Akhil Reed Amar on Proper Courses of Action

In my opinion, the current tendency (by Tea Partiers, States’ Rights enthusiasts, reactionary or unhinged talk-show hosts, and politicians looking for support from the same) to insist that the treasonous side of the Late Unpleasantness was morally or legally right is an act of continuing violence against our republic. It is especially toxic since it’s now gone past the “my ancestors died for high ideals, and my region deserves to be privileged culturally and politically” stage into the “this should be an option we keep open because it’s gotten so bad.” Noted Constitutional scholar Akhil Reed Amar will take it from here:

To be clear: Publius did not argue for a general right of state militias, or anyone else, to engage in armed resistance merely because they sincerely believed that national authorities were acting unwisely or even unconstitutionally. Ordinarily, the people’s remedies for allegedly improper or unconstitutional conduct would be political and legal — speeches, petitions, assemblies, elections, and lawsuits — with the ultimate decisions over good-faith disagreements to be rendered by the nations duly constituted civilian authorities in Congress, the executive branch, and federal courts. The scenario painted by Publius as the occasion for militia opposition was, by hypothesis, anything but ordinary. Rather, it was the extraordinary case of an attempted national coup. No political or legal remedies would exist in this situation. Presumably, national courts would have been shut down or, at best, their judgments would be unenforceable. Ballot boxes would be shut (or stuffed), critics muzzled (or worse). Whatever law existed would be martial law, enforced only by gun and sword. In such an extreme scenario of open usurpation — and only in such a scenario — the sole practicable remedy left to the people would involve reourse to arms.

Of course, this was hardly the situation faced by secessionists in early 1861. The national political channels remained open: Lincoln had won the presidency fairly and promised to hold honest elections on schedule — as he would in fact later do. So, too, the national courts in 1861 remained open. (If anything, the Taney Court stood as a shameless apologist for Southern interests.) Nor had the national military taken aggressive steps to threaten civilians. On the contrary, Southern insurrectionists struck first in attacking Fort Sumter. Confederate moderates defended secession by asserting that each state’s people retained the right to decide for themselves whether the federal compact had been breached, regardless of what the federal courts, Congress as a whole, a duly elected president, or the voters of other states sincerely believed. Other  Confederates went even further, resting secession not on claims of federal wrongdoing, but rather on the sovereign right of each state populace to alter its government at any time for any reason — or to withdraw from the Constitution as a nation might withdraw from a treaty it no longer deemed suitable. Both Confederate theories rested on a view of state sovereignty plainly inconsistent with the federal Constitution as explained by its supporters and understood by its skeptics in the great ratification debates of the late 1780s. (Amar, America’s Constitution: A Biography p. 118).

Wrong then, wrong now.

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