Eleventh Amendment, 58; nomocratic interpretation, 10; Preamble, 5, 58; teleocratic interpretation, 10 Constitutional Convention 1787, ix Cooper, Adjutant General, 91 corruption, 137n8 Cortinas, Juan, 52 151

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Index

cotton trade, 137n8 creedal nation, 9, 11, 15 Cuomo, Mario, 145–146 Dabney, Reverend R. L, 50 Davis, Jefferson, x, 37, 39n5, 46, 87, 93, 95–98, 101n7 Davis, Varina, 63 de Tocqueville, Alexis, 2, 6, 13, 48 Declaration of Independence, 3–4, 48, 57, 66n61 DeJouvenal, Betrand, 17n53 Democratic Party, 107, 111 Deo Vindice, 24 Dickens, Charles, 143 DiLorenzo, Thomas J., xixn23 Douglas, Stephen A., 47, 70 egalitarian dystopia, xv egalitarian humanitarianism, 2 egalitarianism, 6, 146 Eisenhower, Dwight David, 147 election of 1860, 11 Eliot, T. S., 140 Elkins, Stanley M., 39n2 Emerson, Ralph Waldo, 16n18 Engel v. Vitale (1962), 41n48 Enlightenment, 50 equality as a core political principle, 6, 7 Farber, Daniel A., 16n10, 16n20 federal republic, xii, 88, 143 Fellman, Michael, 39n3 Ferry, Thomas W., 143 Fessenden, William P., 106–107, 107, 137n8 Fishwick, Marshall, 147n1 force bills, 35 Ford, Gerald R., 144 freedom of thought, x Freeman, Douglas Southall, xixn19 Friedman, Lawrence M., 39n6 Garner v. Texas (2003). See Lawrence and Garner v. Texas Garrison, William Lloyd, 48 general welfare, 31 Genovese, Eugene, 47, 48 Gettysburg Address, 3, 6, 10, 15n8, 58, 142

Grant, Ulysses S., 79, 80 Graves, Robert, xv Hall, Reverend William A., 74–75 Hamilton, Alexander, 61 Harris Poll, xiii Hawkes, Jacquette, xv Hendrick, Senator Thomas, 106 Howard, Senator Jacob M., 54, 65n49, 106, 107, 110 Hungarian Revolution of 1848, 11 Huxley, Aldous, xv intellectual revolution, 3 iron law of oligarchy, 12 ironclad oath, 59 Jackson, Stonewall, 50 Jacobinism, 14, 17n53 Jefferson, Thomas, 32; on secession, 55 Jim Crow, 143 Johnson, Andrew, 40n18, 105, 136n3 Johnson, Reverdy, 134 Joint Committee of Fifteen on Reconstruction, 106 Kentucky and Virginia Resolutions, 32 Kerwick, Jack, 10 Kirk, Russell, xiv, 140, 147; American Mission, xvi; Appomattox, xiv; Cult of Progress, 140; King Numbers, 109; redistribution, 142; six cannons of conservatism, xv–xvi; The Conservative Mind, xiv, xv Knights of the Golden Circle, 52 Kristo, Irving, 9 law, 39n14 Lawrence and Garner v. Texas (2003), 41n50 Lee, Custis, 52 Lee, Mary Anna Custis, 55 Lee, Robert E., ix, 14–15; address to the Richmond Convention, 53; aggressive foreign policy, 19, 43; amnesty oath, 62; beau ideal of the Confederacy, x; call for patience, 140; Christian faith, 71, 71–72, 75, 76, 77–80, 81n14, 146–147; Christian Republic, 49;

Index citizenship restoration, 61–62; consolidation of the States, 19; decentralization of political power, ix, 1, 2; defender of tradition, xv; education of the South, 144; elected tyranny, 49; eulogy for, 82n38; General Orders, No. 83, 85; grieves for posterity, 1; great American Christian and gentleman, xi; Hungarian Revolution of 1848, opinion about, 11; legacy of, 2; letter to General Scott, 56; letter to New York editor, 62; letter to Reverdy Johnson, 134; letter to Varina Davis, 63; New York Times obituary, xi; pending arrest, 134; political obligation, 45, 57, 63; realism, 52, 100; resignation from the U.S. Army, 51, 53, 54–55, 59, 66n53, 66n54, 76, 80; restoration of the Union, 63; secession, 49, 53–54, 54–55, 77; slavery, 1, 19–20, 50, 72, 146; testimony before the Joint Committee on Reconstruction, 111–134; Unionist, 20; Washington College, 62 Lee, Rooney, 52 Levine, Bruce, 39n1 liberal relativism, 50 Lincoln, Abraham, xii, xvi, 2, 3, 9, 33, 44, 45, 47, 52, 58, 101n9, 105; first inaugural address, 4, 59; great emancipator, 143; on equality, 3; new birth of freedom, 3, 7; perfect Union, 23–24; perpetual union, 4; radicalism, 64n28; secession, support for, 56; second founding, 14; seductive rhetorician, 5. See also Gettysburg Address Lost Cause, xii, 38, 73, 139 Madison, James, 11, 13, 32, 35, 141, 142 manifest destiny, 70 manpower crisis, 93 Marshall, Chief Justice John, 21, 22 Marx, Karl, 49 Marxism, 50 Mason-Dixon Line, 8, 11, 43, 45, 51, 69, 93 McDonald, Forrest, 10 McDougall, John, 108 McKenzie, Lewis, 110

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McNeill’s Rangers, 90 McPherson, James, x Mexican War, 51 Mississippi, Declaration of Causes, 44–45 Mosby’s Raiders, 90 National Anti-Slavery, 1866 report, 19 National Endowment for the Humanities, 80, 83n51 National Public Radio, 144 Nebraska, 109 Negro suffrage, 109 Nevins, Allan, 15n9 New Harmony, 50 Nisbet, Robert, 7 Norris, Mary, 19 Norris, Wesley, 19 North versus South, ix North’s ruling class, 144 Northern infidelity, 69 Northern fiscal policy, Southern opposition to, 6, 20, 28, 34, 43, 70 Northern intellectuals, 75 Northern radicalism, 11 Obama, Barack Hussein, 11, 12–13, 141–142, 147 Orwell, George, xv Ould, Judge Robert, 140 Parker, Theodore, 7 Paris, Chaplain, 92 Partisan Rangers, 89, 101n15 Pierce, Reverend George F., 10, 79 Phillips, Kevin, 8 political culture, xii, 15n8, 85, 86, 87, 88, 89, 97, 101n5, 143 political parties, good faith of, 40n29 political power, centralization of, xv, xvi, 13, 14, 33 political principle, equality as core, 6, 7 political realism, 6 politics and religion, fusion of, 7, 12, 13. See also Yankee social consciousness principles of 1776, 2 public orthodoxy, xiv, xviiin18 Pusey, Edward B., 76 Puseyism, 76

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Index

Radical Republicans, 105, 136n6 Rawle, William, 60, 61 Reconstruction, 105, 134 religion. See Christianity; politics and religion; South’s Christian identity republic. See federal republic Republican Party, 5, 8, 12, 23, 33, 34, 47, 88, 105, 106, 107, 108, 110; 1856 party platform, 15n8; 1860 party platform, 15n8 Roland, Charles P., 69 Roosevelt, Franklin D., xi; new bill of rights, xvi; New Deal, xvi Rothbard, Murray, 13 rule of law, 2, 85 Russell, William Howard, 8 Sartori, Giovanni, 142 Scott, Winfield H., 56, 57 secession, 21, 33, 38, 52, 60, 66n51, 136n6 Secession Symposium, 141 Second Great Awakening, 8 Seddon, James A., 99–100, 107 self-government, 39n5 Sesquicentennial of the War, x, 139, 144 Seward, William H., 9, 46–47 slavery, x, xii, 70, 74, 81n10, 136n6, 143 South Carolina, Declaration of Causes, 7, 44 South’s Christian identity, 6 sovereignty, 22, 37 Stephens, Alexander, x, xii, xiii Story, Associate Justice Joseph, 22 Strauss, Leo, x, xvii tariffs, 35

Taylor, John, of Caroline, 22, 39n8, 86 Tea Party Patriots, 139 Tenure in Office Act, 1867, 136n3 Texas, Declaration of Causes, 44 Thermopylae, 111 treason trial by jury, 107–108 Tucker, George, 111 Tucker, St. George, 38, 40n41 Tyler, John, 53 Union’s victory, legitimacy of, xii unitary democracy, 5 U.S. Supreme Court, 38 Vance, Zebulon B., 100 Virginia Declaration of Religious Rights, 70 Virginia Foundation for the Humanities, 145 Virginia Supreme Court, 99 Voltaire, 145 Wade, Benjamin F., 111, 136n6 Wade-Davis bill, 105, 136n6 Warren, Robert Penn, ix, 46 Washington, President George, 5, 49 Weaver, Richard, 80 Webster, Daniel, 22 West Point Military Academy, 60 Whig Party, 81n15 Wills, Garry, 143 Wilson, Clyde N., 2 Wilson, Woodrow, 16n29, 41n42 Yankee social consciousness, 7–8 Yates, Richard, 3

About the Author

Marshall L. DeRosa received his PhD and MA from the University of Houston and his BA from West Virginia University, Magna Cum Laude. He has published articles and reviews in professional journals, book chapters, and three books. His teaching specializations are American constitutional law and policymaking, international law, law and American society, and the judicial process. He has lectured in England, Austria, and Ireland, and across the United States. He resides in Wellington, Florida, with his wife and four children.

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