Obama's Ship Money; The Fourteenth Amendment 'Solution' and the crisis of 1869-76

David Goldfield has a new and interesting book out, which in the best sense of the word starts from the sort of premise that a bright twenty something who wanted to re-write the field and attract attention would embrace. It is that the American Civil War was essentially a consequence of evangelical protestantism, and of the moral zeal, intolerance of compromise, and dissolving effect of that movement upon politics and society in the decades before the War of 1861-5.

By recasting the war as one that was avoidable, and the product of religion, Goldfield (who teaches in North Carolina) breathes life into a modernised 'blundering generation' hypothesis that may appeal to an almost monoculturally fideophobic American intellectual class whilst allowing people to escape the simplistic iterations of slavery guilt that some of the sixty-eighters have traded on for years.

However, the thesis does not hold up. A catalyst is something that changes the world around it without in whilst only being destroyed by secondary reactions, rather than the thing which it primarily works upon. Playing the game of finding the cause of the Civil War that was not slavery is a fool's errand. The mass immigration of the Roman Catholic Irish, for instance, destabilised Northern cities, broke the Whig Party, and caused a nativist reaction which allowed non-nativist conscience radicals to set up viable anti-slavery parties. It also allowed for the vast augmentation of the Northern workforce and, provided the imperative for the North to flank the south with railways and canals connecting grain-producing areas, isolating and undermining the hitherto primacy of future confederate agriculture. The settling of the West was allowed for by German immigration, which was forgotten after 1914 and is something that still helps explain a good deal about the mid-West.

Similarly, one can't blame racism or the rise of democratic Jacksonian theories; these were in fact as strong or stronger in the slave-free North as in the South. But one could try to single them out, along with neo-confederate 'original conceptions' of the constitution which look at the North as a new and dangerously centralised body. The 'causes' of the war, and of the settlement that followed, metastasize once one abandons slavery as the prime aetiological referent; technology (telegrams, steam railways, and print); 'big money' (the post-1837 Northern bank push for monetary expansion; 'protectionism' (the tariff-supporting, federally lucrative bloc linking expensive Pennsylvania steel and manufacture to Midwestern wheat and meat)....I could go on.

Slavery caused the war. There really shouldn't be any doubt in any mind, except that the academy and intelligent debate sometimes thrive on creating such.

One thing that Goldfield does get right, however, is the extraordinarily vituperative and fissaparous nature of the Republican Coalition. The Party which ended slavery emerged in 1857 as a confluence of groups. Anti-slavery (not pro-negro) politics was what held it together, as people realised at the time, but an emphasis on wider policies and backpedalling to the electorate was what got it elected in 1860--that and a Democratic split. Republicans were a hard-money, anticatholic inflationist, western-settling, New England native and Pennsylvania steel coalition which co-opted the moral zeal of evangelicals but which also embraced Whigs, spiritualists, and those thrown askance by the Mormon wars of the 1840s. When Abraham Lincoln (who was not most Republicans' first choice for president, who was dumped in 1864 and who ran with a Democrat Vice-president as a consequence) did strike at slavery, he did so piecemeal and messily. He himself seems to have spent some time wishing black people would emigrate somewhere before being driven by blood to a higher conception of humanity.

All of this is important because, once slavery finished, the Republicans had nothing to unite around. They flailed. They impeached Lincoln's successor, President Johnson. They 'reconstructed' the South in a mad way. They embraced Gladstonian liberalism, split with it, took bribes, condemned them, fell out, tried to promote black citizens then undermined them disgracefully, and generally pushed and pulled like some strange circus creature. And they re-wrote the constitution of the United States in ways that matter very much today.

The Fourteenth Amendment

It is worth recalling the amendment in full, (written by Republicans in 1866) if only because few Americans ever treat the sections as an integrated whole, and because the world economy, and any understanding of modern America, depend upon it. From the start it was political. Via a parliamentary manoeuvre, Congressional leaders sought to draw President Johnson into denying the Joint Committee which wrote it funding, and thus to lay the groundwork for his impeachment. The amendment is not neutral law. (By the way, I've adopted the near-universal (and sane) numeration of the amendment as 'XIV', though readers on the 'ghost amendment' fringe, and I mean no unnecessary disrespect, may view it as only the fourteenth accepted amendment).
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Three modern debates arise from the amendment, though others exist too. Immigration to the United States was given a relatively unique quality, in that those born there automatically became citizens of the federal entity. The previous procedure was that, as in the European Union until recently, only citizens of States could become US citizens. Since States had their own constitutions and methods of assimilation, the first section of the amendment transfers sovereignty and constitutionalises rights. This proposition meant that, immigration, border matters, and nativism were effectively moved up and neutralised as issues. It's something that Republicans, in the border southwest and port cities, have recently begun to organise against, and was never that popular in those Western states and Alaska where resident citizens effectively become shareholders in state resources.

Federalising rights led to their legalisation. More than any other country, until a recent decline in tort and judicial activism generally, Americans have argued for rights, and the resolution of political problems, in the federal court system (State Judges being often elected should be judged part of a different process). When the Supreme Court decided, for instance, that segregation and 'separate but equal' provisions met with the requirements of the amendment in Plessey v Ferguson, some black lawyers saw it as an advance; others agitated to change conditions, beginning a legal strategy which shaped organisations like the NAACP and, indeed, the shape of politics in the mid-twentieth century. Oddly, as money flows into political parties, in 2011, street organisation and the parliamentary resolution of problems through elections and lawmaking has become important again. Perhaps that is to be expected of an executive headed by a former community organiser in which legal recourse is expensive and where agitated parties both lash out at 'judicial activism'.

For our purposes, however, the third most significant thing of the amendment is the phrase buried in section four;
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.
Madly, there are some in the presidential camp who think that, should Congress fail to authorise an increase in the debt ceiling on August 2nd of this year, then the president should simply order the Treasury Secretary either to forgive and destroy bonds owed by the Government to itself, or to issue new ones on the strength of the amendment.

There are many reasons why this would open the door to a new level of madness; but one of the most appealing is rooted in the seventeenth-century revolt against the Stuarts from which much of the American radical and common-law tradition emerged.

Ship Money

By 1629, in an England of a few million, riven with ideological schisms based around religion, the emerging new economy, and foreign entanglements, Charles I found it impossible to deal with Parliament. The traditional picture of him, and of his Stuart heirs, has been until recently constrained by what he did next. He simply went around the parliamentary process of revenue generation, and raised his own money constitutionally. By claiming that citizens had a duty to grant him both a loan for their own defence, and to pay for a Navy to defend them, he employed the prerogative to fund his administration for the next ten years, and actually did quite well in doing so. Quite well from a practical point of view, that is. From the perspective of, say, Darnel and the Five Knights who ended up on the wrong side of the Crown when they complained, it was tyrannical. Even the Judges who convicted them implicitly agreed, pretending that the forced loans were not taxes or levies and really that they were only emergency actions.

They weren't intended as such, of course. The reaction against the forced loan and ship money led directly to the petition of right, the English Civil War, and, ultimately, the 1688 proposition that the Crown and its prerogatives must lie in the assembly elected by those who would pay the taxes. That principle made it's way into the American colonies, and it was embedded in the Constitution as firmly as the Stuarts were pickled in the somewhat addled aspic of the radical imagination.

The vituperative Republican Party of 1866, however, roiling at the loss of the slavery issue, unable to stir up enough willingness to take on the emergent nightriders of the KKK, and realising that impeachment would only hold them together so long, placed a loaded gun in the hands of future presidents. At the time, they were confident such presidents would be republicans, given the rate at which they were adding states and 'reconstructing' the South. They were right about that; between 1876 and 1932, only four Democrats- Tilden, Cleveland, Wilson and Roosevelt--were elected president, and Tilden was denied the office in a constitutional stitch up in 1877. By Wilson's time, the gun-the duty of the president and courts to uphold the fourteenth amendment even if Congress disagreed--was set in abeyance by the creation of the Federal Reserve and the Income Tax. Cleveland hadn't even thought of it, because the debt debate in his tim was turned into a debate on whether greenbacks should be gold or silver-backed. Ironically both had a tendency to prevent default, and, anyway, the United States government at the time did not need much.

It does now. By August 2nd of this year, the USA may well be faced with a debt beyond fifteen trillion dollars. Since the Liberty Bond issue of 1917, Congress has insisted on its exclusive control of this debt. Some are suggesting that the President should a simply overreach this rule, as an emergency measure which does not permanently undermine Article 1, section 8 of the Constitution. The basis of this point would be that, by not raising the debt ceiling, Congress was in fact acting unconstitutionally and allowing the debt of the USA to be challenged, and that the President could not allow this as Chief Executive. Chief Justice Roberts, and Justices Scalia, Alito, and Sotomayor may support him in this; Justice Thomas would almost certainly oppose it.

The first group are supporters of executive power and Thomas is as near as the Tea Party gets to a representative. The future of a world economy predicated upon a currency imbalance that emerged from a debt created by Lyndon Johnson and worsened by Ronald Reagan and George W Bush beyond repair will then depend upon a new Five Knights case. Will, as their predecessors did, Brayer, Kennedy, Alito and Kagan allow an illegal, Stuart-era dodge revived by the poisonous GOP of 1866 to impose future taxes and inflation on citizens, rather than global economic collapse--or will justice be done though the Heavens fall? The list of successful presidential overreach is not a comforting one--Truman and the Steel Mills, Nixon and executive Privilege, Bush and torture and anyone with War since 1964. But the answer to the question may well decide the way in which our dissolving economy finally collapses.


Martin....very good post. I agree that slavery was the primary cause of the Civil War......primarily not the status of slave states in the South or existing slavery in the North but the future status of slavery in the new emerging states in the West. After all, General Grant's wife still owned slaves at the closing of the war. Additionally, there was a growing awareness of the meaning and execution of the 10th amendment. Before the war, there was still a tendency to think of the states as sovereign entities joined together for a common defense. This was given impetus during the antebellum period by a number of Southerners especially John Calhoun. For better or worse, the power of the federal government at the expense of the states has created the gigantic colossus known as the USA. The key issue in US politics today is that the foundation of the country is the US Constitution but our politicians only play lip service to it while seeking ways in war and taxation to subvert it. Bottom line, the North won the war but the issues of equality, democracy, state rights, etc. continue into the 21st century to be debated especially as the imperial presidency and federal bureaucracy has morphed into a tyranny of sorts. Cheers, Patrick
Martin Meenagh said…
Thank you for the comment Patrick, I appreciate it.

What surprises me is the lack of patriotism on all sides over the debt issue--I think I'm right that some involved in the negotiations, including Cantor, have actually invested in stocks that short the United States.

I would say something conservative like 'it's because they never really served their country when young', but that would not be true--look at LBJ. The issue, I think, is that so many politicians learn politics out of a book, or an existing political-media class, and so few of them ever had to live real lives or to return to them. All quite bizarre--the posturing is, like so much else, a sort of arrested development.

Anyway, I hope that all works out on August 3rd
Vocal Majority said…
Brilliant research, I have blogged a little about this, but did not come close to what you have assembled here. Thank you
Martin Meenagh said…
Thank you, VM

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