The Southern Cause Today



By Justice Bill Cunningham


The lost cause is not lost.

But almost.

The Tenth Amendment to the United States Constitution is on life support.

We know that the cause of the Civil War was states’ rights.  The issue was slavery.  The cause was noble and vibrant.  The issue was indefensible.

At the time of Appomattox, the idea of secession and two separate countries died.  But the belief in a Federalist system, where states maintained their sovereignty and especially retained powers, survived the War Between the States and, in fact, was fully accepted by both the North and South.

Even the idea of secession in the early days of our Republic was not so incredible or unacceptable as it seems today.  Virginia threatened to secede over Alexander Hamilton’s idea of consolidation of the national debt.  They had paid off most of their Revolutionary War indebtedness and did not want to get saddled with that of the other states through taxes.  Also, in New England, secession was kicked around to some extent over their disagreement with the Louisiana Purchase in 1803 and especially with that region’s opposition to the War of 1812.  At the Hartford Convention, the rumors of secession became especially ominous.  Some argue that only the Treaty of Ghent and the ending of the war precluded that from becoming a reality.

And, of course, we almost had a Civil War in 1832 when South Carolina, through its voice, John Calhoun, threatened to secede over the high tariffs which arguably strangled the southern economy.  President Andrew Jackson quickly put an end to that possibility by threatening to send in Federal troops.

Arguably, our greatest southern President and ardent champion of state’s rights proclaimed, “Disunion by armed forces is treason.”

Slowly the cause of states’ rights has been bled white by federal encroachments.  The concept of Federalism, as our founding fathers intended, is almost quaint from the lack of use.

The overwhelming concern of the opponents of the proposed United States Constitution of 1789 was the seemingly unchecked powers of the central government.  Not only did our forefathers demand that certain rights be guaranteed by the Constitution, but also that the governing doctrine recognize the sovereignty of the states.  In fact, there were some who desired that the states be deemed superior to the federal government.

The ten amendments making up our Bill of Rights were proposed to the states to appease those who grudgingly voted for the Constitution.  Although listed last, the Tenth Amendment reserving powers to the states was considered by most to be the most important.  Since the states were the closest to the people, the early Americans felt secure in the knowledge that a government closest to the people would be the most responsive and less likely to abuse their freedoms.  With the main authority of the states reserved, the people believed all of their other freedoms and rights would be properly protected.

There is also genius in the concept of multiple smaller wheels of democracy churning together within a larger wheel to provide an efficient and effective democracy. The late Supreme Court Justice Louis D. Brandies wrote in 1932: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.”

Justice Brandies shared the vision of our forefathers.  That is that bold new ideas and innovations would be given the opportunity to breathe and either succeed or fail under the grand canopy of the federal government.

Of course, this has all changed.  With states being given less and less power, our behemoth federal government has become more ponderous, remote, and inefficient.  Federal powers through extortion are so far into public education that bureaucrats in Washington are now telling school boards in remote Montana how to educate their children.  The “laboratory” of California has legalized marijuana for medical purposes.  Yet, the Feds have intervened to enforce their own criminal laws for that state.  It is instructional and significant that the Attorney General of the State of Alabama, one of the toughest states in America against marijuana, filed an Amicus Curie with the United States Supreme Court defending California’s right to pass any law it wants to pass concerning marijuana.  Voltaire’s words certainly come to mind: “I may not agree with you, but I defend to my death your right to say it.”  With Alabama’s intervention in this lawsuit, one can almost hear the Rebel yell of “foul and rebellion” in this constitutional skirmish.

How many great and creative programs, which would have aided all mankind, have been smothered and destroyed by the evisceration of the 10th Amendment?

In 2007, a building burned in downtown Frankfort, Kentucky as the result of an arsonist’s torch.  The offender was tried in federal court, not state court, because one of the buildings is on the National Historic Registry.  This stretch of jurisdiction would cause even the staunchest Federalists at the Constitutional Convention to spin in their graves.  At the current rate of the dissipation of a state’s control over its own criminal laws, in fifty years there may not be any state crimes, with the possible exception of parking tickets.

Unfortunately, the cause of the 10th Amendment and states’ rights has been badly tainted and corrupted by white racists.  Most notably were the ones from the Deep South during the Civil Rights movement of the 1960’s.  Those political leaders—mostly governors and senators—barring our black brothers and sisters the elementary right of citizenship under the banner of state’s rights, inflicted nearly a lethal blow to the viability of the 10th Amendment. One glowing exception was Governor Ned Breathitt of Kentucky who ushered through his state legislature the first Civil Rights Act south of the Mason Dixon line.

The Southern cause today also suffers because of a distorted and narrow view of our past.  Yet we who take pride in our Southern heritage still believe in a virtuous idea that government is best when it is most responsive.  And that government is most responsive when it is closest to the people.  However, we, as Southerners, have much baggage which needs to be jettisoned from our held beliefs before we can lend credibility to the cause of states’ rights.

First, we—especially Sons of the Confederate Veterans—need to quit demonizing Abraham Lincoln.  He possessed a vision for this country that blinded the view of our Southern leaders.  If he had lived, the reconciliation between the North and South would have occurred with much less rancor and discord.  Due in great part to Lincoln’s vision, America has become the greatest nation on earth.

Don’t take my word for it.  Recall the reaction of all the Southern leaders upon the death of President Lincoln.  None received the word with elation or relief.  To a man, they were dismayed at the news.

Lee’s biographer, Charles Bracelen Flood, relates Lee’s reaction to Lincoln’s murder— “It’s a crime previously unknown to this country and one that must be deprecated by every American.”  Distinguished historian, Shelby Foote, tells about Jefferson Davis’ reaction to the assassination— “I fear it will be disastrous to our people and I regret it deeply.”  When Union General Tecumseh Sherman broke the news to Confederate General Joseph Johnston at Hillsboro, North Carolina, Johnston was deeply and noticeably distressed.  “Perspiration came out in large drops on his forehead,” Sherman later reported of Johnston upon hearing the news.  Johnston described Lincoln’s death as the “greatest possible calamity to the South.”

And on and on it went among the Southern leaders.

And, incidentally, who was the last President to request the playing of Dixie at the White House?  The Kentucky born Lincoln.

We need to quit minimizing the evils of slavery.  Sure enough, the slaves of the Antebellum South may have generally lived in relative peace and contentment when placed in the perspective of those hard times.  The slave blacksmith at the Draper Plantation in South Carolina most likely lived a life of luxury compared to the yeoman farmer of west Tennessee.  And it may also be true that the horrible tales of the mistreatment of slaves were the exception rather than the rule.  We can rationalize that only economic conditions and climate precluded the North from engaging in the same practice.  But one cold and terrible truth remains uncontroverted.  We sanctioned the tyrannical practice where one person owned another person simply because of the color of their skin.  We should be ashamed and openly admit it instead of creating tomes and writings rationalizing our sins.  Specific tales of brutality and inhumane treatment give way to that one indefensible truth.

Thirdly, we need to admit that secession was a terrible idea.

The venerable Southerner Justice Hugo Black, whose father served as a 16-year- old soldier for the Confederacy, made such an observation: “I have felt for a long time that the war

. . . was a wholly unnecessary one.  A wiser leadership in the South would have been honest with the people and would have let them know that, as brave as they were, there was practically no possibility of their winning a military or political victory.”

Lastly we need to decry and disown loud and clear those persons who have in our past used the noble purpose of the 10th Amendment to hide the sinister motives of racism.

This does not require us to be any less loyal to the cause or to be less respectful of our gallant Confederate dead.  And it surely does not require us to abandon the falling banner of states’ rights.  The South would never have made such a blunder if we had not been suffering from a dearth of strong and capable leadership.  The brilliant, heroic, and peculiar Sam Houston had fled to Texas and had become irrelevant.  Andrew Jackson was dead.  Polk was dead.  Clay was dead.  How could anyone with a sense of history and living under the ineffective Articles of Confederation think that a Confederacy of loosely fitted states could successfully wage war?  Southern giants such as Jackson knew full well the utter foolery of disunion when he threatened to send troops to South Carolina to knock some sense into firebrand John Calhoun.  It worked for a while.

We, as heirs of the lost cause, have much to contribute to our national well being.  The battle is now, not in the dreamy past.  But we must attain relevancy.  We must attain credibility.  This we do through the portals of truth.

We believe in the nobility of the men who fought and died at Shiloh, Antietam and Missionary Ridge.  We believe fervently in the cause of the rank and file of that bloody war– freedom, liberty, and the sanctity and sovereignty of the states.

To become relevant in today’s world, however, we need to quit fighting the war our Confederate ancestors fought 150 years ago.  Instead, we need to fight the war our Confederate ancestors would fight if they were here with us today.

Bill Cunningham is a Justice on the Kentucky State Supreme Court. He is a native west Kentuckian and has authored numerous books on regional history. In April of 2011 he was named the winner of the Robert Penn Warren Writer of the Decade Award for west Kentucky.  He is a member of the Ft. Heiman Camp of the Sons of Confederate Veterans.

Broken Hearted Idealists

June 25, 2012

“Broken-Hearted Idealists”

By:  Justice Bill Cunningham

Kentucky Supreme Court

A couple weeks ago, a friend of mine committed suicide.  He was a little younger than me.  And he was a lawyer.  I’ve had four friends commit suicide in recent years.  All lawyers.

Is there any link between these horrible events and their profession?

Only God knows.  Suicide is the most unfathomable of tragedies.

But I do know this.

According to a major study conducted 20 years ago by the National Institute for Safety and Health, lawyers were twice as likely to commit suicide as the general population.  Members of the legal profession most at risk were males between the ages of 48-65.  All my deceased friends were men.

A survey by John Hopkins University among 10,000 adults showed that, of all occupational groups, attorneys suffered from the highest signs of clinical depression.  Most lawyers tend to focus on the problems of their own clients and let their own mental and emotional needs go unattended. 15-18 percent of their group are alcoholics, as opposed to 10 percent of the general population.

While the research is limited in this area, indications are that lawyers are more likely to divorce than members of other professions.

There are two types of pressure in the practice of law.  First is the pressing need that is found in all professions—the heavy obligation of getting it right.  Whether it’s making the proper diagnosis in medicine or designing a bridge that won’t collapse, the lawyer is likewise faced with the pressure of getting it right every day.  At next Thursday’s closing of a multi-million dollar real estate deal, the lawyer had better make certain all liens have been released and there is no misprint or missing signatures in the paper work.  A misstep could cause the client delays and thousands of dollars.  Or it may be the criminal defense lawyer standing by his client as the jury returns to the courtroom with a verdict.  The client will either go out the front door with mama or out the back door with the sheriff to prison.  That defense lawyer only hopes and prays that, if his client is convicted, it’s because of the evidence and not his mistakes.

I could go on and on with endless examples where the lawyer is expected to perform every day at top speed.  There is an endless line of people with a smorgasbord of problems, constant phone calls to return.  A lot of people call with problems.  Few call with solutions.

And then there is the second most oppressive burden of a lawyer.  I’m speaking of the arena of human tragedy in which each of my suicidal friends worked.

Every lawyer worth their salt comes out of law school as an idealist.  Someone has said that lawyers are “humanists who fight.”  Young lawyers believe.  They think they can make a difference.  They want to make a difference.  To use the lance of the law to pierce injustice and evil.  To summons down the majesty of the law into courtrooms and board rooms so that people will always be treated fairly and justly.  To make the world a better place because of their efforts.

Once out in the day to day practice of law, they learn that justice is not always done.   Innocent people are abused and some go to prison.  People guilty of terrible wrongs go free, laughing at the very system of which they are a part.  Bad things happen to good people.  Bad people are unjustly enriched.

They learn that the system is not perfect, judges are not infallible, and even their own skills are inadequate to take on the vast sea of troubles on which they are afloat in their small boats.  But they keep fighting because there are, in fact, people they help; burdens they lift; lives that are changed and made better. They live from one small victory to another. If my lawyer friends are able to keep things in perspective and endure, they will spend a life time doing much good and leave behind a better world.  There will be countless people who will have been blessed by these barristers of American democracy.

Lawyers—most of them—are heroic.  You go home at night with your problems.  They go home with the problems of many.  And then they deal with their own personal problems— sick children, an alcoholic spouse, or a parent who is deep in Alzheimer’s—layered over by the demands of clients and judges and other lawyers.

But worst of all for practicing lawyers is the sinking feeling which settles upon them that in all the struggles, in the thick of battle, it all amounts to nothing.  The growing suspicion that all that they do makes no difference.  That all the worry, all the late hours and missed holidays from family and friends, and all the endless hours of worry, do not matter.  They become a weak-kneed boxer in the round 15. They keep flailing away.   But they lose their purpose.  They lose hope.

 . And unfortunately, in some instances, they have reason to despair.  In my 35 years in the justice system—years and years of sending people to prison for trafficking in illegal drugs—the scourge of illegal drugs is as bad today as when I started.  Maybe worse.  Drug abuse infests families of all social and economic class and spreads its malignant cancer into all crevices of our society.  No one, no family, is immune. But, we keep flailing away with no hope in sight.

The ballast in the hold for all successful and well-balanced lawyers was articulated by the famous Confederate General Stonewall Jackson.  “Duty is ours; consequences are God’s.”

The practice of law is not for the emotionally short-winded.  After a while, some lawyers burn out.  They become broken-hearted idealists.  Some become jaded, cynical, even bitter.  In short, they give up.

The great Victor Hugo wrote, “The human heart cannot contain more than a certain quantity of despair. When the sponge is soaked, the ocean could pass over it without its absorbing one drop more.”

This begs the darker question.  What becomes of the sponge?