It was an article of faith among advocates of the "Lost Cause" school of Civil War history that Southern secession was a legitimate act and that the North had no right to prevent the South from leaving the Union. The view that the South should have been permitted to depart peacefully resonates today among several disparate groups on the political right: the "neo-Confederates," the heirs of the Lost Cause school, who see the South as the exemplar of everything decent in Western civilization; some Christians, who see the supposed virtues of the ante-bellum South as preferable to the crass materialism of the commercial society they believe was created by the Union victory in the Civil War; and libertarians, who, lament the growth of the federal government and its incursions into the private sphere.
For many such conservatives, Abraham Lincoln, far from being a great statesman who re-founded America on the basis of the original principles of the American Revolution, is a villain. By using force to prevent the peaceful exodus of the Southern states, Lincoln caused a bloody and unnecessary war. While might was on the side of the North, right was on the side of those who wished to secede.
But this is bad history that lends itself to worse constitutional theory. When the Neo-Confederates and their libertarian friends make Lincoln out to be a scoundrel who plunged America into an avoidable war, they ignore the fact that his views on Union and the nature of republican government differed not at all from those of such luminaries as Washington, Jefferson, Madison, Andrew Jackson, and Daniel Webster. They also ignore the practical reasons why the president of the United States could not permit the Union to be torn asunder. Far from avoiding war, the breakup of the Union would have meant perpetual conflict on the North American continent.
The most comprehensive articulation of the view that Southern secession was a legitimate constitutional act is found in A Constitutional View of the Late War Between the States, written by Alexander Stephens, vice president of the Confederacy, published shortly after the war. A Constitutional View purports to be a comprehensive treatment of American constitutional history. But its comprehensiveness is illusory. It soon dissolves into a hash of selective evidence and sleight of hand whereby the natural right to revolution embodied in the Declaration of Independence is transformed into a constitutional right to destroy the Constitution. A Constitutional View is, alas, another refrain in a song composed and performed by John C. Calhoun and the South Carolina nullifiers.
Echoing Calhoun, Stephens' defense of the right of secession is based on two major premises. The first is that the United States was a federal Union of States that individually retained undivided sovereignty. "….[T]he absolute Sovereignty of these original States, respectively," wrote Stephens, "was never parted with by them in that or any other Compact of Union ever entered into by them."
The second premise is a corollary of the first that because the states were sovereign, they retained a constitutional right to secede. In this view, the Union was a league, akin to a treaty organization like NATO. Members of a league accede to a league without giving up their sovereignty and may therefore secede at their pleasure. Furthermore, Stephens claimed, all presidents from Jefferson to Lincoln had acknowledged the right of secession.
In his speech of July 4, 1861 to Congress in special session, Lincoln called this view that "any state of the Union may, consistently with the national Constitution, and therefore lawfully and peacefully, withdraw from the Union without the consent of the Union or any other State" an "ingenious sophism." But Lincoln was not an innovator when it came to this issue. Nearly every statesman from the Founding period on had previously made this point. These are the same individuals that Stephens claims recognized the right of secession. Whence the source of the disagreement?
The first problem is that the meaning of federalism changed during the Founding Era. Calhoun and Stephens used "federal" in the pre-American founding sense of a loose compact among separate and sovereign political entities. But the American constitutional experience had transformed the meaning of federal. As James Madison observed, the Americans had created a system of government "without precedent ancient or modern," one that although "wholly republican" was "partly federal, partly national." So complete was this transformation that even the opponents of the Constitution, the so-called Anti-Federalists, embraced the new meaning. Thus they as much as the Federalists recognized that the Union was far more than a league. It was a nation that could not be torn asunder at the pleasure of its component parts.
That the American Republic was both federal and national was the dominant view among statesmen of the antebellum period. For instance, in his reply to Calhoun on Feb. 16, 1833, Daniel Webster observed that the state conventions, including that of South Carolina, did not accede to a league or association when they approved the Constitution, but ratified and confirmed that Constitution as a form of government.
Andrew Jackson made the same point in his "Proclamation to the People of South Carolina" during the nullification crisis. The Constitution, said Jackson, derives its whole authority from the people, not the States. The States "retained all the power they did not grant. But each State, having expressly parted with so many powers as to constitute, jointly with the other States, a single nation, can not, from that period, possess any right to secede, because such secession does not break a league, but destroys the unity of a nation…." And Madison, who presumably knew something about the constitutional theory of the American Founding, was horrified by the idea that the coordinate sovereignty retained by the States, as stated in the Tenth Amendment, implied the power of nullification, interposition, or secession.
Lincoln argued that the Union created the States, not the other way around and that the States had no other legal status than that which held in the Union. Harry V. Jaffa has demonstrated beyond reasonable doubt that the Revolutionary generation universally understood the separation of 13 colonies from Great Britain and the union among them to have been accomplished simultaneously. Colonial resolutions called for both independence and union. According to Jefferson and Madison in 1825, the Declaration of Independence constituted an "act of Union of the States."
The Articles of Confederation (a document that begins and ends with the assertion that the Union is perpetual) was an unsuccessful attempt to govern the Union created by the Declaration of Independence. It failed because the central government lacked the necessary power to carry out its obligations. The Constitution was intended to rectify the problems of the Articles to create "a more perfect Union." As George Washington wrote in his letter transmitting the Constitution to Congress, "In all our deliberations…we kept steadily in our view that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, perhaps our national existence."
Dr. Jaffa observes that there can be no constitutional process that presents a state majority to lawfully nullify the acts of the federal Union within the boundaries of its delegated powers. There can be, in other words, no right to destroy the Constitution. So how could Stephens make the claim that the right of secession had been widely accepted before 1860? Only by conflating the natural right of revolution with the supposed constitutional right of secession.
For instance, Stephens invokes none other than Abraham Lincoln to support his thesis regarding the right of secession. He cites Lincoln's assertion in a speech of January 12, 1848, that
any people, any where, 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…Any portion of such people that can, may revolutionize, and make their own of so much of the territory as they inhabit.
But Stephens is being disingenuous. Lincoln is not invoking a constitutional right to destroy the Union but the natural right of revolution, an inalienable right clearly expressed in the Declaration of Independence. Lincoln never denied this right. As he said in his First Inaugural of 1861. "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it." But the people's right to revolution is in tension with the president's constitutional "duty…to administer the present government, as it came into his hands, and to transmit it, unimpaired by him, to his successor."
Again, Lincoln was merely reiterating the commonly accepted political opinions of his predecessors. In the aforementioned "Proclamation to the People of South Carolina," Jackson said, "secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right is confounding the meaning of terms…." (emphasis added). But despite claiming to be the true heirs of the American Founding, the seceding states never invoked the right of revolution that Jackson, Webster, Lincoln, and others acknowledged. Why not?
The main reason was that while the Founders understood the right of revolution to be an inalienable natural right of individuals antecedent to political society, Calhoun, the architect of the theory of State sovereignty used to justify secession expressly repudiated the idea of individual inalienable natural rights. Calhoun dismissed the fundamental idea of the American Founding that "all men are created equal" as the "most false and dangerous of all political errors." Given the large slave population of the South, this denial of the inalienable natural rights of individuals, including the right of revolution, was no doubt prudent.
Secession constitutes a repudiation of republican government as understood by the Founders. For Calhoun, sovereignty was not a characteristic of individuals, but of collective political bodies. Individual rights, such as they were, were prescriptive, not natural. If Calhoun was right, then the Founders were wrong.
For the Founders, the purpose of government was to protect the equal natural rights of all. They understood these rights to be antecedent to the creation of political society and government. The just powers of government are derived from the consent of the governed who possess the equal natural rights that republican government is supposed to protect. While the people never relinquish their right to revolution, in practice, this natural right is replaced by free elections, the outcome of which are determined by majority rule.
When the States ratified the Constitution of 1787, they pledged that they would accept the results of elections conducted according to its rules. In violation of this pledge, the Southern States seceded because they did not like the outcome of the election of 1860. Thus secession is the interruption of the constitutional operation of republican government, substituting the rule of the minority for that of the majority.
In his July 4 address to Congress, Lincoln observed that the American "experiment" in popular government had passed two of three tests the successful establishing and the successful administering of it. One test remained. Could popular government in America maintain itself against a "formidable internal attempt to overthrow it." It had yet to be proved, said Lincoln, that ballots were "the rightful and peaceful successors to bullets" and that "when ballots have fairly and constitutionally decided, there can be no successful appeal back to bullets."
As William Freehling has argued, the supposed right to break up the government when the minority does not get its way is really nothing but blackmail. The attempted dissolution of the Union in 1860 and 1861 was the final act in a drama that had been under way since the 1830s, only this time the blackmailers' bluff was called.
In 1833, the minority threatened secession over the tariff. The majority gave in. In 1835, it threatened secession if Congress did not prohibit discussions of slavery during its own proceedings. The majority gave in and passed a "Gag Rule." In 1850, the minority threatened secession unless Congress forced the return of fugitive slaves without a prior jury trial. The majority agreed to pass a Fugitive Slave Act. In 1854 the minority threatened secession unless the Missouri Compromise was repealed, opening Kansas to slavery. Again, the majority acquiesced rather than see the Union smashed.
But the majority could only go so far in permitting minority blackmail to override the constitutional will of the majority. At the Democratic Convention in Charleston, held in April 1860, the majority finally refused the blackmailers' demand for a federal guarantee of slave property in all US territories. The delegates from the deep South walked out, splitting the Democratic Party and ensuring that Lincoln would be elected by a plurality.
There are two ironies here. The first is that the real "secession" was that of the South from the Democratic Party. The resulting split in the Democratic Party was instrumental in bringing about the election of Lincoln, which the South then used as the excuse for smashing the Union. The second is that the South's demand at Charleston, far from having anything to do with States' rights, was instead a call for an unprecedented expansion of federal power.
Lincoln had the political theory of the Founders behind him when he refused to permit the South to destroy the Union. But he had a number of practical concerns as well, which today's defenders of secession gloss over, if they recognize them at all, when they claim that secession could have been "peaceful."
To begin with, the dissolution of the Union would have created something the authors of The Federalist were extremely concerned about: at least two, and over time probably more, small, weak confederacies, "a prey to discord, jealous, and mutual injuries,…formidable only to each other." Publius feared that such confederacies, lying in close geographical proximity to each other, would fall to squabbling among themselves, leading to a militarization of the American continent along the lines of Europe, with shifting alignments and alliances, standing armies, and never-ending competition for dominion. Additionally, these confederacies would have been vulnerable to penetration and subversion by European powers wishing to reestablish their influence in North America.
Given their close geographic proximity, it is likely that the Southern Confederacy and the remaining United States would have gone to war over any number of issues: anti-slavery agitation and the refusal of the US to return fugitive slaves; the refusal of the Confederacy to permit Americans in the upper Mississippi River Valley to use the port of New Orleans; the attempt to entice other states out of the Union; and competition over western territories.
For instance, despite proclaiming that the Confederacy sought "no conquest, no aggrandizement," the Confederacy envisioned an empire stretching north to the Mason-Dixon Line and the Ohio River and west to the Colorado. This empire would have contained all 15 slave states, including those that had not seceded, and two existing US territories, New Mexico and the Indian Territory south of Kansas.
In keeping with this grand vision, the Confederacy admitted Missouri and Kentucky to statehood, despite the lack of a secessionist majority in either state. The Confederate congress initiated treaties with the Indian tribes and dispatched an expedition to conquer the New Mexico Territory for the Confederacy. In January 1862, it organized a separate Arizona Territory.
There is evidence that the Confederacy envisioned an even more expansive empire. In his famous "Cornerstone" speech given at Savannah on March 21, 1861, Stephens, the newly installed vice-president of the Confederacy, claimed that "we are now the nucleus of a growing power, which, if we are true to ourselves, our own destiny, and our high mission, will become the controlling power on the continent." Stephens made it clear that he expected the Confederacy to grow by the accession of more states from the old Union (seven had by then seceded), including not only the other slave states but also "the great states of the North-West." These free states could be accommodated, he said, when "they are ready to assimilate with us in principle."
This was far from an impossible outcome. Even during the war, there was talk of a "Western Confederacy," the states of the Northwest that might be inclined toward the South because of historic commercial connection centered on the Mississippi River. In any event, had secession been permitted to stand, the breakup of the Union would have continued. Where that dynamic would have led is suggested by the fact that in January 1861, Fernando Wood, the Democratic mayor of New York City, recommended that the city secede from the state of New York and establish itself as a "free city."
There was no such thing as a constitutional right to secede and for whatever reason, the South never invoked the right of revolution. Even if it had, it would be hard to justify such a claim today. When the Americans invoked their right of revolution in 1776, they sought to establish a form of government that would protect their equal natural rights. The South would have been forced to justify revolution on the basis of a supposed "right" to extend slavery into the western Territories.
Libertarians are correct in condemning the growing power of the federal government. However, this has less to do with Lincoln and the outcome of the Civil War than it does with the triumph of progressivism, the 19th century science of politics that substitutes "progress" for nature and justifies unlimited government power to direct and promote that progress. Like Calhoun's political science, Progressivism dismisses the political thought of the American Founders based on equal natural rights as "false and dangerous." Given the affinity of libertarians for Lockean liberalism, their favorable disposition towards Southern secession, an act based on Calhoun's rejection of the principles of the American Founding, is hard to fathom.