By Boyd Cathey on 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.”
