How Might Makes Right
March 7, 2002
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 didnt 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 Governments 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 doesnt 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 Governments legal authority within its
own borders. Lincolns 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 arent 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
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
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