Monday, July 25, 2005

1865 Requiescat in pace.

There is a lot of talk these days about constitutional jurisprudence. In the wake of Supreme Court Justice Sandra Day O'Connor's retirement, our politicians, talking heads, and media personalities all appeal to the US Constitution as a means of supporting or opposing this or that nominee who will take Justice O'Connor's place on the nation's highest bench. That choosing a nominee for the Supreme Court is serious business, no one would dispute. This is as it should be. And while all juridical and philosophical streams appeal to the US Constitution for their justification and legacy, few seem to note that these appeals to the history and tradition of constitutional jurisprudence run dead center into a brick wall that cannot be breached or leveled. That brick wall was built in 1865. In that year, the Constitutional Republic of the united States of America was buried. She will not rise again.

How is this so? When the Cotton States set out upon their illusory and ill-thought-out path, they unknowingly set in motion the destruction of the very political foundation upon which they based their arguments for secession. It was understood by all previous generations of citizens that a state could remove itself from the Union, just as the colonies removed themselves from the rule of England. The long train of abuses and usurpations, so eloquently set forth in the Declaration of Independence, were of such substance that it is clear to all who look back upon it that the colonies had a right to withdraw from England and form a government suited to their own culture and sensibilities. The Cotton States believed they were in exactly the same position as the colonies, and few in the South disputed that secession was the only means of redressing the grievances they believed they were suffering. That a great many in their population suffered in brutally enforced servitude, deprived of the very rights for which the South believed she were fighting, seemed to go unoticed by many citizens of Dixie, though there were notable and noble exceptions.

But the course of precipitous action by South Carolina and all that followed her example was seized upon by Abraham Lincoln and the Republican Party as the opportunity to re-shape the basic outline of the federal government. By the time the bloody conflict ceased, and the aggressive and unprincipled reconstruction of the defeated South was accomplished, the old constitutional order lay mortally wounded and expired.

Our modern constitutional jurisprudence traces its genesis to this restructuring of the constitutional order, and no return to the principles of strict constructionism will undo that which has come about. Nor would many desire it. The events of war and Reconstruction fundamentally altered this nation's self-understanding. We no longer think of ourselves as Minnesotans, North Dakotans, Missourians, Virginians, etc. We think of ourselves as Americans. The former emphasis on the many in e pluribus unum has been replaced by the emphasis on the one. This is why all of the noise about Supreme Court nominees is probably much ado about nothing. There is no judge on the bench today who believes that the 14th Amendment is inimical to the safeguard of the 10th Amendment and that it has trumped all other considerations of limit to federal power. The nominee who came closest to this was Robert Bork. But even he would have fallen short of disputing the legitimacy of the 14th Amendment. Rhenquist, Scalia, and Thomas all assume the 14th amendment in all of their judgements.

No, the old order is gone. And few mourn. I am one of them. I would have risked the continuing mess of chattel slavery. It passed peacably away in many other Western nations without bloody conflict in the same century; it could have in the US. I would also have risked the sectionalism that plagued the Congress in order to preserve the old republic. I think that although we gained freedom for blacks and renewed sense of unity, we lost much for which we are now suffering. Our jurisprudence has trumped the legislative option, and now we face the prospect of continued centralization of federal--national--power, the loss of liberty in the wake of our fight against terrorism, and culture wars which inevitably play into the hands of radical cultural revolutionaries.

The thickest irony is that what was set in motion by the events and leaders of 1861 was lost even upon the many brave federal troops in the Army of the Potomac who defeated the Confederate Army of Northern Virginia at Gettysburg and beyond. Joshua Lawrence Chamberlain would probably not have relished a phyrric victory of such magnitude and consequences. And while it is too late for a return to the principles of the old republic, we can only hope that God, in his wisdom and mercy, will spare our children and grandchildren the final harvest of bitter fruit that has grown upon our national tree. Perhaps they will see God act afresh to bring about a civil order that will cherish the safeguards of liberty that were so well set forth in the original constitution. In the meanwhile, may God grant us vigilance to grip tightly that which remains of our liberty, to uphold the freedom of Christ's Bride, the Church, and to pray for a change of heart and mind in the populace that would allow a return to the first things of 1789.

Requiescat in pace 1865.