Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Anyone who clings to the historically untrue -- and thoroughly immoral -- doctrine that 'violence never solves anything' I would advise to conjure up the ghosts of Napoleon Bonaparte and of the Duke of Wellington and let them debate it. The ghost of Hitler could referee, and the jury might well be the Dodo, the Great Auk, and the Passenger Pigeon. Violence, naked force, has settled more issues in history than has any other factor, and the contrary opinion is wishful thinking at its worst. Breeds that forget this basic truth have always paid for it with their lives and freedoms”     Robert A. Heinlein,    Starship Troopers

January 14, 2007

Did The South Have The Right To Secede ?

by Doug Mataconis

The comments that have been generated by this post at my personal blog on Lee-Jackson Day, as well as a comment thread I’ve been involved with in response to a related post at Republitarian, have led me to an interesting question.

Namely, when the Confederacy seceded from the Union in the wake of the 1860 election, did they have the right to do so ? I am not asking whether they had the right under the Constitution, or dealing at this point with the question of whether a right of secession even existed under the Constitution prior to the Civil War, but instead asks this question:

Looking at the secession of the Confederate States as an act of rebellion akin, in some sense, to the American Revolution (although I do not believe the two to be equal in status in any sense), did the political circumstances at the time justify rebellion ?

In the most important part of the Declaration of Independence, Thomas Jefferson set forth the criteria for when armed rebellion is justified:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security

In other words, taking up armed rebellion is not something that should be done for light or trivial reasons. Nor it is something that should be done when there are other, less violent methods for effecting political change.

So, how does this apply to the situation that existed in 1860 ?

There were, I think it can be said three specific issues that led to the secession crisis and the American Civil War:

1. The Election of 1860

After a bitterly contested four-way race between Lincoln, Stephen Douglas, John Bell, and John Breckinridge. Abraham Lincoln was elected President of the United States. He got almost no support in the Southern United States and won no states south of the Mason-Dixon Line. The Southern vote, in the meantime, was split between Breckinridge and Bell, with Douglas winning only Missouri. Ironically, those three candidates won a higher percentage of the popular vote (60%) even though Lincoln won the Electoral College.

It was immediately after the election results were certified, and even before Lincoln took the oath of office, that South Carolina seceded. In fact, the entire Deep South had seceded by February 1861.

So, the question is, does the loss of your preferred candidate in a contested Presidential campaign justify rebellion ? Absent some other contributing factor, the answer clearly is no — when the Constitution was formed, the people agreed that they would accept the results of the elections that took place under it. If South Carolina had a right to secede in 1861 because Lincoln won, does that mean that Massachusetts had a right to secede in 2004 when John Kerry lost ?

The logical answer is, I think, no.

2. Slavery

Lincoln never said during the election that he was going to do anything to the institution of slavery in the South. Since the Missouri Compromise, the only debates concerning slavery concerned the expansion of slavery into the western territories, and the return of fugitive slaves. Therefore, the supposed Southern fear that Lincoln posed a threat to their “peculiar institution” were nothing but fantasy.
As for expansion of slaver since that the institution of slavery is per se illegitmate and immoral, I think the Federal Government had every right to restrict its expansion into territory that was under its control. Yes, I am aware of the fact that slavery was if not protected at least recognized under the Constitution. That is an historical travesty, but it doesn’t mean that the nation had to stand by and do nothing while the territories to the West were turned into slave camps

Finally, if a slave was lucky enough to escape the hell he or she lived in, then they should’ve been allowed to stay free. Dred Scott was a horrid decision, legally and morally.

3. States’ Rights

This was the final argument used by the seceding states, and the one most often cited by supporters today. As I said above, I do not intend today to address the issue of whether the states retained some degree of sovereignty under the Constitution.

Let’s assume for the sake of argument that they did. The question is whether there was a sufficient threat to that sovereignty in the wake of the 1860 election to justify rebellion.

For the reasons addressed above, the answer is no. Lincoln had said nothing, and certainly in the months prior to his Inauguration, had done nothing, to indicate that such a threat existed. Moreover, if the South had stayed in the Union and sent its Congressmen and Senators to Washington in 1861, they would have represented a voting bloc large enough that they would have been able to block any legislation they didn’t like, especially in the Senate.

They choose instead to rebel against their nation. For that, while history may not condemn them, it’s clear to me that they should not be honored.

Cross-Posted at Below The Beltway

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49 Comments

  1. [...] Cross-Posted at The Liberty Papers Bookmark to:   [link] [...]

    Pingback by Below The Beltway » Blog Archive » Did The South Have The Right To Secede ? — January 14, 2007 @ 7:24 am
  2. Generally speaking, since the Constitution has very specific provisions for admitting new states, but no provision for secession, it therefore does not sanction secession. This is an uncontroversial doctrine of statutory interpretation known as “Expressio Unius Est Exclusio Alterius.”

    In the specific context of the Civil War, the Southern states had engaged in a serious constitutional violation, namely Article IV’s guarantee of a republican form of government, by disenfranchising slaves. Therefore, the actions of those state legislatures that endorsed secession were, by definition, null and void.

    Comment by KipEsquire — January 14, 2007 @ 7:45 am
  3. Kip,

    I agree with you, but I wanted to address the comments of some of my fellow citizens of the Old Dominion who were equating the Confederacy with the American Revolution.

    Comment by Doug Mataconis — January 14, 2007 @ 7:47 am
  4. Here’s the thing – Article IV’s guarantee of a republican form of government is only enforced by the majority opinion in Texas v. White in that the majority thought both the Articles of Confederation and the U.S. Constitution were both “perpetual” forms of government…meaning the union was both permanent and forever. This meant states could never leave the union and it was the responsibility of the union to restore governments of states in rebellion. Meanwhile, the argument on the other side is that, as political entities, the *states* ratified the constitution. They should be able to reject the constitution in the same way they ratified it. In the majority opinion, the civil war was considered more of a domestic insurrection and was not a “revolution” – something the majority said was needed to leave the union.

    I fully disagree with the majority decision that succession was unconstitutional (I subscribe to the state-charter view of the constitution).

    Comment by Adam — January 14, 2007 @ 8:06 am
  5. A Right to Secede?

    Yes and No.

    The lack of clarity in re secession allows enough gray area for lawyers and constitutionalists to make persuasive arguments for either position.

    The right to secede flows from the original process of ratifying the Constitution. That is, if South Carolina voluntarily entered the Union through the process of a ratification convention, they ought to have the right to voluntarily exit the Union through a de-ratification convention.

    Lincoln’s answer: South Carolina had entered into a perpetual union contract. Once in–they could never leave. How many perpetual union contracts have you entered into in your life? They are pretty rare. The Mafia comes to mind: “you walk in; you are carried out.” We generally do not view those sorts of arrangements as humane.

    The Election of 1860, and the emergence of an entirely regional party (the GOP), signalled the end of the South as an equal player in the national government. At least, that was the argument.

    True, Lincoln and the Republicans promised not to disturb slavery where it existed, which should have been enough–for we all know that politicians don’t lie or change their minds or shift their rhetoric later when it suits their needs.

    In the end, I agree that the secession was about slavery. From the Northern point of view, the war not about slavery until much later. But the South attempted to bolt the Union in order to protect slavery. From our perspective, there is no defending that motivation.

    Comment by A Waco Farmer — January 14, 2007 @ 8:20 am
  6. Hold on a minute there:

    You left out the Morrill Tariff!

    It’s like commenting on a divorce while passing over the husbands predilection for smacking his wife around.

    Personally, I think the right to end a relationship is a basic human right: the right of freedom of association.

    Like all rights, it can be exercised for the most frivolous of reasons (I want out of the partnership because you wear loud ties to our meetings) or for the most profound (you want to tax me whenever I do business with your friends’ competitors, and then give the money to these same friends?).

    I were to compel someone by force to stay in partnership with me, I would be committing a profoundly immoral act. The Union’s conquest, and laying west of the Confederacy was an immoral war.

    Incidentally, I am not a fan of the confederates either. Slavery is immoral, and the confederates (the ones in the government anyway) went to great lengths to defend and uphold it. Given Abraham Lincoln’s proposed constitutional ammendment that prohibited Federal Government from interfering with slavery, the war was, for the first few years, a war between two governments that permitted slavery.

    Comment by tarran — January 14, 2007 @ 8:22 am
  7. tarran,

    But then you get back to the question of whether losing a political argument when the ability to change the law still exists justifies rebellion.

    I don’t think it does.

    And, more importantly, how do you deal with the issue that KipEsquire raises in the first comment to this post ?

    Comment by Doug Mataconis — January 14, 2007 @ 8:35 am
  8. I am actually confused as to what Kip is arguing:

    Is he arguing that the legislatures lacked legitimacy because they permitted slavery? If that is the case, it would seem that all legislatures in the Union were illegitimate because they disenfranchised non only black men, but women as well. How could the senate which at the time was appointed by these “illegitimate” legislatures have any legitimacy?

    Now, mind you, I tend to agree with the above statement: I think all governments are illegitimate per se simply because they bind people to obey laws that infringe upon their rights. I am not talking about serial killers being bound to obey laws against murder which they disagree with, but, for example, the juror forced to obey a summons, the importer forced to pay a tariff, or the manufacturer forced to respect another’s patent of monopoly.

    But one can hardly argue a union the explicitly permits slavery, whose senate even ratifies an amendment defending it (the failed amendment Abraham Lincoln supported in his inaugural address) has legitimacy when those who wish to leave it are rendered illegitimate because they permit slavery.

    As to rebellion, rebellion is always justified, even when there is still a chance to change the law.

    A thought experiment. Let us say that you live in a state that prohibits sodomy. You are a member of e religious sect which considers sodomy a holy act (if all participants voluntarily engage in the act).

    Let us further assume that the penalty for sodomy was 30 years in jail and the confiscation of 50% of one’s assets.

    Would members of the sect be justified in resisting attempts of law enforcement to arrest and punish sect members? Would they be justified in defending themselves with deadly force?

    After all, they still have the ability to change this obviously unjust law.

    To me the answer is an unequivocal yes. Now such a rebellion may be unwise, but they would be solely within their rights defending themselves against the aggression of law enforcement.

    Comment by tarran — January 14, 2007 @ 10:24 am
  9. Namely, when the Confederacy seceded from the Union in the wake of the 1860 election, did they have the right to do so ?

    This might seem a minor point, but the Confederacy did not secede from the Union. States seceded then formed the Confederacy.
    When did the central government get a constitutional power to keep a state within the Union? It is not a delegated power in the Constitution. Was this power added by some governmental act, amendment, legislation, court ruling? At the Constitutional Convention Madison said the central government had no power to use force against a state. The Constitution was ratified based on representations made by the founding fathers. Does anyone think it would have been ratified knowing the central government was being given power to wage war on a state?

    Comment by John Bivens — January 14, 2007 @ 1:51 pm
  10. The right of secession was implicit (as I explained in my post above) and purely theoretical. The opposing argument, the perpetual union, was similarly inferrential. This was a point on which reasonable people disagreed.

    An aside: it is worth noting that the Confederate constitution made no attempt to clarify the point, opting not to add a clause for secession from the Confederacy.

    Something to think about: Madison offered this reading of secession theory: states did not have the authority to secede, but the federal government did not have the authority to hold onto seceding states.

    For those Unionists who followed Madison’s logic on this (like James Buchanan, for example), they were locked in a Constitutional no man’s land in which they must stand and watch the offending states commit an unconstitutional act.

    Lincoln, more the pragmatist, understood that force beat theory. He acted vigorously to block the secession and stifle the Constitution when he needed to in order to save the spirit of the Union of 1787.

    More than a century later, Jerry Ford would say that the Constitutional definition of impeachment was whatever the Congress said it was. Similarly, the constitutionality of secession was determined by who had enough strength to enforce their interpretation.

    Comment by A Waco Farmer — January 14, 2007 @ 3:26 pm
  11. Very interesting since I wrote a piece just today for our site on a similar topic. I’m a Southerner, hold a degree in history with a minor in political science. I certainly believe that the states had the right to leave the Union and to reform under a different form of government. Jefferson himself, as has been pointed out here, stated that the people have a right to leave what they deem an oppressive government in favor of a new one.

    Comment by Hawk — January 14, 2007 @ 5:08 pm
  12. With all due respect, quoting Jefferson on this is absolutely beside the point. The Constitution supercedes the Declaration. They are two completely different documents designed to do two completely different things. In so many cases, the Constitution attempts to moderate the radical rhetoric of the Declaration.

    For the most part, the Bill of Rights gives back some of what the Constitution takes away–but the Bill of Rights says nothing about secession.

    Madison is the authority here–not TJ. There is a reason why we call Madison the “father of the Constitution.”

    Read Madison and TJ on nullification; they are similar, but Madison is dripping with reverence for the federal union–while Jefferson appears as someone less invested in the compact.

    Of course, no need to point out to you all that Jefferson was not in Philly during the summer of 1787. The document was never his baby.

    Comment by A Waco Farmer — January 14, 2007 @ 5:35 pm
  13. Let’s lay this out from the perspective of the people who framed the Constitution, and ratified it.

    First, we have Jefferson stating multiple times, including in the Declaration of Independence, that people have an inherent right to rebel against government. Bear in mind that the Declaration is a precursor document and establishes the theory that led, ultimately, to the Constitution. He does lay out conditions for such rebellion, but those are not the essence of the question. The essence of it is that people retain the right of association and self-defense, ergo the right to rebel.

    Next, Madison, and the other framers, say multiple times that the several States are sovereign, including in the foundational Constitutional document, The Federalist Papers. If a State is Sovereign it has the right to choose what other States it will associate with. Could Germany be forced to remain a member of NATO if it chose to withdraw? Could Albania be forced to remain a member of the UN if it chose to “secede”? If the States are sovereign, they have the right to end their association with the other United States.

    Finally, the Anti-Federalists were very concerned about a tyranny of the Federal government. They demanded the Bill of Rights, among other things. Read Patrick Henry’s writings and speeches for more information. They were assured by the Federalists that the Union was voluntary.

    As someone else noted, we have also the precursor that none of the States would have ratified the Constitution if they believed the Union was permanent and irrevocable.

    That said, the people of the several States clearly have a right to take their State out of the Union, based on this line of reasoning. It is only the use of force that has convinced us otherwise. Further, since the Union could not originally compel the States to join the Union, nor do those the Congress or President have a power granted them to use force against the States in the event of rebellion or secession.

    The question then, is whether the several States that formed the Confederacy were justified in seceding from the Union. However, that is an entirely different question, one of morality rather than whether they are justified in secession.

    Comment by Adam Selene — January 14, 2007 @ 5:55 pm
  14. George Washington on Union (1796):

    “The unity of government which constitutes you one people is also now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.

    “For this you have every inducement of sympathy and interest. Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together; the independence and liberty you possess are the work of joint counsels, and joint efforts of common dangers, sufferings, and successes.

    “But these considerations, however powerfully they address themselves to your sensibility, are greatly outweighed by those which apply more immediately to your interest. Here every portion of our country finds the most commanding motives for carefully guarding and preserving the union of the whole.”

    Comment by A Waco Farmer — January 14, 2007 @ 6:24 pm
  15. One irrefutable truth emerges from this discussion. A strong case can be made (and was then) for secession as a lawful act in keeping with American tradition up until that point.

    Having said that, any fool could see that secession was lethal to the American experiment and could not be countenanced. Why else would Northerners fight the bloodiest war in American history to retain the troublesome South?

    Comment by A Waco Farmer — January 14, 2007 @ 6:35 pm
  16. However, in the Federalist Papers Madison implies (though never stating outright) that there is no right to seccession. He talks about the manner in which the Federal Government “compels” states to act, and decries the inability of the continental Congress to force other states to meet obligations made by the Congress.

    We must bear in mind two points:
    1) The Federalists were a faction who effectively hijacked what was supposed to be a meeting to revise the articles of confederation resorting to such trickery as trying to prevent opponents from attending (including bundling Thos Jefferson off to France as Ambassador)

    2) Madison makes it clear that the new form of government would force the states to comply with the central monetary policy and taxation system of the new government.

    The days when the continental congress could not levy taxes were to be over.

    The purpose of the Constitution was to allow the central government to compell states in a way that it previously couldn’t to levy taxes, to support the central bank (when there was one) etc.

    I’m sure that Hamilton and his gang would have backed Lincoln to the hilt. They wanted a New York style marriage (once in, one could never get out).

    The new Federal Government started off immediately by putting down various rebellions by force or threat of force.

    There was the Whiskey Rebellion where George Washington led the U.S. army into battle against Pennsylvania farmers. George Wash. also threatened armed action against towns in what is now New Hampshire who were tryign to secede from N.H. and join Vermont.

    Personally, I am no fan of the U.S. Constitution. I find it a profoundly illiberal document.

    Comment by tarran — January 14, 2007 @ 6:39 pm
  17. Waco farmer,

    There were many reasons that people chose to fight in that war. Some truly believed in the Union cause or the Confederate cause. Some fought because they were defending their homes. Some fought because it was a way to get paid (the Union army had a large number of immigrants who had just arrived in the U.S. enlisted within it). Some fought because they were conscripted by their governments and forced to under threats of death.

    There is no doubt in my mind why the Lincoln govenrment pushed for war:

    I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part, and I shall perform it so far as practicable unless my rightful masters, the American people, shall withhold the requisite means or in some authoritative manner direct the contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend and maintain itself.
    17

    In doing this there needs to be no bloodshed or violence, and there shall be none unless it be forced upon the national authority. The power confided to me will be used to hold, occupy, and possess the property and places belonging to the Government and to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion, no using of force against or among the people anywhere. Where hostility to the United States in any interior locality shall be so great and universal as to prevent competent resident citizens from holding the Federal offices, there will be no attempt to force obnoxious strangers among the people for that object. While the strict legal right may exist in the Government to enforce the exercise of these offices, the attempt to do so would be so irritating and so nearly impracticable withal that I deem it better to forego for the time the uses of such offices.

    The Southerners refused to pay taxes, and even worse contemplated a free trade agreement with England, and they were invaded, the land laid waste, a significant portion of the population killed.

    Nor was the great national experiment saved. I think Lord Acton said it perfectly in a letter to General Lee after the end of major combat operations:

    “Without presuming to decide the purely legal question, on which it seems evident to me from Madison’s and Hamilton’s papers that the Fathers of the Constitution were not agreed, I saw in State Rights the only availing check upon the absolutism of the sovereign will, and secession filled me with hope, not as the destruction but as the redemption of Democracy. The institutions of your Republic have not exercised on the old world the salutary and liberating influence which ought to have belonged to them, by reason of those defects and abuses of principle which the Confederate Constitution was expressly and wisely calculated to remedy. I believed that the example of that great Reform would have blessed all the races of mankind by establishing true freedom purged of the native dangers and disorders of Republics. Therefore I deemed that you were fighting the battles of our liberty, our progress, and our civilization; and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo.

    Comment by tarran — January 14, 2007 @ 6:50 pm
  18. Great points, tarran. You are right on target in your overall characterization of Hamilton and the Federalists.

    However, I would contest a couple of points: the Constitutional Convention was not hijacked–it was nationalist from the earliest moments. Remember, it was called by Hamilton. Patrick Henry said he “smelt a rat” and refused to go.

    Also, I cannot go along with the conspiracy theory that removes Jefferson on a useless errand to France. What about John Adams who is in England? He certainly would have supported the new direction.

    Having said that, the purpose of the Constitution and the coterie of nationalists who crafted it and advocated for it (foremost among them, George Washington and Ben Franklin) was to create a government that might protect American liberty in a hostile world.

    Madison believed that power was the enemy of liberty–but he was also convinced that too much liberty was also the enemy of liberty.

    In the end, I think those guys had it right. In the words of the great orator of the next generation, Daniel Webster, “Liberty and Union, now and forever, one and inseparable!”

    Comment by A Waco Farmer — January 14, 2007 @ 7:08 pm
  19. There are I think two separate issues being debated here, and they really shouldn’t be confused.

    The first is whether, under the Constitution, any state had the right to secede under any circumstances. My personal opinion is no, and I hope to address that issue in a post in the near future.

    The second question, and the one that I was addressing, is whether, under the circumstances of 1860, the southern states had the right to rebel regardless of what the terms of the Constitution were.

    I have yet to see anyone provide a convincing argument to the question of why the election of Abraham Lincoln, by itself, was sufficient justification for taking up arms against the United States in rebellion.

    Comment by Doug Mataconis — January 15, 2007 @ 5:21 am
  20. Adam,

    The question then, is whether the several States that formed the Confederacy were justified in seceding from the Union. However, that is an entirely different question, one of morality rather than whether they are justified in secession.

    That is what I was addressing. It’s interesting that the comments have gone off in an entirely different direction.

    Comment by Doug Mataconis — January 15, 2007 @ 5:22 am
  21. Actually, Doug. I addressed your point early on:

    The Election of 1860, and the emergence of an entirely regional party (the GOP), signalled the end of the South as an equal player in the national government. At least, that was the argument.

    True, Lincoln and the Republicans promised not to disturb slavery where it existed, which should have been enough–-for we all know that politicians don’t lie or change their minds or shift their rhetoric later when it suits their needs.

    One can argue about how real the perceived threat actually was (see Channing’s Crisis of Fear for an argument that the threat was inflated). But any realistic examination of the demographic trends leading up to that watershed election illustrates that the power of the South was diminishing.

    If you can come up with a reason to secede at all, it seems to me a drastically diminished real representation is a good reason.

    Comment by A Waco Farmer — January 15, 2007 @ 6:58 am
  22. The fact that the South was losing the demographic war with the North and West was not, in and of itself, sufficient moral justification for rebellion.

    As I stated in the post, the South still would have had virtual veto power over national policy in the Senate in 1861 — and that would have continued for some time to come.

    They could have stayed in the Union and changed gradually. You do think it was necessary for the South to change I hope ?

    Comment by Doug Mataconis — January 15, 2007 @ 7:00 am
  23. Doug: Another word for losing the demographic war is loss of effective representation. The South, like the American colonies, feared that changes in the central government portended a loss of self determination.

    One can argue endlessly the what-ifs of whether their view can be justified.

    As for the necessity of change, I spoke to that also in my original post:

    In the end, I agree that the secession was about slavery. From the Northern point of view, the war not about slavery until much later. But the South attempted to bolt the Union in order to protect slavery. From our perspective, there is no defending that motivation.

    I have argued consitently on this post that putting down the rebellion was a positive development and essential to American evolution.

    Comment by A Waco Farmer — January 15, 2007 @ 7:26 am
  24. Another word for losing the demographic war is loss of effective representation. The South, like the American colonies, feared that changes in the central government portended a loss of self determination.

    One can argue endlessly the what-ifs of whether their view can be justified.

    This is a point i hope to address in another post, but that will have to wait for later today or later this week depending on how busy I am.

    Basically, though, I think that a point can be made that, in agreeing to the Constitution, the people of the United States agreed to a few basic principles. One of those was the idea that control of the government would be decided in a certain way and that each side would accept that decision.

    Accepting the argument that losing majority status or at least effective control, which the South had enjoyed since the Founders’ generation, means accepting the argument that the Constitution is only a temporary agreement that can be ended based on the results of a particular election. That’s certainly not what the Founders intended, nor is it conducive to the existence of a civil society.

    On the whole, i think you will agree that America is better off having survived as a unified country rather than splintering into one, or more nations, each with competing interests.

    Comment by Doug Mataconis — January 15, 2007 @ 7:35 am
  25. Strange post, Doug. You ask if the States have a right to seceed and then ignore the legal aspect because it does not support your position? “Should the states have…”, or “Was it moral for the States… “would be much more accurate.

    You totally discount the States rights arguments because the current (in 1860) balance in the House and Senate would have protected the South? The South knew this was going to last forever, because no new, non-slave States would be formed in the future in the West? And obviously to date the North had never used it’s power against the South? At the time of Secession what percentage of the Federal revenue came from the South? Had any recent taxes been levied upon the South? No taxes being collected on cotton?

    Your claim that the States seceeded because of the “election of Lincoln, by itself” is breathtakingly narrow. 1860 did not occur in a vaccum. Perhaps you have a quote or two to support this strange claim? Some evidence other than the coincidence of timing? That is “proof” enough for you? No one has provided a convincing argument against this point because you have not produced a convincing argument that this did indeed occur.

    Framing the debate in emotional terms “slavery is bad” as opposed to legal terms “who cares what the Constitution says” is something that they do on “Oprah”.

    You are also framing the debate based on todays morality rather than that of 1860. You declare slavery immoral and hence all actions of the Confederacy immoral. Why do you not apply this same calculus to 1776? Never heard of the 3/5ths compromise? By your logic how could anyone not have the “right” to leave an immoral union?

    What is the purpose of this discussion, Doug? You will find very, very few Americans who disagree with the idea that human slavery is immoral. Does moral preening advance the cause of human Liberty? Wouldn’t it be more beneficial to to glorify the traditions of Liberty and Freedom and Honor in the real, imperfect, world of 1860?

    Place the Founders in the same moral category as the Confederates. Both allowed a travesty that had been in exsistance since the beginning of time. Judge their decisions regarding slavery as horribly wrong, do not condemn them as lacking honor.

    Comment by Marshall — January 15, 2007 @ 7:37 am
  26. Marshall,

    Please go back and read the question I posed at the beginning of the post:

    [W]hen the Confederacy seceded from the Union in the wake of the 1860 election, did they have the right to do so ? I am not asking whether they had the right under the Constitution, or dealing at this point with the question of whether a right of secession even existed under the Constitution prior to the Civil War, but instead asks this question:

    Looking at the secession of the Confederate States as an act of rebellion akin, in some sense, to the American Revolution (although I do not believe the two to be equal in status in any sense), did the political circumstances at the time justify rebellion ?

    They are two different issues. Even if there is a legal right to secede, or was as of 1860 anyway, there is still the question that Jefferson and the other Founders dealt with in 1776 —- under what circumstances is rebellion morally justified ?

    That is the question I was asking. I wasn’t talking, directly at least, about slavery — although I think it is in some sense impossible to discuss the Confederate States of America without discussing the fact that they enslaved millions of people — I was quite honestly trying to understand why anyone thinks that the Southern Rebellion is on the same moral plain as the American Revolution.

    Comment by Doug Mataconis — January 15, 2007 @ 7:42 am
  27. Marshall,

    Your claim that the States seceeded because of the “election of Lincoln, by itself” is breathtakingly narrow. 1860 did not occur in a vaccum. Perhaps you have a quote or two to support this strange claim? Some evidence other than the coincidence of timing? That is “proof” enough for you? No one has provided a convincing argument against this point because you have not produced a convincing argument that this did indeed occur.

    Let’s see, Lincoln was elected in November 1860. South Carolina seceded in 1861, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas all soon followed and all had purported to seceded by February 1, 1861, more than a month before Lincoln even became President.

    The secessionists during this time made it clear that they would not accept the results of the election

    What other evidence do you need ?

    Comment by Doug Mataconis — January 15, 2007 @ 7:46 am
  28. Purhaps you have some quote to support the idea that “Accepting the argument that losing majority status or at least effective control, which the South had enjoyed since the Founders’ generation, means accepting the argument that the Constitution is only a temporary agreement that can be ended based on the results of a particular election.” or some other basis for this claim? There are literally dozens of papers and speeches and articles written by contemporaries from both sides and you don’t mention ANY of their arguments. They just didn’t like the election results?!

    Your framing these disagreements as being something like Florida 2000 is YOUR strange perspective. You might support it better before attempting to argue it as having been an actual position that was held.

    Comment by Marshall — January 15, 2007 @ 7:46 am
  29. Marshall,

    Let me answer your question with a hypothetical….

    If Stephen Douglas had won the election of 1860, do you honestly think the South would have seceded ?

    Any understanding of what was going on in the United States at that time compels one to answer no, I think, but I’d be interested in hearing your argument.

    Comment by Doug Mataconis — January 15, 2007 @ 7:59 am
  30. Doug: One other problematic foundation in your question–is an a priori assumption that the American Revolution was justified.

    Were things all that bad for the British-American colonies? Can’t you make the same argument that the Radicals should have done more to work within the British system and constitution, which most of the colonists idolized?

    Also, you realize that the American Revolution accepted the same institution of “inhuman bondage” for which you castigate the Confederacy.

    The secession of the South was not altogether dissimilar to the American Revolution. The greatest difference is that the Patriots won the war on the ground and, perhaps more importantly, bested the British in the propaganda contest to determine which side was morally correct.

    Comment by A Waco Farmer — January 15, 2007 @ 7:59 am
  31. Were things all that bad for the British-American colonies? Can’t you make the same argument that the Radicals should have done more to work within the British system and constitution, which most of the colonists idolized?

    There are several fundamental differences between the political situation in the Colonies before the Revolution, and the political situation in the United States before the Civil War.

    First of all, the Colonies had absolutely no elected representation in London and were ruled by Governors appointed by the King. Yes, there were Colonial Legislatures, but there powers were limited and, as the crisis grew nearer, the power of those assemblies became severely limited.

    Without political representation and the opportunity to effect change, the Colonists had little choice but to either accept their fate, or rebel. This was not the situation in the South in the mid-19th Century.

    Second, as the revolution got closer, the British Crown cracked down on the political speech that was against the Crown. Without the ability to speak out and influence others, again, the Colonists had little choice left. Again, this situation did not exist in the South before secession.

    Finally, I would advise you to read that portion of the Declaration of Independence that lists the Colonists grievances against the King. Nothing that existed in 1860 even came close.

    I will admit the Founders weren’t perfect, but that doesn’t mean that the secessionists were.

    Comment by Doug Mataconis — January 15, 2007 @ 8:05 am
  32. I will admit the Founders weren’t perfect, but that doesn’t mean that the secessionists were.

    Doug: you make precisely my point. The secession was flawed–just as the Revolution was flawed.

    As for representation in Parliament: Parliament was anxious to give the colonists representation in London. The colonists did not want that, as they realized representation in Parliament would have been meaningless. They wanted home rule. Just as the Southerners desired.

    As for the list of grievances, you must realize that the Rebels were “spinning.” Sure, the Brits had done some foolish things (even some heinous things), but, within the context of that time, the British-American colonists had a better situation than almost anybody else on the planet.

    Again, you seem to take the Declaration at face value and apply a much more critical standard to the rhetoric of secession.

    Comment by A Waco Farmer — January 15, 2007 @ 8:13 am
  33. To get an idea why they really seceeded, here is an excerpt from Texas Declaration of Secession.
    There are other reasons given, but not as specific as this. Compare this to the Declaration of Independence.

    http://www.civil-war.net/pages/texas_declaration.asp

    ” When we advert to the course of individual non-slaveholding States, and that a majority of their citizens, our grievances assume far greater magnitude.

    The States of Maine, Vermont, New Hampshire, Connecticut, Rhode Island, Massachusetts, New York, Pennsylvania, Ohio, Wisconsin, Michigan and Iowa, by solemn legislative enactments, have deliberately, directly or indirectly violated the 3rd clause of the 2nd section of the 4th article [the fugitive slave clause] of the federal constitution, and laws passed in pursuance thereof; thereby annulling a material provision of the compact, designed by its framers to perpetuate the amity between the members of the confederacy and to secure the rights of the slave-holding States in their domestic institutions – a provision founded in justice and wisdom, and without the enforcement of which the compact fails to accomplish the object of its creation. Some of those States have imposed high fines and degrading penalties upon any of their citizens or officers who may carry out in good faith that provision of the compact, or the federal laws enacted in accordance therewith.

    In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon an unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color – a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

    For years past this abolition organization has been actively sowing the seeds of discord through the Union, and has rendered the federal congress the arena for spreading firebrands and hatred between the slave-holding and non-slaveholding States.

    By consolidating their strength, they have placed the slave-holding States in a hopeless minority in the federal congress, and rendered representation of no avail in protecting Southern rights against their exactions and encroachments.

    They have proclaimed, and at the ballot box sustained, the revolutionary doctrine that there is a “higher law” than the constitution and laws of our Federal Union, and virtually that they will disregard their oaths and trample upon our rights.

    They have for years past encouraged and sustained lawless organizations to steal our slaves and prevent their recapture, and have repeatedly murdered Southern citizens while lawfully seeking their rendition.

    They have invaded Southern soil and murdered unoffending citizens, and through the press their leading men and a fanatical pulpit have bestowed praise upon the actors and assassins in these crimes, while the governors of several of their States have refused to deliver parties implicated and indicted for participation in such offenses, upon the legal demands of the States aggrieved.

    They have, through the mails and hired emissaries, sent seditious pamphlets and papers among us to stir up servile insurrection and bring blood and carnage to our firesides.

    They have sent hired emissaries among us to burn our towns and distribute arms and poison to our slaves for the same purpose.

    They have impoverished the slave-holding States by unequal and partial legislation, thereby enriching themselves by draining our substance.

    They have refused to vote appropriations for protecting Texas against ruthless savages, for the sole reason that she is a slave-holding State.

    And, finally, by the combined sectional vote of the seventeen non-slaveholding States, they have elected as president and vice-president of the whole confederacy two men whose chief claims to such high positions are their approval of these long continued wrongs, and their pledges to continue them to the final consummation of these schemes for the ruin of the slave-holding States.”

    Comment by VRB — January 15, 2007 @ 8:52 am
  34. VRB,

    Yes, how dare people actually oppose slavery and support the people trying to flee it.

    Comment by Doug Mataconis — January 15, 2007 @ 2:16 pm
  35. Doug,

    Are you saying that slavery was not a big deal? Your thesis is that revolutions should not be entered into for “light and transient causes.” Agreed. You seem to forget that slavery was the biggest issue of the day.

    We all agree (on the 78th anniversary of the birth of MLK) that slavery was an egregiously immoral institution; it has rightly been dubbed our original sin. From our presentist perspective, we hold slaveholders in complete contempt.

    However, it is not rational to look back into the 1850s and call slavery a trivial concern.

    Comment by A Waco Farmer — January 15, 2007 @ 2:39 pm
  36. “If there be any among us who would wish to dissolve this union . . . let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”
    Jefferson

    “If any state in the Union will declare that it prefers separation . . . to a continuance in union . . . I have no hesitation in saying, let us separate.”
    Jefferson

    “any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. . . . Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people, that can, may revolutionize, and make their own of so much of the territory as they inhabit.”
    Lincoln

    Comment by Brock Townsend — January 15, 2007 @ 2:43 pm
  37. Slavery was without a doubt a big deal. It was also the greatest human rights violation Americans have committed against another people in their history.

    I was being sarcastic in my reaction to those poor Texas slaveholders who saw their “peculiar institution” threatened.

    Frankly, if they were losing slaves because the North was refusing to enforce the Fugitive Slave Act, too darn bad. They didn’t have the right to hold human beings as property to begin with. And if they were seceding from the Union to protect that so-called right, that just makes the secession even less legitimate.

    Comment by Doug Mataconis — January 15, 2007 @ 2:43 pm
  38. Doug:

    In essence, your argument boils down to secession was in defense of the morally indefensible; therefore, it was an immoral and shameful rebellion.

    Okay. I finally get it.

    Of course, you are imposing present standards on the past, which always makes historians wince, but that is another issue.

    Comment by A Waco Farmer — January 15, 2007 @ 3:03 pm
  39. In essence, your argument boils down to secession was in defense of the morally indefensible; therefore, it was an immoral and shameful rebellion.

    In essence, my argument is that the South did not have a morally legitamite justification for rebellion. Slavery is only part of the reason that is the case. Read the post again, and my comments.

    And also, read KipEsquire’s point in the very first comment to this post.

    Of course, you are imposing present standards on the past, which always makes historians wince, but that is another issue.

    Quite honestly, only a belief in subjective standards of morality could assert that there was ever a time in history when human enslavement was morally acceptable. I believe otherwise.

    Comment by Doug Mataconis — January 15, 2007 @ 3:17 pm
  40. “Frankly, if they were losing slaves because the North was refusing to enforce the Fugitive Slave Act, too darn bad”

    You seem to ignore the slaves in the North who stayed such until December of 1865, eight month’s after Lee’s surrender.

    Comment by Brock Townsend — January 15, 2007 @ 3:35 pm
  41. Doug:

    With all due respect, I have addressed your other two points:

    1. The Election of 1860 was much bigger than you seem to understand. The relatively new party ran the table in the North. They won 18 out of 18 free states. The South was relegated to minority status, which, for several decades, a vast majority of Southerners had all agreed would be the end of “liberty” as they knew it. The new regional party, unlike the national parties that had come before, was so far removed from Southern sensibilities that it was not even on the ballot in most Southern states in 1860.

    Comparing the election of Lincoln to the election of Bush in 2004 is extremely unhelpful.

    2. The promise of slavery undisturbed in the South was not accepted. The South asked for assurances, and instead they got Lincoln. The man who saw slavery as a great evil that must eventually be extinguished. “A House Divided Against Itself Cannot Stand.” The Party of “Free Soil, Free Labor, Free Men” was now ascendant, and “Spot Resolution” Lincoln was at the crest of the wave.

    The first secession crisis in the South happened in the midst of the turmoil that resulted in the Compromise of 1850. If the South had bolted then, many believe that the North could not have stopped them. But the Northern states were growing progressively more populous and powerful. They were much stronger than they were a decade earlier. How strong would they be a decade later? Now or never.

    In re the state rights argument: Slavery was the reason for secession. The right the Southern states desired to protect was the right to hold slaves.

    As for Kip Esquire’s comment: it is curious. As someone else pointed out early on, the federal government was up to its eyeballs in slavery. That the feds could suddenly deny rights to the South for withholding republican government to slaves is absolutely bizarre. What about women? What about non property holders in some states? What about Native Americans?

    Finally, you state:

    Quite honestly, only a belief in subjective standards of morality could assert that there was ever a time in history when human enslavement was morally acceptable. I believe otherwise.

    Once again, this is a modern perspective with which there is no disagreement. If you are arguing that the South was wrong because they fought to maintain slavery, you are, of course, right. If you argue that the government of the United States, which condoned slavery for much of the war was immoral, I suppose you are correct as well. But you don’t shed much light on the issue with that kind of blankeet moral statement.

    Comment by A Waco Farmer — January 15, 2007 @ 5:58 pm
  42. The first is whether, under the Constitution, any state had the right to secede under any circumstances

    Doug and All,
    Why is the burden of proof on the state to show the right to secede? Since the states delegated powers to the central government, the burden should be on it to show it has the power to prevent secession, or in other words, hold a state captive.The argument should have been about federal government rights and the lack thereof.

    Comment by John Bivens — January 16, 2007 @ 6:14 am
  43. However, I would contest a couple of points: the Constitutional Convention was not hijacked–it was nationalist from the earliest moments. Remember, it was called by Hamilton. Patrick Henry said he “smelt a rat” and refused to go.

    Waco, the Constitution did not form a national government(consolidated according to Patrick Henry), but a federal one. Hamilton said in the “Federalist Papers” they were not forming a national government. He certainly tried. According to Calhoun, Hamilton’s side lost at the convention. Were the “Federalist Papers”,the great commentary on the Constitution, written by the losers?

    Comment by John Bivens — January 16, 2007 @ 6:37 am
  44. Madison’s federalism was the great compromise–but remember that Madison along with Hamilton and with the support of Washington and Franklin (and Governor Morris et al) formed a coterie of nationalists; that is, those men were convinced that the American experiment could not survive as independent states; they believed a stronger, more centralized government necessary to protect liberty.

    Madison & Hamilton won. Maybe they did not win a complete victory. The Constitution is the product of many minds and many ideas (which is why there are so many contradictions). But Madison and Hamilton won the great victory.

    The Bill of Rights (which neither Ham or Mad wanted much) moved the ball back a bit–but the Constitution provided the foundation for the government Hamilton envisioned.

    Comment by A Waco Farmer — January 16, 2007 @ 8:59 am
  45. In re John B’s excellent point about the burden of proof:

    The Tenth Amendment:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    What about this old question? If the Constitution doesn’t say a state cannot secede–does that give the state the implicit right to secede?

    Comment by A Waco Farmer — January 16, 2007 @ 10:34 am
  46. If you review the real history of the war between the sates and not the PC revisionist history that we have all been force fed, it is obvious the first and foremost reason for secession was states rights. Although it played a key role, Slavery was not the driving force behind this conflict. All of our states LOST their states rights then and we continue to lose what little rights we have today to the federal government.

    Comment by Hal C. Whitley — January 16, 2007 @ 4:28 pm
  47. Again, the great question: What right were the seceding states defending? The right to secede? What right was in danger in the winter of 1860-61? What had changed? What was behind the secession at that moment?

    Ironically, the failed secession was the end of state sovereignty as a viable counterweight to the power of the government. Ironic, that is, because, in effect, state rights theory committed suicide. From the Civil War, the federal government emerged ascendant. No one would ever argue that the states were co-equal seats of authority again. No one would ever entertain the notion that secession was a possibility again.

    Comment by A Waco Farmer — January 16, 2007 @ 7:21 pm
  48. What about this old question? If the Constitution doesn’t say a state cannot secede–does that give the state the implicit right to secede?

    If we put the burden on the central government the question is different. If the Constitution doesn’t say a state can secede does that give the central government the right to prevent it?
    As Madison said at the CC, the use of force would be construed as an act of war, and was unconstitutional. Buchanan in his last State of the Union message, while declaring secession unconstitutional, also declared the use of force against a state unconstitutional.
    Is the Constitution, itself, a secessionist document? For the Constitution to take effect nine states had to agree to secede from the other four. When nine agreed the old “perpetual” union under the Articles of Confederation was no more in respect to them. Perhaps the remaining four could have remained in the old union. As it turned out all joined the new union, but Washington was president before Rhode Island and North Carolina came in. The states were prepared to live in peaceful disunion.

    Comment by John Bivens — January 17, 2007 @ 8:16 am
  49. Hamilton said in Federalist 32, “An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain ALL THE RIGHTS OF SOVEREIGNTY WHICH THEY BEFORE HAD (emphasis mine), and which were not, by that act, exclusively delegated to the United States.”

    Madison said in Federalist 39, ” In relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

    Madison in Federalist 39 said, ” Each state, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.”

    The CC created a federal not a national government. Madison and Hamilton got a more powerful central government but not as powerful as they wanted. They were outvoted and in that sense they lost.

    Comment by John Bivens — January 18, 2007 @ 7:12 am

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