NEVER Talk to the Police

American Illiad

Last week, the nation celebrated Lincoln's Presidency. Here is why we should rethink doing so:

“[T]he contest is really for empire on the side of the North, and for independence on that of the South, and in this respect we recognize an exact analogy between the North and the Government of George III, and the South and the Thirteen Revolted Provinces. These opinions…are the general opinions of the English nation.”
—London Times, November 7, 1861

“The preservation of the union is the supreme law.”
—Andrew Jackson, December 25, 1832

The Civil War was the greatest tragedy ever to befall the nation. Brother slew brother. Six hundred thousand of American’s best and bravest died of shot, shell, and disease. The South was bled to death, invaded, ravaged by Union armies, occupied for a dozen years. Under federal bayonets, her social and political order was uprooted and the 11 states that had fought to be free of the Union were “reconstructed” by that Union. America’s South would need a century to recover.

Thirteen decades after Appomattox the questions remain: Was it “an irrepressible conflict”? Was it a necessary war? Was it, as Churchill wrote, “the noblest and least avoidable of all the great mass-conflicts of which till then there was record”? Was it a just war? What became of the great tariff issue that had divided and convulsed the nation equally with slavery in the decades before the war? Are there lessons for us in this most terrible of tragedies where all of the dead were Americans?

After any such war, it is the victors who write the history. That has surely been true of the Civil War. Among the great myths taught to American schoolchildren has been that the “Great Emancipator,” Abraham Lincoln, was elected to free the slaves from bondage, that America’s “Civil War” was fought to end slavery in the United States.

This is fable. Even the name given this terrible war is wrong. A civil war is a struggle for power inside a nation like the War of the Roses, or the horrible war between Bolsheviks and Czarists in Russia, “Reds” and “Whites,” after Lenin’s October Revolution. The combatants from 1861-1865 were not fighting over who would govern the United States. The South had never contested Lincoln’s election. The South wanted only to be free of the Union.

The war was not over who would rule in Washington, but who would rule in South Carolina, Georgia, and the five Gulf states that had seceded by the time of Fort Sumter. From the standpoint of the North, this was a War of Southern Secession, a War to Preserve the Union. To the South this was the War for Southern Independence.

The Birth of a Myth

At the dedication of Gettysburg Battlefield, on November 19, 1863, three years after Lincoln’s election, the Great Myth was born. There, Abraham Lincoln declared that the war had been, all along, about equality.

Four score and seven years ago our father brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.

But four score and seven years before Lincoln spoke was 1776. The “new nation” may have been “conceived” in 1776, but it was not born until 1788 after the ninth state had ratified the Constitution. In that Constitution, freemen, black and white, were equal. But slavery, the antithesis of equality, was protected. By Benjamin Franklin’s compromise, slaves were to be considered as three-fifths of a person for purposes of representation in the House. Painful to concede, it is more truthful to say that slavery, the essence of inequality, was embedded in the Constitution of the new nation.

Moreover, in reaching back to 1776, Lincoln had invoked, in defense of a war to crush a rebellion, the most powerful brief every written on behalf of rebellion. The Declaration of Independence is not about preserving a union. It is a declaration of secession; it is about the “Right of the People to alter or to abolish” one form of government “and to institute new Government, laying its Foundation on such Principles, and organizing its Powers on such Form, as to them shall seem most likely to effect their Safety and Happiness.” It is about a person’s right “to dissolve the political bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them.”

Lincoln’s words, eloquent as they are, are the sheerest audacity. As Garry Wills writes approvingly, Lincoln, at Gettysburg,

performed one of the most daring acts of open-air sleight-of-hand ever witnessed by the unsuspecting. Everyone in that vast throng of thousands was having his or her intellectual pocket picked. The crowd departed with a new thing in its ideological luggage, that new constitution Lincoln had substituted for the one they brought there with them. They walked off, from those curving graves on the hillside, under a changed sky, into a different America. Lincoln had revolutionized the Revolution, giving people a new past to live with that would change their future indefinitely.

On reading Lincoln’s address, many, North and South, were astounded. In suggesting the terrible war had all along been about equality, what was the President talking about? Quoting the Constitution back to the President, the Chicago Times charged Lincoln with betraying both that sacred document he had taken an oath to defend and the men who had died for it:

It was to uphold this constitution, and the Union created by it, that our officers and soldiers gave their lives at Gettysburg. How dare he, then, standing on their graves, misstate the cause for which they died, and libel the statesmen who founded the government?

Even as Lincoln spoke, slavery was still legal in Washington, D.C., the seat of government, as well in Maryland, Missouri, Kentucky, West Virginia, Delaware, and the areas of Tennessee that had remained loyal.

The Emancipation Proclamation of January 1, 1863, freed only the slaves in those states that were still in rebellion. All other slaves remained the protected property of their masters. Prime Minister Palmerston noted in amusement that Lincoln had undertaken to abolish slavery where he had no power to do so, while protecting slavery where he had the power to destroy it. Indeed, when issuing the proclamation, Lincoln confided to his secretary that he had done so only as a “military necessity” after the defeats of First and Second Manassas, Jackson’s Valley Campaign, the Seven Days battle, Chancellorsville, Fredericksburg, and the stalemate at Antietam:

Things had gone on from bad to worse, until I felt that we had reached the end of our rope on the plan of operation we had been pursuing; that we had about played out our last card, and must change our tactics, or lose the game. I now determined upon the adoption of the emancipation policy.

Far from universal celebration, the Emancipation Proclamation was regarded by many, even in abolitionist England, as a cynical and awful weapon of war, settled upon by Lincoln in desperation. As Sheldon Vanauken points out in The Glittering Illusion: English Sympathy for the Southern Confederacy (1989):

[T]he Confederate states were winning the war. Only a few days before, Lee had smashed Burnside at Fredericksburg. The Proclamation freed all the slaves within the Confederate lines….These slaves were grouped on the isolated plantations, controlled for the most part by the women since their gentlemen were off to the wars. The only possible effect of the Proclamation would be the dreaded servile insurrection (that which John Brown was hanged for inciting). Either a slave rising—or nothing. So Englishmen saw it. Lincoln’s insincerity was regarded as proven by two things: his earlier denial of any lawful right or wish to free the slaves; and, especially, his not freeing the slaves in “loyal” Kentucky and other United States areas or even in Confederate areas occupied by United States troops, such as New Orleans. It should be remembered that [in England] the horrors of the Indian mutiny, as well as the slave uprising in St. Domingo, were in every memory.

The effect of the proclamation upon many in the Union ranks was the same. They had gone to war not to free the slaves but to preserve the nation! As James McPherson writes in What They Fought For, 1861-1865,

plenty of soldiers believed that the proclamation had changed the purpose of the war. They professed to feel betrayed. They were willing to risk their lives for the Union, they said, but not for black freedom….Desertion rates rose alarmingly. Many soldiers blamed the Emancipation Proclamation.

Closing his address, Lincoln spoke of the duty imposed on Americans by those who had fallen on the great battlefield. We “here highly resolve,” he said, in his immortal words, “that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.” If Southerners found this incredible, it is understandable.

The Confederates had never sought to cause the Government of the United States to “perish from the earth.” It was the Union that was seeking to cause the Confederacy and the governments of the 11 Southern states to “perish.” Had the South wanted the government to “perish from the earth,” the Confederate army could have marched into Lincoln’s capital after the First Battle of Bull Run in June 1861, when the Union army had been sent up the road to Washington in wild retreat. The South did not want this; the South only wanted to be free.

While Lincoln surely knew his eloquent words would be noted, and remembered, he could not have known his brief remarks would become the most famous address in American history. Nor is there evidence that Lincoln, at this moment, deliberately enlarged the war aims of the Union. But at Gettysburg, the war aims of the Union were enlarged, dramatically. In that address, they do go beyond anything Lincoln enunciated before the war began. Indeed, if racial equality was now Lincoln’s and the Union’s goal, then Lincoln himself was a changed man. For the Abraham Lincoln of 1861 was no champion of political or social equality.

“We Cannot Make Them Equals”

The Lincoln Americans know, the father figure with the wise and wonderful wit, who came out of Illinois to free the slaves and believed in racial equality—who would have marched with Martin Luther King, Jr.—would be unrecognizable to his contemporaries. While Lincoln as early as 1854 had condemned slavery as a “monstrous injustice,” and bravely took the antislavery side in senatorial campaign debates with Stephen A. Douglas, here is the Republican candidate for the United States Senate on the stump, in Charleston, Illinois, on September 18, 1858, after he had been baited by the “Little Giant” to explain where he stood on marriage between the races, and on social and political equality:

I will say then 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 for ever forbid the two races living together on terms of social and political equality. And inasmuch 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.

Four years before, at Peoria, on October 16, 1854, Lincoln confessed to his ambivalence as to what should be done about slavery, and with the freed black men and women were slavery abolished:

If all earthly power were given me, I should not know what to do, as to the existing institution. My first impulse would be to free all the slaves, and send them to Liberia,—to their own native land….[But free] them, and make them politically and socially, our equals? My own feelings will not admit of this; and if mine would we well know that those of the great mass of white people will not….A universal feeling, whether well or ill-founded, can not be safely disregarded. We can not, then, make them equals.

Three years later, in June of 1857, in Springfield, Lincoln was still entertaining the idea of repatriating the freed slaves back to their native continent:

Such separation, if ever effected at all, must be effected by colonization;…what colonization most needs is a hearty will….Let us be brought to believe it is morally right…to transfer the African to his native clime, and we shall find a way to do it, however great the task may be.

In urging colonization Lincoln was echoing men of far greater learning and higher station, such as Jefferson and Madison. In 1829, the author of the Constitution became president of the American Colonization Society—founded by John Randolph and Henry Clay after the War of 1812—“in the belief that its plan to return slaves to Africa represented the most sensible way out of that long-festering crisis.” Clay, Lincoln’s idol, advocated returning the slaves to Africa throughout his public career. In eulogizing Clay in Springfield on July 6, 1852, Lincoln celebrated his hero’s lifelong association with the American Colonization Society, and quoted Clay’s 1827 address to that society:

There is a moral fitness in the idea of returning to Africa her children, whose ancestors have been torn from her by the ruthless hand of fraud and violence. Transplanted in a foreign land, they will carry back to their native soil the rich fruits of religion, civilization, law and liberty.

In hearty approval of Clay’s words, Lincoln declared:

The suggestion of the possible ultimate redemption of the African race and African continent was made twenty-five years ago. Every succeeding year has added strength to the hope of its realization. May it indeed be realized!

Gradual repatriation and return of all the slaves to Africa, said Lincoln in the closing words of his long eulogy, would be a “glorious consummation”—Henry Clay’s greatest contribution to his country.

Lincoln’s words in the decade prior to his presidency are jolting to the modern ear. But all they tell us is this: on racial equality, Lincoln in 1858 was a man of his time and place. Like almost all white males of his age, he believed the races should remain separate. This is confirmed by his ardent admirer, General Donn Piatt, who thought Lincoln “the greatest figure looming up in our history.” After meeting with the President-elect in Springfield, Piatt wrote on the eve of Lincoln’s departure for Washington:

Expressing no sympathy for the slave, [Lincoln] laughed at the Abolitionists….We were not at a loss to get at the fact, and the reason for it, in the man before us. Descended from the poor whites of a slave State, through many generations, he inherited the contempt, if not the hatred, held by that class for the negro.

A man must be measured against his time. As Lincoln himself said in his Second Inaugural: “judge not that we be not judged.” Lincoln’s position on slavery—that it was evil, that he would have no part of it—was that of a principled politician of courage. As for his views on racial equality, they were the views of almost all of his countrymen. But if Lincoln did not go to war to make men equal, did he go to war to “make men free”—to end the evil of slavery? For to answer the question, “Was this a just war?” we have to understand why both sides fought.

Lincoln’s Concessions to the South

Unlike the Lincoln of Gettysburg battlefield in 1863, the Lincoln who slipped into Washington in disguise in the dead of night in the winter of 1861 did not have the least intention of freeing any slaves. Nor did the South have reason to fear Lincoln would, or could, abolish slavery. The Supreme Court was Southern-dominated, led by Chief Justice Roger Taney of the 1857 Dred Scott decision. There was no threat to slavery from that quarter. And, during the campaign of 1860, Lincoln repeatedly assured the South he was no Abolitionist. In the first paragraphs of his Inaugural Address, Lincoln repeated his assurances that he would make no attempt to abolish slavery.

Apprehension seems to exist among the people of the Southern States, that by the accession of a Republican Administration, their property, and their peace, and personal security, are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed, and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no intention to do so.” Those who nominated and elected me did so with full knowledge that I have made this, and many similar declarations, and had never recanted them.

His party’s platform, said Lincoln, endorsed the “inviolate” right of each state to “control its own domestic institutions.” In excoriation of John Brown’s raid, Lincoln noted in his Inaugural that, in their 1860 platform, Republicans “denounce the lawless invasion by armed force of the soil of any State or Territory, no matter under what pretext, as among the gravest of crimes.”

South Carolina had seceded on the grounds that the United States was failing to uphold the fugitive slave provision of the Constitution. But Lincoln assured Southerners their escaped slaves would be returned:

There is much controversy about the delivering up of fugitives from service or labor. The clause I now read is as plainly written in the Constitution as any other of its provisions: “No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”

It is scarcely questioned that this provision was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law. All members of Congress swear their support to the whole Constitution—to this provision as much as to any other. To the proposition, then, that slaves whose cases come within the terms of this clause, “shall be delivered up,” their oaths are unanimous. Now, if they would make the effort in good temper, could they not, with nearly equal unanimity, frame and pass a law, by means of which to keep good that unanimous oath? [Emphasis added.]

Lincoln is calling here for a new federal fugitive slave law to reinforce Congress’ constitutional obligation that escaped slaves “shall be delivered up” to their masters. In capturing and returning fugitive slaves, said Lincoln, some observers favor state authority, others federal authority. But, he asked: What is the difference? “If the slave is to be surrendered, it can be of but little consequence to him, or to others, by which authority it is done.”

The issue on which Republicans were united was that the extension of slavery to new states should be halted. Lincoln did not back down from this position in his Inaugural Address. But he did offer a guarantee to the South that where slavery existed, it could be made a permanent institution, by a new constitutional amendment.

One section of our country believes slavery is right, and ought to be extended, while the other believes it is wrong , and ought not to be extended. This is the only substantial dispute….I understand a proposed amendment to the Constitution…has passed Congress, to the effect that the federal government, shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments, so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express, and irrevocable.

Thus, in this final concession, Lincoln says he would not oppose a constitutional amendment to make slavery permanent in the 15 states where it then existed. The first Thirteenth Amendment to the Constitution Abraham Lincoln endorsed, then, did not end chattel slavery, but would have authorized chattel slavery forever. No true Abolitionist could have been other than horrified by Lincoln’s first Inaugural Address.

Is there a moral defense of Lincoln’s offer to make permanent an institution that all now agree was odious and evil? Only this: if it was not wrong for the Founding Fathers to accept slavery as the price of a constitution to establish the United States, it cannot be wrong for Lincoln to reaffirm the Founding Fathers’ concession—to repair and restore his fractured country. In appeasing the South on slavery, Lincoln was being faithful to his duty as President to unite his divided nation. He was also being true to his belief that, if slavery were restricted to where it existed, it would wither and die.

At the dedication of Freedmen’s Monument in Washington in 1876—a sculpture depicting a slave on his knees looking up in gratitude into the benevolent face of the Great Emancipator—Frederick Douglass stunned an audience including President Ulysses S. Grant by calling Lincoln “the white man’s President, entirely devoted to the welfare of white men.” “Viewed from the genuine abolition ground,” Frederick Douglass went on, “Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country…he was swift, zealous, radical, and determined.” A not unfair assessment.

Did slavery cause the war? In 1927, historians Charles and Mary Beard produced their famous and first in-depth study of American history, The Rise of American Civilization. It captivated scholars and laymen alike. After carefully examining the facts concerning slavery and the Civil War, they concluded:

Since, therefore, the abolition of slavery never appeared in the platform of any great political party, since the only appeal ever made to the electorate on that issue was scornfully repulsed, since the spokesman of the Republicans [Lincoln] emphatically declared that his party never intended to interfere with slavery in the states in any shape or form, it seems reasonable to assume that the institution of slavery was not the fundamental issue during the epoch preceding the bombardment of Fort Sumter.

To those who yet contend that Lincoln and the Union went to war “to make men free,” how do they respond to the fact that when the war began, with the firing on Fort Sumter, there were more slave states inside the Union (eight) than in the Confederacy (seven)? Four Southern states, Virginia, North Carolina, Tennessee, and Arkansas, had remained loyal. They did not wish to secede; they did so only after Lincoln put out a call for 75,000 volunteers for any army to invade and subjugate the Deep South. That army would have to pass through the Upper South, which would have to join a war against its kinfolk. This the Upper South would not do. It was Lincoln’s call to war against the already seceded states of the Deep South that caused Virginia, North Carolina, Tennessee, and Arkansas to leave a Union in which they had hoped to remain. Jeffrey Hummel notes in Emancipating Slaves, Enslaving Free Men (1996):

Previously unwilling to secede over the issue of slavery, these four states [Virginia, North Carolina, Tennessee, and Arkansas] were now ready to fight for the ideal of a voluntary Union. Out in the western territory… the sedentary Indian tribes—Cherokees, Choctaws, Chickasaws, Creeks, and Seminoles—also joined the rebellion…Lincoln [by calling up the militia] had more than doubled the Confederacy’s white population and material resources.

Before Fort Sumter, the Confederacy sent emissaries to Washington to discuss a compromise. Lincoln refused to meet with them, lest a presidential meeting confer legitimacy on a secession he refused to recognize. Against the advice of army chief General Winfield Scott, Secretary of State William H. Seward Secretary of War Simon Cameron, and Secretary of the Navy Gideon Welles, all of whom advocated evacuating Fort Sumter, he sent the Star of the Sea to resupply the fort. Viewing this as a provocation, the Southerners fired on the fort, and the American flag, and the great war was on.

And Southerners were perhaps not mistaken in their belief that Lincoln had provoked the conflict. As the President wrote with quiet satisfaction to Assistant Secretary of the Navy Gustavus Fox, commander of the expedition to Fort Sumter, on May 1, 1861:

You and I both anticipated that the cause of the country would be advanced by making the attempt to provision Fort-Sumpter [sic], even if it should fail; and it is no small consolation now to feel that our anticipation is justified by the result.

Like Polk before him, and Wilson and Franklin Roosevelt after him, Lincoln had maneuvered his enemy into firing the first shot.

Did the South Have a Right to Secede?

In the modern era, one reads more and more that the great Southern leaders were “traitors.” Robert E. Lee, Thomas J. “Stonewall” Jackson, and Jefferson Davis, all heroes of the Mexican War, however, were no more and no less traitors than Washington, Adams, and Jefferson were traitors to Great Britain. At West Point, which George E. Pickett, Stonewall Jackson, and Joe Johnston attended, the constitutional law book that all three Confederate generals had studied, A View of the Constitution of the United States by William Rawle—a Philadelphia abolitionist and Supreme Court Justice—taught that states had a right to secede: “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.”

Union officers had studied Rawle as well. Indeed, the idea of state supremacy, of states’ rights to nullify federal law, and of a right to secede if the issue were truly grave, had a long, distinguished history in America. In the Kentucky and Virginia Resolutions of 1798 and 1799, Jefferson and Madison, authors respectively of the Declaration of Independence and the Constitution—enraged at the jailing of editors under the Alien and Sedition Acts—argued that states had a right to nullify patently unconstitutional federal law.

Between 1800 and 1815, three serious attempts were made by New England Federalists to secede—at the time of the Louisiana Purchase in 1803, Jefferson’s Embargo Act of 1807, and Madison’s War of 1812. The secessionist leader was a Revolutionary War hero and a member of Washington’s Cabinet, Massachusetts Senator Timothy Pickering. The Federalist causes mirrored South Carolina’s causes: what they saw as an intolerable regime, interference with trade, incompatibility with alien peoples (Germans and Scotch-Irish), and a conviction the Union was being run for the benefit of the South. Said Pickering in 1803: “I will rather anticipate a new confederacy, exempt from the corrupt and corrupting influence and oppression of the aristocratic Democrats of the South.”

By a twist of fate, Jefferson’s rival, Alexander Hamilton, who had made Jefferson President in 1801 by persuading his allies to abandon Aaron Burr in the House of Representatives in the tie election of 1800, probably saved the Union. Federalists had conspired with Burr in 1804 to support him for governor, if Burr would lead New York into a New England Confederacy. But the revilement of Burr by Hamilton, as venal, corrupt, dictatorial, and dangerous, persuaded New Yorkers, by 7,000 votes, to reject him. Burr challenged Hamilton to a duel and killed him. Revulsion at the death of the patriot-statesman aborted the Federalists’ plot.

In anticipation of John C. Calhoun’s nullification, Massachusetts’ legislature in 1807 denounced Jefferson’s embargo, demanded that Congress repeal it, and declared the Enforcement Act “not legally binding.” Many merchants ignored the law; and the New England authorities looked the other way. At the Hartford Convention of 1814, New Englanders, enraged by Madison’s war with England when the Mother Country was in a death struggle against the dictator Napoleon, and by the interruption of their trade, threatened to secede and reassociate with Great Britain.

In 1832 South Carolina “nullified” a tariff law it believed was bleeding the South to death and asserted a right to secede. In 1843, when Tyler was driving for annexation of Texas, a vast territory that might be broken into five states, tilting the political balance of power in favor of the slave states, John Quincy Adams thundered that the annexation of Texas would justify Northern secession. And, in 1848, a freshman congressman critic of the Mexican War spoke of the inherent right of states to secede:

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 that 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 this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people, that can, may revolutionize, and make their own, of so much of the territory as they inhabit….It is a quality of revolutions not to go by old lines, or old laws; but to break up both, and make new ones.

These are the words of Abraham Lincoln, January 12, 1848.

Why Did the South Secede?

If Lincoln did not threaten slavery, why, then, did the Deep South secede? Answer: by 1861, America had become two nations and two peoples. The South had evolved into a separate civilization and wished to be a separate country. While moderates like Lee wanted to remain in the Union, Southern militants had concluded that, with the election of Lincoln, the North had won the great struggle for control of the national destiny.

The South had given the Union most of her Presidents, her Supreme Court Justices, her Speakers of the House. But, the South would never again determine the nation’s direction. This first Republican president had not received a single electoral vote in a Southern state; in ten Southern states he had not received a single vote. Lincoln owed the South nothing; but he owed everything to her enemies, to the admirers of John Brown, to the Northern industrialists who had Lincoln’s commitment to a protective tariff that the South believed threatened its ruin.

After decades of a troubled and unhappy marriage, for the Deep South Lincoln’s election was the final blow. They had decided, irrevocably, on divorce. Thus, six weeks after Lincoln’s election, December 2, 1860, South Carolina seceded. By February 1, a month before Lincoln’s Inauguration, South Carolina had been followed out of the Union by Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. In these states, federal forts, post offices, customs houses, and military posts had been occupied. Federal employees and troops had been sent packing. Yet, by the day of Lincoln’s Inauguration, four months after his election, there was no war. Why not?

Because President James Buchanan did not believe the federal government had the right to use military force to compel states to remain within the Union. If the Union was not voluntary, it was not a true Union. To our 15th President, coercion was unconstitutional. As Professor Woodrow Wilson wrote in Division and Reunion, Buchanan “believed and declared that secession was illegal; but he agreed with his Attorney General that there was no constitutional means or warrant for coercing a State to do her duty under the law. Such, indeed, for the time, seemed to be the general opinion of the country.” Most Northern newspapers agreed.

As early as November 13, 1860, the Daily Union in Bangor, Maine, defended the South’s right to secede, asserting that a true Union “depends for its continuance on the free consent and will of the sovereign people” of each state. “[W]hen that consent and will is withdrawn on either part, their Union is gone.” If military force is used, then a state can only be held “as a subject province,” and can never be a “co-equal member of the American Union.”

Horace Greeley wrote in the New York Daily Tribune, December 17, 1860, “the great principle embodied by Jefferson in the Declaration is that governments derive their just power from the consent of the governed.” If the Southern states wished to depart, “they have a clear right to do so.” And, if tyrannical government justified the Revolution of 1776, “we do not see why it would not justify the secession of Five Million of Southrons from the Federal Union in 1861.”

Many Northerners and Abolitionists were delighted to see the Deep South states gone. Abolitionist editor William Lloyd Garrison had spoken for many when he wrote that the original Constitution, protecting slavery, had been a “covenant with Death” and an “agreement with Hell.” In April 1861, Greeley wrote that “nine out of ten of the people of the North were opposed” to using force to return South Carolina to the Union. General Scott, hero of the Mexican War and Commander of the U.S. Army, said of the “wayward sisters…let them go in peace.” Ironically, the “wayward sisters” were like fugitive slaves. They were trying to break free of Father Abraham’s house, but he would not let them go.

Absent Abraham Lincoln, there might have been no war. But, without Lincoln, there might also be no United States today. Unlike Buchanan, the new President would accept war, raise an army of a million men, and fight the bloodiest struggle ever on the American continent, rather than let the South go. The Confederate firing on Fort Sumter may have been the spark that ignited the conflagration, but the real cause of the war was the iron will of Abraham Lincoln, as resolute a Unionist as was Andrew Jackson, who also would have accepted war rather than let South Carolina secede. Thus, as the Mexican War had been “Jimmy Polk’s War,” this was “Mr. Lincoln’s War.”

To win it, the President would assume dictatorial power, suspend the constitutional right of habeas corpus, overthrow elected state legislatures, arrest and hold without trial thousands of political prisoners, shut down opposition newspapers, and order army after army into the South to give his nation a new “birth of freedom,” and a new baptism of blood and fire.

When mobs rioted against the draft in July 1863, looting and pillaging New York City, lynching blacks they saw as threats to their jobs and the cause of the war, Lincoln ordered units detached from Meade’s army. When the veterans of Little Round Top and Cemetery Ridge entered the city, a witness described the action:

streets were swept again and again by grape [shot], houses were stormed at the point of a bayonet, rioters were picked off by sharpshooters as they fired on the troops from housetops; men were hurled, dying or dead, into the streets by the thoroughly enraged soldiery; until at last, sullen and cowed and thoroughly whipped and beaten, the miserable wretches gave way at every point and confessed the power of the law.

Estimates of the dead ranged from 300 to 1,000.

Lincoln meant to enforce the draft law. There are no reports of commissions established to investigate the “root causes” of “urban disorder.” Though he has come down to us as a kind and courtly homespun, backwoods humorist, there is truth in the depiction of Lincoln in Gore Vidal’s novel, where the President is seen through the eyes of a marveling Secretary of State:

For the first time, Seward understood the nature of Lincoln’s political genius. He had been able to make himself absolute dictator without ever letting anyone suspect that he was anything more than a joking, timid backwoods lawyer…

No tougher, more resolute man ever occupied the White House. As the historians Samuel Eliot Morison and Henry Steele Commager have written, Abraham Lincoln was

a dictator from the standpoint of American constitutional law and practice; and even the safety of the Republic cannot justify certain acts committed under his authority….A loyal mayor of Baltimore, suspected of Southern sympathies, was arrested and confined in a fortress for over a year; a Maryland judge who had charged a grand jury to inquire into illegal acts of government officials was set upon by soldiers…beaten and dragged bleeding from his bench, and imprisoned…

To this Lincoln pled military necessity, the imperative of preserving the Union: “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?” To those who denounced him as a tyrant for ignoring due process in crushing sedition, Lincoln made no apology: “Must I shoot a simple-minded boy who deserts, while I must not touch a hair of the wily agitator who induces him to desert?”

The First Emancipation Proclamation

That preserving the Union, not ending slavery, was Lincoln’s agenda is evident from the first year of the war. In the summer of 1861 General John C. Fremont, Republican candidate for President in 1856, was in command in Missouri. In a daring move, Fremont drew a line across the state, separating the pro-Confederacy region from the Union side, and issued an order: any civilian caught carrying a weapon north of the line would be shot. Any man aiding the secessionist cause was to have all his slaves instantly emancipated.

An instant national hero to Abolitionists and Freesoilers in the United States and Great Britain, the general sent his order to the President for approval. But Lincoln, desperate to keep pro-slavery Kentucky in the Union, told Fremont to withdraw it. Fremont refused, insisting he would not comply unless Lincoln issued a direct order. Lincoln issued the order.

The general’s wife, impulsive and high-strung Jessie Benton Fremont, daughter of the great Missourian Thomas Hart Benton, who had married the dashing Lieutenant Fremont when she was 16, undertook a journey to Washington, carrying a written plea from her husband. When she arrived in the capital, exhausted after days of day-and-night travel in a dirty coach over rough roads, she sent a brief note to the White House—where she had played as a girl in the days of Andrew Jackson—to set up an appointment to deliver the letter. A response came back that very night: “Now, at once, A. Lincoln.”

When Lincoln received her in the Red Room, Jessie Fremont lectured the President on the difficulty of conquering the South with arms alone. She urged Lincoln to appeal to the British nation and the world by declaring emancipation to be the Union’s cause.

“You are quite a female politician,” an irritated Lincoln responded.

Mrs. Fremont walked out of the White House and wrote in her diary:

I explained that the general wished so much to have his attention to the letter sent, that I had brought it to make sure it would reach him. He [Lincoln] answered not to that, but to the subject his own mind was upon, that “It was a war for a great national idea, the Union, and that General Fremont should not have dragged the negro into it…”

Jessie Fremont had clearly upset Lincoln. When a confidante of the President saw the general’s wife the next day, he was irate. “Look what you have done for Fremont; you have made the President his enemy!”

The Chicago Tribune denounced Lincoln for reversing General Fremont’s emancipation proclamation. Lincoln’s action takes away the penalty for rebellion, charged the Tribune on September 16. “How many times,” asked James Russell Lowell, “are we to save Kentucky and lose our self-respect?” In Connecticut, indignation had risen to fury. Senator Ben Wade of Ohio wrote “in bitter execration”:”The President don’t object to Gen. Fremont’s taking the life of the owners of slaves, when found in rebellion, but to confiscate their property and emancipate their slaves he thinks monstrous.”

But Lincoln’s policy was not emancipation. It was to return the South to the Union, even if it meant appeasing the South on slavery. As Lincoln wrote Greeley in his famous letter of August 22, 1862, “my paramount object in this struggle is to save the Union, and is not either to save or destroy slavery. If I could save the Union without freeing any slave I would do it.”

Lincoln, however, had already settled on his decision to issue the Emancipation Proclamation, and had so informed his Cabinet.

Did Tariffs Cause the War?

In For Good and Evil: The Impact of Taxes Upon the Course of Civilization, historian Charles Adams refers back to John C. Calhoun’s 1832 warning about the great sectional division Calhoun had seen on the horizon:

Federal import tax laws were, in Calhoun’s view, class legislation against the South. Heavy taxation on the South raised funds that were spent in the North. This was unfair. Calhoun argued further that high import taxes forced Southerners to pay either excessive prices for Northern goods or excessive taxes. Competition from Europe was crushed, thereby giving Northerners a monopoly over Southern markets. Federal taxation had the economic effect of shifting wealth from the South to the North—not unlike what the OPEC nations have been doing to the oil-consuming nations since 1973.

After Lincoln’s election, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas did not wait to see how he would govern. All seceded before his inauguration. They knew what lay ahead. For, even before Lincoln took his oath in early March, the first of the Morrill tariffs had been passed and signed by Buchanan, raising tariff rates to levels not seen in decades.

Consider the situation of the South: as the South purchased two-thirds of the nation’s imports, and tariffs were the prime source of tax revenue, the South was already carrying a hugely disproportionate share of the federal tax load. By raising tariffs, Congress, in Southern eyes, was looting the South. Southern imports would cost more, while the rising tariff revenue would be sent north to be spent by Republicans who reviled the South. The South’s alternative: buy Northern manufactures instead of British. Either way, more of the South’s wealth was headed north.

Dixie was unwilling to sit by and watch Lincoln’s customs officers haul their fattening satchels of duty revenue out of Southern ports, up to Washington, to be spent somewhere else, by a President who had not won a single Southern electoral vote. As the historian Adams writes,

The Morrill Tariff…was the highest tariff in U.S. history. It doubled the rates of the 1857 tariff to about 47 percent of the value of the imported products. This was Lincoln’s big victory. His supporters were jubilant. He had fulfilled his campaign and IOUs to the Northern industrialists. By this act he had closed the door for any reconciliation with the South. In his inaugural address he had also committed himself to collect customs in the South even if there were a secession. With slavery, he was conciliatory; with the import taxes he was threatening. Fort Sumter was at the entrance to the Charleston Harbor, filled with federal troops to support U.S. Customs officers. It wasn’t too difficult for angry South Carolinians to file the first shot.

Believing herself an exploited region in a country where the newly empowered Republicans despised her, Dixie decided to leave. But there was a powerful reason the industrialized North could not let her go. The free-trade Confederacy had written into its Constitution a permanent prohibition against all protective tariffs: “nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry.”

To Northern manufacturers a free-trade South spell ruin. Imports would be diverted from Baltimore, New York, and Boston where they faced the Morrill Tariff to Charleston, Savannah, and New Orleans where they would enter duty-free. Western states would use tariff-free Southern ports to bring in goods from Europe. So would many Northerners. On the very eve of war, March 18, 1861, the Boston Transcript wrote:

If the Southern Confederation is allowed to carry out a policy by which only a nominal duty is aldi upon the imports, no doubt the business of the chief Northern cities will be seriously injured thereby.

The difference is so great between the tariff of the Union and that of the Confederated States, that the entire Northwest must find it to their advantage to purchase their imported goods at New Orleans rather than New York. In addition to this, the manufacturing interest of the country will suffer from the increased importations resulting from low duties….The…[government] would be false to all its obligations, if this state of things were not provided against.

Adams describes the political and economic crisis the North would have confronted, living side-by-side with a free-trade Confederacy:

This would compel the North to set up a chain of customs stations and border patrols from the Atlantic Ocean to the Missouri River, and then some. Northerners would clamor to buy duty-free goods from the South. This would spell disaster for Northern industrialists. Secession offered the South not only freedom from Northern tax bondage but also an opportunity to turn from the oppressed into the oppressor. The Yankees were going to squirm now!

Nor was Lincoln unaware of the dread prospect. In his First Inaugural Address, where he had been a portrait in compromise on slavery, promising “no bloodshed or violence” against seceding states, he had made an exception:

The power confided to me, will be used to hold, occupy, and possess the property, and places belonging to the government, and to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion—no using of force against, or among the people anywhere. [Emphasis added.]

Message to the Confederacy from Abraham Lincoln: you may keep your slaves, but you cannot keep your duty-free ports! British intellectuals like John Stuart Mill blithely declared, “Slavery the one cause of the Civil War.” But, as Adams writes, others in Britain put the cause elsewhere:

In the British House of Commons in 1862, William Forster said he believed it was generally recognized that slavery was the cause of the U.S. Civil War. He was answered from the House with cries, “No, no!” and “The tariff!” It is quite probably the British commercial interests, which dominated the House of Commons, were more in tune with the economics of the Civil War than were the intellectuals and writers.

The tariff was “a prime cause of the civil war,” writes historian John Steele Gordon, author of Hamilton’s Blessing.

But, while tariffs were a cause of sectional rancor and division, and one of the reasons for secession, Lincoln never discussed the tariff in depth after his speech in Pittsburgh before the inauguration. Henry Carey, the great protectionists, never forgave Lincoln, whom he had supported to the hilt, for the omission. And given Lincoln’s devotion to the Union—the cause to which he subordinated all others—it would seem that, for him as for Andrew Jackson, the tariff was not the end, but the means to the end: a greater, more glorious Union. Murray Rothbard was not too far off when he wrote that Abraham Lincoln “made a god out of the Union.”

The South’s Fatal Dependency

Though the abolition of slavery was not why Lincoln went to war, slavery and the South’s dependency on trade for the necessities of national life were the South’s undoing in that war. Slavery had kept the South in mercantilist bondage. Eighty years after Yorktown, the South was still shipping raw materials to Britain for manufactured goods. Had slavery been abolished, the Deep South would have been forced off her dependence on cotton, tobacco, and rice. Given her natural resources, the capacities of her people, black and white, the South would have developed alongside the North and West. Instead, it was in the North where 90 percent of the manufacturing was done, where warships were built, cannons were forged, locomotives were constructed, and most of the railways laid. From the war’s outset, the position of the South to the North was like that of the colonies to Great Britain in the Revolution.

With its fleets, the North quickly imposed a naval blockade, and sliced the Confederacy in two at the Mississippi. Dependent on trade, the South saw her cotton and tobacco rot in warehouses, and her trade dry up. The South’s slaves, unlike Northern immigrant labor, could not be used to produce weapons of war. Slavery and the agrarian character of the South tied them to the land. There may be truth in what Henry Carey wrote: “Had the policy advocated by Mr. Clay, as embodied in the tariff of 1842, been maintained, there could have been so secession, and for the reason, that the southern mineral region would long since have obtained control of the planting one.” Without slavery, the South’s statesmen would not have been forced to use their brilliance defending an institution the South’s greatest men—Washington, Jefferson, Madison, Jackson, Lee—knew could not be reconciled with the ideals in which they believed.

Southerners were bound to a system they inherited at birth. Because that system depended on three-and-a-half million slaves, the South had to submit to abuse from moral posturers from the North who ignored the exploitation of immigrant labor and could not care less about the plight of slaves. Eventually the South had to leave a Union their fathers helped create, and fight to their defeat and ruin in an independence struggle made almost impossible of victory because they had relied to long on the land and neglected the “work bench” Jefferson and Randolph had so detested.

One cannot read the story of that four-year struggle without coming away with boundless admiration for the bravery of Southern soldiers, the perseverance of her people, the brilliance of her generals. From Bull Run to Antietam, Gettysburg to Appomattox, the men in gray wrote a chapter in glory that will bring tears to men’s eyes as long as they have hearts.

And Mr. Lincoln? Unquestionably, the war changed the man. The President-elect who arrived in Washington anxious to appease the Southern slave-owners, that ambivalent man of whom Richard Hofstadter wrote that his mind on the Negro was a “house divided against itself,” seemed, by the war’s end, to have become a remorseless Abolitionist. At Gettysburg, whether he had intended it or not, Lincoln had succeeded for all time in “ennobling” the Northern cause and immortalizing himself. In those brief, haunting, and memorable words, Lincoln had proclaimed that the war, all along, had been about the equality of man.

Antietam, the Battle of the Wilderness, the March to the Sea, had hardened Lincoln. Unlike the conciliatory rhetoric of his First Inaugural, his second rings like the final warning of impending judgment from an Old Testament prophet. In that Second Inaugural, the armies of Sherman and Grant have become instruments of God’s will. This Inaugural could have been delivered by John Brown:

Fondly do we hope—fervently do we pray—that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said, “the judgments of the Lord, are true and righteous altogether.”

The war had not been about slavery when it began. But, by its end, Abraham Lincoln had declared it to be so. And, so it was. And the terrible and tragic manner of his death affirmed it forever.

Was the Cause Just?

Was the great war a just war?

For the South, the issue comes down to a single question: Did the South have the right to secede from the Union? For, if the South had a right to secede—as the colonies had a moral and legal right to break away from the British Empire—then the South and the right to fight for that independence, and to resist a Union invasion and forcible return at the point of Union bayonets.

On that first question, the South in 1861 had at least as strong a case for secession as the Federalists of the Hartford Convention, or ex-President John Quincy Adams, who threatened President John Tyler with secession if Texas were admitted into the Union. By the Jeffersonian test, that, to be legitimate, a government must rest upon the consent of the governed, the Confederacy had legitimacy by the time of Fort Sumter. What the Union took back in 1865 was not free men and free states, but defeated rebels and conquered provinces.

In 1861 it had been an open question whether a state had a right to secede. The question was submitted to the arbitrament of the sword and settled only at Appomattox. But, of all the wars America ever fought, “vital interests” were at risk in the Civil War. Had South Carolina, Georgia, and the Gulf states broken away, British and French would have moved in to exploit the Southern free-trade zone to undermine Northern industries, and wean the West away from the Union. Indeed, during the war, Napoleon III installed a puppet regime in Mexico in violation of the Monroe Doctrine, and the British were moving troops into Canada. The first secession would not have been the last. Fragmentation of the nation was at hand. As a private in the 70th Ohio wrote home in 1863:

Admit the right of the seceding states to break up the Union at pleasure…and how long will it be before the new confederacies created by the first disruption shall be resolved into still smaller fragments and the continent become a vast theater of civil war, military license, anarchy and despotism. Better settle it at whatever cost and settle it forever.

With the Deep South gone, the United States would have lost a fourth of its territory, its window on the Caribbean and the Gulf, its border with Mexico, and its port of New Orleans—the outlet to the sea for the goods of Missouri, Illinois, Iowa, and the Middle West. The South would have begun to compete for the allegiance of New Mexico and Arizona; indeed, rebellions arose in both areas and had to be put down by Union troops.

To Lincoln, secession meant an amputation of his country that would have destroyed its elan and morale. Disunion was intolerable. Where Jackson said it directly “Disunion is Treason,” and “preservation of the Union…the highest law,” Lincoln used his rhetorical powers to elevate the cause to one of universal values. But his goal was the same as Jackson’s.

Lincoln was the indispensable man who saved the Union. He accepted war and may have provoked war to restore the Union. In the end, that war freed the slaves. “At last after the smoke of the battlefield had cleared away the horrid shape which had cast its shadow over the whole continent had vanished and was gone for ever,” wrote England’s John Bright. But was war necessary to free the slaves, when every other nation in the hemisphere, save Haiti, freed its slaves peacefully, without the “total war” Lincoln’s generals like Sherman and Sheridan unleashed on the South? To Lincoln, then, belongs the credit of all the good the war did, and full responsibility for all the war cost.

While the men of government had one set of reasons for going to war, the men who marched into the guns had another: patriotism, love of country. They fought, as Macaulay said, for the reasons that men always fight, “for the ashes of their fathers and the temples of their gods.”

We are fighting against “traitors who sought to tear down and break into fragments the glorious temple that our fathers reared with blood and tears,” a Michigan private wrote to his younger brother. A month before he fell at Gettysburg, a Minnesota boy wrote home that he was willing to give his life “for the purpose of crushing this g–d— rebellion and to support the best government on God’s footstool.”

In the war’s last days, a Union soldier captured a wounded rebel and was astonished by the man’s ferocity. “Why do you keep fighting like this?” he demanded. “Because you’re here!” the dying rebel replied.

- Patrick Buchanan

This article first appeared in the October 1997 issue of Chronicles: A Magazine of American Culture.

The War on Drugs . . .

. . . is a big government boondoggle. This is how the war on drugs ought to be conducted (a good, private, posse):

This Is Not Good - Why Are We Allowing It People?

Our Choice Today Matters, In a Sense

The single most damning objection raised by atheists is this: Why would a loving, omnipotent God permit sin, suffering, and the eternal damnation of souls? And our answer is stark and comfortless: For the sake of freedom. To give our choices consequence and meaning. To make our existence real.

Our reason accepts this. One's frontal lobe can process the logical steps entailed and determine the absence of fallacies. But our hearts aren't always moved. Personally, I don't think it's worth the risk. If God were to offer me Limbo, or certain annihilation after death, in return for the guarantee that I would never spend five minutes in Hell, I would jump on that offer as fast as I could.

But that's not the way things work. As I've explained more than once to Catholics who dissent over birth control: "I don't make the Natural Law, I just explain it."

Likewise in the economy of salvation: We may think what we wish about God's decision to give man a lethal freedom. But wishing won't make it so.

And so we must decide. Readers of this site have heard about the extremes to which Sen. Obama pushes his support of legal abortion. They know that he is likely to appoint enough justices to the Supreme Court to keep abortion out of the hands of democratic lawmaking for 20 or 30 years - in other words, indefinitely.

Failing a campaign promise by another candidate to start a nuclear war that would kill more people than the four million children who face legal execution during an Obama administration, the abortion issue alone should convince every orthodox Christian that voting for Obama is a grave sin - the kind to damn one's soul. Yes, even if you're black and voting for him out of racial solidarity, or white and voting for him out of racial guilt. Apart from simple ignorance, there's simply no excuse.

I want to go further and explain another implication of an Obama victory, one that should convince Catholic voters: I'll tell you one thing, just one, that will happen, if Obama is elected with a large congressional majority - with perhaps enough votes in the Senate to quash a filibuster. And that one thing should be enough.

Senator Obama has promised to sign the Freedom of Choice Act (FOCA) which would repeal every restriction on abortion in every American state, right up through the ninth month. But then, we knew that about Obama, the whole infanticide thing. But there's more. The FOCA raises abortion to (in its own words) a "fundamental right." According to legal analysts at the U.S. Council of Catholic Bishops, the act's language is so sweeping that it will snuff out any state's "conscience" clause - the laws allowing hospitals, doctors, and nurses not to take part in abortions. To do so would amount to illegal discrimination, denying a citizen her fundamental right. Christian hospitals could no more decline to perform abortions than they can currently refuse to operate on black people.

So President Obama and his congressional supermajority would force every Christian hospital, doctor, and nurse either to abandon their faith or go out of business. By federal law, believing Christians would be banned from a major industry (and apostolate). This is literally equivalent to a law banning faithful Jews from owning newspapers.

History tells us that steps such as this aren't where religious persecutions end; it's where they begin. Things are already scary enough in neighboring Canada, where Christians are now routinely hauled up before human rights tribunals for repeating what the Bible teaches concerning sex. Who knows what some Obama-appointed judge, 20 years from now, will make of a pastor whose sermons attacked the "fundamental right" of women to kill their children? How many churches and seminaries will face crippling civil judgments and have to close?

It can happen here. It is about to happen here.

What should we make of Catholics who vote for the persecution of their Church and the ongoing killing of millions of unborn children? That's between them and God. I'll just offer this little catechetical reminder: Holy Communion received in a state of mortal sin is itself a still graver sin - one of blasphemy. Perhaps when Obama Catholics see their local Catholic hospitals close, or their Catholic friends in nursing get jobs giving pedicures, they'll throng the confession lines. Let's pray that they do.

By this evening we will have a good idea of whether Christians have any lasting place in this country. In a few months - if FOCA passes, and is applied as the bishops predict - we'll know whether we should continue to participate as citizens, serve in America's armed forces, pay taxes except under protest, or think of our government as anything but an occupier - like the Hungarian or Czech regimes from 1948-1989. We will know if the democracy our military exports to other countries is any better than the tyrannies it replaces. We will know if there is any future, however fraught and fragile, for pro-life laws - or if the Berlin Wall constructed by Roe v. Wade will stand unchallenged for yet another guilty generation.

If the persecutors take power on the anger of voters rightly outraged by eight years of mismanagement, arrogance, constitutional abuse, and unjust wars, we must face the consequences - as the Israelites did when God answered their sins with the Assyrians. Like the Israelites, we will have lost our country. Unlike them, we'll have no Covenant that promises we'll ever get it back. With God's grace, we'll be ignored and tolerated, like the Amish. To assume that we'll always be safe is, well . . . gratuitous.

It will be time to make some choices - the kind that redound to eternity. It will be time, after 35 years of noble effort, to stop expending our energies trying to change abortion laws, or to fight for a vanished public "morality." We should keep on running pro-life pregnancy centers as long as they're legal. We should go on voting against all anti-life candidates and speaking our minds. But our time and treasure should be withdrawn from the bottomless pit of politics and transferred to fighting on the only ground where we have the advantage. Let us turn from the bloodied public square of an illegitimate regime to the care of souls, and focus our efforts on the propaganda fidei - the propagation of the Faith.

Verily Prosaic readers know that I've argued it's in America's national interest to restrict immigration. If America turns to persecution of the Church, I will turn on a dime from trying to save the country from immigrants to saving the immigrants from the country (though this does not mean I will no longer favor immigration restrictions). I hope that other Catholics will drop their various political efforts and do the same - pour their thwarted civic energies into a massive, lay-directed campaign to offer orthodox catechesis to incoming immigrants and evangelizing those of other faiths. (Do they print the Baltimore Catechism in Spanish? In Arabic?) If we showed one-tenth the energy and courage of the underground Church that survives a far worse persecution in China, our work would benefit numberless souls. Made subjects in our own country, we could prove ourselves patriotic citizens of heaven.

I dread this prospect, of course. I wish for a long and comfy, moderately fruitless life - one that peters out in a state of grace and a haze of fine whiskey and wine, in a house full of happy children and dogs, my wife by my side. Like the English Catholics who followed the marital prospects of Henry VIII, I nervously hope for the best - and pray to be spared the worst. Like most of you, I'd rather schlep my way to purgatory than sweat blood storming heaven. But wishing won't make it so.

Dying Isn't Dead . . .

. . . it is an aspect of living, just as there are other aspects of living - unbearable grief, serious disability, chronic illness, loneliness, morbidity in old age, etc. - that people may find intolerable. Thus, if a court rules that an intolerable aspect of living gives rise to a right to facilitated suicide, I don't understand how that liberty can be limited logically to just people who are terminally ill. Indeed, if there is a fundamental right to lethal prescriptions as medical treatment with which the state cannot interfere, how in the world can the state prevent other suffering people from exercising the same right - particularly since non terminal suffering is often far more extended in duration and in the amount of pain caused? This is why Switzerland declared a constitutional right to assisted suicide for the mentally ill: Once the initial premise is accepted, there is no logical way of preventing the entire steak from being consumed.

So we can see that the dying patient is just the point person, the category of suffering persons that many will be willing to accept for the right to suicide, when in reality, these patients are being used to front the broader agenda that can, in time, only lead to a right to be made dead for anyone with a sustained desire to die.

Martial Law in the US?

Never - couldn't happen here. Too many people own guns in the US:

Do Moms and Dads Matter?

You be the judge.

How "Gay Marriages" Weaken Marriage Overall

And, consequently, for the rest of us. See here.

If Marriage is Natural . . .

. . . why is defending it so hard? See here for why.

Article 1, Section 7

Say, isn't this bill coming from the Senate unconstitutional? Article 1, Section 7 of the Constitution states that all bills for raising revenue shall originate in the House of Representatives. But the current bill was raised in the Senate, right? What, is the bill somehow not to raise revenue? "Technically," perhaps not; but still . . .

War @ Home?

And this is disturbing. In light of the recent turmoil in the markets, the coincidence is creepy. Suspension of Posse Comitatus? Does your congressman read the fine print?

Rule of Law

This video actually made me a little uncomfortable while watching it. I probably would not befriend the driver of the vehicle based on what I see here; however, advocates of liberty and limited government should not concede the concept of “law and order” to those who engage in “excessive use of police powers.” Those who actually believe in law and order would hold police and prosecutors, as well as criminal suspects, to the rule of law. So, while this video may wound my sense of decorum, it does illustrate a real change in the nature of liberty in America:

Patent Absurdity

David slaps Goliath. Then kicks him on the knee. Then elbows him on his temple. Then David applies some dedicated ground and pound tactics before submitting Goliath (aka, "Monster Cable") with a rear naked choke. The lawyers out there will love the response below: some good, subtle humor by Kurt Denke, my new hero. He's the former lawyer who is President of Blue Jeans Cable, a competitor of Monster Cable. When he received a cease and desist letter from Monster, who alleged some of Blue Jeans' "Tartan" cable products were too similar to Monster's cables, Denke sent back a devastating and heroic reply. This is one of the best letters I've ever read. It's heroic and ballsy, and strategically brilliant. O the patent system at work.

RE: Your letter, received April Fools' Day

Dear Monster Lawyers,

Let me begin by stating, without equivocation, that I have no interest whatsoever in infringing upon any intellectual property belonging to Monster Cable. Indeed, the less my customers think my products resemble Monster's, in form or in function, the better.

I am evaluating your claim that the connectors on certain Tartan brand products infringe Monster's design patents and trademarks. However, the information supplied with your letter is plainly inadequate to support a claim of infringement and so I am writing to you to ask for further information and clarification regarding your claims.

I will begin by addressing your trademark/trade dress claim. You have referred to two trademark registrations, and have attached some printouts from the USPTO system but the depiction of the marks on the drawings provided is small and indistinct, making it difficult to determine exactly what the alleged resemblance is, and I need further information from you.

First, I need legible, scale drawings of the marks, preferably with dimensions shown on the drawing. To the extent that drawings are inadequate to show the nature of materials, finishes, print legends, colors and the like, I will also need examples of each of Monster Cable's actual uses of these marks in commerce; actual physical examples would be best, but photographic reproductions might do. As you will understand, these considerations are essential to any claim arising out of trade dress, as you are alleging in essence that there is a resemblance sufficient to cause confusion over the identity or origin of the goods, and no mere line-drawing can suffice.

Second, I will need copies of the trademark applications and any correspondence between the applicant and the USPTO in support of the applications.

Third, you have not identified the Monster Cable products in question, in actual use and distribution in commerce, whose trade dress you allege has been appropriated. I have reviewed Monster Cable's online materials and have examined connectors on various Monster Cable assemblies in local retail outlets and am unable to determine which, if any, of these are thought by Monster to represent use of these particular marks. I am also unable to determine from this review whether Monster Cable actually offers any product for sale to which the Tartan connectors are alleged to be particularly similar. My own sense of it, in looking at the connectors, has been that there is no similarity between the Tartan connectors and any of the many Monster Cable connectors beyond the general functional and conventional characteristics which all or nearly all solder-cup, mechanical-assembly, barrel-style RCA-type connectors share. It may be that there is some line of products to which you have intended to refer but which I have not found in Monster Cable's marketing materials or displays; but if so, you will need to show me specifically what product it is, and you will need to call to my attention the specific aspects of the connector design which you contend constitute unique Monster Cable trade dress, what the associated secondary meaning of those aspects of the trade dress is, and in what manner and by what characteristics you allege that this trade dress has been appropriated.

Fourth, if the dimensional characteristics of the connector as used in commerce vary from the dimensions of the scale drawing of your mark, I will need a proper scale drawing, with dimensions, of each version of the actual connector as used in commerce, as well as photographs of the connectors showing actual in-use finishes. If there is more than one such connector design in actual use by Monster Cable as to which appropriation of trade dress is alleged, of course, I will require this information for each and every such design.

On the basis of what I have seen, both in the USPTO documents you have sent and the actual appearance of Monster Cable connectors which I have observed in use in commerce, it does not appear to me that Monster Cable is in a position to advance a nonfrivolous claim for infringement of these marks. There simply is not sufficient resemblance between the Tartan connectors and any mark or any example of the marks' actual use that I can find to support such a claim. But if you have further information for me on that point, you are welcome to submit it.

You have also supplied me with partial documentation on five design patents which you claim these connectors infringe. I will begin by observing, first, that the five design patents are so very much unlike one another that it is very hard to imagine that any product could actually infringe more than one of them at a time; anything close enough to one of them to be deemed an infringement would, by that fact alone, be too dissimilar from the other four. The dissimilarity of the Tartan connector from each of them is readily evident.

I should add that, for the purpose of this letter, I am assuming that these patents are valid. This is in no way a concession of the point. In fact, this is a very significant and likely inaccurate assumption, and you should expect the patentability of these designs to be under attack if you commence an action for infringement.

The fact that you have presented me with five completely distinct design patents, I have to say, gives me pause. I would go over them and detail the differences between the Tartan connectors and those shown in the patents, but if you are taking the position that it appears you are taking, there might be very little point in discussing it with you. Take, for example, the patent you mark as Exhibit B. The connector shown there is substantially different from the Tartan connectors in every respect, unless one ignores design specifics and focuses on the core attributes of the connector which are dictated by function. If your view of Exhibit B is that it is to be construed broadly enough as to encompass the Tartan connector, it is very hard to imagine that there is such a thing as a solder-assembly style RCA plug which is not similarly, in your view, encompassed by this patent. And, needless to say, it is very hard to imagine that any court would ever adopt such a view of the patent's scope; if you file on this sort of basis, you are in Rule 11 frivolous-claim territory.

I will point out, though you are no doubt already well aware, that the gross morphology of the RCA plug is pretty well dictated by function. RCA plugs intended for soldering and assembly have certain attributes in common; their diameter is constrained by the need for the shell to fit over an internal set of solder points and cable clamp, and their length by the need to provide some room for cable end prep and attachment; they are generally radially symmetrical along the anterior/posterior axis owing to the need to accommodate both a round-profile cable and the round-profile RCA socket; the connector end is constrained by the standard dimensions of the RCA socket, and by the need, as the socket provides for no bayonet or screw attachment, to provide sufficient tension on insertion to maintain good mechanical and electrical contact; the barrel, grasped by the user for the purpose of insertion and removal, requires traction which is typically provided by raised or recessed rings, plastic inserts, knurling, or the like; and transition between the connector and the cable to which it is attached requires, in one form or another, a reduction in barrel size at the connector rear. It is my assumption, since you cite design patents only and no utility patents, that Monster Cable makes no claim here for any functional aspect of any of these designs; if I am wrong, please let me know what utility patents Monster Cable does hold, and what claims, if any, Monster asserts on the basis of those utility patents.

Further, on that point: one of the design patents you attached is closely related to a utility patent applicable to the same design, and you failed to point that fact out. I need to be able to rely upon the completeness and accuracy of the information you send to me and I find this sort of omission deeply disturbing because it is clear that the effect of this nondisclosure is to obscure the real significance of the patent features. Similarly, as I note further below, you omit reference to another patent Monster has held which appears, frankly, to be fatal to your position. If you expect to persuade me, you had better start making full, open and honest disclosures; I will find out the facts sooner or later in any event, but the impact upon your credibility will not be repaired. It looks like when you sent this letter, you were operating on the premise that I am not smart enough to see through your deceptions or sophisticated enough to intelligently evaluate your claims; shame on you. You are required, as a matter of legal ethics, to display good faith and professional candor in your dealings with adverse parties, and you have fallen miserably short of your ethical responsibilities.

My sense, in looking at these five patents, is that either you are attempting to present some argument that I simply do not understand or you are arguing for untenably broad coverage of these patents which would sweep every functional aspect of the typical solder-assembly RCA connector within the scope of a handful of mere design patents. You need to clarify this, and frankly, I think you need to indicate to me which, if any, of these patents you actually contend are relevant to the present discussion. It cannot possibly be that you believe that more than one of these patents is pertinent, and if you insist that they are, we cannot have an intelligent dialogue on this subject. Once you have identified the patent which you contend is relevant, I need to see the file history and the references to prior art; I need copies of the applicant's correspondence with the USPTO; and I need a clear and cogent explanation from you as to exactly what aspects of the Tartan connector design are alleged to constitute the infringement, and how.

Additionally, if you are able to identify any of these patents as applicable, please let me know whether Monster Cable presently sells, or has at any time sold, any products bearing connectors which are in conformity with the patent drawings or which are otherwise contended to be within the coverage of the patents, and identify those products for me. Please also provide photographs and/or physical examples of these connectors as manufactured and sold.

Also, please provide me all of the information referenced above as it relates to your expired patent D323643, a copy of which I am attaching. I will need to know what products Monster now offers or at any time has offered for sale which were believed to fall within the scope of D323643, and what claims, if any, of infringement of D323643 were made against others by Monster, whether those claims of infringement took the form of correspondence only, litigation, or otherwise. Please let me know which, if any, products Monster has ever sold or offered for sale which were marked with the patent number, or other reference, to D323643. Please also advise me whether, in your view, the Tartan connector does or does not fall within the scope of D323643, and if it is your view that it does not, please identify each and every difference between the Tartan connector and the connector represented by D323643 upon which your view is based. (On that note, let me point out to you that the "turbine cut" feature is irrelevant here as your client makes only functional, not design, claims for that feature in its marketing materials for the product.) I would assume that you would agree with me that if the Tartan connector is less dissimilar from the D323643 patent than from any of the five patents you cite in your letter, then the Tartan connector is within the coverage of the prior art and cannot, as a matter of law, infringe any of your client's current patents.

I must also point out that unless there is a good deal of background information you have not provided me which makes the case otherwise, Monster Cable cannot possibly square its patent infringement claim(s) with its own patent history. Two views of the matter might be taken; the first, which is my view, is that none of the design patents, including D323643, encompass the Tartan connector. If that is so, of course, the claim for infringement fails. But if one grants the sort of breadth to these patents that you appear to wish to do, a problem arises for Monster. D323643 is the least dissimilar to the Tartan connector of any of the patents, and stands as an obstacle to any claim of infringement of the others because it establishes prior art; if its scope, like the others, is granted the breadth you argue for, then the Tartan connector falls plainly under the prior art and cannot constitute an infringement of the later, and more dissimilar, patents. Read the patents narrowly, and Monster loses; read them broadly, and Monster loses. You are welcome to point out any error in my reasoning; but I have to say that I will be unreservedly surprised if you are successful in doing so.

Please also let me know whether Monster Cable or any related entity has brought actions to enforce any of the patents and trademarks referenced in your letter or above, and provide me with the jurisdiction, court and docket information pertaining thereto, along with copies of any decisions or judgments resulting therefrom. If any such litigation proceeded through discovery, I will need all discovery responses, including document production, issued by Monster, as well as copies of any and all depositions taken and the exhibits thereto.

Further, if any of these patents or trademarks has been licensed to any entity, please provide me with copies of the licensing agreements. I assume that Monster Cable International, Ltd., in Bermuda, listed on these patents, is an IP holding company and that Monster Cable's principal US entity pays licensing fees to the Bermuda corporation in order to shift income out of the United States and thereby avoid paying United States federal income tax on those portions of its income; my request for these licensing agreements is specifically intended to include any licensing agreements, including those with closely related or sham entities, within or without the Monster Cable "family," and without regard to whether those licensing agreements are sham transactions for tax shelter purposes only or whether they are bona fide arm's-length transactions.

Once I have received the above materials and explanations from you, I will undertake to analyze this information and let you know whether we are willing to accede to any of the demands made in your letter. If my analysis shows that there is any reasonable likelihood that we have infringed in any way any of Monster Cable's intellectual property rights, we will of course take any and all action necessary to resolve the situation. If I do not hear from you within the next fourteen days, or if I do hear from you but do not receive all of the information requested above, I will assume that you have abandoned these claims and closed your file.

As for your requests for information, or for action, directed to me: I would remind you that it is you, not I, who are making claims; and it is you, not I, who must substantiate those claims. You have not done so.

I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable's modus operandi in these matters. I therefore think that it is important that, before closing, I make you aware of a few points.

After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs' practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction. It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind. If you sue me, the case will go to judgment, and I will hold the court's attention upon the merits of your claims--or, to speak more precisely, the absence of merit from your claims--from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it.

I will also point out to you that if you do choose to undertake litigation, your "upside" is tremendously limited. If you somehow managed, despite the formidable obstacles in your way, to obtain a finding of infringement, and if you were successful at recovering a large licensing fee--say, ten cents per connector--as the measure of damages, your recovery to date would not reach four figures. On the downside, I will advance defenses which, if successful, will substantially undermine your future efforts to use these patents and marks to threaten others with these types of actions; as you are of course aware, it is easier today for your competitors to use collateral estoppel offensively than it ever has been before. Also, there is little doubt that making baseless claims of trade dress infringement and design patent infringement is an improper business tactic, which can give rise to unfair competition claims, and for a company of Monster's size, potential antitrust violations with treble damages and attorneys' fees.

I look forward to receiving the information requested and will review it promptly as soon as it is received.

Sincerely,

Kurt Denke

Take that Monster.