With the 150th anniversary of the Civil War, I was asked in this cover story for the Civil War Magazine to explore the rivaling constitutional claims that were made at the start of that bloody conflict. As a military history buff, I have occasionally written for these history magazines but I found this assignment particularly intriguing.
Over the centuries, various excuses have been employed for starting wars. Wars have been fought over land or honor. Wars have been fought over soccer (in the case of the conflict between Honduras and El Salvador in 1969) or even the shooting of a pig (in the case of the fighting between the United States and Britain in the San Juan Islands in 1859).
But the Civil War was largely fought over equally compelling interpretations of the U.S. Constitution. Which side was the Constitution on? That’s difficult to say.
The interpretative debate—and ultimately the war—turned on the intent of the framers of the Constitution and the meaning of a single word: sovereignty—which does not actually appear anywhere in the text of the Constitution.
Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.
It is a touchstone of American constitutional law that this is a nation based on federalism—the union of states, which retain all rights not expressly given to the federal government. After the Declaration of Independence, when most people still identified themselves not as Americans but as Virginians, New Yorkers or Rhode Islanders, this union of “Free and Independent States” was defined as a “confederation.” Some framers of the Constitution, like Maryland’s Luther Martin, argued the new states were “separate sovereignties.” Others, like Pennsylvania’s James Wilson, took the opposite view that the states “were independent, not Individually but Unitedly.”
Supporting the individual sovereignty claims is the fierce independence that was asserted by states under the Articles of Confederation and Perpetual Union, which actually established the name “The United States of America.” The charter, however, was careful to maintain the inherent sovereignty of its composite state elements, mandating that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” It affirmed the sovereignty of the respective states by declaring, “The said states hereby severally enter into a firm league of friendship with each other for their common defence [sic].” There would seem little question that the states agreed to the Confederation on the express recognition of their sovereignty and relative independence. Supporting the later view of Lincoln, the perpetuality of the Union was referenced during the Confederation period. For example, the Northwest Ordinance of 1787 stated that “the said territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the United States of America.”
The Confederation produced endless conflicts as various states issued their own money, resisted national obligations and favored their own citizens in disputes. James Madison criticized the Articles of Confederation as reinforcing the view of the Union as “a league of sovereign powers, not as a political Constitution by virtue of which they are become one sovereign power.” Madison warned that such a view could lead to the “dissolving of the United States altogether.” If the matter had ended there with the Articles of Confederation, Lincoln would have had a much weaker case for the court of law in taking up arms to preserve the Union. His legal case was saved by an 18th-century bait-and-switch.
A convention was called in 1787 to amend the Articles of Confederation, but several delegates eventually concluded that a new political structure—a federation—was needed. As they debated what would become the Constitution, the status of the states was a primary concern. George Washington, who presided over the convention, noted, “It is obviously impracticable 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.” Of course, Washington was more concerned with a working federal government—and national army—than resolving the question of a state’s inherent right to withdraw from such a union. The new government forged in Philadelphia would have clear lines of authority for the federal system. The premise of the Constitution, however, was that states would still hold all rights not expressly given to the federal government.
The final version of the Constitution never actually refers to the states as “sovereign,” which for many at the time was the ultimate legal game-changer. In the U.S. Supreme Court’s landmark 1819 decision in McCulloch v. Maryland, Chief Justice John Marshall espoused the view later embraced by Lincoln: “The government of the Union…is emphatically and truly, a government of the people.” Those with differing views resolved to leave the matter unresolved—and thereby planted the seed that would grow into a full civil war. But did Lincoln win by force of arms or force of argument?
On January 21, 1861, Jefferson Davis of Mississippi went to the well of the U.S. Senate one last time to announce that he had “satisfactory evidence that the State of Mississippi, by a solemn ordinance of her people in convention assembled, has declared her separation from the United States.” Before resigning his Senate seat, Davis laid out the basis for Mississippi’s legal claim, coming down squarely on the fact that in the Declaration of Independence “the communities were declaring their independence”—not “the people.” He added, “I have for many years advocated, as an essential attribute of state sovereignty, the right of a state to secede from the Union.”
Davis’ position reaffirmed that of John C. Calhoun, the powerful South Carolina senator who had long viewed the states as independent sovereign entities. In an 1833 speech upholding the right of his home state to nullify federal tariffs it believed were unfair, Calhoun insisted, “I go on the ground that [the] constitution was made by the States; that it is a federal union of the States, in which the several States still retain their sovereignty.” Calhoun allowed that a state could be barred from secession by a vote of two-thirds of the states under Article V, which lays out the procedure for amending the Constitution.
Lincoln’s inauguration on March 4, 1861, was one of the least auspicious beginnings for any president in history. His election was used as a rallying cry for secession, and he became the head of a country that was falling apart even as he raised his hand to take the oath of office. His first inaugural address left no doubt about his legal position: “No State, upon its own mere motion, can lawfully get out of the Union, that resolves and ordinances to that effect are legally void, and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.”
While Lincoln expressly called for a peaceful resolution, this was the final straw for many in the South who saw the speech as a veiled threat. Clearly when Lincoln took the oath to “preserve, protect, and defend” the Constitution, he considered himself bound to preserve the Union as the physical creation of the Declaration of Independence and a central subject of the Constitution. This was made plain in his next major legal argument—an address where Lincoln rejected the notion of sovereignty for states as an “ingenious sophism” that would lead “to the complete destruction of the Union.” In a Fourth of July message to a special session of Congress in 1861, Lincoln declared, “Our States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution—no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence; and the new ones each came into the Union directly from a condition of dependence, excepting Texas. And even Texas, in its temporary independence, was never designated a State.”
It is a brilliant framing of the issue, which Lincoln proceeds to characterize as nothing less than an attack on the very notion of democracy:
Our popular government has often been called an experiment. Two points in it, our people have already settled—the successful establishing, and the successful administering of it. One still remains—its successful maintenance against a formidable [internal] attempt to overthrow it. It is now for them to demonstrate to the world, that those who can fairly carry an election, can also suppress a rebellion—that ballots are the rightful, and peaceful, successors of bullets; and that when ballots have fairly, and constitutionally, decided, there can be no successful appeal, back to bullets; that there can be no successful appeal, except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by a war—teaching all, the folly of being the beginners of a war.
Lincoln implicitly rejected the view of his predecessor, James Buchanan. Buchanan agreed that secession was not allowed under the Constitution, but he also believed the national government could not use force to keep a state in the Union. Notably, however, it was Buchanan who sent troops to protect Fort Sumter six days after South Carolina seceded. The subsequent seizure of Fort Sumter by rebels would push Lincoln on April 14, 1861, to call for 75,000 volunteers to restore the Southern states to the Union—a decisive move to war.
Lincoln showed his gift as a litigator in the July 4th address, though it should be noted that his scruples did not stop him from clearly violating the Constitution when he suspended habeas corpus in 1861 and 1862. His argument also rejects the suggestion of people like Calhoun that, if states can change the Constitution under Article V by democratic vote, they can agree to a state leaving the Union. Lincoln’s view is absolute and treats secession as nothing more than rebellion. Ironically, as Lincoln himself acknowledged, that places the states in the same position as the Constitution’s framers (and presumably himself as King George).
But he did note one telling difference: “Our adversaries have adopted some Declarations of Independence; in which, unlike the good old one, penned by Jefferson, they omit the words ‘all men are created equal.'”
Lincoln’s argument was more convincing, but only up to a point. The South did in fact secede because it was unwilling to accept decisions by a majority in Congress. Moreover, the critical passage of the Constitution may be more important than the status of the states when independence was declared. Davis and Calhoun’s argument was more compelling under the Articles of Confederation, where there was no express waiver of withdrawal. The reference to the “perpetuity” of the Union in the Articles and such documents as the Northwest Ordinance does not necessarily mean each state is bound in perpetuity, but that the nation itself is so created.
After the Constitution was ratified, a new government was formed by the consent of the states that clearly established a single national government. While, as Lincoln noted, the states possessed powers not expressly given to the federal government, the federal government had sole power over the defense of its territory and maintenance of the Union. Citizens under the Constitution were guaranteed free travel and interstate commerce. Therefore it is in conflict to suggest that citizens could find themselves separated from the country as a whole by a seceding state.
Moreover, while neither the Declaration of Independence nor the Constitution says states can not secede, they also do not guarantee states such a right nor refer to the states as sovereign entities. While Calhoun’s argument that Article V allows for changing the Constitution is attractive on some levels, Article V is designed to amend the Constitution, not the Union. A clearly better argument could be made for a duly enacted amendment to the Constitution that would allow secession. In such a case, Lincoln would clearly have been warring against the democratic process he claimed to defend.
Neither side, in my view, had an overwhelming argument. Lincoln’s position was the one most likely to be upheld by an objective court of law. Faced with ambiguous founding and constitutional documents, the spirit of the language clearly supported the view that the original states formed a union and did not retain the sovereign authority to secede from that union.
Of course, a rebellion is ultimately a contest of arms rather than arguments, and to the victor goes the argument. This legal dispute would be resolved not by lawyers but by more practical men such as William Tecumseh Sherman and Thomas “Stonewall” Jackson.
Ultimately, the War Between the States resolved the Constitution’s meaning for any states that entered the Union after 1865, with no delusions about the contractual understanding of the parties. Thus, 15 states from Alaska to Colorado to Washington entered in the full understanding that this was the view of the Union. Moreover, the enactment of the 14th Amendment strengthened the view that the Constitution is a compact between “the people” and the federal government. The amendment affirms the power of the states to make their own laws, but those laws cannot “abridge the privileges or immunities of citizens of the United States.”
There remains a separate guarantee that runs from the federal government directly to each American citizen. Indeed, it was after the Civil War that the notion of being “American” became widely accepted. People now identified themselves as Americans and Virginians. While the South had a plausible legal claim in the 19th century, there is no plausible argument in the 21st century. That argument was answered by Lincoln on July 4, 1861, and more decisively at Appomattox Court House on April 9, 1865.
Jonathan Turley is one of the nation’s leading constitutional scholars and legal commentators. He teaches at George Washington University.
Article originally published in the November 2010 issue of America’s Civil War.
BM: “what then can those States that take offense to this unconstitutional transfer of power do?”
US Constitution, Article V: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;”
If the States object to an unconstitutional action, then two thirds of the States may apply to Congress to call a Convention for proposing amendments.
Three quarters of the States may then ratify the amendments.
That is what the Founders said should be done if the courts or legislature veer away from its principles.
And it has been done.
In Dred Scott v. Sanford, Chief Justice Taney substituted his own personal racist views for the language of the Constitution and ruled that no person of African descent, whether enslaved or free, could ever be a citizen. The southern states were very happy with this gross misinterpretation and distortion of the Constitution. It was reversed by the 14th Amendment.
That is how it is done.
I just do not see anything that the Founders said in the Constitution about allowing a State to withdraw unilaterally from the compact, without the due consent of the partners to the compact, all of whom have relied extensively to the commitments of their fellow states.
@Vince Treacy
Your comment: “Bill, sorry, but the “ruling elites in Washington” are Members of Congress, each and every one of them elected by people back in the States, and a President elected by the people of the United States.”
I agree totally with you that those I refer to as “Ruling Elites” have been elected by the people of the various States. For me, how they came to power doesn’t change what they are. You might refer to them as humble public servants; it matters not since the question I am posing is where they are in violation of the Constitution, what is a State to do about such violations.
So specifically speaking, as you suggest: Suppose a group of elected humble public servants from a majority of States that favor an all powerful federal government pass laws that violate the Constitution as these laws transfer powers to the federal government that are not included in the very few limited powers so delegated to the federal government; what then can those States that take offense to this unconstitutional transfer of power do? I say the Compact is broken and they are well within their right to peacefully withdraw from such a failed agreement.
The “States” at the time of America’s birth were a ragtag collection of cobbled together borders and original settlers with similar backgrounds. They were tightly controlled by various money influences and anything but shining examples of democratic behavior. While from a knowledge of the time it is understandable that the nature of compromises needed to form a national government would result in a flawed constitutional setup, it produced a work in progress that has had great success.
What is laughable to me is the idea that any of our “States” should be entrusted with sovereignty. They are unequal political fictions and curiously the least democratic part of American life. Examples of this are numerous and to obvious to catalog. THe flawed compromise produced a system where Delaware, via it senators has powers in that legislative body equal to California, NY, Texas, etc.
The concept of “States Rights” has always been tied to slavery and local oligarchy. Smart people are always able to develop cogent arguments on either side of the issue. Lost in the rhetoric, however, is the reality that lies beneath the verbiage.
Burning Feet:
Carefully chosen words indeed by Lincoln. Both patriotic and propagandistic at the same time and a tad demagogic as well.
This essay sheds an intriguing light on Lincoln’s famous words at Gettysburg, “..of the people, by the people, and for the people…” Not only was the address prayer and poetry, but polemic.
Excellent article, Prof.
Vince,
You’ve given me something to think about. Just in time for the weekend!
Bill Miller: “Our States are the politically superior party (although it might not appear as such) in this Union since they created the federal government and the Union, and they alone still have the power to dissolve it.”
Nope.
That is wrong.
The only method for dissolving the Constitution is Article V. Amendments must be proposed and ratified.
“States, as sovereign entities through their people” agreed solemnly on the language of that Article, and the nation has adhered to it for over 220 years.
They did not reserve the right to dissolve the Union, unilaterally, anywhere in the Constitution, except by the due processes of Article V.
They created a process that requires the consent of both Congress and the States. Congress must either propose the Amendment or call the Convention. The States must ratify by a 3-4ths vote.
That is what is in the Constitution.
The “Sovereign” states cannot be found in it.
The people who ratified the Constitution in the conventions approved that limitation on the so-called sovereignty of the States.
Bill Miller:
As I said in my post, I think the founders did envision a state center approach rather than an individual centered approach for the union. That view was changed (and rather forcefully so) by the unpleasantness from 1861-1865. Slavery was likewise “changed” by that same historical episode. These facts do not suggest that the current status is not the law of the land nor that those preaching revolution against these precepts are not revolutionaries. Ultima Ratio is still a viable doctrine as any glance around the world will tell you.
Bill, sorry, but the “ruling elites in Washington” are Members of Congress, each and every one of them elected by people back in the States, and a President elected by the people of the United States.
They did not elect themselves.
So if there is a problem with those “ruling elites,” then put the blame where it belongs, on the people of the states who elected them.
Oh, but it is a lot more satisfying to rail that a “federal leviathan violates the Constitution, and refuses to abide by its constitutionally limited delegated powers,” without any specifics.
@Blind Faithiness
As for “might makes right,” I was simply recasting Professor Turley’s argument where he said, “to the victor goes the argument. This legal dispute would be resolved not by lawyers but by more practical men such as William Tecumseh Sherman and Thomas “Stonewall” Jackson.” Sounds like might makes right to me.
As for the Sovereign State being our nation, I couldn’t disagree more. As Lincoln said when offering a definition of sovereignty as,“a political community without a political superior.” Our States are the politically superior party (although it might not appear as such) in this Union since they created the federal government and the Union, and they alone still have the power to dissolve it.
Finally, it was our States, as sovereign entities through their people, that agreed to be bound by the Constitution; not “we the people” since there was no national referendum on acceding to the Constitution. My question remains; that since this Compact has been repeatedly and horribly violated, is it not reasonable to conclude that a State cannot be forced to remain a party to the agreement and continue to suffer such abuse of the terms that were agreed upon when ratified?
@Bill Miller
I don’t believe the “central point” was might makes right, in anyway, bill.
The Sovereign state is our Nation.
We, as a people, have the obligation to maintain our nation and the Constitution, but the States themselves are bound to the Constitution that has been ratified by those States.
Do I understand your central point being that might makes right, and therefore there is no longer any such entity as a sovereign state? As you say, “there is no plausible argument [supporting the rights of sovereign States to resist tyranny?] in the 21st century,” leads me to assume that your position would be that regardless of how the federal leviathan violates the Constitution, and refuses to abide by its constitutionally limited delegated powers, our States are without the authority to resist and must therefore accept whatever our ruling elites in Washington say?
Great read and analysis Vince. I just had time this a.m. to scribble a thought or two. You’ve crystallized the issue.
If reading the Constitution … of the Confederate States of America.
Good read…If I read the Constitution it is a loose confederation of states….to arm if an attack on the states as a whole…but each state should remain and retain its own identity….but hey that is just my read….
JT notes that Calhoun and Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states, but an agreement with the people, and once a state enters the Union, it cannot leave the Union.
Well, it might be good to take a look at how the Constitution was actually adopted. If it had in fact been ratified and entered into by the States themselves, then perhaps the south had a point.
But if the people themselves had in fact entered into to the agreement, then the view of the southerners is much weaker.
We do not really have to wonder about this. Just take out the Constitution and read Article VII. “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”
It looks like the framers bypassed the State legislatures and committed the ratification of the Constitution to the people of the several states.
So the States did not enter into any compact or contract.
The people themselves in conventions called for that purpose ratified the Constitution and entered into the sovereign union of the United States.
This interpretation is supported by the preamble of the Constitution itself, which says that “We the People of the United States … do ordain and establish this Constitution for the United States of America.”
So the text itself demonstrates that the original intent was not to create a compact between the states.
The original intent of the “People of the United States” was to establish a Constitution for the United States of America.
It seems to me that it was the intent of Calhoun, Davis, and the rest of them, to destroy the United States and its Constitution.
JT: “Lincoln showed his gift as a litigator in the July 4th address, though it should be noted that his scruples did not stop him from clearly violating the Constitution when he suspended habeas corpus in 1861 and 1862.”
Lincoln did not “clearly” violate anything in the Constitution when he suspended habeas corpus.
I do not think he violated the Constitution at all.
As he said at the time, the Constitution is silent on whether the President or the Congress may suspend the writ. Although the limitation on suspension appears in Article I of the Constitution relating to Congress, the inference that this limits the suspension power to Congress is very weak.
Section 9, which sets forth the limitation, also provides that no money may be drawn from the Treasury except by appropriation made by law. That limitation applies only to the Executive, although it is set out in Article I. The draft of the clause at one point provided expressly that the legislature could not suspend the writ, but the legislature was dropped from the final version.
The question has never been resolved by the Supreme Court. Taney’s opinion in Merryman was one-sided and tendentious, and was only the view of one Justice.
It is open question of constitutional law. Scholarly opinion has been divided down through the years. See “The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act,” by Stephen I. Vladeck, American University, Washington College of Law. The footnotes give citations to numerous articles on both sides of the issue.
http://papers.ssrn.com/sol3/papers.cfm?abs tract_id=963994
So there is no justification in saying that Lincoln, who swore to uphold the Constitution, had in any way “clearly” violated the Constitution. It may be “arguable,” but it is not clear.
I think that Lincoln was justified under the Constitution in suspending the writ at a time when organized mobs sought to prevent Congress itself from meeting in order to consider a suspension of the writ.
All of Lincoln’s actions in suspending the writ were ratified by Congress.
As said many years later, the Constitution is not a suicide pact.
The rule against secession was in fact justified in the Constitution in Article V.
States that wished to secede had the right, then and now, to submit proposed amendments to the Constitution, either to Congress or to a Convention called for that purpose. The amendment could provide that a single state is authorized to secede, or that a group may secede. It could provide for a process of general application. In 1861, northern states might have voted to let the southern states go.
By providing an explicit method for reordering the new government, the framers expressly excluded the chaos that would result if a single state could drop out at any time at will. The Constitution expressly provides for the admission of new states, but was silent on secession.
The people who ratified the Constitution in conventions called for that purpose could see clearly in the literal words of the document that their States could not destroy the new partnership without the consent of their partners.
They did not give the States the right to walk away.
Not now.
Not ever.
There was nothing in the Constitution that provided or implied that a state could withdraw unilaterally, by simple act of legislation or referendum.
The Supreme Court settled the question in Texas v. White:
“Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.” 74 U.S. 700, 727 (1868)
Of course, the seceding states in 1861 could have invoked the rule of law and sought a Supreme Court ruling. Article III, section 2, gives the Supreme Court original jurisdiction in cases in which a State is a party.
But, instead, they disregarded the Constitution and they started a war at Fort Sumter.
Here is what one leader wrote in 1861:
“But I can anticipate no greater calamity for the country than a dissolution of the Union. It would be an accumulation of all the evils we complain of, and I am willing to sacrifice everything but honor for its preservation. I hope, therefore, that all constitutional means will be exhausted before there is a resort to force. Secession is nothing but revolution. The framers of our Constitution never exhausted so much labor, wisdom and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. It is idle to talk of secession. Anarchy would have been established, and not a government, by Washington, Hamilton, Jefferson, Madison, and the other patriots of the Revolution.” 74 U.S. at 727.
So he wanted all constitutional means exhausted before the resort to force.
He saw a perpetual union, to be dissolved only by revolution or the “consent of all the people in convention assembled.”
He said “is idle to talk of secession.”
He said “Anarchy would have been established, and not a government, by Washington, Hamilton, Jefferson, Madison, and the other patriots of the Revolution.”
That writer wrote those words on January 23, 1861.
He was Robert E. Lee.
Excellent article, JT. I do disagree with one premise in your argument that some ambiguity existed concerning the term “people.”. I also think the Madison quote is a tad misleading in this context.
In Federalist 39, Madison had no trepidation is interpreting the “people of the United States” as refering to the sovereign states:
“First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.
On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act.
That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. 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.”
While I agree that Lincoln, as a matter of policy, had to rein in the rebellious South Carolina by force, there is little doubt in my mind that the founders believed the individual states could secede from the federal, as opposed to national, “contract.” The Civil War was simply an evolving interpretation of the notion of “union.”