SLRC Board member, Loy Mauch, has written an excellent primer for students of the US Constitution - a must read for every SLRC supporter. A copy is available from the SLRC for $20.00 postage paid (in US). Please call us at 828-669-5189 to place an order or send a check to: SLRC, P.O.Box 1235, Black Mountain, NC 28711.
We are proud to reprint this excellent review of Loy Mauch's book, written by historian Dr. Boyd Cathey, which appeared in the current issue of the Confederate Veteran Magazine (May/June 2015).
David Loy Mauch. This Constitution Shall Be the Law of the Land. North Charleston, SC: CreateSpace Independent Publishing Platform, 2014; paperback; 371 pp; notes; addenda; recommended reading; index.
REVIEW by Dr. Boyd D. Cathey
David Loy Mauch, the author of This Constitution Shall Be the Law of the Land, is an Arkansan, a former state legislator, a fellow of the Society of Independent Southern Historians, and an active member of the Sons of Confederate Veterans. More significantly, he is a facile writer and researcher who has produced a book that could well be a primer for those searching for that one accessible source on the real meaning of Constitutional liberties, states’ rights, and what the Founders actually intended, but also—at times, a searing indictment of those forces that continually have perverted the Founders’ Constitution and destroyed not only the prescribed rights of the States, but also the liberties of the citizens of the United States.
Author Mauch examines the history of the American “experiment” in constitutional government largely chronologically, beginning with the Constitution, itself. He assembles ample and overwhelming testimony that “the United States of America” was the creation of the free and separate states that had won their independence from Great Britain. The Constitution that the thirteen independent states eventually adopted delegated certain very specific and limited powers to a Federal government, reserving the vast majority of rights and self-government to the states. Both the 9th and 10th Amendments—part of the Bill of Rights—make this reservation of powers explicit. Indeed, Mauch cites extensive proof from The Federalist Papers and from James Madison to show the explicit intent of the Founders in this regard.
During the ratification period, even Federalists like Alexander Hamilton were loathe to claim what exponents of powerful managerial Federal government centralization assert today. And the bizarre theory that Abraham Lincoln put forward, that it was the central government that somehow actually preceded and created the states, doling out parsimoniously to them only the rights that it deemed acceptable, is so foreign to the thinking of the Founders that it beggars the imagination.
The originalist belief continued to underlie constitutional considerations during much of the Antebellum period. As Mauch illustrates, the U.S. Supreme Court, in an 8-1decision in the The Bank of Augusta vs. Earl decision (1839), clearly enunciated this accepted theory:
The States between each other are sovereign and independent. They 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 objects of the Union, under the Constitution. The rights of the States, when not so yielded up, remain absolute. (p. xxi)
And such views of the powers and authority of the several states were not restricted to those states below the Mason-Dixon Line. Indeed, as Mauch details, at various times, including during the War of 1812 and the Mexican War, states in New England seriously considered seceding, leaving, the Federal Union. And most constitutional writers and authorities of the time agreed. Indeed, famed jurist William Rawle’s volume, A View of the Constitution of the United States (1825), states clearly: “The secession of a State from the Union depends of the will of the people of such State. The people alone as we have already seen, hold the power to alter their constitutions.” (p. 90) Rawle’s text was used as the official text on the Constitution and constitutional interpretation at West Point prior to the War Between the States.
In particular, Mauch offers a breath of fresh air and needed clarification in his discussion of the famous Dred Scott vs. Sanford decision by the Supreme Court (March 1857). In a lopsided 7-2 decision, Chief Justice Roger B. Taney, delivered for the court a decision that just about everyone on the current political scene today condemns. Yet, as Mauch carefully documents, Taney’s decision was entirely consistent both with the Constitution and with congressional statutes. A slave escaping to a free state could not, then, assume the rights of a citizen and sue in court, for the Constitution had explicitly excluded such a possibility. Agree with the law or not, Taney stated, it was the law. The Constitution provided a process for change: passing a constitutional amendment.
Mauch’s discussion of interposition, nullification, secession, and the secession crisis offers a useful summary of arguments that will be familiar to many readers. Yet, it is valuable to have these points recapitulated concisely and persuasively. As he points out, interposition, nullification, and secession had been discussed widely prior to 1860; indeed, both Southern AND Northern States had implemented such actions. As late as the 1850s Wisconsin actually nullified the Fugitive Slave Law of 1850 (p. 55).
President James Buchanan, in his last message to Congress and the nation before Lincoln’s assumption of the presidency in March 1861, made it explicitly clear that, as much as he regretted and disagreed with the secession of the Southern States, the Federal government had no power to coerce a state or force it to remain in the Union. Lincoln, of course, with his radical and revolutionary ideas of Federal supremacy would have nothing of that, and as historian William Marvel has pointed out (in his volume, Mr. Lincoln Goes to War), sabotaged and undercut every attempt at mediation and peaceful resolution prior to the outbreak of war.
Echoing writers such as Charles Adams (When in the Course of Human Events), Thomas Di Lorenzo (The Real Lincoln), and Greg Durand (America’s Caesar), Mauch methodically details the severe economic hardships placed on the South as a major reason for eventual secession of the lower South, and the flagrant violation of the Constitution when Lincoln called for troops as the major reason for the secession of the upper South (and, more, the opposition of a large percentage of citizens above the Mason-Dixon Line, as well). Interestingly, several states when they had joined the Union had included specific language declaring that they could withdraw from it if conditions dictated. And this is what individual Southern states did: they rescinded their acts of union.
Certainly, the issue of slavery was discussed at the time; but the major concerns expressed by most Southerners were: (1) slavery is a question for the respective States to decide; and (2) it is a question of property legitimately recognized by the constitutions of the States AND by the Federal Constitution. Any eventual manumission would have to recognize these facts. Interestingly, Lincoln understood fully well that freeing the slaves was not an issue to rally Northern support for a war, and his appeals, certainly up to the Gettysburg Address, were mostly pleas to “save the union.” His overriding concern was to defeat and control the South and empower the Federal government, whatever method was most useful. Recall his famous interview with Horace Greeley in late 1862 that if he were able to save the union and maintain slavery, he would:
“My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union.”
As Mauch shows, the Lincolnian “revolution”—through the defeat of the South—removed the counterbalance to the growth in Federal and national managerial power. The 14thAmendment, passed illegally without the requisite number of states approving it, opened the door in the 20th century to the wide-open doctrine of “incorporation,” that is, applying all types of radical and unthinkable (to the Founders) legislation to the States, when even the drafters of that amendment did not foresee such a process. One such result, clearly NOT foreseen, is the present state of affairs that permits an illegal immigrant, non-citizen female to simply cross the Rio Grande River and have a child on thisside of the border and, there you have it, a new “American citizen.” The 14th Amendment was directed to former slaves, and in no way to illegal immigrants. Clarification of this process is just one major item that needs to be addressed both by Congress and the Courts.
Mauch’s final chapters treat a number of the consequences of the Lincolnian revolution and the virtual abolition of the Founders’ Constitution. The Founders had written: “The Constitution shall be…the supreme Law of Land.” As he pleads with his readers, it is long past time for a counter-revolution and the recovery of what has been lost. Such will not be easy, certainly, but for the sake of our children and grandchildren it must be attempted.