"We Lost Too Much": The War’s Impact on Our Form of Government

"We Lost Too Much": The War’s Impact on Our Form of Government

Michael T. Griffith

2006

@All Rights Reserved

The North's invasion and subjugation of the South destroyed the type of Union that the founding fathers established. We went from a Union in which the federal government's powers were strictly limited to a Union in which the federal government could dominate the states and control functions that were originally reserved to the states. We went from a Union where the federal government was prohibited from using force against a state to a Union where the federal government invaded and crushed eleven states. We went from a Union with a limited federal government and very low taxes to a Union with a huge federal government and much higher taxes. Basically, the only functions the federal government leaves to the states are those that it simply doesn't want to perform. McPherson explains how the relationship between the average American and the national government was changed because of the Civil War:

The Internal Revenue Act of 1862 taxed almost everything but the air northerners breathed. . . . The law also created a Bureau of Internal Revenue, which remained a permanent part of the federal government. . . . The relationship of the American taxpayer to the government was never again the same. . . .

The old federal republic in which the national government had rarely touched the average citizen except through the post office gave way to a more centralized polity that taxed the people directly and created an internal revenue bureau to collect these taxes, drafted men into the army, expanded the jurisdiction of federal courts, created a national currency and a national banking system, and established the first national agency for social welfare. . . . Eleven of the first twelve amendments to the Constitution had limited the powers of the national government; six of the next seven, beginning with the Thirteenth Amendment in 1865, vastly expanded those powers at the expense of the states. (The Battle Cry of Freedom, pp. 447-448, 859)

And:

The Civil War marked a decisive turn in the nature of American nationality. Buried forever was the notion of the Union as a voluntary confederation of sovereign states. The word "Union" gradually gave way to "nation". . . . The war strengthened the national government at the expense of the states. Before 1861, only the post office among federal agencies touched directly the lives of most Americans. Citizens paid their taxes to local or state governments and settled most of their disputes in state courts. For money, they used the notes of banks chartered by state legislatures. When war came in 1861, the President called first on the state militia. State governors took the lead in recruiting, equipping, and officering the volunteer regiments. But the centralizing pressures of war changed all this. By 1863 the War Department prescribed enlistment quotas for states and drafted men directly into the army if states failed to meet the quotas. The President declared martial law and stationed soldiers in every state, where their powers of detention superseded those of state courts. The United States government levied a host of direct taxes and created an internal revenue bureau to collect them. (Ordeal By Fire, p. 485)

For all practical purposes the Tenth Amendment, which reserves all unspecified powers to the states and to the people, was abolished by the North's victory. Former Secretary of the Interior Gale Norton came under attack during her confirmation hearings because she had dared to say in a 1996 speech that "we lost too much" in the way of states rights because of the Civil War. In her speech, Norton, who was then the Attorney General of Colorado, said the following:

I recall, after I had just gone through this massive battle with the EPA on state sovereignty and states rights, visiting the east coast. For the first time, I had the opportunity to wander through one of those Civil War graveyards. I remember seeing this column that was erected in one of those graveyards. It said in memory of all the Virginia soldiers who died in defense of the sovereignty of their state. It really took me aback. Sure, I had been filing briefs and I thought that was pretty brave. And then there were times we looked beyond the substance. When we looked at the decision making process. And understood the 10th Amendment was part of that separation of powers. It was part of what was supposed to guarantee that our government would remain limited. What would guarantee our freedom? Again, we certainly had bad facts in that case where we were defending state sovereignty by defending slavery.

But we lost too much. We lost the idea that the states were to stand against the Federal government gaining too much power over our lives. That is the point I think we need to reappreciate. We need to remind ourselves and remind the political debate that part of the reason the states need to be able to make their own decisions is to provide that check in our Federal system against too much power going to Washington. ("Rediscovering the 10th Amendment," delivered at the Stevinson Center's Annual Summer Symposium, Vail, Colorado, August 24, 1996)

Jefferson Davis believed the North's denial of the Southern states' desire to peacefully leave the Union was a repudiation of the original form of our government, and he noted that secession was in no way a hostile act:

Secession, on the other hand, was the assertion of the inalienable right of a people to change their government. . . . Under our form of government, and the cardinal principles upon which it was founded, it should have been a peaceful remedy. The withdrawal of a state from a league has no revolutionary or insurrectionary characteristic. The government of the state remains unchanged as to all internal affairs. It is only its external or confederate relations that are altered. To term this action of a sovereign a "rebellion" is a gross abuse of language. So is the flippant phrase which speaks of it as an appeal to the "arbitrament of the sword" [i.e., trying to settle an issue by force]. In the late contest, in particular, there was no appeal by the seceding states to the arbitrament of arms. There was on their part no invitation or provocation to war. They stood in the attitude of self-defense, and were attacked for merely exercising a right guaranteed by the original terms of the compact. . . . The man who defends his house against attack cannot with any propriety be said to have submitted the question of his right to it to the arbitrament of arms. . . .

The invasions of the Southern states, for purposes of coercion, were in violation of the written Constitution, and the attempt to subjugate sovereign states, under the pretext of "preserving the Union," was alike offensive to law, good morals, and the proper use of language. The Union was the voluntary junction of free and independent states; to subjugate any of them was to destroy the constituent parts, and necessarily, therefore, must be the destruction of the Union itself. (The Rise and Fall of the Confederate Government, Volume 1, pp. 157, 379)