How Might Makes Right

Whatever they may say, most people assume that might makes right. Abstractly, they may consider this is shocking and cynical doctrine; yet in practice they live by it. In plain language, they go with the winners.

They take it for granted, for example, that the Civil War proved that the North was right and the South wrong: no state may constitutionally secede from the Union. All the war really proved was what wise men knew at the outset: that Northern industrial superiority was overwhelming. (If the South had won, most people would, with equal illogic, accept that as proof that the South was right.)

In ratifying the Constitution, the states voluntarily joined a confederated Union; they didn’t give up the “sovereignty, freedom, and independence” they had retained under the Articles of Confederation. Such a radical change would have had to be explicit.

If secession was to be unconstitutional, the Constitution would have had to forbid it. It would also have had to provide some method of dealing with it if a state seceded anyway. It did neither.

Abraham Lincoln, in arguing against secession, had to invoke what he claimed as implied powers of the presidency. And in practice, he had to exercise clearly unconstitutional powers, such as making war without the consent of Congress. And when he won the war, he had to install puppet governments in the defeated states, in flagrant violation of the Federal Government’s duty to guarantee each state a “republican form of government.”

Lincoln himself all but admitted this. Contrary to his insistence that the Union cause was that of self-government — “of the people, by the people, for the people,” et cetera — his actual postwar policy was to rig the situation in the South to prevent “the rebellious populations from overwhelming and outvoting the loyal minority.”

So “the people” could have self-government, all right — as long as they voted his way. Otherwise he would see to it that the minority was not outvoted. This was a novel idea of democracy. To such contortions was Lincoln driven by the principle that secession is unconstitutional.

The Constitution also requires the Federal Government to “protect [the states] against invasion”; it doesn’t authorize it to invade them itself! Such a power would surely have been mentioned if the Framers had meant to prevent secession. Again Lincoln was forced to invent Federal authority — and presidential authority — where there was none.

The Constitution sounds great on paper. But how is the Federal Government to be prevented from exceeding its allotted powers?

Originally there were three safeguards.

First, there was the right of secession. Just as the states had seceded from the British Empire, a state could revoke the Federal Government’s legal authority within its own borders. Lincoln’s war crushed this right.

Second, the Senate of the United States represented the states, and would oppose any usurpation of the rights reserved to the states and denied to the Federal Government. But the Seventeenth Amendment virtually abolished the Senate by requiring the popular election of senators, ending their selection by the state legislatures. By being democratized, the Senate became a redundant institution, with no special constitutional function.

Third, of course, there were elections. The people could insist on constitutional government through the ballot box. They can still do this, in theory — unless they are too ignorant, corrupt, or apathetic to demand that the Constitution be honored. Which, alas, has long been the case. Most Americans aren’t the sort of citizens the Founding Fathers expected; they are contented serfs. Far from being active critics of government, they assume that its might makes it right.

Yes, in this old world might has always made right, but might often needs the assistance of plausible sophistry, of which Lincoln was a master. His awesome eloquence was matched by his willingness to suppress critics of his administration, and we easily forget that his four years in office were the darkest period for civil liberties in American history — far worse than the so-called McCarthy Era.

How could a man who spoke so beautifully of “a new birth of freedom” be an enemy of freedom? In the same way, I suppose, that so many “freedom fighters,” after they overthrow tyrants, turn out to be tyrants themselves.

Joseph Sobran