Was Lincoln Right?
In December of 1860, the state of South Carolina held a special convention to answer a monumental question: should South Carolina secede from the Union, and remove itself from its brethren, becoming a fully independent nation? On December 20 it answered in the affirmative. Within two months, six other states—Mississippi, Florida, Alabama, Georgia, Louisiana, Texas—all voted to follow South Carolina, and claimed to secede. The newly-elected President of the United States, Abraham Lincoln, refused to acknowledge the legality of secession, and said so in his Inaugural Address. In fact, Lincoln was ready to use armed force if necessary to deny these states’ assertion to unilaterally leave the Union.
And so this begs the
$620,000 $750,000 question:
Was Abraham Lincoln right?
This constitutional question is at the heart of the matter, the essence of the controversy—the “nub”, as Lincoln himself might have put it. Because if Lincoln was wrong, then these states (and the four that followed after the firing on Ft. Sumter and formed the Confederate States of America) did have a right to leave, and Lincoln began a war that would take the lives of over
620,000 750,000 Americans, and cost the country over a billion dollars in treasure. While it is true that one result of this war was the destruction of American slavery, which by some would have morally justified the war, morals don’t count much in constitutional law. If Southerners were right, then Lincoln violated the rights of the states, and no well-meaning result can justify this sort of “tyranny.” If.
But fortunately for Lincoln, he was not wrong—his reading of the Constitution was actually pretty right-on: the Union was (and is) perpetual.
To fully understand this argument (which neo-Confederates seem to either not understand, or willfully ignore or misrepresent), we have to spend some time with the Founders. What was their intent? And, moreover, how did they express this intent?
The People Ordain the Union
In some ways, we need look no further than the preamble, “We, the People…establish and ordain this Constitution.” [My emphasis] This phrase is usually portrayed as mere rhetorical flourish, but it is not. As Constitutional scholar Akhil Reed Amar has pointed out in his indispensable book, The American Constitution: a Biography, Article VII (the last words of the Constitution) explains what “We the People” is supposed to mean. It states:
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
First of all, it’s vital to realize that the Founders were completely fed up with their first revolutionary government, the weak Articles of Confederation, established during the war for independence in 1777. Because the states entered the Confederation with their perfect sovereignty intact, the Confederation Congress was by definition a creature of the states. (To show how dysfunctional it was, the states themselves didn’t get around to actually ratifying the Articles until 1781!) This Congress operated more like the United Nations than a national government. While the states were fighting Great Britain, this loose league was perhaps enough (although only barely—there were times during the Revolution when the weakness of the Confederation was a serious liability); but in the five or so years after the fighting ceased, the Confederation Congress proved unequal to the task of managing a continental union. With no power to tax in order to pay off the massive debt incurred by the states and Congress to fight the Revolution, and with no power to compel states to obey the rules they themselves agreed to follow, the Congress was not much more than a paper tiger. The Framers in Philadelphia, then, determined to do much more. They most emphatically did not want another creature of the states—they wanted a truly federal government in which the states’ sovereignty, while still intact, was subordinated to a new vestment of sovereignty.
And so the “bookends” (in Amar’s words) of the Constitution: the first words of the Preamble and last words in Article VII. According to this last Article, “We the People” would assemble in special ratification conventions in the form of elected delegates; would debate the merits of the new Constitution; and then vote, up or down, as to join this Union or not. It was entirely voluntary. Again, these conventions were explicitly not the states themselves—the Founders wanted no creature of the states. And of course, it’s hard to see state legislatures voting in favor of a document that would reduce their power. If New York was a fully independent nation-state (and in 1787 it was), why would its government willingly subordinate itself to some new-fangled theorem written over the summer? If the Founders had left it to the state legislatures, those legislatures would have rejected the document out of hand.
Moreover, these special ratifying conventions themselves represented one of the most democratic events in the history of western civilization up until that time. They were composed of delegates elected by The People of each state (again, not the state itself). In order to ensure the broadest possible participation of voters in order to select delegates, the states liberalized voting rules by getting rid of the property qualifications. This was a special one-time-only thing (at least until the 1830s). And in addition, five states in the North allowed blacks the right to vote.
These elections, then, were as democratic as the 18th century mindset would allow. Each set of delegates debated, and then voted, state by state, thus ensuring that the states would indeed retain a good measure of sovereignty—that this new government would not be a national government, obliterating the states, but rather a federal government, where there would be two sovereign entities: states and the feds. (Madison explains this in Federalist #39.) Article VII then guaranteed that the preamble’s “We the People” was not mere rhetorical flourish. Rather it proved that We the People did indeed ordain the new Constitution.
The last event that guarantees that we know the Founders intended a perpetual Union is an incident that took place at the New York ratifying convention. There, the Anti-Federalists (those who opposed the new Constitution) were winning the argument. In front of full galleries day after day, week after week in the summer of 1788, both pro-Constitution (or Federalists) and anti-Constitution delegates went back and forth, but it became clear that the anti-Federalists had the votes to defeat it. But in the midst of this debate came news that New Hampshire had ratified. That made nine states ratifying, the Magic Number to establish the Constitution and have it go into effect. Then came news of Virginia’s ratification. Still, New Yorkers argued for weeks more.
Finally, the Anti-Federalists offered Alexander Hamilton and the other Federalist delegates an olive branch: the Anti-Feds would agree to vote to ratify if the first congress of the new government would pass certain amendments right away; but if the new congress did not, then New York reserved the right to leave the new union. This compromise must have been attractive to Hamilton, since he desperately wanted New York to join the union. And think about it for a minute: at that moment, it was clear that there would be a new United States of America, with a president, a congress, and all—and New York would not be part of it! It would suddenly be a small independent nation sitting astride yet outside a huge, new independent nation. But despite this temptation, Hamilton turned them down—he had in his pocket a letter from James Madison, the architect of the Constitution, who had been verbally jousting with Patrick Henry in Virginia in that state’s convention. Madison well knew of this attempt at compromise, and he rejected such a notion of future secession, and urged Hamilton to resist just such overtures. In his letter he wrote that “The Constitution requires an adoption in toto, and for ever.” [My emphasis]
Even Patrick “Give me liberty or give me death” Henry, a delegate in the Virginia ratification convention who opposed the Constitution, understood exactly what was afoot. He clearly saw that the new Constitution would require a diminishment of Virginia’s sovereignty. He said in convention:
[W]ho authorised them to speak the language of, We, the People, instead of We, the States? States are the characteristics, and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated National Government of the people of all the States…. Have they said, we the States? Have they made a proposal of a compact between States? If they had, this would be a confederation: It is otherwise most clearly a consolidated government. The question turns, Sir, on that poor little thing—the expression, We, the people, instead of the States of America.
Henry knew full well what the Federalists intended, and he didn’t like it; but in the end he also saw he couldn’t stop it.
The Text of a Federal Union
Let’s move to more text of the Constitution. It is true that there is no explicit prohibition on secession; but then again, there is neither an explicit statement allowing secession. Fortunately, the Constitution has much implicit content—it must be implied, otherwise the document would be unintelligible.
Need more proof from the text that the Union is indissoluble? Let’s look at the so-called “supremacy clause” of Article VI, Clause 2. It’s pretty much the clincher:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [My emphasis]
But wait, there’s more! Here’s Clause 3 of Article VI:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. [My emphasis]
If state sovereignty trumped federal sovereignty, as neo-Confederates argue, then why would state officers have to swear an oath (or affirmation) to support the federal Constitution? The answer is they wouldn’t. But state sovereignty is subordinate to the federal government. And so, these two Article VI clauses pretty much seal the deal.
Does federal supremacy mean no state can unilaterally secede? Of course; but if one is still in doubt, the ultra-democratic mechanism of ratification most certainly proves the intent of the Founders.
Legally Sealing the Deal
If one needs another piece of evidence after the ratification, one can always look to Chief Justice John Marshall. In Gibbons v Ogden in 1824 Marshal wrote:
[R]eference has been made to the political situation of these states, anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns converted their league into a government, when they converted their congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the states appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected.
So, whatever one may believe of the evidence I’ve presented about the Constitution at its founding, the Supreme Court some 30-odd years after the founding ruled beyond doubt that the Union was perpetual and indivisible—that the individual states had surrendered their full independence when they, or rather their people, ordained and established the Constitution.
The growth of slavery and Southern nationalism certainly challenged this notion of perpetual Union, but the Union–and the logic of federalism–was equal to them. We will deal with those challenges later, in another post.
[Source: Akhil Reed Amar, The American Constitution: a Biography. (New York: 2005), 21-39.]