A New Reconstruction: The Renewed Assault on Southern Heritage - Part 1

By Boyd Cathey on Nov 19, 2015 (This article was originally printed in the Nov/Dec 2015 issue of Confederate Veteran Magazine.)

In June 2015, after the depraved shootings in a Charleston, South Carolina, black church, a frenzied hue and cry went up and any number of accusations and attacks were made against historic Confederate symbols, in particular, the Confederate Battle Flag. Monuments, markers, flags, plaques, street and school names, everything memorializing anything associated with the Confederacy have come under severe attack. Even grave sites and cemeteries have not been exempt from this onslaught. It is, as one writer wrote, “a new Reconstruction,” and, in fact, an attempt to eradicate the very existence of Confederate heritage.

Let us briefly examine these attacks and offer some responses.

First, the demand was made that the Battle Flag must come down. In South Carolina, Alabama, and other states, governmental authorities, reacting to loud voices and the pressures of political correctness, have removed flags from places of prominence and from public property. They declare that the flag needs to be banned and suppressed because it is a “symbol of hate” and “was carried by racists,” that it “flew over a racist country.”

This argument ignores much of the history of that banner. The Battle Flag, with its familiar Cross of St. Andrew, was a square ensign carried by Southern troops during the War Between the States. It was not the national flag of the Confederacy, but, rather, was carried by Southern soldiers, a large majority of whom came from non-slaveholding families. And of those soldiers from slaveholding families, the overwhelming number came from families with half a dozen or fewer slaves who lived and worked with their families, attended the same churches and were treated by the same doctors. (Interestingly, regiments of the Union army from Delaware, Maryland, Kentucky, and Missouri included slave holding soldiers in their ranks; indeed, General Grant’s wife, Julia Dent Grant, owned slaves throughout the war).

As Professor James McPherson—certainly no defender of the Confederacy–has carefully documented in his study, For Cause & Comrades: Why Men Fought in the Civil War (Oxford University Press, 1997), the vast majority of Confederate soldiers—-men who carried the Battle Flag—believed they were fighting forliberty. After examining 574 manuscript collections and nearly 30,000 letters, diaries, and journals in twenty-two archival repositories, he wrote: “Southern recruits waxed most eloquently about their intention to fight against slavery than for it…that is, against their own enslavement to the North.” (pp. 19-20) “Confederates professed to fight for liberty and independence from a tyrannical government.” (p. 104)

By contrast, the American flag, the “Stars and Stripes,” not only flew over slavery for seventy-eight years, it flew over the brutal importation, the selling and the purchase of slaves, and the breaking up of slave families. Additionally, the Stars and Stripes flew over the infamous “Trail of Tears,” at the Sand Creek massacre of innocent Native Americans, later at the Wounded Knee massacre, and over the harsh internment of thousands of Nisei Japanese American citizens in concentration camps during World War II.

Although there are some zealots who suggest doing away with the American flag because of these connections, it is highly unlikely that most of the inside-the-Washington-Beltway pundits,  including many on Fox News, and several Southern Republican governors who have clamored for banning the Battle Flag, would join them in that demand. Yet, if the history of both banners is closely examined from the radically changing contexts that are used to attack the one, should not there be a focus on the history of other, as well? And, if only a particular snap shot context is used to judge such symbols, is any symbol of America’s diverse history safe from the hands of those who may dislike or despise this or that symbol?

Second, a comparison has been made between the Battle Flag and the Nazi flag (red background, with a white circle and a black swastika centered). Again, this comparison demonstrates a lack of historical acumen on the part of those making it: the Nazi flag was created precisely to represent the Nazi Party and its ideology. The Battle Flag bears a traditional Christian “saltire,” the St. Andrew’s Cross, that has deep historical roots in Scotland, Spain, Burgundy, and Russia, and in Christian iconography.

Third, the charge has been made that Confederate symbols must be banned because they represent “treason against the Federal government.” That is, those Southerners who took up arms in 1861 to defend their states, their homes, and their families, were engaged in “rebellion” and were “traitors” under Federal law.

Again, such arguments fail on all counts. Some writers have suggested that Robert E. Lee, in particular, was a “traitor” because he violated his solemn military oath to uphold and defend the Constitution by taking up arms against the Union. But what those writers fail to note is that Lee had formally resigned from the US Army and had relinquished his commission before undertaking his new assignment to defend his home state of Virginia, which by then had seceded and re-vindicated its original independence.

And that brings us to point four: the right of secession and whether the actions of the Southern states, December 1860-May 1861, could be justified under the US Constitution.

One of the better summaries of the prevalent Constitutional theory at that time has been made by black scholar, professor, and prolific author Dr. Walter Williams. Here is what he writes in one his columns:

“During the 1787 Constitutional Convention, a proposal was made that would allow the federal government to suppress a seceding state. James Madison rejected it, saying, ‘A union of the states containing such an ingredient seemed to provide for its own destruction. The use of force against a state would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.’

In fact, the ratification documents of Virginia, New York and Rhode Island explicitly said they held the right to resume powers delegated should the federal government become abusive of those powers. The Constitution never would have been ratified if states thought they could not regain their sovereignty — in a word, secede.

On March 2, 1861, after seven states seceded and two days before Abraham Lincoln’s inauguration, Sen. James R. Doolittle of Wisconsin proposed a constitutional amendment that read, “No state or any part thereof, heretofore admitted or hereafter admitted into the union, shall have the power to withdraw from the jurisdiction of the United States.”

Several months earlier, Reps. Daniel E. Sickles of New York, Thomas B. Florence of Pennsylvania and Otis S. Ferry of Connecticut proposed a constitutional amendment to prohibit secession. Here’s a question for the reader: Would there have been any point to offering these amendments if secession were already unconstitutional?” [my emphasis added]

An examination of the ratification processes for Georgia, South Carolina, and North Carolina in the late 1780s, reveal very similar discussions: it was the independent states themselves that had created a Federal government (and not the reverse, as Abe Lincoln erroneously suggested), and it was the various states that granted the Federal government certain very limited and specifically enumerated powers, reserving the vast remainder for themselves (see Professor Mel Bradford, Original Intentions: On the Making and Ratification of the United States Constitution. University of Georgia Press, 1993). As any number of the Founders indicated, there simply would not have been any United States if the states, both north and south, had believed that they could not leave it for just cause.

During the Antebellum period there was little political support for denying the right of secession or for the Constitutional right to suppress it.  Of the pre-war presidents, it is true, Andrew Jackson threatened South Carolina in 1833 over Nullification of the “Tariff of Abominations,” but that crisis was resolved through compromise. Even staunch anti-slavery unionist President John Quincy Adams advocated secession over the annexation of Texas, and in his April 30, 1839, speech “The Jubilee of the Constitution,” commemorating the 50th anniversary of George Washington’s inauguration as the first American president, he affirmed:

“…if the day should ever come, (may Heaven avert it) when the affections of the people of these states shall be alienated from each other; when the fraternal spirit shall give away to cold indifference, or collisions of interest shall fester into hatred, the bands of political association will not long hold together the parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; and far better will it be for the people of the disunited states, to part in friendship from each other, than to be held together by constraint.”

In his address to Congress in January of 1861, lame duck President James Buchanan, while deploring secession, stated frankly that he had no right to prevent it: “I certainly had no right to make aggressive war upon any State, and I am perfectly satisfied that the Constitution has wisely withheld that power even from Congress.” Former President John Tyler served in the Confederate Congress, and former President Franklin Pierce, in his famous Concord, New Hampshire, address, July 4, 1863, joined Buchanan in decrying the efforts to suppress the secession of the Southern states:

“Do we not all know that the cause of our casualties is the vicious intermeddling of too many of the citizens of the Northern States with the constitutional rights of the Southern States, cooperating with the discontents of the people of those states? Do we not know that the disregard of the Constitution, and of the security that it affords to the rights of States and of individuals, has been the cause of the calamity which our country is called to undergo?”

More, during the antebellum period William Rawle’s pro-secession text on Constitutional law, A View of the Constitution of the United States (1825,) was used at West Point as the standard text on the US Constitution.  And on several occasions the Supreme Court, itself, affirmed this view. In The Bank of Augusta v. Earl (1839), the Court wrote in an 8-1 decision:

“The States…are distinct separate sovereignties, except so far as they have parted with some of the attributes of sovereignty by the Constitution. They continue to be nations, with all their rights, and under all their national obligations, and with all the rights of nations in every particular; except in the surrender by each to the common purposes and object of the Union, under the Constitution. The rights of each State, when not so yielded up, remain absolute.”

A review of the Northern press at the time of the Secession conventions finds, perhaps surprisingly to those who wish to read back into the past their own statist ideas, a similar view. As historian William Marvel explains in his volume, Mr. Lincoln Goes to War (Houghton Mifflin Harcourt Publishers, 2006, pp. 19-20), few Northern newspapers took the position that the Federal government had the constitutional right to invade and suppress states that had decided to secede. Many favored peaceful separation. Indeed, were it not the New England states in 1814-1815 who made the first serious effort at secession during the War of 1812, to the point that they gathered in Hartford to discuss actively pursuing it? And during the pre-war period various states asserted in one form or another similar rights.

One last comment regarding the accusation of “treason”: after the conclusion of the War, the Southern states were put under military authority, their civil governments dissolved, and each state had to be re-admitted to the Union.  But, logically, a state could not be “re-admitted” to the Union unless it had been out of it. And if it were out of it, legally and constitutionally, as the Southern states maintained (and some Northern writers acknowledged), then it could not be in any way guilty of “treason.”