Skip to comments.In The Shadow of Our Founders: Part Three
Posted on 11/19/2001 7:10:38 PM PST by BrianTubbs
Parts One and Two previously posted. It is recommended that you read those installments before looking at this one.
That the Founding Fathers viewed the states as "sovereign" political units is beyond credible dispute. The signers of the Declaration of Independence and the framers of the Constitution repeatedly refer to the individual states as "sovereign" and "independent" in their speeches, formal documents, and private letters. Since Jefferson Davis and the Confederacy's defenders rest their defense of the right to secede from the Constitution on this essentially incontrovertible fact, their argument stands on a fairly solid foundation.
By contrast, Abraham Lincoln's frequent assertion that the Union preceded the states is easily turned back by the realization that the colonies did not become "states" in the Union until the Declaration of Independence confirmed their status as "free and independent." As Davis correctly observes in Rise and Fall of the Confederate Government, "When our fathers dissolved their connection with Great Britain, by declaring themselves free and independent states, they constituted thirteen separate communities, and were careful to assert and preserve, each for itself, its sovereignty and jurisdiction."
Prior to the Declaration of Independence, it can hardly be argued that the Union of the states was of any meaningful consequence. The states were not even states. They were colonies firmly aligned with the monarchy in England and under the protection of His Majesty's empire. Lincoln is correct that the movement toward independence sprang from a political alliance of the colonies, later "states." But any implication that this chronology means the states derived their sovereignty from the Union is intellectually unfounded. The colonies of British North America were self-governing communities of interest within Britain's imperial umbrella long before King George III came along.
Most debates over secession tend to revolve around these two points, the sovereignty of the states versus the timing of the Union and its consequential implications. These are often deemed the fundamental tenets of each side's respective argument. Seen in this context, Jefferson Davis's position carries significantly greater weight in terms of supporting evidence and is much more closely aligned with the thoughts of the statesmen who established the United States of America. Ending the discussion here, however, would be a disservice to both men and their respective causes. This is particularly so with President Lincoln, whose overall argument included much more than just his rather tenuous claim to a pre-Revolutionary War Union of states. And while Jefferson Davis's premise that the states are "sovereign" entities cannot be credibly contested, this does not answer all the questions surrounding the nature of that Union as established by the Constitution and understood by the Founding Fathers.
Is the Constitution a Compact Between the States?
Article VII of the Constitution required its ratification by nine of the original thirteen states. Once achieved, that number was "sufficient for the establishment of this Constitution between the States so ratifying the same." The obvious fact inferred from this portion of the Constitution is that the states, which ratify the Constitution, are in fact establishing themselves into a mutual compact.
Previous articles have examined this question of compact in greater depth, and the evidence strongly supports Jefferson Davis's contention that the Constitution was indeed seen by the Founders as a compact of the states. Any understanding of the nature of the Constitutional Union must be mindful of this fact.
Is the Constitution Supreme to the States?
Defenders of the Confederacy point to the definition of "sovereignty," claiming that the states delegated powers to the federal government in their capacity as sovereign units. As such, they can reclaim those powers at their discretion. They are sovereign. They are supreme.
This is a great example of what can happen when people base their reasoning on isolated terms. Let us not forget that the king of England was considered "sovereign," just as the queen is today. Sovereignty for the throne did not place the monarch above the law, however. This was the whole point of Magna Carta, the foundational cornerstone of the fine English Rule of Law tradition. And this was the very principle that led to the American Revolution itself. Our Founders believed that Parliament, with the support of King George III, was overstepping its lawful bounds. While George III was certainly recognized by our Founders as "sovereign," that designation did not make him superior to the British Constitution.
With that Rule of Law tradition firmly in mind, delegates at the Philadelphia convention put these words into Article VI of the Constitution: "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land..."
Needing to drive that point even further, the Framers continued, with words still in the Constitution today as they were in 1787 and 1860: "...and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding."
In Federalist #44, James Madison freely concedes that Article VI places the federal government in a position superior to the states, with the Constitution and federal laws passed according to its authority superseding even those policies deeply enshrined in state constitutions. In defending the necessity of this "supremacy clause," Madison wrote that in its absence, the world "would have seen the authority of the whole society every where subordinate to the authority of the parts." In short, explained Madison, the world "would have seen a monster, in which the head was under the direction of the members."
In addition to asserting its supremacy, the Constitution carries it out by identifying several, clear prohibitions on the states. As seen in Section 10 of Article I, these include entering into treaties, alliances, or confederations of any nature with other states or foreign powers; coining money; laying duties or imposts without the consent of Congress; or keeping troops and warships. The southern states, upon announcing their separation from the Union, proceeded to violate each of these clearly enumerated prohibitions.
But what about state "sovereignty"? In Madison's view, plainly spelled out in his contributions to The Federalist Papers, the problem with the Articles of Confederation was its attempt at "impossibilities." As an example, Madison criticized the Articles for trying to "reconcile a partial sovereignty in the Union, with complete sovereignty in the States."
In the Constitution's cover letter to the federal Congress under the Articles of Confederation, George Washington wrote: "It is obviously impractical in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all." Acting in his capacity as president of the Constitutional Convention, Washington included in his transmittal letter an unmistakable reference to John Locke: "Individuals entering into society, must give up a share of liberty to preserve the rest."
In the face of charges that the newly instituted federal government would demolish state autonomy and prerogatives, Madison and his Federalist allies went to great lengths to assure audiences that states had not lost any fundamental "rights." There is obviously considerable debate as to the scope and depth of the rhetoric employed by the Constitution's proponents, not to mention how those suspicious of the Constitution, but ultimately persuaded by such assurances, understood such rhetoric. The important thing to remember is that the language of the Constitution itself was clear. States were given new restrictions and less authority under the new Constitution. They were pulled more tightly together. And the federal government was significantly strengthened.
Is the Constitutional Union Perpetual?
Part Two of this series showed that the Articles of Confederation, while acknowledging the independence and sovereignty of the states, declared the Union to be "perpetual." This was one of the "impossibilities" decried by Madison. As Lincoln pointed out in his First Inaugural, the Constitution replaced the Articles of Confederation, claiming that it established "a more Perfect Union." Lincoln's consequent argument against secession was that the lawful possibility of "the destruction of the Union, by one, or by a part only, of the States" makes the Union less perfect than before. This is clearly contradictory to the stated aim of the Constitution. His point is a salient one, and it is consistent with Madison's claim that the Constitution was a remedy to the defects and "impossibilities" of its predecessor.
The only possible counter to Lincoln's argument is that the Founders believed the Union to be "More Perfect" by allowing for its dissolution. Lincoln's side counters that, if this were the case, such an allowance should be readily identifiable in the Constitution itself. Yet, there exists no provision in the Constitution explaining procedures of secession or peaceful separation from the Union.
Moreover, the very purpose of the Constitution was to strengthen and preserve the Union. In Federalist #84, Alexander Hamilton wrote: "The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system [the Articles of Confederation], nor without radical alterations."
Ultimately, it's downright impossible to dispute Lincoln's logic, especially in light of The Federalist Papers. If the Constitution allows for a single state or group of states to unilaterally pull out of the Union for any reason, then the Union cannot be regarded as better than what was constituted under the Articles of Confederation, and certainly not "More Perfect."
Something very often overlooked in this debate is once again the clear language of the Constitution itself. Following the supremacy clause (discussed previously), Article VI also contains this edict: "The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution."
Why would the Founders require such an oath be administered to state officials as well as federal officials? This is not merely a pro forma requirement. Support for the Constitution was canonized within the document itself as a written requirement on state governments as well as federal officials.
The evidence is solid and monumental for Lincoln on this point. The Framers of the Constitution intended the Union, and the Constitution which (in the words of Madison) "cements and secures" it, to be perpetual.
Are There Any Grounds for Separation?
Many of Davis's admirers admit, as did Jefferson Davis himself for that matter, that the founding era statesmen certainly wished for a perpetual Union, just as they did for a prosperous nation in general. But what if states' rights are violated or their interests severely compromised by the federal government or by another section of the country? What if circumstances impel them to a separation? Surely then, even the Founders would understand and embrace the need for secession. After all, they separated from Great Britain.
According to Jefferson Davis in his memoirs, the "constitution or organic law is supreme over the government, and in our federal union this was most distinctly marked by limitations and prohibitions against all which was beyond the expressed grants of power to the general government." It was the "violations of the compact" and the "usurpation of undelegated powers" that compelled the states to separate, according to Davis.
Anyone perusing the proceedings and eventual decisions of the state ratifying conventions can see that people of that time were conscious of the dangers of a federal government overstepping its constitutional authority. It was this sober realization that the Constitution's supporters had to overcome in the fight for its approval.
The fear of the so-called anti-Federalists appeared justified, several years after the Constitution's adoption, when Congress passed under the signature of President John Adams the controversial Alien and Sedition Acts. It was in response to these short-lived statutes, which have dogged Adams's otherwise exemplary reputation to this very day, that the famous Virginia and Kentucky Resolutions were drafted.
James Madison, who had, by this time, broken with the Federalist Hamilton and joined forces with his mentor and friend Thomas Jefferson, authored the Virginia Resolution in 1798 to protest the Alien and Sedition Acts. Several months later, Kentucky followed with its own statement authored by Jefferson himself.
Defenders of Jefferson Davis allege that the remedies alluded to in the Virginia and Kentucky Resolutions, coupled with the assertions of the state ratifying conventions concerning the limits of federal authority and the right of the states to "arrest" excursions beyond the Constitution and "reclaim" lost rights, prove that the Founding Fathers accepted the legality of states peacefully seceding from the Union.
An examination of the Alien and Sedition Acts, and the debate they produced, certainly shows the tremendous concern many Founders had over their implications for the liberties of the people. The acts targeted immigrants for their general political support of Jefferson's Democratic-Republican Party and trampled on First Amendment guarantees of free speech and a free press. It was in this context, one in which the Bill of Rights was being tested, that Jefferson's Kentucky Resolution embraced the concept of state nullification of federal law and flirted with the possibility of secession.
Madison, however, did not go as far as Jefferson in the area of nullification and never even alludes to secession. Instead, the Virginia Resolution simply declares the offending acts "unconstitutional" and serves as a rallying call to other states to do the same. The implication of the Virginia Resolution is that, through the "interposition" of the states, federal laws deemed by the states to be unconstitutional can be overturned.
In his later report on the Resolution, Madison assured the Virginia General Assembly that "no improper means has appeared" in declaring the Alien and Sedition Acts "unconstitutional" and that the Resolution encompassed only such "other means" that might be "employed which are strictly within the limits of the Constitution." One example he listed was the possibility of the states pushing for a constitutional amendment to right the wrongs inflicted by the controversial acts. Indeed, the Virginia Resolution frequently declares the state's "warm attachment," loyalty and commitment to the Union and the Constitution.
In fact, Jefferson's Kentucky Resolution goes further than Virginia's primarily because the other states had not rallied to Virginia's ringing denunciation of the acts. In the second paragraph, Jefferson wrote: "We cannot however but lament, that in the discussion of those interesting subjects, by sundry of the legislatures of our sister states, unfounded suggestions, and uncandid insinuations, derogatory of the true character and principles of the good people of this commonwealth, have been substituted in place of fair reasoning and sound argument."
Yet despite the evident frustration in language that leaves the door open to nullification and arguably secession, Jefferson affirmed Kentucky's "attachment to the Union" and pledged that the state will "bow to the laws of the Union" which do not "violate" the Constitution.
In spite of their pro-Union sentiments and very cautious and guarded allusions to remedies possibly needed to contain the federal government, defenders of secession doggedly lay claim to the Kentucky and Virginia Resolutions. They do now. And they did in 1860 and 1861. To the extent that their interpretation of the Virginia and Kentucky Resolutions may be correct, one naturally must question the method by which states can conclude that the federal government has overstepped its constitutional authority and trampled on their rights.
"No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity," wrote Madison in Federalist #10. "With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time..."
Yet, this is precisely what the cotton states did in 1860, in response to Abraham Lincoln's election as President. Surely, Madison and his colleagues at the Constitutional Convention would have had serious reservations about states unilaterally, and of their own accord, determining that their rights were being violated and that secession was the only solution.
Regardless of who evaluates the circumstances and causes, are there instances when secession is justified? This is, after all, the central question separating Lincoln and Davis, and the evidence on this point is somewhat mixed. First, it seems clear that the Founders would never have condoned separation for "light and transient reasons" (to borrow a phrase from Jefferson's Declaration of Independence on the prudence of maintaining stability in government). But what if the reasons weren't "light and transient"?
Some of the Founders, including probably Thomas Jefferson himself, would likely have considered secession if certain parties to the Constitutional compact were menacing others. But we must remember that, to the extent we accept the doctrine of original understanding (or intent), as both Davis and Lincoln essentially did, the evidence tilts strongly toward Lincoln when it comes to those Founders who developed and ratified the Constitution. Only under the most extraordinarily dreadful circumstances would the majority of Founders, particularly the Constitution's supporters, have entertained even the thought of dissolution.
What the Founders Might Have Said of the South's Reasons for Leaving
It remains to this day somewhat unclear what violations of the Constitution actually occurred to drive the southern states from the Union. In fact, many of the Confederacy's present-day defenders drop all pretense of justifying the South's secession on alleged northern or federal violations of the Constitution. They sometimes argue that the "natural" rights of self-government and self-determination support the right of any people to change course and establish their own destiny. While compelling in a classroom, this view was not shared by Jefferson Davis, who was initially reluctant to support secession and only later embraced it, believing the South had no choice given perceived violations of the Constitution.
A review of the ordinances of secession reveals three general issues cited by the cotton states in their decision to leave the Union. First, many northern states refused to enforce the fugitive slave laws. Second, the presidential election of 1860 reflected the successful emergence of a purely "sectional" party built around a denunciation of slavery, an institution that the southern economy and culture depended upon. Finally, President-elect Lincoln's pledge to close the territories to slavery, thus choking off its expansion, was directly at odds with the cotton states' demand for a federal guarantee of slavery in the territories. (It was, after all, the cotton states' insistence on this guarantee that split the Democratic Party into the Stephen Douglas and John Breckenridge factions, making Lincoln's election possible.)
The first cited reason is the Confederacy's strongest point. Due to a compromise reached in Philadelphia between the slave states and those turning away from slavery, the Constitution protected the South's institution of "involuntary servitude" and called on the states to "deliver up" any "person held to service or labour" that escapes from one state to another. With growing abolitionist sentiment in the North, many states declined to abide by this requirement.
Lincoln addressed this in his First Inaugural, pointing out that each state should have full discretion to insure that individuals alleged to be fugitive slaves are accorded the "safeguards of liberty" rather than simply surrendering them up based on the claims of their possible masters alone. Yet Lincoln, while endorsing the premise that many northern states cleverly used to drag their feet in returning escaped slaves, still called upon all the people and the states to "conform to, and abide by" the Constitution and all its provisions.
The question on this point isn't whether the northern states were, in some cases, violating the fugitive slave clause, but rather if these violations constituted a severe enough crisis for the South to justify secession.
The second claim by the cotton states is hardly worthy of contemplation. Victory at the polls, in a fair election, is not a constitutional violation. No matter what the platform and rhetoric of the Republican Party in 1860, it won the election fair and square. Lincoln very legitimately argued that to allow the southern states to secede because they cannot abide by the election's outcome would be undermining the very principle of popular government and could spell the end of the grand experiment that our Founders crafted with our Constitution.
The third grievance of the Deep South is tenuous at best. Not only is it morally reprehensible (even for that day) to regard black Americans as mere chattel, which is what the so-called property rights proponents in the cotton states were doing by making the demand for unadulterated slavery rights in the territories, they were engaged in bad constitutional jurisprudence. The infamous Dred Scott decision had paved the way for this interpretation of slavery's permissiveness in the territories, but it was inconsistent in every way with the words and actions of the Founding Fathers. It was, after all, the First Congress under the new Constitution that reaffirmed the ban on slavery in the Northwest Territory [Northwest.jpg], and it did so under the signature of President George Washington. If the man who presided over the Constitutional Convention could, in good conscience, sign a ban on slavery in the territories, how could Chief Justice Roger Taney or Jefferson Davis argue that prohibiting slavery in the territories was unconstitutional? Were they actually saying that the Father of our Country and the president of the Constitutional Convention committed an unconstitutional act?
Measured together, these grievances hardly reach the level of the constitutional threat posed by the Alien and Sedition Acts in 1798. They most certainly do not approach the challenges to fundamental liberties and privileges encountered by our Founding Fathers in the years prior to the American Revolution. The claim by the cotton states that their constitutional rights were being trampled upon, even while President Lincoln repeatedly assured them full legal protection for their property and their "peculiar institution," is shakier and less credible than Lincoln's argument that the Union is older than the states and the Constitution.
The Upper South states seceded for largely different reasons, citing specifically Lincoln's intent to coerce the Lower South back into the Union by armed force. But if the Lower South wasn't justified to secede in the first place, then Lincoln's actions to enforce the Constitution cannot be seen as tyrannical, but rather proper. In fact, they can be seen in the same light (though obviously on a much larger scale) as President Washington's calling out the troops to put down the Whiskey Rebellion. President Lincoln was carrying out his sworn duty to "preserve, protect, and defend the Constitution of the United States."
It simply cannot be argued in good conscience that the southern states had any justifiable reason to secede in 1860-61 from the Constitution, which George Washington had just a few decades earlier, in his famous Farewell Address, declared to be "sacredly obligatory" on all the people and all the states.
Where Does All This Leave Us?
Though the evidence strongly supports Lincoln's view of the perpetual Union to Davis's impressions of stand-alone and complete state sovereignty, how should we incorporate this information into our understanding of the Civil War and the legacy it has left for America?
In recent years, the Confederacy has been increasingly vilified. The Confederate flag has often been equated with the Nazi swastika and the honoring of Confederate dead attacked as somehow incendiary to race relations and the unifying fabric of our nation. Such vitriolic hatred of the Confederacy and what it stood for serves no useful purpose and it ignores the realities of American life in 1860.
The events of 1860-61 took place in a different era than today, and were carried out by people with different prejudices, paradigms and information than today. Regardless of constitutional realities, American culture at the time was centered on local states and communities. There was no radio, no television, and no Internet. Newspapers were more partisan and more local. Travel was nowhere near as common and was much more difficult. People tended to live and die where they were born, and their circle of friends rarely expanded beyond their immediate communities. Within this context came the bloodiest war in American history. And soldiers on both sides fought for reasons and with motives that were largely, if not primarily, guided by local culture and prejudice.
It is easy in the twenty-first century, with access to all the information pertinent to that era (including exhaustive documentation that even the most determined scholar of that day could barely dream about) and the tremendous benefit of hindsight, to draw conclusions about who was right and who was wrong. It is with that hindsight and evidence that this author believes Abraham Lincoln held the superior position on both moral and legal grounds. But we must not be so naïve and so zealous as to forget that the human beings of that day did not know the many things we know now. Few southerners, for example, ever heard or saw Lincoln in person. All they knew about him was what they read in their local newspapers and that he had sent federal troops into their states and their neighborhoods.
If we are to truly heed the wisdom of the Founders, we must not condemn or hate our fellow Americans of the past because they embraced certain aspects of the defeated Confederacy. In fact, many of the concepts they trumpeted did and do have merit, including the idea that there is a level of accountability to the states on the part of the federal government.
Moreover, we should not strike out at Americans today who seek to honor the memory of their ancestors and who cherish pieces of their southern heritage. We can learn from our past. We can benefit from it and never forget it, but we mustn't live in it or be obsessed by it.
Southerners too have a moral obligation to recognize that the Civil War is over, and that the issue of secession has been settled. While it is certainly appropriate to recognize the heroes of the South who wore gray, it is more important to take hold of those things that unite us and not divide us. As that great southern orator Patrick Henry said toward the end of his life, "United we stand, divided we fall!"
There were good and honorable people on both sides of the Civil War and heroes in both blue and gray uniforms. The same was true with the American Revolution and later the political fight to ratify our Constitution.
In the end, we must all turn to the words of our greatest President who declared in his Farewell Address: "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."
Sources for this article:
Davis, Jefferson, The Rise and Fall of the Confederate Government, Volume I, Da Capo, 1990 edition (foreword by James M. McPherson)
Fehrenbacher, Don E., ed., Abraham Lincoln: Speeches & Writings 1859-1865, The Library of America, 1989
Hamilton, Alexander; Madison, James; Jay, John; The Federalist Papers (first published 1787-1788), A Bantam Book, 1982 (introduction by Garry Wills)
Hefner, Richard D., ed., A Documentary History of the United States, 5th edition, Penguin (Mentor), 1991
Jaffa, Harry V., A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War, Rowman & Littlefield Publishers, Inc., 2000
Jefferson, Thomas, The Kentucky Resolution (1799), Avalon Project at Yale University web site
Madison, James, The Virginia Resolution (1798), Avalon Project at Yale University web site
Madison, James, "Report on the Virginia Resolution," James Madison University web site, content courtesy of The American Memory Collection, Library of Congress
Washington, George, "Letter of the President of the Federal Convention to the President of Congress, Transmitting the Constitution" (1787), Early America Review web site
For a review of state ratification documents and ordinances of secession, consult the Avalon Project at Yale University.
One of the best articles on this subject I have ever read.