Section Five: The War Between the States, Including State Secession, President Lincoln’s Response, Four Years of War, the POW Story, and the African American Story.
Chapter 17 — The Nature of the Union and the Right of State Secession.
By Clyde N. Wilson of S. C., Ph.D., S. I. S. H.
In the early 1900s, a famous professor of languages, who had been a Confederate soldier as a young man, wrote that after long contemplation he at last understood what the great WBTS had been about. The war, he said, was fought over grammar. The issue was which was correct: “the United States are” or “the United States is.” While he was not entirely serious he was pointing to an important truth. The nature of the Union, established 70 years before the war by the Constitution, was central. Were Confederates merely “rebels,” as Lincoln contended, who could be made to obey his government by force? Or were they, as Confederates believed, exercising a right of self-government in a manner that had always been understood as legitimate for Americans? It is worth noting that before the WBTS every law, speech, and publication referred to “United States” in the plural, as does the Constitution itself. (I bet you didn’t know that.) Americans had a good deal of fellow feeling from their common experiences and values and they understood that they were one people compared to other countries. So they sometimes called themselves a “nation.” But they usually referred to their government arrangements as “the Union,” a “confederacy,” or a “compact” among the States.
We can perhaps advance our understanding here by using a concept that political philosophers find useful – sovereignty. Groups of humans always have institutions to govern themselves, whether it be a tribe or an empire. Officials – governors, judges, generals – have powers and responsibilities. But where does their power come from? Setting aside that all legitimate authority comes from God, let us consider the earthly aspect. Power must come from the “sovereign,” the final authority. Almost all Americans agree that our sovereign is “the people” – not a king or a dictator, a nobility or a party soviet. But who are the people? How does one measure their will? We have elections by which the majority is said to rule. But that may not be as definitive as it seems. Elections and majorities are useful but temporary things. They can change overnight for flimsy reasons. Abraham Lincoln in the 1860 election was opposed by more than 60% of the voters. Was he exercising the sovereign will of the people when, while ignoring the Supreme Court, he expanded the powers of the Presidency beyond the Constitution to make an unprecedented war of conquest against the people of nearly half of the States?
James Madison, often considered the “Father of the Constitution,” wrote that the Constitution was created by the people of the States and that its meaning can be found only “in the opinions and intentions of the State conventions where it received all … authority which it possesses.” The Constitution was not decreed from above by all wise Founding Fathers as many seem to think today. Nobody had the power to do that among free American States. It was not established by the group at Philadelphia that wrote it – they merely presented a proposal to be considered by the States. It was established by the people of each State for that State, acting for themselves. The Constitution and the Union did not exist otherwise. Nobody could force the people of a State to accept the Constitution. In fact, two States rejected it until certain amendments were passed. Before the Revolution each colony had a separate constitutional existence within the British Empire. During the Revolution the people of each colony declared and defended its independence. Each new State exercised every right of a sovereign nation – before and after the Articles of Confederation that united the 13 for carrying on their war of independence. In concluding the war, Great Britain recognized thirteen “free and independent States.” Lincoln was clearly incorrect when he claimed that the “Union” came before and created the States.
Confederates found their sovereign in the people of the States. The Constitution had been ratified by a special convention elected fresh from the people to exercise their sovereignty in accepting or rejecting the new Constitution. The Southern States seceded in exactly the same way – a sovereign convention of the people to express their will. To repeal their people’s former ratification of the Constitution was to secede.
Historians like to say that State Rights was only a phony “theory” invented by Southerners for the sole purpose of defending their evil institution of slavery. This is simply not true. Two years before he was elected President, Thomas Jefferson wrote the “Kentucky Resolutions.” Here he very plainly stated that the Federal Government was not sovereign. It was merely an instrument that had been created by agreement among the States. In this arrangement the States had specified exactly defined and limited powers that they were delegating to Federal officials to be exercised for the common good of the States. The States, having made the Constitution as a contract among themselves, were the judges of interpretation. When the Federal Government exercised more power than it was allowed, a State could “interpose” its sovereignty to prevent unconstitutional Federal actions. State sovereignty was not a subversive “theory,” it was intrinsic to the Constitution from the beginning. One can discount State rights and agree with Lincoln only by ignoring an overwhelming weight of evidence. And ignoring the Tenth Amendment which Madison said was “the cornerstone of the Constitution.”
The Right of State Secession
The understanding that the Federal Government had limited powers given it by the people of the States, and that the Union was an agreement among the States, was widespread before the WBTS, accepted in the North as well as the South. William Rawle, a Philadelphia judge, wrote a book on American government that clearly stated that States could secede from the Union – a book used as a text in West Point classes for years. The first systematic study of the Constitution, by St. George Tucker, which was long used as a lawyer’s handbook, said the same thing. Several States stated in their ratifications that they had the right to withdraw if the Union did not work out as they hoped. New Englanders seriously raised the possibility of seceding at the time of the Louisiana Purchase and during the War of 1812. In 1794 Senator Rufus King of New York asked Senator John Taylor of Virginia to join with him in a proposal to divide up the Union into Northern and Southern confederacies because “we never had and never would think alike.” The Frenchman Alexis de Tocqueville spent much time in the U.S. in the 1830s and is widely regarded as an insightful foreign observer. In his famous book, Democracy in America, he wrote: “The Union was formed by the voluntary agreement of the States; and these, in uniting together, have not forfeited their nationality . . . If one of the States chose to withdraw its name from the contract, it would be difficult to disprove its right to do so.”
Thousands of other facts might be shown to prove that a State in the last resort might withdraw from the Union. The Constitution requires that new States founded after the original 13 have all the rights of the old States. The U.S. government might own the real estate and admit new States to the Union, or not. But only a sovereign people could create a state by adopting their constitution and ratifying that of the U.S. The extent to which the right of secession was recognized outside the South is demonstrated by the North’s curious flip-flop in early 1861. At first even Republicans and abolitionists accepted secession. Abolitionists pointed to the Declaration’s consent of the governed and the famed Republican editor Horace Greeley said, “Let the erring sisters go in peace.” But within a few weeks it was realized that without the South the North’s economy would nose-dive and both groups became enthusiastic for war. Lincoln had understood this all along.
Not only did the American majority of Jeffersonians understand that State sovereignty was the true interpretation of the Constitution and an indispensable protection against threats to freedom, they were also philosophically opposed to centralization of power. They called such undesirable centralization “consolidation” and considered it far more threatening to the people than secession. History taught, they believed, that centralization of power in a government with no effective limits, especially in a land as large and diverse as America, would inevitably lead to an empire with a tyrant at the center. Were they prophetic?
Nationalism vs. Patriotism
Nationalism won the WBTS and colors our thinking about the past. Today we imagine President Jefferson sitting in the White House glorying at how the Louisiana Purchase had added power to the mighty new nation. But that was not how he saw it at all. He saw that new sovereign States would be formed by the people in the new territory. They might want to secede and form a different Union of their own. That was perfectly OK. It would be just like an older and younger brother separating. They would still be Americans exercising the right of self-government. The Union was not eternal but consent of the governed should be.
Old-fashioned patriots love their people and their land. That is why Confederates rallied enthusiastically to defend against Federal invasion. But they lost their struggle against nationalism. Nationalists connect their patriotism to their government – they love the government’s flag and armed forces and are proud when their government stands up to other governments. Nationalism was a major historic force in the 19th century. It is very relevant that Italy and Germany, previously composed of many different states, were being centralized by force at the very time that Lincoln was doing the same to the American States – North and South.
Nationalism rests on two strong pillars: the belief that a country controlled as one economy is highly desirable, and a mass emotional attachment to that country. Secession was sound Constitutionally, historically, and philosophically, but it could not survive the North’s desire for economic control and attachment to “the grand old flag.”
At his inauguration in 1861, Lincoln refused to acknowledge the reality of secession or to negotiate with the seceded States. He said that seceded States were only temporarily under the control of “a combination” of criminals who refused to obey him. The lawbreakers were too numerous for the U.S. marshals to re-establish his control in those areas, so the army would be used if necessary. Lincoln did not argue as a statesman or a philosopher. He argued as a lawyer putting the best spin on a weak case.
Lincoln’s career success had been as a “jury lawyer,” – one who won cases by emotional appeals rather than legal wisdom. He knew he could arouse the economic interests and the emotional nationalism of Northerners to support war. After all, Northerners for the previous 30 years had been subjected to endless hate propaganda against Southerners. His position was not Constitutionally or historically accurate and it violated the central meaning of the Declaration of Independence – consent of the governed. The acts of secession were not conspiratorial. They had been long debated and openly voted in the light of long-standing Constitutional understandings. They clearly expressed the will of the people of those States. Many in the South doubted the wisdom of secession but nobody doubted the right. The Southern States that were not among the first seven to secede did not want to secede. But when Lincoln violated the nature of the Union by launching war against other Americans, they had no choice.
Americans tend to forget a very simple fact. Counting the Border States (DE, MD, KY, MO), Lincoln invaded 15 States for the purpose of overthrowing their legal, democratically-elected governments and depriving their citizens of self-government. This did not “preserve the Union,” but changed it into something new and different.
Suggestions for Class Discussion
Is it immoral or unpatriotic to think about how Americans might better govern themselves by institutions other than an all-powerful central government? Does democracy require centralized power? We oppose monopolies in business; why not government?
It surprises many people to learn that the Constitution defines treason not as being against the U.S. government but as “levying war against them” – “them” meaning the States. Is that what Lincoln did? Levy war against the states?