Posted: November 20, 2000
othing would seem more opposed than the libertarian spirit and the spirit of slavery. But a growing body of libertarian writing has emerged in recent years that takes its political inspiration from the slaveholders' rebellion that started the Civil War. Two new books on states' rights provide occasion for examining major themes in this libertarian project.
States' Rights and the Union is a scholarly work by Forrest McDonald, himself no libertarian but a distinguished academic historian known for his hard-headed, somewhat irreverent, more or less traditional analysis of American political history. Charles Adams, the author of When in the Course of Human Events, is a tax expert here making his debut as a scholar of the American Civil War, with the endorsement of a chorus of leading neo-secessionist academicians. Obvious differences in literary style and historical method distinguish the two books. McDonald, a master of traditional narrative, gives us a cool, concise survey of political controversies over federal-state relations. Adams, deploying an eclectic and polemical historicism, roams wildly across time and space in search of evidence to contradict the "force-fed Lincoln adoration" that he believes has kept historians from telling the truth about the Civil War. What both writers share, however, is a conviction that secession was a constitutional right.
McDonald's thesis is that—against the assumption of received political theory, that sovereignty was a whole thing that could not be divided—American constitution makers divided sovereignty between the states and the federal government. McDonald's challenge is to show that secession was consistent with the nature of the Union based on this principle, without being to obvious about it. Subtlety of argument is needed because the logic of divided sovereignty would seem to require that in a constitutional system based on this principle, neither government can reduce the other to itself or otherwise destroy it. From an historical point of view, moreover, if secession was obviously constitutional, it is difficult to understand why it was so controversial.
McDonald's rhetorical strategy is to announce at the onset his deliberate intention to shun the technical questions that specialists love, and instead, to focus his survey on the larger contours of the subject. Like all previous writers on the constitutional controversy leading to the Civil War, however, McDonald employs key theoretical propositions. Those on which his account rests place him on the secessionist side of the debate.
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With the economy of a scholar who has never been much for theory, McDonald reduces the problem of the nature of the Union to two essential concepts: state popular sovereignty and federal government agency. McDonald states that the Declaration of Independence transferred sovereignty—in the English sense of indivisible supreme power—to the people of the several states as independent political communities. Congress "inherited responsibility, as agent of the states," for the conduct of war and foreign affairs. This relationship between sovereign state peoples and Congress as their agent persisted under the Constitution of 1787, which was ratified separately by the people of each state in popular conventions. According to McDonald, states' rights theory was modified by the Kentucky and Virginia Resolutions of 1798, which viewed the states--rather than the people of each state—as bearers of sovereignty and the constituent power in the Union. This shift in the locus of state sovereignty did not alter the agency status of the federal government.
Readers may not grasp the significance of this point, but to regard Congress as the agent of the states, or the peoples of the states, is to deny it authority as a sovereign government. Of course, there was much talk about dividing the powers of government between the states and federal government. One can call this government sovereignty, as McDonald does in describing the notion that governments at different levels have certain responsibilities, inherent in which is the power to carry them out. However, sovereignty in the deepest sense—the ultimate power to command, judge, and dispose—resided in the people of the states as independent political societies.
McDonald says each people entrusted sovereignty in some matters to Congress, in other matters to their state governments, and still in other matters they reserved sovereignty to themselves. This reserved sovereignty in "still other matters"—including their self-preservation as a society, as southern secessionists tirelessly reiterated—comprehended, the power to make and unmake constitutions. It rendered the authority of the U.S. Constitution dependent on the personal consent of each separate state people, or each state as a political society. In McDonald's divided sovereignty the state-federal relationship of principal and agent, grounded in the "nature of things," is the key to understanding the nature of the Union.
To give both sides of the story, McDonald, describing the making of the Constitution, jumps ahead to the Civil War to consider Lincoln's theory of the Union. The strategy here is to show the constitutionality of secession by showing Lincoln's case against it to be constitutionally incorrect. The nationalist theory holds that in 1776, the people of the whole country, acting in Congress as a national people, made the colonies into states and formed the Union. Although conceding the theory was supported by some facts, most notably the reference in the Declaration of Independence to Americans as "one people," McDonald declares the nationalist interpretation "untenable." He offers some technical reasons for this view, such as the fact that Congress "recommended," rather than ordered or directed, the colonies to make state constitutions and governments. In a substantive sense, however, the nationalist theory of the nature of the Union is in McDonald's view untenable because the existence of sovereign state peoples precludes the co-existence of a national people as a bearer of sovereignty. We are back to the axiomatic principle that whatever powers might be ascribed to the federal government in the rhetoric of divided sovereignty, those powers are held at the sufferance of sovereign state peoples or states as independent political societies.
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Charles Adams, a zealot by contrast to McDonald, presents secession as an obvious constitutional right. In his more straightforward argument the "general principles of secession" are signified in the rights of popular consent and self-determination proclaimed in the Declaration of Independence. In making the constitution, sovereign states explicitly reserved the right of secession, evident in ratification resolutions stating: "the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whenever the same shall be perverted to their injury or oppression." It is self-evident to Adams, as it was to the English writers whom he quotes, that America was founded on the right of a people by popular consent to secede from a larger nation when it no longer served their needs and interests. In this view the principle of secession is the foundation of American constitutional liberty.
Adams's case for secession—more passionate political expletive than reasoned legal argument, aptly reflects the southern disunionist mentality. For secession was always more effective as a tactic of political intimidation for state action aimed at nullifying federal government policies.
By design on might say, the nature of the Union under the principle of divided sovereignty—a "partly federal, partly national" system—was ambiguous. On the one hand, state governments were in effect encouraged to devise various forms of "interposition" against objectionable federal measures that could be viewed as destroying the constitutional compact. The government of the Union, on the other hand, found ways justifiably to enforce its laws against actions of state citizens and governing personnel that could be viewed as rebellious.
Control of the government of the Union was the paramount object of federal-system political competition; states' rights was a default strategy. Evaluating the South's claim that secession was constitutional, a northern commentator observed after the Civil War: "In a federal system one weapon of the minority is sure to be the menace of withdrawal or disunion." This was not a claim of constitutional right, however, but an assertion of revolutionary resistance. "Secession was revolution," the Unionist writer argued, and the question in 1860, as in earlier disunion crises, was whether certain states, or the people of certain states, had "sufficient reason and sufficient power to revolutionize the existing government, and substitute something else in its place."
It is true, as today's new-secessionist writers point out, that disunionist threats issued from all parts of the country, not the South alone. But disunionist discourse can hardly be said to prove the existence of a constitutional right of secession, as libertarian theorists contend. McDonald, who is careful not to refer to secession explicitly as a constitutional right, implicitly recognizes this fact in describing the reaction to Lincoln's election: "And then the South transformed the threat of secession into a reality." McDonald is content to insinuate an implied right of secession into his account of how South Carolina pulled out of the Union: "A convention elected by the sovereign people of a state had voted to enter the constitutional Union, and in keeping with the theory underlying the Union, the same instrumentality was used to depart from the Union." McDonald concludes: "South Carolinians knew their constitutional history, and acted accordingly."
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But was South Carolina right in its construction of the Constitution? Did a single state or group of states, of their own volition, have a constitutional right to withdraw, unilaterally, from the national compact? In the antebellum period nationalists were not the only ones to question the constitutionality of secession; after the nullification crisis a Madisonian antisecession argument emerged within the states' rights tradition. Lincoln appealed to this point of view in his First Inaugural in suggesting that even if the Union be considered an association of states in the nature of a contract merely, it could not as a contract be peaceably unmade by less than all parties who made it. Each time a threat of secession was made in federal-state controversies, it was met with the charge of rebellion and treason. While recognizing genuine controversy over the limits of state and federal powers, Unionists considered it absurd to contend that a state, or the people of a state, had a constitutional right to overthrow the government of the Union.
McDonald correctly observes that the southerners seceded not out of desperation, but with supreme self-confidence in their ability to exist as an independent nation. Believing in their racial superiority, convinced that slavery was a positive good, accustomed to controlling the federal government as their agent, southerners claimed secession as a strong right that at once gave them constitutional immunity and the moral high ground. Such a right would place free state governments, the government of the Union under the prospective Lincoln administration, and anyone who opposed secession under a legal and moral obligation, not to interfere with whatever action was necessary to take their states out of the Union and set up as independent political societies.
Yet even as they claimed to exercise a constitutional right, southerners reflected awareness that their action was revolutionary. Confederate Vice-president Alexander Stephens, in his "Cornerstone Address" in March, 1861, spoke glowingly of participating in "one of the greatest revolutions in the annals of the world"--a revolution "signally marked, up to this time, by the fact of its having been accomplished without the loss of a single drop of blood." Jefferson Davis exclaimed in January, 1861, "If I must have revolution, let it be a revolution such as our fathers made when they were denied their natural rights." The difference between the American Revolution and southern secession, according to Davis, was that whereas the British denied the right of revolution, which caused the movement for American independence to be bloody, "in this age of civilization and political progress" the doctrine of "the power of the people to abrogate and modify their form of Government" would be admitted without bloodshed.
Secession as an instrument of political intimidation almost succeeded. A kind of moral disarmament came over a large portion of the northern public in the winter of 1861, giving secessionists the opportunity, had they been more patient, to put the Lincoln administration in an untenable political situation. Yet, as a reflection one may suppose of the imperious attitude inoculated by slavery, Confederate leaders lacked prudence and moderation. Claiming constitutional protection to destroy the Constitution, they resolved the crisis of the Union by attacking Fort Sumter. This action marked the "appeal to heaven" universally acknowledged as the ultimate means of exercising the right of revolution. Through superior statesmanship and a more profound understanding of the nature of the Union, Lincoln was able to defend the sovereignty of the federal government by treating secession as unjustifiable revolution.
The Civil War, McDonald observes, was "the ultimate test of the nature of the federal union." Does this mean the outcome of the war showed what was always the true nature of the Union, despite federal-state constitutional controversy? Or does it mean that the war was a trial to determine what the nature of the Union would be in the future? In Texas v. White(1869), the Supreme Court declared secession unconstitutional on the ground that "the Constitution in all its provisions, looks to be an indestructible Union composed of indestructible States." McDonald says the decision settled for all time the question whether secession was a constitutional possibility. Adams, with other libertarian neo-secessionists, holds that the question of a constitutional right of secession was not resolved by the Civil War. Reflecting the strange political intelligence manifested by their proslavery intellectual forebears, libertarians concede the ineptitude and bad judgment of the southern decision to exercise the right of secession by military means. They find vindication, however, in the conclusion, expressed by David Gordon, a leading new-secessionist theorist, that "a group may secede imprudently, but act within its rights."
Properly understood, the principle of divided sovereignty meant that neither the states nor the federal government could destroy the other. The limits on the ability of each government to interfere with the exercise of essential powers an existence of the other were not merely expedient, but constitutional and moral. Secession was not only impractical, but intrinsically wrong. As postulated by southerners, its real meaning was that the Constitution and laws of the United States—despite appearances to the contrary resulting from membership in the Union—never imposed binding legal and moral obligation on a state or the people of a state, but only such obligation as a state or a people were personally willing to recognize. The southern theory of the nature of the Union, in other words, was that the states or peoples of the states, after ratifying the Constitution, were in reality sovereign nations. It was this concept of the Union, the logic of which led secessionists to claim as a constitutional right what Lincoln called "the essence of anarchy," that was incapable of being maintained and defended.