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.
Mespo—I love how you COMPLETELY IGNORED the line I posted before the one you posted [but still didnt debunk]:
“What a ridiculous and asinine comment. Do you realize that just about EVERY country between 1800 and 1860 ended slavery without a war?? They ended it through compensated emancipation.”
Address THAT!
Ahhhh yes Mespo, failure to debunk me yet again.
Why do you post a portion of my post yet do not even debunk it???
Will you debunk at least ONE of my posts??
“You think the war was over slavery? How many times do I have to say that Lincoln could NOT end slavery through a war ANYWAY—it needed a CONSTITUTIONAL amendment—it took CONGRESS to end it! Are you really that dumb??”
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Turn the light off when you go Larry. The adults are leaving now.
Bob,Esq.
1, October 1, 2010 at 9:27 pm
Blouise,
I’m not sure I understand your question.
===============================================================
That’s alright … I was looking for clarification and you provided it.
I believe I have a much better understanding today of the questions and debates that surround(ed) the problems Lincoln faced than I had when this thread was first introduced.
You have been generous with your time and I thank you.
(I do wish someone would address the Texas issue.)
“The Declaration was and is a legal instrument, a juristic act of ultimate solemnity, effecting the most fundamental constitutional change, a change in the very source and foundation of law. It is par excellence constitutional. It is our one legal document on which all else rests. It enunciates the theory of law, of ultimate constitutional law, on which the signers based their claim of power and right to effect this great legal-constitutional change. The force and thrust of the [the Second Paragraph], as a permanent commitment of the nation, must be appreciated in that light.” (Charles L. Black, One Nation Indivisible, 65 S.J. Law Rev. 27 (1991))
Blouise,
I’m not sure I understand your question.
Thos. Jefferson, Esq.: “I did not intend to write words that would carry any such meaning or import, nor did any of the other signers known to me approve of any words to the same or similar effect. Nor does such an interpretation comport with the customary and reasonable meaning ascribed to the words that I and the Committee did write by all who then deliberated on and approved of them.”
Thomas, Thomas, Thomas; surely you don’t mean that your a priori principles are limited to your words alone…
MEPHISTOPHELES: To sum up all—To words hold fast!
Then the safe gate securely pass’d,
You’ll reach the fane of certainty at last.
STUDENT
But then some meaning must the words convey.
MEPHISTOPHELES
Right! But o’er-anxious thought, you’ll find of no avail,
For there precisely where ideas fail,
A word comes opportunely into play
Most admirable weapons words are found,
On words a system we securely ground,
In words we can conveniently believe,
Nor of a single jot can we a word bereave.
“The title company” doesn’t care so much about the nexus between your words and what you intended, rather it’s concerned with the legal consequences necessitated by virtue of how you took title.
Now put down that pamphlet and pay attention to how all those words with which you’re not familiar aren’t really foreign at all:
Kant: “In all judgments wherein the relation of a subject to the predicate is thought . . . this relation is possible in two different ways. Either the predicate B belongs to the subject A, as something which is contained (covertly) in this concept A; or the predicate B lies completely outside the concept A, although it stands in connection with it. In the first instance, I term the judgment analytic, in the second, synthetic. Analytic judgments. . .are therefore those in which the connection of the predicate with the subject is thought through identity; those in which this connection is thought without identity, are called synthetic judgments. [Analytic judgments add nothing through the predicate to the concept of the subject, but merely break it up into those constituent concepts that have all along been thought in it, although confusedly, and therefore can also be entitled explicative. Synthetic judgments, on the other hand, add to the concept of the subject a predicate which has not been in anywise thought in it, and which no analysis could possibly extract from it; and may therefore be entitled augmentative.] For example, when I say, [“All bachelors are unmarried”], this is an analytic judgment. For I need not go beyond the concept of “bachelor” in order to find “unmarried” connected with it, but merely analyze the subject, that is, become conscious of the manifold properties which I think in that concept, in order to discover this predicate in it: it is therefore an analytic judgment.“ (Critique of Pure Reason, Kemp Smith ed., p. 48)
All those words with which you’re unfamiliar are merely the result of analytic judgments of the principles upon which you relied while taking sovereign title to those 13 original colonies at closing of title with the Treaty of Paris.
Ya see Thomas, any assurances, warranties or representations you made regarding, oh, let’s say slavery, failed to survive closing. Like it or not, you got what you asked for necessarily by definition of the terms you laid down as your condition for taking title; NO TYRANNY.
Your courtesies in connection with this mater are greatly appreciated.
Bob Esq.,
Please excuse my re-asking a question you had already answered:
“How much weight, if any, is given to the fact that counts drafted by Jefferson which condemned the slave trade were omitted? Does it matter at all, legally speaking?”
“Legally speaking, did it matter that Jefferson removed references to slavery within the Declaration? Did it matter that no predecessor in interest chose to enforce the covenant against the slave holding states or declared to be doing so during the Civil War? The answer is no.”(Bob Esq)
I was waxing rhetorical so as to lead in to my next question and am writing this post to explain so that you don’t think I was engaging in selective memory.
Lincoln swore up and down in his first inaugural address that he would NOT disturb slavery—which he couldnt do anyway, because it was CONSTITUTIONAL.
“Were it not for the Civil War African Americans and perhaps others would still be held in slavery today”
What a ridiculous and asinine comment. Do you realize that just about EVERY country between 1800 and 1860 ended slavery without a war?? They ended it through compensated emancipation. You think the war was over slavery? How many times do I have to say that Lincoln could NOT end slavery through a war ANYWAY—it needed a CONSTITUTIONAL amendment—it took CONGRESS to end it! Are you really that dumb??
“Your position therefore in effect supports the enslavement of human beings for profit. you might deny this, or perhaps admit it, but you can’t escape the logic of it.”
NOPE! MY position is that it became CONSTITUTIONAL in 1857. I do NOT support slavery [although LINCOLN did]—but slaves were treated with respect and had homes and food. After they were “free” [NOT by Lincoln] they were scared and had no place to go. You REALLY need to read books!
Hello in there I am not Thomas Jefferson…..or Jessie Jackson or Emmanuel Raham….
I am still AY….
It is a very interesting theory that the correspondent endeavors to describe, but it comes to me as a complete surprise, because I cannot recall that I ever wrote any Document entitled Declaration of Covenants and Restrictions Against Tyranny, nor that I ever wrote any document that could be fairly so described.
I cannot locate anywhere in the Declaration that I did write the words “privity of estate,” “privity of contract,” “contract,” “estate,” “covenants and restrictions,” “covenant,” “restriction,” “land,” “sovereign title,” “condition precedent,” “property,” or “equal footing.”
I do not think I ever wrote any words that could reasonably be interpreted in a manner that “legally entitled them to banish all slavery in all land situate within the 13 original colonies and the land later merged therewith.”
I did not intend to write words that would carry any such meaning or import, nor did any of the other signers known to me approve of any words to the same or similar effect. Nor does such an interpretation comport with the customary and reasonable meaning ascribed to the words that I and the Committee did write by all who then deliberated on and approved of them.
Thomas Jefferson, Esquire
Bob,Esq.,
Believe it or not the last paragraph in your answer was the one with which my subconscious/intuition was tickling my conscious mind …
“Accordingly, whether the North knew it or not, under the equal footing doctrine (and privity of estate), a certain Declaration of Covenants and Restrictions Against Tyranny legally entitled them to banish all slavery in all land situate within the 13 original colonies and the land later merged therewith.”(Bob,Esq.)
How much weight, if any, is given to the fact that counts drafted by Jefferson which condemned the slave trade were omitted? Does it matter at all, legally speaking?
In agreeing to omit those counts without also adding language recognizing slavery, did Thomas Jefferson and his committee (Adams, Franklin, Sherman, and Livingston) put one over on the delegates from South Carolina and Georgia who had objected to the counts that condemned slavery or … is that something “never to be known”?
Since the DOI is viewed by most as the foundation of our constitutional order … is that why Lincoln relied so heavily upon it?
Mike S:
“Let’s cut to the chase on this. Were it not for the Civil War African Americans and perhaps others would still be held in slavery today.”
From what I have read slavery was on the way out and would probably not have lasted another generation. Please dont misunderstand, I think slavery is an absolute evil.
“A very readable and remarkable new book that has just been published — “Bury the Chains” by Adam Hochschild — traces the history of the world’s first anti-slavery movement, which began with a meeting of 12 “deeply religious” men in London in 1787.
The book re-creates the very different world of that time, in which slavery was so much taken for granted that most people simply did not think about it, one way or the other. Nor did the leading intellectuals, political leaders, or religious leaders in Britain or anywhere else in the world.
The dozen men who formed the world’s first anti-slavery movement saw their task as getting their fellow Englishmen to think about slavery — about the brutal facts and about the moral implications of those facts.
Their conviction that this would be enough to turn the British public, and ultimately the British Empire, against slavery might seem naive, except that this is precisely what happened. It did not happen quickly and it did not happen without encountering bitter opposition, for the British were at the time the world’s biggest slave traders and this created wealthy and politically powerful special interests defending slavery.
The anti-slavery movement nevertheless persisted through decades of struggles and defeats in Parliament until eventually they secured a ban on the international slave trade, and ultimately a ban on slavery itself throughout the British Empire.
Even more remarkable, Britain took it upon itself, as the leading naval power of the world, to police the ban on slave trading against other nations. Intercepting and boarding other countries’ ships on the high seas to look for slaves, the British became and remained for more than a century the world’s policeman when it came to stopping the slave trade.”
The civil war brought slavery in our country to an abrupt end but there is no evidence to suggest that it would have continued into the 20th century. The south would not have been able to compete against the industrial north and would have had to transition to machinery or remain a comparative economic back water.
Blouise: If The Declaration is a privity of contract and privity of estate, do the 13 colonies retain the right to bring suit against each other for breach of contract?
Blouise,
Actually, it’s far more an issue of privity of estate than privity of contract.
A regular everyday covenant that runs with the land, if left left unaltered by subsequent declaration or court action, can run in perpetuity. In the case of the DOI, it defines the very nature of sovereign title as it passed from the Crown to the 13 original colonies. The one condition precedent to the very existence of the 13 original colonies is “no tyranny.”
Since feudal times up to today sovereignty has always run with the land. A declaration of covenants and restrictions running with the land, defining said sovereign title, exists regardless of whether the predecessors in interest ever acted on said covenant.
Do you see what I’m getting at here Blouise?
Legally speaking, did it matter that Jefferson removed references to slavery within the Declaration? Did it matter that no predecessor in interest chose to enforce the covenant against the slave holding states or declared to be doing so during the Civil War? The answer is no. This is a big part of the reason why we do title searches and buy title insurance before purchasing real property. A covenant running with the land does not vanish simply because it lay dormant or unenforced by the predecessors in interest for a few centuries; especially when the covenant defines said land as much as a property description (see schedule “A”) eh hem–parenthetical property joke–Mespo and Buddha probably got it.
Jefferson cobbled together a ‘long train of usurpations’ that he held out to being equivalent to tyranny.
But slavery is tyranny per se.
http://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/#comment-161517
Accordingly, whether the North knew it or not, under the equal footing doctrine (and privity of estate), a certain Declaration of Covenants and Restrictions Against Tyranny legally entitled them to banish all slavery in all land situate within the 13 original colonies and the land later merged therewith.
… forgive my lack of retention if this question has already been asked and answered …
Bob,Esq.,
Please clarify … the need for clarification is not due to your explanation but to my ignorance:
If The Declaration is a privity of contract and privity of estate, do the 13 colonies retain the right to bring suit against each other for breach of contract?
“Mike, so the answer to the CONSTITUTIONAL Dred Scott decision was to murder 250,000 soldiers and thousands of innocent civilians to stop secesssion—-an act that formed our country?”
Larry,
Let’s cut to the chase on this. Were it not for the Civil War African Americans and perhaps others would still be held in slavery today. No amount of historical legerdemain can wipe away the fact that at base this war was about the rights of the secessionist traitors to maintain the institution of slavery. Had the war been avoided, or had they won there is no logical argument that slavery would have been discontinued by today. Your position therefore in effect supports the enslavement of human beings for profit. you might deny this, or perhaps admit it, but you can’t escape the logic of it.
I happen to believe that slavery in any form is vicious inhumane and immoral. It should be vigorously opposed wherever it occurs. You on the other hand probably do not feel that is the case. If this is so, which I strongly suspect it is, then you could at least be honest with us as to your basic agenda. Instead you use stale argumentation and faulty interpretation to cobble together an argument that deflects from the real basic issue. Please don’t respond with the historical speculation that Lincoln was pro-slavery, or that this was a war of Northern Industrialization versus Southern Agrarianism. Even if those arguments are true, which I would dispute, the fact remains that continued enslavement of Afro-Americans was the most important aspect of the southern agenda. If you’re okay with that it’s your right, but if that’s the case you certainly don’t have the courage to reveal your real convictions.
That’s privity of contract and privity of estate.
Larry: “By the way Bob, what restrictions are you referring to? The original 13 states were indepedent free states that entered a VOLUNTARY union.”
In the summer of 1776, a group of delegates, duly authorized by the people of 13 colonies (hereinafter “The Planning Board”) convened in Philadelphia, PA. Intending to subdivide the aforesaid 13 colonies from their tyrannical King, Jefferson and the Planning Board set out to take the King’s land by indicting him for tyranny. In so doing, they Declared the People’s intent to dissolve the Political Bands connecting with the English Crown by letting facts be shown to a candid world why their King was a tyrant, THUS impelling the subdivision of the King’s land into 13 sovereign colonies via a Declaration of Covenants and Restrictions Against Tyranny dated July 4, 1776 (hereinafter “The Declaration”); prohibiting tyranny from all land comprising the 13 aforesaid colonies.
N.B. Privity of contract regarding the aforesaid C&R trumps any predicates concerning a “union.”