Here's the NYRB review of Feldman's new book "The Broken Constitution: Lincoln, Slavery, and the Refounding of America."
From the review, by James Oakes:
It is impossible to understand the origins of the Civil War, or of wartime emancipation policy, without grasping the significance of the debate over “property in man.” Among slavery’s opponents, the fact that slaves were referred to in the Constitution as persons and never as property—even in the fugitive slave clause—had profound implications, which Feldman simply ignores.
He likewise ignores two of the most important constitutional principles regarding slavery, neither of which is explicitly stated anywhere in the document. The first was federalism, which left the regulation of slavery entirely to the states. None of the well-known constitutional clauses dealing with slavery restricted the scope of antislavery politics as effectively as the assumption that slavery was a state institution, beyond the power of the federal government.
The second principle was the war powers, ascribed to the Constitution despite the fact that there is no actual war powers “clause.” The war powers removed federalism’s restraints on Congress and the president. By this reading of the Constitution, the federal government could emancipate slaves in an effort to defeat an invading army or suppress a rebellion. Proslavery and antislavery readings of the Constitution were already evident during the debates over ratification and persisted through the Civil War. Southerners eventually claimed that the constitutional right to slave property was so absolute that Congress could neither abolish slavery in Washington, D.C., nor ban it from the territories—indeed that it was obliged to protect slavery in the territories. But those arguments were stillborn if the Constitution recognized slaves as persons rather than property. If they were persons, they were entitled to due process rights when they escaped to the free states, for example.
Legal personhood also meant that slaves taken into the free states by their owners could be automatically emancipated, and that slavery was unconstitutional on the high seas and in the territories. None of this appears in Feldman’s account of slavery and the Constitution. He claims that “Northerners could not quote the Constitution to oppose slavery, because the Constitution said nothing against the practice.”
Instead they were forced to rely on the airy platitudes about fundamental human equality in the Declaration of Independence, “the best—really the only—text they could invoke to claim an official pedigree for their moral stance.”
Actually, opponents of slavery not only cited the Constitution’s repeated references to slaves as “persons”; they invoked numerous other clauses as well. They quoted the Constitution, chapter and verse, when they claimed that Congress had the power to ban slavery from the territories or abolish slavery in Washington.
They endlessly cited the Fifth Amendment’s declaration that no “person” could be deprived of liberty without due process of law. They invoked the Fourth Amendment’s ban on unreasonable seizure and regularly quoted the Preamble, with its claim that the purpose of the Constitution was to “secure the blessings of liberty” to everyone....
By obliterating the entire history of antislavery politics and the effect it might have had on wartime antislavery policy, Feldman has, as it were, cleared the decks for his alternative interpretation—Lincoln’s successive violations of the Constitution....
Ignoring most of the legal arguments and nearly all the precedents for wartime emancipation, and garbling Lincoln’s fairly consistent references to them, Feldman instead declares that emancipating slaves was a patent violation of property rights, that everyone understood this, that the Emancipation Proclamation was Lincoln’s most outrageous abuse of the Constitution, and that Lincoln knew all along that it was illegal....
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85 comments:
No contest. The real, actual historian and expert on slavery and emancipation beats the lawyer.
I had to go look up this Feldman guy and was surprised that he isn't some foaming at the mouth rothbardian.
Before the US had a Constitution, it had
the Articles of Confederation and Perpetual Union, which people refer to as Articles of Confederation
NOTHING in the Constitution that says ANYTHING about that Perpetual Union being breakable.
The US Constitution did not foresee the situation of 1860, and so the situation was determined largely by the legal principle of "Might Makes Right".
=======
Let's compare that situation with the current situation in Ukraine.
The Soviet Union disbanded voluntarily and legally in 1991, and Ukraine became an independent country.
However, because borders were not adjusted in accordance with ethnicity, Ukraine encompassed several regions that were populated overwhelmingly by ethnic Russians.
These ethnic Russians in Ukraine were similar to the Negro slaves in the American South in the mid-1800s.
The ethnic Russians in Ukraine essentially were denied the right to vote. Although they could go through the motions of voting, their votes were canceled effectively. Even if their candidate won the Presidential election and became the President of Ukraine, he was chased out of his elected position quickly by ethnic-Ukrainian mobs in Kyiv.
So, these Russian "slaves" in Ukraine had a moral right to rebel against their oppressors.
And the neighboring country, Russia, has a moral right to help those rebellious slaves to free themselves from their Ukrainian oppressors.
"Legal personhood also meant that slaves taken into the free states by their owners could be automatically emancipated, and that slavery was unconstitutional on the high seas and in the territories."
I assume this was the crux of the Dred Scott case, yet the decision famously went against the plaintiff. Everyone seems to blame Chief Justice Roger Taney, but he couldn't have been alone in this adverse interpretation of the Constitution as it existed in the antebellum era. I wish Mr. Oakes had explained this in light of his critique of Mr. Feldman's book because I certainly do not understand it.
Russia's current rampage in Ukraine is similar to "Sherman's March to the Sea" in the USA's Civil War.
By devastating huge areas of Ukraine, Russia is liberating the ethnic-Russian slaves in Ukraine. Thus, the devastation is morally justified.
"NOTHING in the Constitution that says ANYTHING about that Perpetual Union being breakable."
How can a perpetual union be anything but unbreakable? A breakable perpetual union is like a bumper-to-bumper car warranty that expires as soon as something fails, contradictory by definition.
Well Professor Feldman is obviously a very intelligent person--lots of academic honors. But when he looks at the Civil War and its aftermath, he missed the grade school lesson that "might makes right". He may well be correct in his view that Lincoln's actions were not constitutional, but 160 years later it's too late to fix it.
Mike Sylwester
Do you apply the same logic to Kashmir? Based on the way you laid things out re Ukraine, it would seem you would defend the Pakistanis for trying to defend their Kashmiri ethnic brothers?
Then lets move on to Palestinians .... seems like the `just trying to defend our people who were put on the other side of the border wrongly' is a slippery slope.
Slavery is a red herring. The question is whether Lincoln had, as he claimed, not only a right, but a duty, grounded in the Constitution, to prevent States from leaving the Union. Able attorneys argued both sides of that question, almost from the moment the compact was ratified. That debate reached its climax in a famous meeting of legal scholars on July 3rd, 1864.
I truly think this is the correct interpretation, considering the customarily understood definition of a 'State' at the time and what the integration of the States into the union commonly meant to most people. As Shelby Foote noted how the USA was routinely referred to at the time, "The United States are" vs. "The United States is"...or at least that's how I was always taught to understand it.
Regardless of what that means looking back almost 160 years, and definitely with an understanding that the Union was better preserved than torn apart, I still believe the constitution - at that time - neither was written nor prepared as a living document to consider the possibility, but certainly containing nothing therein excluding secession.
The Confederacy made the worst mistake in political and military history by firing on Fort Sumter. The political situation would have been a million times murkier had they just decided to leave without violence.
Partly Fedlman seems to reflect a woke view: the Constitution is a racist nightmare, and arbitrary, lawless action was needed to save the country. Now it's time for more lawless actions, maybe a Ministry of Truth.
I believe Lincoln's view was that the founding documents, taken together, put slavery on a "course of ultimate extinction." One of these documents was the Northwest Ordinance of 1787--the first legislation passed after the Revolution--specifying any territory that was free from slavery in 1787, as it was converted and sometimes divided into states, had to remain closed to slavery. This inspired a rough rule of thumb: one new slave state, one new free state, which was violated by the Kansas-Nebraska Act and threatened by California. Lincoln suggested that his "beau ideal of a statesman," slave owning Henry Clay of Kentucky, tried various compromises to keep slave states and free states in the same Union, but this approach seriously broke down in the 1850s. Dred Scott was certainly part of it. Perhaps the technology of the cotton crop, and the ability to profit from raising slaves in the U.S., were two things that were not anticipated in 1787.
Surely Lincoln thought Taney was wrong in Dred Scott, and he hoped that the case could be decided on narrow grounds: Mr. Scott had reached a federal territory which was free, so he should have been freed. Taney saw himself as resolving the issue "once and for all," taking the side of the powerful against the weak, a bit like, er, Roe v. Wade and Casey. My guess is that Lincoln did not think states had the right to abolish slavery, but he was too circumspect to say so. He denounced John Brown's attempted rebellion, and did not support the Underground Railway. If the South wasn't willing to give up on much of the new Western territory, especially when northern states were announcing themselves to be free, whether based on the Constitution or not, then war was unavoidable.
Mike Sylwester said...
"These ethnic Russians in Ukraine were similar to the Negro slaves in the American South in the mid-1800s."
**********************
some questions:
Could those ethnic Russians in Ukraine:
Own personal property?
Own businesses?
Freely marry?
Use the court system to settle disputes?
Get an education?
Travel inside Ukraine and abroad? (I have a Russian neighbor from Yalta, and up until the war started she and her family have been going back and forth frequently over the past 25 years)
Final question: could American slaves do any of the things I cite?
You offer very weak tea.
1) If the Articles of Confederation produced "an unbreakable union" it doesn't matter. The current Constitution replaced the Articles, not supplemented them. That "unbreakable union" ceased to exist when the Constitution was ratified.
2) I believe that legally the Southern states had the right to leave the union, just as the United Kingdom left the European Union. I am glad however that the union still exists.
3) The statement effectively as the assumption that slavery was a state institution, beyond the power of the federal government. completely ignores the fact that the Constitution banned the importation of slaves and regulates the taxation and representation of slaves. How does he explain the fugitive slave act?
This is a good example of a "category error" (https://en.wikipedia.org/wiki/Category_mistake). Obviously states have the right to leave the Union, because once they have left the Union the Constitution does not apply to them. The Union may, of course, choose to make a war to force them to stay... There is no higher authority to enforce the agreement they made.
It would be different if the Constitution included a clause allowing a state to leave. Then the state would have the right to leave both within and without the Constitution.
Anyone honest about American history knows this to be accurate. Althouse you should know this as a Constitutional scholar.
Property Rights
If i have some property, say cannabis; or a high volume rifle magazine..
That is Legal in my home state, and i take said property to a state where That property is illegal..
Do i get to keep that property? Is the other state required to return it to me?
Taney wasn't not just Wrong about people.. He was Wrong about property
It was illegal to own that sort of property in Minnesota, and should have been taken THEN
Once Dred Scott was back in Missouri, things got complicated
The only majority Russian part of Ukraine was Crimea. And that because the annexation of Tatar Crimean Khanate in late 18th century led over the following gcenturies to emigrations and deportations of original population.
Here's the Real Problem (that caused the war)
Taney held that the Missouri Compromise was unconstitutional, marking the first time since the 1803 case Marbury v. Madison that the Supreme Court had struck down a federal law
Essentially, Taney asserted that because the Northwest Territory was not part of the United States at the time of the Constitution's ratification, Congress did not have the authority to ban slavery in the territory.
Taney Caused the Civil War, not Lincoln (and Uncle Billie Sherman ENDED it)
So the "illegal immigrants" are actually just invading to help their oppressed brethren! Now I understand!
Guy might as well argue that the American Revolution violated the Divine Right of Kings.
The Victors determine the rules.
If you believe certain theories of quantum physics, in a different universe with a different timeline:
- A small number of states began the preference cascade for secession - ringing their bells to spread the news, followed by a large number of states reinforcing it.
- Initial Federal policy was to wait, seek a legislative and judicial solution, or for an unforced error like an attack from the new Confederacy.
- Which never came...
- Nor did firing on Fort Sumter occur
- Confederate states begin actually functioning independently and the Confederacy begins behaving like a separate country, ignoring Federal law, decertifying or outright barring federal agents and agencies, remitting no taxes, and making initial overtures to interact with foreign countries and entities as a new nation.
- We're about 8-10 months in, and NOW federal authority is being openly defied, interstate commerce has broken down, Federal writ runs nowhere in the South, and Federal agents are ignored or at worst openly harassed (maybe a few murders).
- The Union realizes a legislative and judicial solution is both not forthcoming but without legal merit, leaving it in the hands of the executive. Calls for Lincoln to "do something" become overwhelming and impossible to ignore.
- Lincoln consults with his "cabinet of rivals" and with and decides to attack Richmond.
- The entire course of United States history takes (took) an entirely different direction, leading to potential Confederate alliance with foreign powers to aid in its defense, predicating the alternate possibility of a Confederate victory.
...or at least that's always how my dad intimated things could have gone
if Lincoln thought they were still states explains why were not the area of the 'confederate states' after the brou-ha-ha declared to be territory needing to demonstrate ability to self-govern etc.
allowing them to leave, calling a casus belli etc. = they are territory
Since the Constitution is completely silent on the ability of a state to leave the Union, it is up to the Union to decide what happens when a state tries to leave. And so it did. The answer is "the union has decided those states that style themselves as the CSA are not able to leave".
Not every question is a constitutional question.
In 1861 the Civil War was about secession. Only in the quite narrowly circulated abolitionist publications like William Lloyd Garrison's The Liberator and The Atlantic was the departure of the Southern states treated as a slavery issue. Read the editorials published all over the North in the wake of Lincoln's calls for volunteers.* The overwhelming majority cite secession as rebellion and treason and thus a valid casus belli, few even mention slavery.
The Army of the Potomac under George B. McClellan fought a series of costly and futile engagements to neutralize Robert E. Lee's Army of Northern Virginia. It wasn't until September 1862 that McClellan won anything like a strategic victory, though Antietam only prevented Lee's capture of Washington and did nothing to overturn the Confederacy. The North was growing war-weary, Unionist Democrats were already murmuring about a peace settlement, and desertions in the Union Army had become a real problem. Lincoln concluded that secession and rebellion had become an unworthy cause in the eyes of many Northern voters, particularly those who had lost sons in a war to return the lost states to the Union, which led to his initial issuance of the Emancipation Proclamation on 22 December 1862, five days after the Antietam battle when it became clear Lee had retreated back to Virginia. Lincoln hoped a nobler cause would restore Unionist morale.
Confederate victories at Fredericksburg and Chancellorsville reversed much of the psychological gains of Lincoln's redefinition of the war as a crusade to liberate slaves. Even as late as 1864, well after Gettysburg, the abolitionist argument in favor of the war was less than convincing, to the point that the Democratic Party's platform demanded a negotiated settlement with the Confederacy without abolitionist preconditions.
*Lincoln's request for volunteers is telling. He wasn't certain that the use of the regular United States Army against the Confederacy was constitutional.
I have heard remarked that - it was test case - was made up between Dred Scott and his "Owner"
... Once Dred Scott was back in Missouri, things got complicated ...
!!! without return to Missouri there would be nothing to test!
RideSpaceMountain said...
The Confederacy made the worst mistake in political and military history by firing on Fort Sumter. The political situation would have been a million times murkier had they just decided to leave without violence.
They tried to do that. But Maj. Robert Anderson, who had relocated the garrison from Ft Moultrie to Sumter as soon as the Ordinance of Secession was passed, refused to surrender the fort to the state of South Carolina. There was a failed attempt at resupplying the fort and after that surrender was demanded and refused again. Anderson was given a final ultimatum and they only fired when that ran out.
Slaves were both persons and property, a large capital investment in fact. If you want to free them, the takings clause ought to have been followed and owners compensated. Or you can have a war.
Blogger Quaestor said...
... The overwhelming majority cite secession as rebellion and treason and thus a valid casus belli, few even mention slavery.
=======
and now ...
... The overwhelming majority cite January 6 as insurrection and treason and thus a valid casus belli, few even mention stolen election.
? does the parallel hold ?
rhhardin said...
Slaves were both persons and property, a large capital investment in fact. If you want to free them, the takings clause ought to have been followed and owners compensated.
========
why not call it sunk-cost fallacy and let slaves free themselves!?
@TheOne Who Is Not Obeyed
"The answer is "the union has decided those states that style themselves as the CSA are not able to leave"."
Under the most ideal conditions and in the best possible circumstances for a potential successful secession, any alternate history of the Civil War must begin with the Union attacking the confederacy first. In my opinion, that "answer" as you put it would've been the best possible circumstance for the CSA to succeed. I'm glad things didn't turn out that way, but with legal interpretations like that it could've been a very very close-run thing.
Pottery Barn Theory of Constitution broken by Storms of History
can archaelogy theory provide clue to put shards back together
@NorthOfTheOneOhOne
I hate armchair generals, but I'm gonna do it anyway. Military professionals like Beauregard and Davis had the necessary theorists available (Jomini, Von Clausewitz, etc.) to them to realize Sumter was of fundamentally no strategic military importance to their underlying political goals.
Sumter could've given a million refusals. So what. Let them get fat in their gun pits. The ideal strategy for achievement of CSA political goals was to force the Union into the role of the aggressor. I really believe it would've changed everything.
What is the point of this nonsense? The mistake of the founding fathers was that they never made it clear: Could a state secceed or not? Even Adams, Jefferson and Madison who lived well into the 1820s, never made that clear.
Anyway, its an issue the Pols of 1860 should have been able to decide without a Civil war costing 600,000 dead. Of course, Politicans in 1860 weren't held in high regard. People thought of them just as we think of our pols, a bunch of corrupt clowns. Sadly, these "clowns" had the power to thrust us into a civil war.
The whole thing should have been solved in a Constitutional convention. But Jeff Davis, and his gang, didn't want compromise. They wanted a slave republic. Lincoln, meanwhile, thought there was a "Silent Majority" of Southern whites who disliked slavery and wanted to stay in the Union. And so we got a war.
Today, clowns like Pelosi, McCarthy, McConnell and Biden would get us into WW III in an instant - if they could guarantee their own safety. But nuclear weapons have made that a risky proposition for the power elite.
Thank you for posting this review excerpt. I've been reading The Slave Power, an 1862 book by an John E. Cairnes, written while the Civil War was in progress, and I've been very struck by the competing legal and social perspectives of the time, which are actually rather different than the perspectives you get today. There's that saying, "the past is a foreign country - they do things differently there." And they think differently there too. Anyway, it's interesting to hear what the lawyers at the time were arguing about. Feldman's book sounds legal-polemical rather than legal-historical, if I can maintain such a distinction.
It is a mistake to regard the matter as settled. In 1864, there were nations that supported the CSA simply because they had watched the growing scale and vigor of the struggle with increasing alarm. They had come to regard the prospect of a single, unified government, in possession of the resources of the North American continent as well as the vast army created in order to secure those resources, as a potential threat to their own interests. It is somewhat ironic that the British were foremost among them. But there are many nations, and powerful interests that are not exactly nations, which would like to see the 50 States disunited. It is hardly unlikely that this union will be sundered. From the long view, rather more likely than not.
I assume this was the crux of the Dred Scott case, yet the decision famously went against the plaintiff.
There is a pretty good book about Dredd Scott's incompetent lawyer. He and his wife had been taken to Minnesota by their Union officer "owner." By doing so, they were freed. Taney ignored the law to get a result he liked.
Not unusual these days.
Every citizen should read a good history of the Civil War like the one by Shelby Foote. The African-Americans are impatient of this history - they would say, I think: "Hear their cry." But an understanding of the historical means by which a great principle is pulled out of the mire of social sin is an understanding a citizen in a democracy must have. An example is how the US founding principles were pulled, finally, by a great war, out of the mire of the establishment of slavery in which those principles were sinking. But there's a deeper story there. Rome took up the achievements of Greece and Europe took up the achievements of Rome and the US took up the achievements of Europe. But was it a gain or a loss when Rome became an empire and the republic fell? Did we inherit a great empire or a lost republic? Sauron or Aragorn? The US founding fathers were determined to restore the lost Roman Republic as the true foundation for a state descended from Rome. That's why, ultimately, we have an eagle as our emblem - it's the eagle of the Roman republic, restored. Washington's great hero was Cato, a supporter of the Roman republic. And Russia has inherited a Roman eagle also - the eagle of empire. In its first founding in Kiev Russia was a republic; and the Ukraine, based in Kiev, is straining to join those who follow the eagle of the Roman republic by refounding the former Russian republic in Kiev. And the eagle of the Roman Empire which became the eagle of the Russian empire is tearing at the Ukrainian republic. An Empire, naturally, would seize the Ukraine but is an empire natural? An empire is based on the fact you can make men fear you; and a republic on the fact that you cannot make a slave love you. A republic is an institution that sets men free and for which, therefore, men will give "the last full measure of devotion" to help it actually be what it, mysteriously, is and is not.
The moment I saw Strange New Respect for John C. Calhoun on the Left I knew it was only a matter of time before the Right would rekindle its flame for him.
"If you want to free them, the takings clause ought to have been followed and owners compensated. Or you can have a war."
Yeah, the war was all about $$. 600,000 dead because of a few dollars. LOL.
There are more things in heaven and earth, Horatio, Than are dreamt of in your philosophy ...
The Dred Scott majority opinion is well worth a read. Putting aside its justified place of ignominy in our history, it provides a very solid foundation to the argument of the bug-eyed wokesters who assert that the founding of the country was racist at its core. The central point of the decision was that members of "that unhappy race" whether free or not were not citizens, not among the "people of the United States", and therefore Scott and his wife had no standing to sue in the courts of the United States. That was it. A strictly procedural decision.
Chief Justice Taney went on to declare that the Missouri Compromise that outlawed slavery in the territories was unconstitutional. This was entirely unnecessary to the opinion and that was the focus of the dissenters.
In support of his central point about black non-citizenship, he did an exhaustive analysis of of the unquestioned inferiority of the negro race both in Europe and in the laws of the colonies, both North and South, prior to ratification of the Constitution and their status as mere property to be used for profit. He even cited the statement in the Declaration of Independence that "all men are created equal". However, it was inconceivable to Justice Taney, that the draftsmen of the document thought that "in any part of the civilized world", that language would be "supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery".
He went on to give us this gem for posterity:
The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appeared, they would have deserved and received universal rebuke and reprobation.
Hahaha....Sally Hemmings anyone?
My problem with the bug-eyed wokesters is not in their factual premise of historical racism, but in their unbalanced and incomplete recitation of our history. There was always a debate about the morality of slavery from the outset, and the drafting of our founding documents was always a process of careful negotiation among those whose opinions differed. The Missouri Compromise was a perfect example: Louisiana could enter the union as a slave state and Maine - no slaves.
And this nation has made steady progress since those days, including the extraordinarily bloody Civil War that began 4 years after this opinion. It is the hubris of the lefties today that they presume their moral superiority over those folks who wrestled with these issues 0ver 200 years ago, as if they would have had such perfect clarity had they been there at the time.
And the lefties also conveniently ignore that slavery of humans had existed unquestioned for 10's of thousands of years around the planet...until the US began the process of putting things right.
It's immaterial to me the legal basis upon which Lincoln acted. The only reason why the subject is being discussed is to offer lefties support for their unconstitutional inclinations for action because they mean oh-so well and the rest of us are degenerate hateful racists just like Taney.
- Krumhorn
Mike Sylwester said...
"Russia's current rampage in Ukraine is similar to "Sherman's March to the Sea" in the USA's Civil War.
By devastating huge areas of Ukraine, Russia is liberating the ethnic-Russian slaves in Ukraine. Thus, the devastation is morally justified."
Let's see now. Kharkiv is Ukraine's second-largest city very close to the Russian border. Most of the people who live there are ethnic Russians who don't speak Ukrainian.
Residential buildings in Kharkiv are currently being systemically destroyed by Russian artillery and missiles, killing the innocent non-combatants who didn't flee to shelter in Kharkiv's deep underground subway system.
Certainly, a cogent example of Russia's military wantonly killing your supposed ethnic Russian slaves instead of liberating them.
I suppose you never attained a high enough score on the Miller Analogies Test to get into MENSA.
But, not to worry. You're probably just the type of American guy that Russia really wants to hire to spread Russian disinformation.
If you want to free them, the takings clause ought to have been followed and owners compensated.
There's no amount of money that would be accepted.
If you want to free them, the takings clause ought to have been followed and owners compensated. Or you can have a war.
The South had more than fifty years to gradually abolish the barbaric institution of slavery, but they chose poorly.
What does the Constitution have to do with it anyway? Southerners believed that the primary purpose of government is to protect property. Since the federal government was not protecting their property rights with regard to slavery, the South had a right and duty to overthrow the federal government and replace it with one that would.
If that Justice Taney was here today, I'd give him a piece of my mind! Boy, oh boy. Doesn't he understand that Negroes are people too? How would he like to be a slave?
Next: I travel back in Time and put Genghis Kahn in his place. What's with all this rape and conquest Ghenghis?
“I hold that, in contemplation of universal law and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our national Constitution, and the Union will endure forever—it being impossible to destroy it except by some action not provided for in the instrument itself.
Again, if the United States be not a government proper, but an association of States in the nature of contract merely, can it as a contract be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak; but does it not require all to lawfully rescind it?
Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And, finally, in 1787 one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."
But if the destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.
It follows from these views that 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.
I therefore consider that, in view of the Constitution and the laws, the Union is unbroken; and to the extent of my ability I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part; and I shall perform it so far as practicable, unless my rightful masters, the American people, shall withhold the requisite means, or in some authoritative manner direct the contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend and maintain itself.”
Abraham Lincoln
1st Inaugural Address
March 4, 1861
Gilbar is right, gahrie is wrong, and the founding fathers- who were the people who wrote the Articles of Confederation were quite clear- the states all entered a perpetual union. The Constitution supplanted and replaced the Articles of Confederation- but it only changed anything it changed. If it wasn't referenced in the Constitution- and the Perpetual Union was not, it wasn't changed. 16 people signed both. And two- Roger Sherman and Robert Morris, also signed the Declaration of Independence.
Also reflecting intent- the Constitution is quite clear on how to admit new states, how states can trade or acquire territory from each other, how a state can be split in two or two states can merge. Not anywhere in the text- how a state leaves the union. Pretty glaring omission if it were intended that states be able to freely both enter and leave the union. And as a side not- the Confederate Constitution, made of states in rebellion that declared they had a right to leave the union- had the same glaring Notably- the Union never declared war on the Confederacy. Because- it wasn't a war between two competing nations- it was a rebellion being put down, a rather widespread one, but a rebellion nonetheless. Declaring war against the Confederacy would have given multiple European states an excuse to accept Confederate ambassadors and recognize them as a country. No nation did so.
How controversial was slavery? So much so that the word "slave" doesn't appear in the Articles of Confederation, Declaration of Independence, or the Constitution. Makes it's first appearance in the 13th amendment, ratified after the Civil War, outlawing slavery.
Firing on Fort Sumter and forcing the surrender of what was very legally federal property was a tactical victory- and a strategic error that started the war. Falls under the heading- Be careful what you wish for. You may get it. BTW, as far as how the South felt the war was going, read what my ancestral relative Charles Palmore had to say in this news clipping from 1862- published in newspapers all over the North as propaganda: https://www.newspapers.com/clip/14024486/the-brooklyn-daily-eagle/?xid=865
Ah, you all are so tired of war you're going to end it in 30-60 days. Almost guaranteed to rile up the people your fighting to keep them going...
Almost 50 in, and the historian still wins.
A couple of pedant's points: the current body count for the ACWABAWS is about 750k; the USA was far from the initiator of abolition of slavery, that honor belongs to Perfidious Albion.
One strong friend to Lincoln and the Union/Abolition cause was the Tsar. He had separatists (especially Poles) and a mass of ignorant serfs that needed liberating on his hands, and felt a kinship with Abe.
The USA and CSA, considered as a Caribbean powers (and that was a long-term ambition for an independent CS) stand out for not having B/blacks in their armed forces. All the imperial powers and their former colonies had B/black troops and sailors AFAIK--which is not arguing that they were egalitarian model societies of course.
Gary Gallagher points out that the abolition-war powers decision came after Lee drove McClellan away from Richmond. Lincoln drafted it then, and Antietam was merely the unveiling, timed so as not to look too desperate.
None of the analogies offered to other situations, by the way, are very convincing. I may come back to some of them later.
Andrew Jackson decreed the emancipation of the slaves of Florida's Seminoles during the Seminole Wars. That was one of the precedents for the Emancipation Proclamation. It was an acceptable wartime policy if (you believed) your opponents were engaging in an illegitimate rebellion.
I'm told some of the Afro-Seminoles settled in Mexico and live there still, as well as in Florida, Oklahoma, Texas, and the Bahamas. So what happens if there are reparations? Do the Seminoles get their slaves back or get compensation for their loss? Or do they have to pay the descendants of the slaves? If they have to, probably they will use the money they get from the rest of us.
Anyway, I get tired of attempts to refight the Civil War. 1860-1 was a time of uncertainty and panic. Once conflict was unleashed nobody was going to back down without hating themselves and being hated by their compatriots. If you want your independence from the rest of the country, work towards it peacefully through the process and try to convince us and work out a mutually acceptable resolution. Don't just declare yourselves independent and start grabbing stuff. That won't end well.
As a follow-up to the comments by Gospace above:
“Before the Constitution they prohibited its introduction into the Northwestern Territory, the only country we owned then free from it. At the framing and adoption of the Constitution, they forbore to so much as mention the word "slave" or "slavery" in the whole instrument. In the provision for the recovery of fugitives, the slave is spoken of as a "person held to service or labor." In that prohibiting the abolition of the African slave trade for twenty years, that trade is spoken of as "the migration or importation of such persons as any of the States now existing shall think proper to admit," etc. These are the only provisions alluding to slavery. Thus the thing is hid away in the Constitution, just as an afflicted man hides away a wen or cancer which he dares not cut out at once, lest he bleed to death,—with the promise, nevertheless, that the cutting may begin at a certain time. Less than this our fathers could not do, and more they would not do. Necessity drove them so far, and farther they would not go. But this is not all. The earliest Congress under the Constitution took the same view of slavery. They hedged and hemmed it in to the narrowest limits of necessity.
In 1794 they prohibited an outgoing slave trade—that is, the taking of slaves from the United States to sell. In 1798 they prohibited the bringing of slaves from Africa into the Mississippi Territory, this Territory then comprising what are now the States of Mississippi and Alabama. This was ten years before they had the authority to do the same thing as to the States existing at the adoption of the Constitution. In 1800 they prohibited American citizens from trading in slaves between foreign countries, as, for instance, from Africa to Brazil. In 1803 they passed a law in aid of one or two slave-State laws in restraint of the internal slave trade. In 1807, in apparent hot haste, they passed the law, nearly a year in advance,—to take effect the first day of 1808, the very first day the Constitution would permit, prohibiting the African slave trade by heavy pecuniary and corporal penalties. In 1820, finding these provisions ineffectual, they declared the slave trade piracy, and annexed to it the extreme penalty of death. While all this was passing in the General Government, five or six of the original slave States had adopted systems of gradual emancipation, by which the institution was rapidly becoming extinct within their limits. Thus we see that the plain, unmistakable spirit of that age toward slavery was hostility to the principle and toleration only by necessity.”
Abraham Lincoln
From a speech in reply to Senator Douglas, at Peoria, Illinois, October 16, 1854
This is a very long and detailed speech by Lincoln that is worth reading in its entirety.
The South had more than fifty years to gradually abolish the barbaric institution of slavery, but they chose poorly.
I've long thought that the whole, "it was about slavery!" / "no it wasn't!" argument missed the underlying issue: the Civil War was about the declining power of the southern political class. Slavery was intertwined with that power, the most visible example, and part of southern culture.
I think it is important to remember that the slavery issue and session were not settled by the courts or by a democratic process, but by force of arms. Every other country that abolished slavery did so without a war. We had a war because of regional hatred, some of which still exists.
Here is what Lincoln and the abolitionists were up against in 1858. Read it and weep. From the Douglas-Lincoln debate:
Mr. Lincoln, following the example and lead of all the little Abolition orators, who go around and lecture in the basements of schools and churches, reads from the Declaration of Independence, that all men were created equal, and then asks, how can you deprive a negro of that equality which God and the Declaration of Independence awards to him? He and they maintain that negro equality is guarantied by the laws of God, and that it is asserted in the Declaration of Independence.
I do not hold that because the negro is our inferior that therefore he ought to be a slave. By no means can such a conclusion be drawn from what I have said. On the contrary, I hold that humanity and Christianity both require that the negro shall have and enjoy every right, every privilege, and every immunity consistent with the safety of the society in which he lives. On that point, I presume, there can be no diversity of opinion. You and I are bound to extend to our inferior and dependent beings every right, every privilege, every facility and immunity consistent with the public good. The question then arises, what rights and privileges are consistent with the public good?
This is a question which each State and each Territory must decide for itself-Illinois has decided it for herself. We have provided that the negro shall not be a slave, and we have also provided that he shall not be a citizen, but protect him in his civil rights, in his life, his person and his property, only depriving him of all political rights whatsoever, and refusing to put him on an equality with the white man.
That policy of Illinois is satisfactory to the Democratic party and to me, and if it were to the Republicans, there would then be no question upon the subject; but the Republicans say that he ought to be made a citizen, and when he becomes a citizen he becomes your equal, with all your rights and privileges. They assert the Dred Scott decision to be monstrous because it denies that the negro is or can be a citizen under the Constitution.
Now, I hold that Illinois had a right to abolish and prohibit slavery as she did, and I hold that Kentucky has the same right to continue and protect slavery that Illinois had to abolish it. I hold that New York had as much right to abolish slavery as Virginia has to continue it, and that each and every State of this Union is a sovereign power, with the right to do as it pleases upon this question of slavery, and upon all its domestic institutions.
Slavery is not the only question which comes up in this controversy. There is a far more important one to you, and that is, what shall be done with the free negro? We have settled the slavery question as far as we are concerned; we have prohibited it in Illinois forever, and in doing so, I think we have done wisely, and there is no man in the State who would be more strenuous in his opposition to the introduction of slavery than I would; but when we settled it for ourselves, we exhausted all our power over that subject. We have done our whole duty, and can do no more. We must leave each and every other State to decide for itself the same question. In relation to the policy to be pursued toward the free negroes, we have said that they shall not vote; whilst Maine, on the other hand, has said that they shall vote. Maine is a sovereign State, and has the power to regulate the qualifications of voters within her limits. I would never consent to confer the right of voting and of citizenship upon a negro, but still I am not going to quarrel with Maine for differing from me in opinion. Let Maine take care of her own negroes and fix the qualifications of her own voters to suit herself, without interfering with Illinois, and Illinois will not interfere with Maine.
Ah, the Navy and blacks- and ships and all races. The US Navy, despite some occasional efforts by some wayward officers, had blacks serving in all manners until Woodrow Wilson, DEMOCRAT President of the United States, ordered the Navy to segregate. Once it was done, it proved difficult to undo.
In the days of wooden ships and iron men- most merchant and Navy vessels of all nations throughout the world were polyglot. If someone could climb the rigging and furl a sail as a storm approached- they were welcome and valuable crew members. Pirate ships were very notably integrated. The British Navy was the dominant Navy in the world, sailing everywhere. Ships lost people at sea- they died for all kinds of reasons. If someone from a foreign port wanted to sign up, even if they didn't speak the King's English, they could. And they'd learn on the job.
The routine of being a capable sailor was far more complicated than the routine of being a capable soldier. And on a day to day basis- harder. Yet, there were often volunteers. And when there weren't enough- there were press gangs. And- getting drunk enough to pass out and waking up at sea. Often referred to as shanghaiing, according to Merriam-Webster, first known use 1871.
Ken in tx, you’ve forgotten about Haiti. But force of arms is what stopped the slave trade. That is- a war against the institution itself. The American, British, and French navies all ran anti-slave patrols to capture slavers and free the slaves onboard.
the Civil War was about the declining power of the southern political class
Surely after the past dozen years we can all agree: Elites often choose poorly.
The Civil war was about Union. That's why Lincoln stated:
I could save the union without freeing any slaves I would do it; and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that."
Slavery CAUSED the war, because it caused seccession. But it was not what the war was about. Or as US Grant put it in 1863:
I never was an Abolitionist, not even what would be called anti-slavery, but I try to judge fairly & honestly and it became patent to my mind early in the rebellion that North and South could never live at peace with each other except as one nation; and that without Slavery. As anxious as I am to see peace re-established I would not therefore be wiling to see any settlement until this question is settled forever.
Abolition politics were all the rage in 1860, but secession politics were also long running and not necessarily related to slavery. There was a possibility of secession during Jackson term. Jackson threatened to invade rebel states and hang the ringleaders, then things quieted for some time. People knew that Jackson was not only a good American but also a charismatic killer. So the “might made right” that time. Perhaps Civil War happened because South was not afraid of Lincoln. It took Lincoln five years of brutal war to accomplish what Jackson did in few sentences.
I think Churchill once counterfactualed that if the A
South had succeeded the 2 nations would have remained so militarized that WW1 might not have happened because of the outsized influence of the 2 American superpowers on European politics.
Readering said...
I think Churchill once counterfactualed that if the A
South had succeeded the 2 nations would have remained so militarized that WW1 might not have happened because of the outsized influence of the 2 American superpowers on European politics.
============
which of the European powers still supported slavery and would have assisted the CSA during and after the stalemate / truce
Which supported Brasil?
In the 1,000 years ending in 1900, Arabs exported an estimated 100 million black Africans. All were caught by other black Africans and sold to Arabs inland and on the east coast. Later they were sold to Europeans along the West Coast.
Of the 100 million, about 10mm were sent west across the Atlantic, 9mm to South America and the Caribbean. 1mm came to what is now the US.
Of the 90mm captured by Arabs, most of the men were castrated. Those that survived were marched overland, about half dying along the way. When they got to Turkey, Iran and other points east, they had a life expectancy of about 3 years.
See Thomas Sowell's excellent book (#3 in the series) Conquests and Culture for more info.
See also Richard Burton, and Henry Stanley.
John LGKTQ Henry
Agree, that seafarers are a class apart, but my point holds as to American military practice on the Federal level in the heyday of the Slave Power. Despite the clarity or otherwise of the Constitutional language and argument, -culturally- and not only in the Southland, racialized chattel slavery was almost entirely an American fetish.
The Confederaos of Brazil are a case in point but I'll have to come back to it.
For 5,000 years of recorded history, slavery in all its various forms has been a constant in the world. It has enslaved virtually every race in every region at one point or another.
Between 1800 and 1900 it went from being ubiquitous and legal, to being rare and illegal virtually worldwide.
It went from generally accepted around the world to generally shunned in 100 years.
The American War Between the States was the only war fought over it. Everywhere else it happened peacefully though with some occasional local police enforcement of emancipation.
There was nobody to tell the Czar of all the Russias to free more than 20 million slaves at the same time we were cranking up our WBTS. He held absolute power in a way that made Stalin jealous. But he did free them.
Surely we could have figured out some way to have freed our slaves without a war that killed 600,000 and has had repercussions still felt today, 160 years later.
John LGKTQ Henry
Of course there have always been arguments that the US was stuck with slavery, that the federal govt. couldn't do anything about it. There were on the other hand arguments that the basic principles on which the country was founded were inconsistent with the existence of slavery. What happened? Southern states, starting with SC, decided to secede from the United States -- not because the federal government had done ANYTHING to abolish slavery; Lincoln wasn't even inaugurated when that process started, and he was no abolitionist. I guess the South seceded because the political powers that governed those southern States thought that their "peculiar institution" could only survive in a slavocracy -- and by the mid-19th Century, that wasn't viable. They fouled up
Ah, the old Schrodinger's Cat theory of secession, where somehow the seceded states were both under the Constitution and not at the same time, and either way Lincoln was wrong.
See, if we grant the premise that secession was legal under the Constitution, then the US Constitution ceased to apply in the seceding states after they seceded. There accordingly could be nothing unconstitutional about conquering them or freeing their slaves; the states were, by their own voluntary action, foreign to the protections of the Constitution. The Civil War was then precisely as legal as the Mexican-American War, in that after another country fired on US military forces in disputed territory (Fort Texas/Fort Sumter), the US went and invaded that country.
On the other hand, if we deny that secession was legal under the Constitution, then the states in question were in unlawful rebellion against the United States. The Emancipation Proclamation is then at least potentially unconstitutional when made, sure, but the Thirteenth Amendment proceeds to make the question moot three years later anyway.
The South got itself into a war it couldn’t win for several reasons:
1. Too many bad constitutional lawyers, who couldn’t even pick an inspirational name for their putative new country.
2. Too lazy to send enough settlers to Kansas and Nebraska to take advantage of the Kansas-Nebraska Act.
3. Too upset by the North resisting the return of fugitive slaves that the North would not be bound to return if the South became a separate country.
4. Too impatient in pulling its representatives from Congress after Lincoln’s election rather than devoting a few years to negotiating a peaceful withdrawal from the Union.
5. Too confident in the superiority of the South’s generals over the North’s manpower, industry, and, ultimately, generals.
6. Too much hubris in deciding to invade Kentucky, Maryland, Pennsylvania, and Missouri.
7. Too lacking in imagination to see that sufficient numbers of freed slaves would stay on the plantations and continue picking cotton.
If the Constitution had stated that states may not leave the union once they had joined, or anyone even made such an argument at the time of ratification, the Constitution would never have been ratified. Before the Civil war, "United States" was a plural noun, and everyone considered themselves to be citizens of their state, not the United States. It is only after the war that people begin to use "United States" as a singular noun, and called themselves American.
But yet, Gahrie, all those states that ratified the Constitution had previously ratified and signed the Articles of Confederation which established the USA as a perpetual union. Kind of says you're wrong, doesn't it?
A constitution, written or otherwise, is how a nation operates when it is at peace. When at war, there's a lot of leeway, and if you win the war you get to make a new constitution. That's what Lincoln did--or rather started. Lincoln's assassination led to some pretty bad leadership during reconstruction. Who cares if he did, or didn't, violate the constitution. He won and forged the new America probably until FDR. Hats off.
The Brits outlawed slavery in 1833. Good on them. But, there being precious few to none in Britain, it made little difference there. But overseas..... The Company said they could not keep the lid on in that part of India they controlled (sixty million people), so they punted. Buyring and selling slaves was illegal if anybody noticed. So it graduall withered, to be replaced by a kind of personal service contract not much, according to contemporary writers, different.
Also, the sugar islands, fountaining money out of unspeakable conditions got a break.
But yet, Gahrie, all those states that ratified the Constitution had previously ratified and signed the Articles of Confederation which established the USA as a perpetual union. Kind of says you're wrong, doesn't it?
Article II of the Articles of Confederation: Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
The Articles were a union of independent nations agreeing to cooperate, and explicitly not a new nation. It was basically the European Union, and notably the EU made the same arguments that you are making about Brexit. Guess what, Brexit happened.
In any account, your "perpetual union" lasted less than a decade and was destroyed and replaced by the very men who created it.
All settled history, until a State attempts to withdraw now. That's not been a case or controversy that's been before a federal court before, so all the history, assumptions, and 'common understanding' won't matter until a majority of the Supreme Court decides. Or, they could decide it's a political question or non-justiciable and refuse to decide. And if you thought Roberts contorted the English language and ignored facts to conclude the Obamacare mandate was a tax, you ain't seen nothing yet.
More interesting question of possible practice application - could 3/4 of the States expel a State from the US? I think a better solution than another civil war.
Great thread to read on a Saturday morning. Somehow I missed this last night. Facts, concepts, and principles all covered. Just beautiful. A few key points:
-The right to secede is the premise behind the Declaration of Independence
-The Confederacy was sold as a rebellion, it's citizens rebels. An insurrection. Traitors
-The slave trade was well on it's way out in the Americas
--Just 20 years after the Civil War, slavery moved from the southern plantation to the northern factory.
There has been a lot of talk in recent decades about Lincoln destroying or killing the "Old Republic." The "Old Republic" died of its own weaknesses in 1860 and whatever came afterwards would be something new and different. You couldn't have a country that was half-slave and half-free or a government that was neutral about something as fundamental as human slavery. Maybe you couldn't have one country at all. What had been was gone.
We do have institutional continuity through the amended Constitution and the continued existence of the nation and the government, but if there was some break or transformation it had already happened when Lincoln took office. The question wasn't whether the earlier order was still alive, but what would replace it.
I can understand the view that the country could have broken up into even more pieces and if one part remained under the original Constitution as it functioned in the first 70 years of the country the "Old Republic" would have survived, but I don't believe that it's very realistic. It also glosses over the weaknesses and failings of the antebellum order, as well as the fact the scope and functions of the federal government were bound to change over the next 160 years.
and notably the EU made the same arguments that you are making about Brexit.
Er, no, they didn't. The Treaty of Lisbon included explicit provision for withdrawal. There was no argument at all over whether Britain actually legally could leave (at least not from the EU itself; some ignorant idiots on social media might have said anything), just fencing about the exact terms under which they would.
Blogger rcocean said...
"Here is what Lincoln and the abolitionists were up against in 1858. Read it and weep. From the Douglas-Lincoln debate:"
So, Douglas hoped to address the Nation's problems by compromise, but Lincoln wisely chose to plunge the Nation into a civil war that killed a substantial fraction of its adult male population instead. At least he arranged for the peaceful and productive assimilation of the former slaves. Mostly into the prison system, it would seem.
rcocean quoted Stephen Douglas, who said, "There is a far more important [question] to you, and that is, what shall be done with the free negro?"
This seems to be the essential issue haunting the United States from its founding to the present day. But the question is an odd one, because it assumes the "free negro" is a monolithic concept. They're "all the same", and that simply cannot be true.
First, there were several hundred thousand "free negroes" in the Free States. Some of them were escapees from slavery. It would be worth knowing what they were up to, how their lives had turned out, and how they were supporting themselves, if indeed they were.
Second, a surprising number of "free negroes" lived in the slave states on the eve of the Civil War. Some of them were even slaveholders! According to this article,
"According to federal census reports, on June 1, 1860 there were nearly 4.5 million Negroes in the United States, with fewer than four million of them living in the southern slaveholding states. Of the blacks residing in the South, 261,988 were not slaves. Of this number, 10,689 lived in New Orleans. The country's leading African American historian, Duke University professor John Hope Franklin, records that in New Orleans over 3,000 free Negroes owned slaves, or 28 percent of the free Negroes in that city."
And,
"At birth [William Ellison, South Carolina's largest Negro slaveowner] was given the name April. A common practice among slaves of the period was to name a child after the day or month of his or her birth. Between 1800 and 1802 April was purchased by a white slave-owner named William Ellison. Apprenticed at 12, he was taught the trades of carpentry, blacksmithing and machining, as well as how to read, write, cipher and do basic bookkeeping.
On June 8, 1816, William Ellison appeared before a magistrate (with five local freeholders as supporting witnesses) to gain permission to free April, now 26 years of age. In 1800 the South Carolina legislature had set out in detail the procedures for manumission. To end the practice of freeing unruly slaves of "bad or depraved" character and those who "from age or infirmity" were incapacitated, the state required that an owner testify under oath to the good character of the slave he sought to free. Also required was evidence of the slave's "ability to gain a livelihood in an honest way."
Although lawmakers of the time could not envision the incredibly vast public welfare structures of a later age, these stipulations became law in order to prevent slaveholders from freeing individuals who would become a burden on the general public."
This was in antebellum South Carolina yet, the fiery birthplace of "Nullification" and secesssion.
How accurate this information is, I have no idea. But, if true, it speaks to a very complex history in which both whites and free blacks may have cooperated to help present and former slaves adapt to lives as freedmen in the southern US.
The "rooted in racism" contention of the "bug-eyed wokesters" Krumhorn cited has to be considered suspect in light of this complex history. Not to say that it's pretty, but it provides something of an answer to Stephen Douglas's pertinent question.
I’m surprised Prof. Oakes doesn’t mention what Madison actually said about secession in his letters. They are available online, and easily searchable. He wrote on the subject repeatedly starting about 1830. E.g., his letters:
TO M. L. HURLBERT.
Montpr May 1830.
TO EDWARD EVERETT.
Augst 28 1830
TO MATTHEW CAREY
Montpellier, July 27, 1831.
TO C. E. HAYNES
Montpellier, August 27, 1832
TO N. P. TRIST
Montpellier, Decr 23, 1832
TO ALEXANDER RIVES.1↩
Montpelier, [January, 1833.]
His viewpoint was consistent in all of these writings. The Constitution is a compact among the people of the several states. No single party to the compact can cancel it unilaterally, but a party is released from it if the others parties have abused them unforgiveably. Further, that is a judgment they may make unilaterally. But said other parties have an equal right to dispute the judgment of the would-be secessionist, and to enforce the compact by military means. At that point, it becomes revolution, to be settled on the battlefield.
IOW, Madison explicitly repudiated Feldman’s claimed right of unilateral secession. He held the Union had the legal right to stop secession if it wished to and had the necessary force. And it did.
I am always amazed, and amused, at the way people make up alternative histories and laws, rather finding out what the actual history and laws were.
Quaestor said...
"Legal personhood also meant that slaves taken into the free states by their owners could be automatically emancipated, and that slavery was unconstitutional on the high seas and in the territories."
I assume this was the crux of the Dred Scott case, yet the decision famously went against the plaintiff. Everyone seems to blame Chief Justice Roger Taney, but he couldn't have been alone in this adverse interpretation of the Constitution as it existed in the antebellum era. I wish Mr. Oakes had explained this in light of his critique of Mr. Feldman's book because I certainly do not understand it.
Taney simply lied in his decision, claiming that at the time the Constitution was ratified, no state recognized a negro as having any rights, whether he was free or slave. Completely false. Massachusetts outlawed slavery by judicial decision in 1783, holding that negroes were human, and the state constitution’s guarantees of human rights applied to them. And in all states with slavery, the slaves had certain rights against their masters, including the right to support in their old age, and the right not to be killed out of hand, as a dog or a cow could be. And in North Carolina, free blacks could sometimes vote, which meant they were citizens.
Quaestor said...
*Lincoln's request for volunteers is telling. He wasn't certain that the use of the regular United States Army against the Confederacy was constitutional.
Not so. The regular Army was miniscule, and was on the frontier, protecting against Indian/settler conflicts. They couldn’t be spared from that., and they were too few to win if they had been used. Calling out the militia was what had been done in the War of 1812 and the War with Mexico. Absolutely standard procedure. And note that a commission in the regular Army was the reward for perceived good service by volunteer Union officers They did NOT stop fighting when they got rank in the regulars.
Krumhorn said...
The Dred Scott majority opinion is well worth a read. . . The central point of the decision was that members of "that unhappy race" whether free or not were not citizens, not among the "people of the United States", and therefore Scott and his wife had no standing to sue in the courts of the United States. That was it. A strictly procedural decision.
And as I said above, a very dishonest one. It’s worth noting that the other Southern judges all came up with different arguments concerning why Dred Scott couldn’t appeal to the federal courts. I get the impression the decision was reached before any arguments were made, and the challenge was to find some legal figleaf to cover naked prejudice.
Mr Wibble said...
I've long thought that the whole, "it was about slavery!" / "no it wasn't!" argument missed the underlying issue: the Civil War was about the declining power of the southern political class. Slavery was intertwined with that power, the most visible example, and part of southern culture.
In the South, everything was intertwined with slavery. All the arguments about why the slave states should secede ultimately came down to ‘Slavery is doomed in the Union. When slavery ends, white supremacy will end with it. Our society will collapse. We must secede to preserve our slavery-based society.’ See for example the Confederate Constitution, which went out of its way to protect slavery. See also the official documents justifying secession, ALL of which specify the protection of slavery making secession necessary.
ken in tx said...
Every other country that abolished slavery did so without a war.
One word: Haiti.
The USA as constituted in 1859 could have ended in slavery without a civil war, but unfortunately in reality, as Douglass put it, the Slavocrats preferred losing their sons to losing their slaves.
It's interesting to me that some of the same intelligent commenters who recognize the selfishness and chicanery of today's Democrats and their ginned-up panics can't see the same process at work in the Secessionist Democrats of 1860-61, who were only acting out of high principle, apparently.
Oh God, here we go... re-fighting the Civil War once again, 160 years later.
The idea that the ethnic Russians' issues in Ukraine nowadays are similar to those of the American slaves 160 years ago is ludicrous and based on complete ignorance.
Only people who know nothing resort to such comparisons, e.g. because Putin is a dictator he must be just like you-know-who. Yes, there are common elements, but it is ridiculous to say they are the same.
Pro-Russians in Ukraine were not prevented from electing their own president, actually this happened several times. The Ukrainians have just as good a claim at having been oppressed (in their own country, no less) as the pro-Russians do.
"Slavery CAUSED the war, because it caused secession. But it was not what the war was about."
Indeed, it seems that the slave-owning Southern elite was not objecting to any actual abolitionist efforts, but to the mere possibility that they may somehow be judged as being not completely in the right, that others had a superior moral stance. As aristocrats, they had a well-developed sense of pride.
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