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.
Larry,on September 27, 2010 at 3:01 pm wrote: wow Mr Turley—-this line makes NO sense: “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.””
Mespo demurred in a lawyerly manner, indicating that he himself, not Professor Turley, had written the words.
Larry now writes: “Mespo—–what in THE HELL are you talking about??? The paragraph I cited was from TURLEY’S ARTICLE—–so it WAS from Turley! Are you saying that YOU are the author of Turley’s article???”
I think if Larry, or any other reader, goes to the following link, they will find the sentence in the final paragraph of Mespo’s posting.
http://jonathanturley.org/2010/09/24/uncivil-action-was-lincoln-wrong-on-secession/#comment-161368
Here is the paragraph in full: “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.’”
Larry has a lot more to learn from the scholarly Mespo than Mespo has to learn from Larry.
Wrong again Mespo–when you said:
“I think the founders did envision a state center approach rather than an individual centered approach for the union.”
Only Alexander Hamilton envisioned a centralized government—all the rest envisioned a government run by the people. And by the way, you stating that you “think” is the problem. Reading and investigating would give you certainty and not force you to just “think” things are true.
Mespo—-you are simply WRONG when you said this:
“That States are sovereign in some areas like education, and control of their militias, but subservient to the national government in other areas like national defense and trade policy.”
Who came first? The individual, sovereign states or the “federal” government?? Remember, the government is SUPPOSED to be run by the PEOPLE [“we the people”—–remember that?] The “national government” was not even in ANY of the founders’ vocabulary. They did NOT form a NATION or a “national” government, they formed a confederation of states in a VOLUNTARY union. When will you morons understand this??? Lincoln VIOLATED the Constitution by invading the South and murdering a quarter million soldiers and thousands more innocent civilians [which was also in violation of international laws of war—there was no Geneva Conventions then—-but there WAS moral laws of war—and Lincoln violated them].
You crackpots on this thread are a part of the Lincoln cult [he freed slaves, saved the Union, etc… blah blah blah] He did no such thing. The Emancipation Proclaimation was NOT ABOUT FREEING SLAVES—–it was a political stunt by Lincoln to gain the abolitionist vote. Lincoln supported slavery and he was extremely racist. Would you like me to list his racist quotes???
Hmmmm???
I wonder what Prof Turley has to say about this quote from Thomas Jefferson since he doesnt believe in secession:
“If there be any among us who would wish
to dissolve this Union or to change its republican form,
let them stand undisturbed as monuments of the safety
with which error of opinion may be tolerated
where reason is left free to combat it.”
Sure sounds to me like Jefferson supports secesssion!!!!!!!!
Mespo—–what in THE HELL are you talking about??? The paragraph I cited was from TURLEY’S ARTICLE—–so it WAS from Turley! Are you saying that YOU are the author of Turley’s article??? Lincoln had NO RIGHT to invade the South. Secession is definately granted in the Constitution! America was formed from the act of secession—we seceeded from England! What sense would it make for the founders to secede from England and then incorporate into the Constitution that secession be treasonous when THEY did it???? What’s wrong with Thomas DiLorenzo??? He’s BRILLIANT!
Do you HONESTLY think the Civil War was over SLAVERY?? Not ONLY was slavery Constitutional after the Dred Scott decision made it Constitutional in 1857, but Lincoln SUPPORTED slavery—he said in his first inaugural address that he had NO INTENTION of disrupting slavery. The war was about Lincoln’s abhorration of SECESSION because he wanted a centralized government—and boy did he ever get it! Many people in the North even AGREED with the South and wrote anti-Lincoln columns in their newspapers—which is why Lincoln had over 300 newspapers shut down and many editors imprioned. Lincoln made Bush look like George Washington!
“Treaty of Annexation”(Isabel Darcy)
There was no Treaty … Native American lands were annexed by treaty but the Republic Of Texas was an annexed by resolution. There is a great deal of history that must be read and understood before intelligently discussing the particular circumstances of Texas annexation and a great deal more before understanding Texas and the Civil War.
Although many like to refer to Texas legal rights to secede as “Texas-related legends”, a careful study of the history from that time including the changes within the Missouri Compromise, The Mexican–American War, and a host of other historical facts all flavored by the Lincoln/Douglas debates adds strength to AY’s assertions and would probably require a separate thread to properly discus the legal overtones of that particular secession.
On the face of it, I am of the opinion that AY is more right than wrong. His prose may wander a bit but his mind is very focused. Often the prose suffers when the mind works faster than the fingers can type. Stop taking cheap pot shots at him!
Byron:
Sadly, about all I do with kids is coach a little football. Many of my clients do fall into the category discussed in the article, and I will take a look at it tonight and reply then.
Never said it was a land grab….Hawaii was a land grab….they consented to being a territory….. the rest was purely stolen….
ID,
You are clearly wrong…but then again….it was a Bi-Lateral agreement both the US and the Republic of Texas….Certain agreements/covenants were made….
Texaa was NOT admitted to the Union by votes of the other states. It was admitted by a Treaty of Annexation, an agreement ratified by both the Republic of Texas and the US Congress. Contrary to AY’s post (which I have trouble deciphering), the US didn’t grab Texas and involuntarily add Texas as a state. Here’s a quote from Wikipedia re the Treaty of Annexation:
Annexation by joint resolution
James K. Polk, a Democrat and a strong supporter of territorial expansion, was elected president in November 1844 with a mandate to acquire both the Republic of Texas and Oregon Country.[6] After the election, the Tyler administration realized that public opinion was in favor of annexation, consulted with President-elect Polk, and set out to accomplish annexation by means of a joint resolution.[7] The resolution declared that Texas would be admitted as a state as long as it approved annexation by 1 January 1846, that it could split itself up into four additional states, and that possession of the Republic’s public lands would shift to the state of Texas upon its admission.[7] On 26 February 1845, six days before Polk took office, Congress passed the joint resolution.[7] Not long afterward, Andrew Jackson Donelson, the American chargé d’affaires in Texas and the nephew of former president Andrew Jackson, presented the American resolution to President Anson Jones of Texas.[8] In July 1845, the Texan Congress endorsed the American annexation offer with only one dissenting vote and began writing a state constitution.[9] The citizens of Texas approved the new constitution and the annexation ordinance in October 1845 and Polk signed the documents formally integrating Texas into the United States on 29 December 1845.[10]
Note that title to public lands in Texas shifted to the State of Texas, not to the federal government. One reason why there’s no Indian reservations in Texas or federal parks. All land presently owned by the US Govt in Texas was purchased from the State of Texas. Also, land titles go back to land grants from the Spanish crown.
No it does not require a constitutional amendment to be admitted….
I do agree that each and every other state in the union has to petition to get out….but Texas was admitted under different circumstances and reasoning….but the basis for the bargain has been breached……
But it doesn’t require a Constitutional amendment to get in.
Good discussion. Being of Yankee descent, I have a prejudice on the issue, but in my opinion Vince Treacy wins the debate hands down. I disagree with Prof. Turley. A state can secede only if 2/3 of the other states allow it to do so via Constitutional amendment. To get out, you need to follow the same mechanism to get in.
Mespo:
I seem to remember that you work with inner city children. What do you think of this article?
http://www.tsowell.com/speducat.html#N06
Great input there Ed Darrell. Another summary of the ratification process can be found here for anyone interested in the exact 4 step process:
http://www.answers.com/topic/ratification-of-the-constitution
Vince Treacy said:
Right.
It’s useful to recall what led to the convention in Philadelphia, and what events were roiling about the convention, and before and after.
Weaknesses in the Articles of Confederation were manifest to many, but particularly to George Washington, who had thousands of acres in the Ohio Valley to sell, if only a national government could devise some way to get settlers there, protect them, and get products from the Ohio Valley back to commerce in other states and the world. Alexander Hamilton, Washington’s aide during the war, wrangled with the dispute between New York and New Jersey over who had title to New York Harbor (an issue never really well settled, but papered over with the Port Authority, which makes both states rich); young James Madison came into Washington’s awareness as the lively Virginia delegate appointed to settle the dispute between Maryland and Virginia over fishing and navigation of Chesapeake Bay. Washington intervened in those negotiations when Virginia Gov. Patrick Henry, an anti-nationalist, purposely failed to inform the Virginia delegates they had been named, and that a meeting had been scheduled in Fairfax. Washington entertained the Maryland delegates, notified Madison, and kept close watch from there on in.
Washington was probably the first who realized that there might be one solution to his problems of development in the Ohio Valley, his friend and former aide Hamilton’s issues in New York Harbor, and Madison’s problems in settling disputes between Maryland and Virginia. Washington introduced Hamilton and Madison via correspondence, and suggested to each and both that they urge the Continental Congress to convene a convention to fix the Articles of Confederation.
That the Constitution would be a compact of the people and not the states was almost accidental. Madison understood Henry’s opposition, and Madison anticipated Henry would do his utmost to derail ratification of the Constitution — and since Henry controlled Virginia’s legislature pretty much, Madison devised a ratification scheme that by-passed approval by the state governments, but instead would require conventions of people in each of the 13 independent colonies, at least for the initial ratification.
I am unaware that anyone anticipated that any member of the union would ever want out; there was anticipation that some of the original 13 would not want in.
So the Constitution was ratified by the people, sitting in a position superior to the states (especially with regard to Article IV, which dictates conditions under which state governments can operate, requiring a republican form of government). Lincoln was right.
This is not to say that it was an issue in Philadelphia, nor that Madison, Hamilton or others did not cloud the issue later. One may read the Virginia and Kentucky Resolutions as supporting the idea that the states created the federal government, and Madison and Jefferson had heavy hands in those resolutions. But the Constitution itself was not ratified by the states, but by the people of the states, in special conventions called for the purpose.
To the best of my knowledge the issue has never been litigated, but I think one could argue that the people, in accepting and ratifying the Constitution, effectively dissolved their state governments as completely sovereign entities without superior, and instantaneously replaced those state governments with state governments (with the same constitution) under the federal Constitution. There are problems with such an argument, but fewer I think than with an argument that the states were or are superior to the U.S. Constitution and could choose to get out, unilaterally. Such unilateral action was precisely what the Constitution was created to supplant.
Has anyone checked Madison’s notes on the convention, or other documents on the debates, to see whether the issue was raised?
Good discussion in this thread, on an issue that rarely gets the reasoned analysis it probably deserves.
mespo,
………. he has a large repertoire of ribald, pub, ditties … you’d love it!
ok … now I’ll stop
Mespo,
At the rate he is collecting recipes, I suspect his colleagues are going to be eating Mexican cuisine for months. Presently he is happily chopping peppers in the kitchen to “practice” a marinated skirt steak he plans on preparing for Sunday. I find it strange that he did not take to Margaritas.
He is looking forward to the discussion of Lincoln and the Civil War as he considers that conflict to have been a “necessary tragedy” brought on by the greed of the slave owning industry which he likens to our modern day Wall Street firms.
But enough … I do not want to hijack the thread.
Blouise:
As you know, after a summer in Cambridge I came to love the British for all their pomposity and intellect. Seems you got the latter without the former. The love of Mexican comes as no surprise to me though. Enough roasted meat and baked fish will do that to you.
I am reminded of Oscar Wilde who said of his English hosts, “In England, at any rate, education produces no effect whatsoever. If it did, it would prove a serious danger to the upper classes, and probably lead to acts of violence in Grosvenor Square.”
Best not to mention this quote to your recent house guest!
Vince & Bob, Esq. & Anyone Similarly Interested:
On Bob, Esq.’s Article Iv, Sec. 4 argument, I see the opposing positions as follows:
The language quite elegantly reads:
“The United States shall guarantee to every State in this Union a Republican Form of Government.”
Vince believes the language speaks for itself and that the Article simply makes a guarantee of a republican form of government in every state. Bob,Esq. sees the language broader and believes it carries with it the same purpose found throughout the founding documents, which is to serve as a bulwark against all froms of tyranny, even that of the Federal government against the States. To Bob, Esq., then, the Article guarantees a federal republican form of goverment to the States as well as republican form of government for the States themselves.
Historically, Vince’s position has been the law of the land since Luther v. Borden, 48 U.S. 1 (1849). The passage of the 14th & 15th Amendments tended to erode this provision’s protections since the Amendments contained more specific protections, and the thrust was clearly the guarantee of republican government within the State’s borders.
A little research into the origination of the Article though clouds the water and lends support to Bob’s argument. As many persons and all Virginia lawyers know, Article IV was originally contained in the Virginia Plan (though with somewhat different language) drafted by James Madison and proposed to the Convention. In a letter in April, 1787, to Edmund Randolph, who would formally present the Virginia Plan to the Convention, Madison suggested that ‘an article ought to be inserted expressly guaranteeing the tranquility of the states against internal as well as external danger. . . . Unless the Union be organized efficiently on republican principles innovations of a much more objectionable form may be obtruded.'” 2 Writings of James Madison, G. Hunt ed. (New York: 1900).
Thus it appears quite plausible that Madison believed Article IV addressed both Vince’s internal guarantee of republicanism within the States as the plain language suggests, AND Bob,Esq.’s view that the “Union” as a whole (and not merely the inner workings of the States themselves) is to be organized on republican principles so as to guard against “innovations of a much more objectionable form” (the most gentle euphamism for “tyranny” I have ever read).
Therefore it seems to me that our antagonists are both quite right and somewhat wrong in their firm claims to a solitary interpretation of Art. IV, Sec. 4. As I stated earlier, ignoring Madison on the Constitution is a lot like ignoring Newton on gravity.