Uncivil Action: Was Lincoln Wrong on Secession?

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.

228 thoughts on “Uncivil Action: Was Lincoln Wrong on Secession?”

  1. So then you acknowledge that Texas does in deed have the right independent to withdraw from the Union based upon a breach of contract or a failure of consideration

    No, Texas does not have a right to withdraw from the union, especially not after the Civil War and readmission during reconstruction, if the right existed at all prior to the war. It’s a Rural Texas Legend — but interesting history for anyone not looking for some reason to pull Texas away from the U.S., nor dump Texas into the Gulf. I wrote about it last year, here.

  2. So then you acknowledge that Texas does in deed have the right independent to withdraw from the Union based upon a breach of contract or a failure of consideration…I think a few others have asked you to elaborate and you seem to not do that either….I would like to know what your opinion is based upon your thoughts and please do not rely on Texas V White as it is not applicable to this discussion….It dealt with money and notes if I recall….

  3. A rhetorical question does not call for an answer, inasmuch as the questioner knows the answer to his question, which is posed only for the sake of argument, not for information, and the questioner can answer the question himself and move on with the argument.

    According to wiki, “A rhetorical question is a figure of speech in the form of a question posed for its persuasive effect without the expectation of a reply (e.g.: “Why me?’)”

    http://en.wikipedia.org/wiki/Rhetorical_question

  4. mespo,

    At first I thought that was directed at me….then I read that you were answering Larry…

  5. I cant wait for the bullshit responses

    ***********************

    Like Adlai Stevenson, you’ll await my substantive reply “until Hell freezes over.”

  6. Vince,

    I think you are missing the point…I for one do not think that slavery should have been legal to start with….But since it was and was even a bargained for event….then what they were doing whether legally correct but morally incomprehensible does not affect or taint the arguments that have been made based upon the information provided….No more than prohibiting racial marriages…. Just answer the questions and you since are as guilty as anyone on this thread for assaults and insults….But I agree that this site should remain civil….

  7. For all correspondents, I think the statement issued by the Virginia Governor is well worth reading. I think that his admonition that the Civil War “be discussed with civility and responsibility.”

    This is very apropos in light of Professor Turley’s observation that he has “long complained about the uncivil nature of discourse on blogs. Anonymity seems to unleash mean and petty impulses among some people.” The Professor noted on another thread his hope “that people will show a level of civil restraint in participating in this and other debates.”

    I think that the Governor has issued a very thoughtful and perceptive statement, that clearly resulted from long and hard thought and reflection. We can all learn from his words.

    [quoting]
    April 07, 2010

    Statement of Governor Bob McDonnell

    RICHMOND – Governor Bob McDonnell issued the following statement today regarding the proclamation of Confederate History Month in the Commonwealth:

    “The proclamation issued by this Office designating April as Confederate History Month contained a major omission. The failure to include any reference to slavery was a mistake, and for that I apologize to any fellow Virginian who has been offended or disappointed. The abomination of slavery divided our nation, deprived people of their God-given inalienable rights, and led to the Civil War. Slavery was an evil, vicious and inhumane practice which degraded human beings to property, and it has left a stain on the soul of this state and nation. In 2007, the Virginia General Assembly approved a formal statement of “profound regret” for the Commonwealth’s history of slavery, which was the right thing to do.

    When I signed the Proclamation designating February as Black History Month, and as I look out my window at the Virginia Civil Rights Memorial, I am reminded that, even 150 years later, Virginia’s past is inextricably part of our present. The Confederate History Month proclamation issued was solely intended to promote the study of our history, encourage tourism in our state in advance of the 150th Anniversary of the beginning of the Civil War, and recognize Virginia’s unique role in the story of America. The Virginia General Assembly unanimously approved the establishment of a Sesquicentennial American Civil War Commission to prepare for and commemorate the 150th Anniversary of the War, in order to promote history and create recognition programs and activities.

    As Virginians we carry with us both the burdens and the blessings of our history. Virginia history undeniably includes the fact that we were the Capitol of the Confederacy, the site of more battlefields than any other state, and the home of the signing of the peace agreement at Appomattox. Our history is perhaps best encapsulated in a fact I noted in my Inaugural Address in January: The state that served as the Capitol of the Confederacy was also the first in the nation to elect an African-American governor, my friend, L. Douglas Wilder. America’s history has been written in Virginia. We cannot avoid our past; instead we must demand that it be discussed with civility and responsibility. During the commemoration of the Civil War over the next four years, I intend to lead an effort to promote greater understanding and harmony in our state among our citizens.”

    In addition the Governor announced that the following language will be added to the Proclamation:

    WHEREAS, it is important for all Virginians to understand that the institution of slavery led to this war and was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders, and the study of this time period should reflect upon and learn from this painful part of our history…

    **This section will be added between the 3rd and 4th Sections**

    Source: http://www.governor.virginia.gov/news/viewRelease.cfm?id=111

  8. “Lincoln offered compensated emancipation to the four border slave states as late as 1862, and they all turned him down flatly.”

    The above statement makes absolutely NO SENSE WHATSOEVER. You’re saying that states had FULL rights when it came to compensated emancipation [to turn Lincoln down over it] but they had NO rights when it came to secession?? You’re basically saying that the Southern states could not secede without an invasion of their states and Lincoln killing 250,000 soldiers and thousands more innocent civilians—–BUT when it came to compensated emancipation, the states had FULL POWER to turn Lincoln down and he [Lincoln] just walked away with his tail between his legs like a 10 year old boy who just got his lunch money stolen from bullies and did NOTHING about it??

    Why didn’t Lincoln invade those states [in which you say “turned Lincoln down” over compensated emancipation] and capture the slaves and pay the slave owners off to free their slaves?? The BIG reasons he did not do that is because 1.) slavery was constitutional and he vowed “not to disturb slavery” in his first inaugural and 2.) So he could use slavery as the excuse for the war when the REAL reasons was to eliminate states rights by calling the Constitutional issue of secession “treason” and to centralize government

    So, you’re saying the great “emancipator” OBEYED the border states’ refusal to free their slaves by way of compensation—–but he completely IGNORED the South’s constitutional right to secede and invaded them and killed a quarter of a million of them, plus thousands more civilians? Why did Lincoln cower and walk away from one group of states and invade a murder hundreds of thousands in another group of states? Why didn’t Lincoln issue an Emancipation Proclamation [which freed no slaves, by the way] the day after being sworn in and avoid a long bloody war if he was so against slavery?

    I cant wait for the bullshit responses

  9. “What I think Mespo [I think because I am not privy to Mespo’s silent reveries] is saying in his very best Virginia gentlemanly way is that you are full of shit and he doesnt want to engage with a dolt.”

    Of course that’s what he’s saying, because intelligent debate [where he actually attempts to REFUTE things I say] isn’t working.

  10. Jimmy Madison II:

    Consider yourself Virginia-ized. Have a sip of your favorite libation from your pewter Jefferson cup and join the reveries. Mind you, there are some hard and fast rules: no drinking to excess at Strawberry Hill races, no enjoyment claimed at golf anywhere besides CCV, no considering anywhere north of Fredricksburg as the “real” Virginia, and no dinner before 8:30 p.m. or without peanuts, Smithfield ham, or a decent whiskey. If this works for you, consider yourself sworn-in and last, but not the least, learn the Good Ole Song, buy some Duckhead khakis (they’re back), and, when in Richmond, get a limeade at Phils Continental Lounge plus a sailor sandwhich ,too.

  11. So far we have had many deceased signors of the DOI appear. I am waiting for the rest of the signors to appear including but not limited to Sammy Clemens…..

  12. It all depends on how many secrets y’all are willing to share with lil ol me.

  13. Larry:

    Mespo is a Virginia gentleman, I am a transplant and have lived in Virginia for about 25 years so I have learned to speak the language.

    What I think Mespo [I think because I am not privy to Mespo’s silent reveries] is saying in his very best Virginia gentlemanly way is that you are full of shit and he doesnt want to engage with a dolt.

    I may be wrong since it takes a life time in a place to catch the subtle nuances of the language.

  14. “Lincoln offered compensated emancipation to the four border slave states as late as 1862, and they all turned him down flatly.”

    ***********************

    Darn you TJ. We knew that and you had to go and educate Larry just when his braying was its funniest. Spoilsport!

  15. “Thomas, Thomas, Thomas; surely you don’t mean that your a priori principles are limited to your words alone…”

    Squire Bob hath taken a rude and mocking tone to my earnest query and observation.

  16. “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!”

    The war was over the expansion of slavery to the territories. As I wrote in 1820, the desire of the northern states to ban the slave trade from the territories was a “firebell in the night.” Although I had hoped at one time that the strength of slavery would be diluted by spreading to new lands, my successors acquiesced to the Missouri Compromise.

    It is clear to nearly all historians that the civil war was, indeed, waged over the issue of slavery. The immediate issue in 1860-61 was the issue of its expansion to the territories.

    As a lawyer, I must correct the impression about the Dred Scott case. I think it is fair to say that Taney assumed that slavery had been constitutional every since 1789.

    He made two new rulings. First, he ruled that a former or freed slave of African descent could never be a citizen of a State or of the United States.

    Second, he ruled that the federal government had no power under the Territories Clause, or any other Clause, to interfere with the rights of slaveowners to take their slaves to the territories, and, moreover, that the Fifth Amendment prevented this since no slaveowners could be deprived of property without due process of law. Taney added in dictum that a territorial legislature was also without power to ban slavery.

    So Larry was wrong factually and historically when he stated that slavery “became CONSTITUTIONAL in 1857.”

  17. Larry said “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.”

    Lincoln offered compensated emancipation to the four border slave states as late as 1862, and they all turned him down flatly.

    That addresses the point and rebuts it.

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