History & Memory and Abraham Lincoln

March 27, 2017 § 12 Comments

Lincoln’s birthday came and went in February, largely ignored in Tennessee and other Southern states.  In the wake of his birthday, this image came floating through my Twitter feed.  This is an interesting take on the question of history and memory of the Civil War.  It fascinates me on both levels.

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Factually, there is not much in this that is true.  And the interpretation presented in this poster is, well, wrong.  The part on top, with the spelling and grammatical mistakes, was tacked onto the Wanted poster by someone as it travelled through the right wing, Confederate social media world.  I don’t know who did it.

Note how the unknown commentator claims that Lincoln waged an unholy war against the South. The Civil War, of course, was begun by the Confederacy, when it attacked Fort Sumter, in the harbour of Charleston, SC, on 11 April 1865.  Thus, the war is not the fault of the Union.  Fort Sumter was a fort held by the United States military, constructed in the wake of the War of 1812.  There are no ‘hard facts’ that can be presented to deny this historical truth.

But, of course, fact and memory are not the same thing.  And this is why the question of history and memory fascinates me.  It’s not simply a matter of how we remember history as individuals, as our own individual memories are a function of society as well, but it’s also a question of how all of our individual memories work in concert with each other to form cultural memory.

Certainly, in the South, the Civil War is remembered differently from the North.  And it is not always remembered in a cartoonish, neo-Confederate manner as this.  On a more basic level, many Southerners can express distaste for the actual causes of the war and the war aims of the Confederacy and a deep pride in their ancestors’ gallantry in battle against the North.  Hence the romance and popularity of Civil War re-enactors and their romance of the Confederacy.  And, of course, there is a careful parsing of the larger context of the Confederacy and its reasons for fighting the war in the first place.

Slavery is the first or second thing mentioned in every single Confederate state’s articles of secession.  It was central to the war aims of the Confederacy.  It was not, however, central to the war aims of the Union, despite what many Northerners believe.  It was not until the Emancipation Proclamation came into effect on 1 January 1863, nearly two years into the war, that the end of slavery became a Northern war aim.  In short, then, the Civil War happened, from the perspective of the Confederacy, over slavery.  Not states’ rights (had it been, the fight over the entry of new states to the Union and whether they’d be slave states or not, would not have happened).

And clearly, Lincoln is remembered differently on either side of the Mason-Dixon line.  But there is also a question of history.  When the Republican Party tweeted a fake quote from Lincoln for Lincoln’s Birthday (in a tweet that has since been deleted), it wasn’t the fake quote that amused me, it was the GOP’s statement.  Lincoln certainly did not bring the nation together.  His election was the excuse the Confederacy used to justify secession.

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But at any rate, to return to the original issue here of the differing memories of the Civil War and un-reconstructed Southerners: One could indeed argue that Lincoln violated the Constitution.  Many people have made this argument, including respected historians and constitutional scholars.  Lincoln was very aware of his expansionist reading of the Constitution and reminded his opponents that they could question him, through the ballot box and via the court system.  Ultimately, however, his expansion of the Constitution has been recognized by scholars as an historical fact, more or less.

But there is also the question of other means of bending the Constitution.  In the case of habeus corpus, Art. I. Sec. 9, cl. 2 of the Constitution reads:

The Privilege of the Writ of Habeus Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.

However, Article I of the Constitution lays out the powers of Congress, not the Executive (that’s Article II).  However, Congress can delegate authorities to the Executive, and has (for example, during World War I, the Food and Fuel Control Act of 1917).  But, Congress had not delegated this power to Lincoln.  Thus, in ex parte Merryman, a federal court decision in 1861, Justice Roger Taney, who was the Chief Justice of the Supreme Court, but sitting as a federal court justice, found Lincoln’s suspension of habeus corpus and his delegating of this power to United States Army officers to be beyond the law, that the suspension of habeus corpus was limited to Congress, which could, of course, delegate this power.  Merryman, however, was ignored by Lincoln on the grounds of necessity due to the unusual circumstances of the war.  He argued that the Civil War was exactly situation noted in the Constitution, a case of rebellion.  And, furthermore, he argued that the President has had to act many times when Congress was not in session.  Indeed, this is true, dating back at least Jefferson’s era.  In these cases, the President is expected to seek post facto permission for his actions from Congress. Indeed, in 1863, Congress passed An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases. 

Indeed, in my copy of Richard Beeman’s Penguin Guide to the United States Constitution, which I assign every semester, as it annotates the Declaration of Independence and the Constitution, Beeman merely states the following:

On at least a few occasions American presidents have suspended while either suppressing rebellion or protecting public safety.

Beeman then uses President Lincoln and the Civil War and President George W. Bush in the wake of 9/11 as examples. That’s all.  In other words, this is a recognized power of the president, though Beeman does note that Bush based his actions on the USA Patriot Act, which is obviously an act of Congress.

As for the treason claimed in the Wanted post, I’m not sure where this comes from, given that the attempted secession by the Confederacy was, by definition, a treasonous act.  Treason is an attempt to overthrow or betray one’s country.  Certainly, the Confederates felt that the American government had overstepped its bounds and was attempting to claim the right to rebel, as the Founding Fathers had in the Declaration of Independence.

Nor did Lincoln imprison 40,000 Northerners in military prisons during the war.  I’m not even certain where such a number would come from.

As for the question of the plight of Southerners under Union occupation, that is another thing entirely.  Certainly, federal troops did commandeer supplies and property.  They did rape Southern women.  But, the argument about the loss of civil rights, well, the Confederacy did start the war.  There was no official declaration of war, given that the Union refused to recognize the Confederacy, nonetheless, there was most certainly a war  And the war was fought in Southern territories.  Thus, the suspension of civil liberties in a territory of open rebellion should not be surprising.

Nonetheless, while I would not state that the vision of Abraham Lincoln in this Wanted poster is a common one in the South, there is a small fringe that does view him in this manner.  And I also do not find this surprising, given the romanticization of the Civil War in the minds of many (and not just in the South).  Lincoln was the enemy, obviously.  And so it should not be surprising that someone, thinking it clever, created this Wanted poster (though I cannot speak to the editorialization attached to it).

In this romanticized version of the Civil War I have seen up close, at County Fairs and the like in Alabama and Tennessee, something interesting happens to the Civil War.  Race is removed from it, in that the Sons of the Confederacy, the ones who dress up and Civil War garb and re-enact the war, insist they have no racial malice and that there is no racial malice behind their play-acting nor flying of the Confederate Battle Flag (whether or not this is true is a matter for another blog post).  Rather, they claim, they are celebrating the gallantry of their ancestors against the Northern incursion (and, of course, the reasons for that incursion are elided).

And this brings me to what I see as the greatest irony of the lionizing of the Confederacy.  I had a student who wrote an MA thesis on the Confederate soldiers between the Battle of Shiloh in southwestern Tennessee in April 1862 and the Battle of Mobile Bay in southern Alabama in August 1864.  She used soldiers’ diaries as a major primary source.  Shiloh was their first battle and many of these men responded much as you’d expect: abject terror at the actual grizzly face of mid-19th century war.  And almost overnight, these young men went from being keen to be battle-tested to bitter.  They were bitter at their inadequate supplies and medical care and leadership.  But they were also bitter that they were being compelled to fight for the right of rich men to own slaves.  As they marched South, chased by the Union Army through Mississippi and Alabama to Mobile Bay, they became increasingly angry and bitter.  Those that survived did fight, against insane odds. And generally lost in this theatre of war, which was very different than the one commanded by Robert E. Lee in Virginia.  In Tennessee, Alabama, and Mississippi, they were outgunned, outmanned, and victim to poor leadership.  But even the soldiers in Lee’s Army of Virginia were well aware of the irony that they, too poor to own slaves, were laying their lives on the line for the rich slave owners.

It’s certainly a historical truism that poor men are the cannon fodder for the rich.  Even today, the US Armed Forces tend to draw their recruits from the poorer areas of the South. So that the poor white men of the South found themselves in grey uniforms and fighting the US Army should not be surprising.  So, in many ways, this is what these men, the Civil War Confederate re-enactors are interested in: the plight of poor men.  And celebrating their ancestors.  But, their ancestors were on the wrong side of history.  And the wrong side of the Civil War.

And so they’re left with the uncomfortable problem of unsorting the simple fact of slavery and racism from their views of the Civil War.  Hence the rise of the states’ rights claim.  Or others.  The simple fact is that they’re confronted with a double dose of difficult knowledge in confronting the Confederacy and the Civil War.  First, the slavery issue.  Second, their ancestors’ plight of fighting and dying for rich, slave-owning plantation owners.  And perhaps this is their way out of the racial conundrum: these men and women, their ancestors weren’t the slave owners.

 

Happy Birthday, Statute of Westminster

December 11, 2014 § 5 Comments

My Google calendar tells me that today is the 83rd birthday of the Statute of Westminster.  But, oddly, I don’t think parades are being planned across Canada, nor are there any fireworks shows scheduled.  I always find the idea of Canadian independence rather interesting.  We celebrate 1 July 1867 as the date of Canadian Confederation, as if it meant anything.  I’ve never really been convinced that it does.  On that date, the Dominion of Canada was created, that much is true.  This was a confederation of the the province of Canada (today’s Ontario and Québec), with Nova Scotia and New Brunswick.

But, for the most part, aside from the new government of the (now) four united provinces, not much else changed.  British North America had gained responsible government (for the most part) in 1848, meaning that the democratically elected governments of the colonies could now legislate for themselves independent of the whims of the British Parliament in Westminster, London.  But, the new Dominion of Canada had no control over its foreign affairs.  This was made patently clear in boundary disputes along the Alaska/British Columbia and New Brunswick/Maine borders where the British, unwilling to upset their new American allies, back the American claims to the detriment of Canada.  When the First World War broke out on 28 July 1914, when the British declared war, the Canadians were automatically at war.

The First World War, or so we’re told in Canada, was the time when our country came of age.  Nevermind the fact that conscription was an incredibly divisive issue, exploiting fissures in Canada that remain to this day, or that the Unionist government of Sir Robert Borden won the 1917 general election through trickery, disenfranchisement, and gerrymanders.  But, fine, let’s just accept the argument that this was Canada’s coming out ball.  In the aftermath of the war, Borden and the South African Prime Minister, Jan Smuts, argued that their nations had bled for the war, and deserved their own seats at the Paris Peace Conference.  Canada, in particular (as the senior Dominion) continued to agitate throughout the 1920s for more control over its foreign affairs, joined for awhile by the new Irish Free State.

Thus, in 1931, the Parliament in Westminster passed the eponymous statute.  Amongst other things (most notably, it established the relationship between the Commonwealth that persists to today), Canada gained complete legislative independence, including over its foreign affairs.  In 1909, Canada had created its own Department of External Affairs, reluctantly, under the Liberal premiership of Sir Wilfrid Laurier.  In the 1923, under the Liberal William Lyon Mackenzie King (the longest serving PM in British Empire/Commonwealth history, he was office 1921-6, 1926-30, 1935-48), signed its very first international treaty (with the United States) without the involvement of the British.  So, in many ways, the Statute of Westminster confirmed the status quo.

Canada used its new legislative independence proudly.  When the Second World War began on 1 September 1939, with the German invasion of Poland and the 3 September declaration of war by the British upon Germany, Canada waited a full week to declare war on Germany itself.  My history prof in a class on the history of Canadian foreign policy at the University of British Columbia sniffed that this was done simply to point out that Canada could.  Knowing Mackenzie King, it wouldn’t surprise me.

But this still does not mean that Canada was a fully independent and sovereign nation.  On 1 January 1947, Canadian citizenship came into existence.  Prior to that, Canadians were subjects of the British Crown.  In 1949, the Supreme Court of Canada became the highest court in the land.  But, even then, the Canadian constitution was an act of a foreign legislature, i.e.: Westminster.

In 1982, after much wrangling, and ultimately without Québec signing on, the Canadian constitution was patriated under Liberal Prime Minister Pierre Elliot Trudeau.  And with that, one could conclude that Canada was finally a sovereign, independent nation.  Maybe.  There is still the argument that occasionally surfaces in Canada about the role of the monarchy, since the British monarch is still sovereign over Canada.

But, either way, Canada did not, like many other former colonies (like the one I now call home), spring into existence as a fully independent and sovereign nation; rather, in Canada, this was a long, drawn-out process, beginning in 1848 and ending (maybe) in 1982.

Louisiana and the First Amendment, redux

April 28, 2014 § 7 Comments

Last week, the Louisiana politician who proposed making the Holy Bible the official book of the Pelican State withdrew his proposal before it went to the state House of Representatives for a vote.  Originally, Thomas Carmody, a Republican from Shreveport, had intended to make a specific copy of the Bible, housed in the state museum the official book, but his colleagues in the House had other ideas, and amended his legislation to make the Bible itself the official state book, not just a specific copy.

Carmody withdrew his legislation, stating that it had become a distraction.

I wrote about this last week, raising questions of the First Amendment’s injunction against an established religion.  In the meantime, following a spirited discussion in the comments, I spent more time digging deeper into the issue of religion and the state in the United States.  I’ve always found this topic interesting, given the First Amendment’s injunction against established religion, and the Founding Fathers’ well-known suspicion of religion itself.  At the same time, of course, the dollar bill in my pocket states, on its back, “IN GOD WE TRUST.” Of course, there is a difference, as the Founding Fathers well knew, between a belief in God and religion.  Jefferson himself was a life-long religious skeptic, though he maintained his faith from cradle to the grave.

dollar 750The New Orleans Time-Picayune quotes a few legal scholars, who seem to be of the opinion that the now-scrapped legislation isn’t worth getting excited about, as it has no real value, it cannot lead to the establishment of religion or the enforcement of religion.  Yet, in withdrawing his legislation, Carmody noted that it could’ve caused “some constitutional problems.”

And this is what I find interesting.  From my own deeper reading of the issue over the past week, as well as what the legal scholars quoted in the Times-Picayune said, it does appear this was really just a tempest in a teapot.  And yet, both Carmody and the New Orleans Democrat Wesley Bishop (holder of a J.D.) appear to be confused about the meaning of the First Amendment in real terms.

Louisiana and the First Amendment

April 17, 2014 § 12 Comments

It seems that the Louisiana House of Representatives is poised to vote on a measure that would designate the Holy Bible as the “official state book” of Louisiana.  Technically, this would have as much weight as the designation of the brown pelican as the official state bird of Louisiana.  But, in practice, this would pack a major wallop.

But is it legal?  The First Amendment of the Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And while this refers specifically to the United States Congress, the Constitution of the United States applies to the states and local governments as well (similarly, the constitutions of the various states can impact upon federal law and practices).  In other words, the designation of the Holy Bible as the Official State Book of Louisiana appears to violate the part of the First Amendment that reads “Congress shall make no law respecting an establishment of religion,” in that it appears to give preferential treatment to Christianity over all other religions.

Louisiana is an overwhelmingly Christian state insofar as religious identification goes.  Somewhere around 90% of the state’s population identifies as Christian.  The next religious identification is no religion, at 8%, while Muslims, Buddhists, and Jews are all less than 1% of Louisiana’s population.  So clearly Louisiana is a Christian state in practice.  But, I’m not entirely sure it can identify as such officially.

Before someone gives me hell for saying that opposition to the Bible being designated the official book of Louisiana tramples religious freedoms, it doesn’t.  That’s not how “the free exercise” of religion works under the Constitution.  The free exercise of religion does not grant the right to trample upon others’ rights, nor does it allow for official religions.  The First Amendment simply states that the state itself cannot impede on the free practice of religion.  However, the courts maintain the right to mediate what religion actually is and how it might be practiced.

The measure has yet to pass the House of Representatives, let alone the state Senate, though I’m sure Governor Bobby Jindal would sign it into law.  IF that were to happen, it will be interesting to see what comes next, whether the ACLU or any other organisation would threaten legal action.  And if it were to get as far as the Supreme Court, even with the court’s recent right turn (the Roberts court has been remarkably centrist), I don’t see how it could uphold such a move by the Louisiana state government.

I find this larger discussion of the Constitution interesting given my new research project, which examines the role of history and memory in far right political circles in the United States.  Central to this project is an understanding of the Constitution, as well as the intentions of the men who wrote it in Philadelphia in the summer of 1787 and its subsequent implementation, practice, and interpretation since.

Phil Robertson, the 1st Amendment and Free Speech

December 20, 2013 § 1 Comment

As I wrap up the Griffintown book, and reach the end of what has been a decade-plus-long odyssey, I have begun work on a new research project that examines the far right of American politics and its relationship to history.  As such, I have spent a lot of time working with the US Constitution, its history, its interpretation, and its meaning.  Beginning with this post, I will be using this space to begin to hash out ideas for this project.

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So Phil Robertson is a homophobic bigot.  The Duck Dynasty patriarch was interviewed by GQ and when asked his definition of sinful behaviour responded “Start with homosexual behaviour and just morph out from there.”  Robertson is a deeply religious man.  So his beliefs, as deeply offensive as they are, aren’t all that surprising.

What has struck me is the firestorm on Twitter about Robertson, and the conservative backlash against his suspension from the show (not that it’ll matter, this season’s episodes are already filmed, the season starts in the spring and the long-term future of the show is up in the air).  From what I’ve seen on Twitter, Robertson’s bigotry is being framed as a 1st Amendment issue.  The argument I’ve seen on Twitter from rank and file “constitutional conservatives” is that A&E (the network that Duck Dynasty is on) and all the “libtards” (I suppose I’m one of them) are violating Robertson’s 1st Amendment rights.  Even Louisiana Governor Bobby Jindal has suggested Robertson’s constitutional rights are at stake.

They’re not.  At all.  The 1st Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In other words, the 1st Amendment is limited to government.  “Congress shall make no law…”, and the courts, up to and including the Supreme Court of the United States (SCOTUS) have consistently limited the alleged rights and freedoms the Bill of Rights gives to government, limiting the reach of government.  In other words, private corporations and private citizens are not bound by the 1st Amendment or any other of the Amendments that are part of the Bill of Rights.  So that takes care of that argument.

As for Bobby Jindal, when he says, “This is a free country, and everyone is entitled to express their views,” he is bang on correct.  But it has nothing to do with the Constitution or the Bill of Rights.  Robertson can expose his own bigotry any day of the week and six times on Sunday.  But Jindal’s argument is disingenuous at best.  His implication is that anyone who is opposed to Robertson’s ideas is stifling his right to speak his mind.  In other words, those who are appalled at Robertson’s comments to GQ are NOT entitled to their right to speak their minds.   Interesting, that.

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