Page:The Cambridge History of American Literature, v3.djvu/365

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Constitutional Theories in War-Time

Scott decision. Thereafter his leadership in the West was unquestioned.[1]

The advent of war forced the nationalists to re-shape their political theories. The legal and constitutional proofs that the United States was a nation, advanced by Webster and his school, had not counteracted sectionalism; the conflict of arms threatened to demonstrate how baseless they were. Moreover the conduct of the war brought about a certain disregard, on the part of the government, of various limitations, rights, and liberties set forth in the Constitution. It is not strange, therefore, that a new basis for nationality was sought, not in the Constitution or the old political formulas, but in the hard school of necessity. Thus President Lincoln declared that "measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the constitution through the preservation of the Nation." Pertinent also were the words of Sydney George Fisher written in 1852: "If the Union and the Government cannot be saved out of this terrible shock of war constitutionally, a Union and a government must be saved unconstitutionally." The pathway for the new thought had already been indicated by Francis Lieber, and soon the organic theory, with sovereignty in the nation rather than the states, was well under way. Very significant was the effort to distinguish between the written and the unwritten constitution. Thus J. A. Jameson, eminent jurist and exponent of the new school, divided constitutions into two classes; those which are organic growths, the products of social and political forces, and those which are "instruments of evidence," the results of attempts to express in language the sense of organic growth. Likewise Orestes A. Brownson,[2] a devoted Catholic, who found in the church fathers and the traditions of early Christianity the principles of democracy, distinguished between the constitution of the state or nation and the constitution of the government. In the same vein was the declaration of John C. Kurd, that "sovereignty cannot be an attribute of law because by the nature of things, law must proceed from sovereignty," and consequently the Constitution of the United States cannot be cited as evidence for the sovereignty of the states or the nation.

  1. See also Book III, Chap. XXII.
  2. See also Book II, Chap, VII and Book III, Chap. XIX.