By itself, birth within the territorial limits of the United States, as the case of the Indians indicated, did not make one automatically “subject to the jurisdiction” of the United States. And “jurisdiction” did not mean simply subject to the laws of the United States or subject to the jurisdiction of its courts. Rather, “jurisdiction” meant exclusive “allegiance” to the United States. Not all who were subject to the laws owed allegiance to the United States. As Senator Howard remarked, the requirement of “jurisdiction,” understood in the sense of “allegiance,” “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.”

When the war started, leaders of the Southern rebellion were entirely straightforward about this. On March 21, 1861, Alexander Stephens, the Confederacy’s vice president, gave what came to be known as the “Cornerstone speech” in which he declared that the “proper status of the Negro in our form of civilization” was “the immediate cause of the late rupture.”

Thomas Jefferson, Stephens said, had been wrong in believing “that the enslavement of the African was in violation of the laws of nature.”

“Our new government is founded upon exactly the opposite idea,” Stephens insisted. “Its foundations are laid, its cornerstone rests, upon the great truth that the Negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical and moral truth.”

Our greatest contemporary historian of the Civil War, James McPherson, has noted that Confederate President Jefferson Davis, a major slaveholder, “justified secession in 1861 as an act of self-defense against the incoming Lincoln administration.” Abraham Lincoln’s policy of excluding slavery from the territories, Davis said, would make “property in slaves so insecure as to be comparatively worthless … thereby annihilating in effect property worth thousands of millions of dollars.”

South Carolina’s 1860 declaration on the cause of secession mentioned slavery, slaves or slaveholding 18 separate times. And as the historian Douglas Egerton points out in “Year of Meteors,” his superb recent book how the 1860 election precipitated the Civil War, the South split the Democratic Party and later the country not in the name of states’ rights but because it sought federal government guarantees that slavery would prevail in new states. “Slaveholders,” Egerton notes, “routinely shifted their ideological ground in the name of protecting unfree labor.”

Minogue is a distinguished professor emeritus of political science at the London School of Economics. In his case, one may actually say distinguished without choking on ironic bile, not least because he laments a world in which the deference has disappeared that “distinguished” should call to mind. He is clearly a conservative whose conservatism owes much to Michael Oakeshott and Edmund Burke. He is not a friend of the effect of abstract and universalistic arguments in political life. He is not an enemy of religion, or unconcerned with it. He mentions economic vitality, but it is not his chief concern. His conservatism is not libertarian, or even focused on natural rights. He worries that we are losing, or have already lost, the attachments and respect for attachments that guide common sense.

But there is an important omission.  Blitz:

One gap in Minogue’s discussion is his distance from the importance of natural rights. The virtue of an argument that clarifies the presence of natural rights is that it shows the preference for freedom to be more than a prejudice because it gives it a reasonable basis. Natural rights describe an inalienable authority that each can recognize in himself because of his own unavoidable power to reflect, prefer, and choose. This authority can be occluded, and it is difficult to convert it to concrete liberty to, say, possess property or vote. Still, individual natural authority, or freedom, is not a variable possibility that one can wish away but a universal power among human beings that they can notice in themselves.

The existence of individual natural rights is not the whole truth about human happiness and choice. Still, the need to execute one’s equal rights in a regime of effective, limited government gives rise to the responsibility and deliberation that Minogue admires when he invokes the moral life. One can, of course, take demands disguised as rights too far, and this is properly one of Minogue’s concerns. Yet it is also true that a natural ground for rights provides a standard that allows us to understand them correctly as the basis of our own self-reliance rather than as rewards we exact from others.

For the Framers, rights were attributes of individual human beings who had been endowed with them by nature and nature’s God. The same government needed to secure these rights could possibly threaten them, so a constant vigilance was called for to keep government limited to its just powers. For contemporary liberals, rights reflect society’s stage of evolution and become real only when they are actualized, i.e., granted and enforced by government. Rights are therefore government-friendly. Indeed, after a certain point of social evolution, the more power given to government, the more rights it can and will give to the people. Far from checking, limiting, and channeling government powers, a proper constitution should therefore liberate them. Only from Big Government come entitlement rights, ethnic and racial preferences, and the newfangled “identity” rights without which liberty would be meaningless. The tea party is inherently reactionary, liberals believe, because it doesn’t grasp that Big Government, far from being a threat to liberty, is freedom’s greatest achievement.

Conservatives have done their part to sideline the Constitution, too. In the 1960s they invoked it in opposing Medicare and Medicaid, while southern Democrats cited it in fighting the Civil Rights Act and the implementation of Brown v. Board. This mixed bag of causes — and the defeat of all of them — helps to explain conservatives’ subsequent shyness about making constitutional claims. Ronald Reagan appealed to the Constitution’s spirit of federalism: In his losing 1976 campaign, he advocated returning $90 billion (a lot of money in those days) in welfare expenditures and programs to the states, and in 1980 he warned that the federal government showed signs of having grown beyond the consent of the governed. But by 1984 he was proclaiming, “It’s morning again in America,” as if the danger had been a bad dream.

Morning quickly turned to night as George H. W. Bush espied a thousand points of light in the sky. His son later ran for president preaching the four Cs: courage, compassion, civility, and character; Constitution, notice, was not one of them.

Read the whole essay.

By the President of the United States of America.

A Proclamation.

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consiousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union.

In testimony whereof, I have hereunto set my hand and caused the Seal of the United States to be affixed.

Done at the City of Washington, this Third day of October, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the Unites States the Eighty-eighth.

By the President: Abraham Lincoln

William H. Seward,
Secretary of State

Mr. Foner’s use of “growth” functions in the same way. Lincoln may have begun his ascent as a hesitant, racist, capital-mongering politician, we’re told, but lo! he grew into the very model of a modern racial and social progressive and thus becomes “perennially relevant.” What was the catalyst for this growth? The noble army of abolitionists who “forced the question of slavery and the future place of blacks in American society” onto Lincoln’s presidential agenda.

But does “growth” really describe Lincoln? Or is “our contemporary” Lincoln akin to that ever-malleable document the “living Constitution”? Lincoln may not have emerged from his log cabin clutching the Emancipation Proclamation, but what is remarkable about the man is the tenacity with which he held certain core principles and ideas throughout his life. Lincoln insisted that he had “always hated slavery,” and first described slavery publicly as an “injustice” as early as 1837, when he was not yet 30. At the same time, Lincoln also never abandoned his view that gradual emancipation rather than outright abolition was the best means “by which the two races could gradually live themselves out of their old relation to each other, and both come out better prepared for the new.”

If anything, Lincoln was resistant to “growth,” warning one abolitionist politician that he “is hard to be moved from any position which he has taken.” Mr. Foner’s notion that, as president, Lincoln was nudged toward championing emancipation by “the pressure of abolitionists and Radicals” and “the actions of slaves” themselves simply passes understanding. The ranks of the abolitionists, even during the Civil War, were vanishingly small, and we have never had a reliable tabulation of the number of runaway slaves—who, in any case, had no political leverage to exert on the president. If the end of slavery were to come, it would have to come from Lincoln’s own long-held convictions and political sagacity.

On June 7, 1776, Richard Henry Lee brought a resolution to the floor:

Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

There was much debate. More time was needed for the delegates to debate, and receive instruction from their home states. However, a committee of five was set up to draft the Declaration of Independence. Those members included: John Adams, Benjamin Franklin, Robert R. Livingston, and Roger Sherman.

On July 2nd, the Congress passed the resolution, and John Adams wrote to his wife Abigail:

The second day of July, 1776, will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more.

You will think me transported with Enthusiasm but I am not. — I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. — Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means. And that Posterity will tryumph in that Days Transaction, even altho We should rue it, which I trust in God We shall not.

But it was not until July 4th that the Congress adopted the language of the Declaration of Independence. It was a somber occasion, the passing of the initial resolution that led to the Declaration. Everyone who voted for it could be hung by His Majesty’s Government.

Despite what some scholars say about the founding, it was decisively not a self-interested move. The ideals of the Declaration are timeless. The public declaration leads anyone who but consults the document to that conclusion.

Below is a dramatization from the excellent HBO series John Adams depicting the passage of the Lee Resolution:

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“Slavery & the Constitutional

Convention of 1787”

Zuckert (B.A., Cornell University; Ph.D, University of Chicago, 1974) is a Notre Dame professor, and has written on the Constitution, the American Founding, and John Locke.

He is the Nancy Reeves Dreux Professor, works in political philosophy, American constitutional law and theory, and American political thought. He has published Natural Rights and the New Republicanism and The Natural Rights Republic , which was named an outstanding book for 1997 by Choice magazine, as well as many articles on a variety of topics, including George Orwell, Plato’s “Apology,” Shakespeare, and contemporary liberal theory. His most recent book is Launching Liberalism: On Lockean Political Philosophy. He is currently completing a book called Completing the Constitution: The Post-Civil War Amendments , is co-authoring a book on Machiavelli and Shakesepeare, and has been commissioned to write the volume on John Rawls for a new series on Twentieth Century Political Philosophy .

This community lecture brought to you by BB&T and the Center for the Study of the Principles of the American Founding.

Free Lunch | Boyle Conference Center | 12 noon | March 15

RSVP:  Erik S. Root:  eroot@westliberty.edu.