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Volume 20: Secession


Lincoln's second inaugural address

A Little Rebellion, Now and Then

“In your hands, my dissatisfied fellow-countrymen, and not in mine, is the momentous issue of civil war. The Government will not assail you. You can have no conflict without being yourselves the aggressors. You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to preserve, protect, and defend it.

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.” – Abraham Lincoln

Separatist movements seem to be gaining momentum everywhere. Scotland nearly left the United Kingdom. Quebec regularly has the wild thought to go on its own. Basques, Kurds and Tibetans, and others argue that they are oppressed minorities - with varying validity of grievances. Going back a few years, Sudan birthed a South, Timor lost its L’Este, and Czechoslovakia – the country, as well as its name – was cleaved in two. Yugoslavia split into many component parts, and then Montenegro left Serbia and Montenegro and then Kosovo left Serbia, which Serbia still disputes. And then there are the disputed regions, where the split may or may not represent the will of the people therein: Crimea and South Ossetia, for example.

While separatist movements in the United States today are the province of charlatans and cranks, this was not always the case. Despite what some people say, the Civil War was fought over slavery, not inability to compromise. But how our nation moved from a fundamental disagreement over this heinous practice, to a split that could easily have been fatal, is a more complex story with relevance to the current day.

  • How did the Civil War start?

  • Is secession legal?

How did the Civil War start?

Let’s be clear: we know why the Civil War started. It started because of slavery, and disagreements about if it should exist and whether it should spread. The questions of how the War started has greater complexity. How did a long-festering disagreement move from the halls of Congress to Shiloh, Antietam and Gettysburg? Why did secession happen in 1860, as opposed to decades earlier or later?

The story of the Civil War begins in Philadelphia, in the summer of 1787. At that time, the United States was little more than a confederation of sovereign states.[1] In order to survive in a world of nation-states – and to compete with those states’ quickly modernizing economies – a stronger form of government was necessary. A group of 55 delegates from 12 states met and wrote our Constitution.[2]

At the Convention, compromises were the order of the day, as the resulting document would have to be signed by all 13 states. The issue of slavery was in the background of the many compromises made in Philadelphia. Some states had slaveholders; some of those slaveholders were present at this Convention. A document immediately eliminating slavery was not feasible.[3] Slaves would count as three-fifths of a person with regards to taxation and representation, and the slave trade could not be prohibited until 1808.[4] Had the United States remained with the Original 13, this compromise would likely have been stable for a long period.

But we wanted to get bigger. First, the territory between the original states and the Mississippi River, already in our possession, would be turned into states. Then, via purchase, war, or negotiation, we would expand to the Rocky Mountains, the Rio Grande and finally the Pacific. Would slavery be allowed to expand into this vast, new area?

The period from 1789 until 1850 was one of compromises made between halves of a nation which were rapidly moving apart – on slavery, but also on other issues. The North was rapidly industrializing, using canals to link its grand lakes and rivers, turning its land into a web of railroad lines. The South’s economy remained almost exclusively agricultural. A trading empire in the North led to a merchant marine, bustling ports and growing cities. The cash crops of tobacco, rice, and cotton led the South to remain almost exclusively rural; in 1860, only one of the twenty largest American cities was in the South.[5] This reinforced its slave-based economy. The sectarian divide is not understood without this economic context.

Increasing population in the North during the early 19th translated to large majorities in the House of Representatives. However, as long as the Union maintained an equal number of slave and free states, the South would have a veto over legislation. The need to add new slave-state votes to the Senate was a concrete reason for the South for focus on slavery’s spread. The North, on the other hand, was concerned about “slave power” – the ability of the Southern minority to control the national agenda via this veto. Even those Northerners who were not morally opposed to slavery did not want it to gain political power by expansion.

Table 1 - Slave and Free States, By Year

Fortunately – at least as far as preservation of the Union was concerned – the period from 1820 to 1850 was one of Great Compromisers. In 1820, the slave-free balance was kept by admitting Missouri and Maine, respectively, to the Union. This Missouri Compromise also established a line, 36° 30’ of latitude, which would divide future slave and free states. This offered confidence to the growing number of Free Soilers, those who opposed the spread of slavery but not necessarily its existence.

This Missouri Compromise held until the Mexican War threw a monkey wrench into things. A transparent land grab, many (but not all) proponents of this War viewed the expansion of slavery – and the maintenance of that balance in the Senate – to be a key war aim. Long before victory was assured, opponents of slavery attempted to prohibit it in any lands that might fall into American hands. This posed a political problem for those who wished to extend slavery, but didn’t want to say that they were conducting a war for that express purpose.

In 1850, two full years after the end of the war, a new compromise finally dealt with the territories that had been won. In this compromise, slave-holding Texas received desperately-needed debt relief, and the rest of the newly-won territories would be permitted to decide the slavery question for themselves when they decided to join the Union. But at the same time, California was admitted as a free state. Free states would outnumber slave-holding states for the first time.

If you were a Southerner, and perhaps a bit paranoid,[6] this was an ill omen. And the South’s Senatorial position was a deteriorating one. Minnesota and Oregon were the likely next candidates for statehood – both free. The land taken from Mexico in the great slavery-extension enterprise was poor for agriculture, and unlikely to attract slaveholders. At this point, there seems to have been a change in the South’s strategy. Previous actions had always been compromises – not taking all they might have at the negotiating table, ensuring the results were palatable to their Northern brethren. Going forward, they seemed to take as much as they could get. Their bargaining position was reinforced with an ever-present, if often unstated, threat to secede from the Union if they didn’t get what they wanted.

The first overreach was actually part of the 1850 Compromise: the Fugitive Slave Act. Under the Act, escaped slaves were required to be returned to their masters. Local governments, even in free states, were compelled to aid in such return. It also permitted Southerners to cross into the North to “aid” any local officials who might not be so sanguine about participating. Because suspected slaves had no right to trial, bounty hunters didn’t need to exercise caution as to exactly who they captured. Free blacks could be (and were) brought to the South. Given that “states rights” was the credo of the South,[7] this national interference in local judicial affairs was entirely hypocritical. Practically, for many Northerners, enforcement of the Act was often their first experience with slavery. The Fugitive Slave Law did not leave a good first impression.

In the early 1850s, some of the areas from which the Missouri Compromise prohibited slavery were approaching statehood. Not only were people moving to the excellent farmland, but a more formal government would facilitate a Transcontinental Railroad. This huge territory was certain to be carved into free state after free state, irrevocably upsetting the balance. To fight this, a new compromise made it through Congress, the Kansas-Nebraska Act. It revoked the dividing line which was a critical provision of the Missouri Compromise. The region would now also choose its status by popular vote.

Proponents of this compromise thought they had solved the problem of slavery for another generation; after all, who could object to people making their own decisions. More insightful leaders, including some Southerners, understood the truth. By reneging on the deal of 1820, the South had gone back on its word. Huge numbers of Northern Free Soilers – previously happy to let slavery continue where it existed – were livid. The breakout of a guerilla war between pro- and anti-slavery factions in Kansas didn’t smooth any feelings.

In case things weren’t already on a knife’s edge, the Supreme Court got involved. In one of its most infamous decisions, a former slave, Dred Scott, sued for his freedom since he had spent significant time in free territories. There was precedent for this; an 1835 case, never overruled, said an instant of freedom meant freedom forever. But the Court was now under the sway of Chief Justice Roger Taney, an anachronistic jurist who was soon to become a thorn in Lincoln’s side. Blowing through the precedent, Taney’s opinion said that people of African descent could never be American citizens, and thus never have right to bring a case in court. Now, right or wrong, such a decision that Scott lacked “standing” to sue would normally have ended the case. But Taney went on. The Court decided that:

  • Congress lacked the power to determine the status of slavery in territories.

  • Territorial assemblies lacked the power to prohibit slavery on their lands.

  • The Missouri Compromise was therefore unconstitutional.

To make matters worse, there is no way to read this decision without worrying that states may also lack the ability to prohibit slavery within their borders. New York, Massachusetts and Wisconsin did not want slave populations in their states.[8] Northerners now became paranoid – but this time with good reason.

We’ll now take a brief interlude to describe the politics of this era, the so-called Second Party System. The Presidency of James Monroe is known as the “Era of Good Feelings” – but this designation is a complete misnomer. It is true that there were no political parties in America at the time. The election of 1816 was the last hurrah of the Federalists, a descendant of Washington’s supporters. With the Federalists gone, Monroe ran for re-election without opposition. Despite this, the Congresses of Monroe’s second term quickly became contentious and non-productive. Without political parties, nobody was able to organize – either for or against the Administration. With each man for himself, it was difficult to debate two sides of a policy and come to a compromise.

This was followed by the contested election of 1824, where John Quincy Adams became the President despite not winning the most Electoral College Votes. Dysfunction increased further. Supporters of the defeated Andrew Jackson subverted Adams in every manner available. It was only with Jackson’s election in 1828 – after more than a decade without real political parties – that our politics began to normalize. Mostly through the work of Vice President Martin Van Buren, the supporters of Jackson became the Democratic Party. Jackson’s opponents, previous splintered into many smaller groups, soon formed a consistent platform as the Whigs.

Why we care is that these two parties, Democrats and Whigs, were both national parties. Both had roughly equal strength on both sides of the Mason-Dixon line. In the 1836 Presidential Election, Van Buren won Michigan and Mississippi. In his failed 1840 re-election, he still won New Hampshire and Alabama, Illinois and Virginia. The 1846 House of Representatives featured a Whig-heavy New York delegation, but Democrats won most of the seats in Maine, Illinois and Michigan. Both parties had massive internal disagreements on the topic of slavery. But they also recognized that splintering over this issue would send them to political irrelevancy. As long as the parties stayed together, and stayed national, they served as a strong glue holding the country together. Forty years passed from the Missouri Compromise until the start of the Civil War – more than a generation. A major reason slavery didn’t tear the country apart earlier should be credited to the political parties during this critical period.

The Kansas-Nebraska Act caused the Whig Party to splinter along sectional lines. Nearly every Southern Whig voted for the Act; Northern Whigs bolted the party in response. By 1856 most had found a home in the new Republican Party. The Republicans were explicitly opposed to the expansion of slavery – and not thrilled with it where it already existed. It was a purely regional party, not even bothering to run candidates in the South. In its first national election, Republican John C. Fremont had an unexpectedly strong showing. Democrats retained the Presidency only by nominating James Buchanan, whose primary qualification was that he had been out of the country during the fractious recent past, and therefore avoided taking positions on…well…most everything.

The Dred Scott decision finished the process of splitting the parties by region. Many anti-slavery former Democrats joined the former Whigs as Republicans. The rump Democratic Party ran two candidates in the 1860 election, North and South. Another party even sprang up, calling itself Constitutional Union.[9] Now, this splintering wasn’t the cause of Lincoln’s election. If the votes of all other candidates had been combined, he still would have won. However, the South now claimed a grievance; Lincoln hadn’t even been on the ballot in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee or Texas. Along with Virginia, where Lincoln won 1.1% of the vote, this was the eventual Confederacy.

The secession threat, long present in negotiations between North and South, now proved to be more than a bluff.[10] Only four days after the election, South Carolina’s legislature called for a convention to consider departure.[11] Within a month, it had taken that step – unanimously. By the time Lincoln was inaugurated on March 4, eight states had seceded, not discouraged by Buchanan’s statement that he would not attempt to coerce them otherwise.

But so what? The secession ordnances were filled with stirring words about states’ rights and freedom and whatnot, but they were just pieces of paper. Southern members of Congress stopped showing up, but the institution continued to function. Lincoln could easily form a cabinet of those who opposed secession. You can envision a world where the South seceded on paper, the North ignored it, and everybody went on their merry way. During his inaugural address, Lincoln said that although he did not view secession as having any legal meaning, he would neither interfere with slavery in the South nor be the first to draw blood. He promised not to send carpetbaggers down to run the various Federal offices. He even offered to continue delivering their mail. He would only do two things that could possibly be called coercive: continue to collect tariffs and continue to hold Union property – meaning barracks, forts, and arsenals.

But what sovereign nation – for that is what the Confederacy considered itself – would allow a foreign power to keep troops on its land and collect taxes from its people? Without fear of opposition from the outgoing Buchanan Administration,[12] the South had already begun to seize Federal property.

Table 2 - Southern States Seizing Northern Property - Partial List

But the greatest assault on Union patience came on February 18, when General David E. Twiggs surrendered all U.S. forces in Texas to the secessionist government. Not only the forts, barracks and arsenals were subject to this, but nearly one of every four American soldiers was based in the Lone Star State.[13]

This left Fort Sumter. Sitting in the harbor of Charleston, the cradle of secession, Sumter wasn’t the last Federal fort in the South. But it was a clear symbol that South Carolina was not (yet) a real country. Fewer than 100 U.S. troops were in the island fort, commanded by Major Robert Anderson. During the winter and early spring, attempts at reinforcing or resupplying them had been thwarted by guns loyal to the South. On April 14th, ships sent by Lincoln were ordered to force the issue. The newly proclaimed Confederacy decided to eliminate the garrison before they could arrive.

The first battle of the Civil War was bloodless –Anderson surrendered Fort Sumter to the overwhelming firepower despite taking no casualties. However, both sides responded by raising troops. Once the troops are raised, it is only a matter of time before they will fight. The Civil War had begun.

Is secession legal?

When considering the legality of secession, we need to treat the answer like an onion. As with many complex legal topics, several layers must be pealed. Such an exercise will tell us both about the actions taken by the South in 1861, as well as offer guidance to any future, extremely hypothetical, attempts to depart.

The outermost layer is the simplest. As a matter of strict jurisprudence, states can not secede. The actions of the secession conventions and Confederate government were no more than a glorified Model U.N.[14] In Texas v. White, the Supreme Court considered directly the legality of Texas’s departure from the union. In granting the case, the Court had to determine the nature of Texas’s government, and thus the state itself, during the interregnum. It clearly stated that Texas had never left the Union, because there is no mechanism by which a state can unilaterally secede.[15] The decision offered no workaround, no ifs, ands or buts. Secession has no legal basis.

Although the Supreme Court is the final arbiter in a case like this,[16] nothing prevents us from considering whether it came to the right decision. For this, we of course look to the Constitution. The Constitution includes no provision and no process by which a state can leave the Union. It does not seem to consider the possibility in any way.

Now, this can be interpreted both ways – it may not say how a state can secede, but also isn’t prohibited. The Court has been forced to rule in many cases where the Constitution provides no direct guidance, and the result is not always that the Constitution doesn’t apply. However, those using this lack of Constitutional guidance to support the legality of secession have a difficult argument to make in context. The Constitution explicitly provides instructions on other critical topics about the Union’s foundational nature – a “meta-Constitution” if you will. It describes how new states will be added, as well as limits to their addition. It describes the amendment process for changing itself. In the Preamble, the stated goal is the formation of a more perfect Union; this is not consistent with a less permanent Union. This does not look like a simple compact between sovereign states.

We can go further, thinking about the process by which the Constitution was written and ratified; it was an extension of the existing Articles of Confederation. The Articles expressly stated that they were perpetual; their formal name was the “Articles of Confederation and Perpetual Union.” The Constitution incorporated many features of the Articles.[17] As with other foundational concepts, it seems clear that perpetuity would be imported into the aforementioned more perfect union created by the Constitution.