Jeffersondem, have you ever read this?
LINCOLN'S LEGAL ARGUMENTS AGAINST SECESSION
Lincoln set forth his views on secession mainly in his First Inaugural Address (4 March 1861), and his Special Message to Congress (4 July 1861). In the first speech, Lincoln made primarily political arguments against secession, apparently hoping to persuade secessionists with his arguments. However, with secession already accomplished by 4 July 1861, Lincoln's Special Address to Congress focused on the alleged illegality of secession, to establish the legitimacy of his intended military resistance to it. This paper will therefore first consider the Special Message's legal arguments against secession, then the First Inaugural's political arguments against secession.
In his Special Message to Congress, President Lincoln called the doctrine of the secessionists "an insidious debauching of the public mind." He said,
"They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps, through all the incidents, to the complete destruction of the Union. The sophism itself is, that any state of the Union may, consistently with the national Constitution, and therefore lawfully, and peacefully, withdraw from the Union, without the consent of the Union, or of any other state.
Ironically, it was not "fire-eating" southern rebels who had originated this "sophism," but the man Lincoln called "the most distinguished politician in our history"—Thomas Jefferson. Jefferson, who called Virginia his "country," planted the seeds of the secession doctrine when he wrote his Kentucky Resolution of 1798, in protest to the Alien and Sedition laws:
"The several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of the Constitution of the United States, and of certain amendments thereto, they constituted a general government for general purposes, delegated to that government certain powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no effect.
Hannis Taylor called Jefferson's compact doctrine the "Pandora's Box" out of which flew the "closely related doctrines of nullification and secession," which he notes, with less than perfect foresight, "were extinguished once and forever by the Civil War." Jefferson's biographer, Willard Sterne Randall agrees:
"[Jefferson] forthrightly held that where the national government exercised powers not specifically delegated to it, each state "has an equal right to judge... the mode and measure of redress."... He was, he assured Madison, "confident in the good sense of the American people," but if they did not rally round "the true principles of our federal compact," he was "determined... to sever ourselves from the union we so much value rather than give up the rights of self-government... in which alone we see liberty, safety and happiness."
Lincoln, in reply to this "insidious debauching of the public mind," constructs a straw-man secessionist argument:
"This sophism derives much-perhaps the whole-of its currency, from the assumption, that there is some omnipotent, and sacred supremacy, pertaining to a State-to each State of our Federal Union."
No secessionist, including Jefferson, ever made such an argument, though it sounds ominously like a description of Lincoln's own feelings about the Union. Since the states created the Union, Lincoln's denigration of the states and glorification of the Union is paradoxical.
Lincoln challenges the claim of reserved state powers by asserting that no state, except Texas, had ever "been a State out of the Union." In fact, Lincoln argues that the states "passed into the Union" even before 1776; united to declare their independence in 1776; declared a "perpetual" union in the Articles of Confederation two years later; and finally created the present Union by ratifying the Constitution in 1788. There are many problems with his argument.
Lincoln confuses no fewer than four different concepts of union. Prior to 4 July 1776, the colonies were united by their increasing concern over the violation of their rights by the British government. Their representatives met in a Continental Congress which ultimately issued the Declaration of Independence and organized the Revolutionary War effort. Prior to 1776, no issue of secession from a union could have arisen because the colonies still considered themselves part of Great Britain. Neither were there any legal documents agreed to by the Continental Congress which directly or indirectly addressed the issue of secession. Thus, any union that existed prior to 1776 is of no importance at all to the issue of secession.
Next comes the union created by the Declaration of Independence. The most notable fact in this context is that the Declaration announces a lawful secession by the colonies from Great Britain based on the right of the people to alter or abolish their form of government. It is thus apparent that the Declaration of Independence establishes that the right of secession is among the inalienable rights of men. The Declaration is, therefore, literally the last place on earth one would hope to find legal justification for a war against secession. It was adopted by representatives of the thirteen colonies, and declared that those colonies had become "Free and Independent States." However, the Declaration was not a constitution, establishing any particular type of union among the states, or specifying any duties binding on them other than a moral commitment to mutually defend their newly declared independence.
Ironically, the past "train of abuses" Thomas Jefferson cited in support of secession reads like a checklist of the tactics Lincoln and his successors used against the South to prevent secession:
"He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected.... He has made Judges dependent on his Will alone.... He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance. He has kept among us, in times of peace, Standing Armies without the consent of our legislatures. He has affected to render the Military independent of and superior to the Civil Power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws, giving his Assent to their Acts of pretended Legislation: For quartering large bodies of armed troops among us. For cutting off our Trade with all parts of the world. For imposing Taxes on us without consent. For depriving us in many cases, of the right of Trial by Jury. For taking away our Charters, abolishing our most valuable Laws and altering fundamentally our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. He has plundered our seas, ravaged our Coast, burnt our towns, and destroyed the lives of our people. He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny."
The next union cited by Lincoln is the government established by the Articles of Confederation, which were ratified on 1 March 1781. Perhaps the most significant fact about the Articles is that they specify, both in the preamble and in the body, that the union thus created is "perpetual." Article XIII states:
"The Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.
In contrast, however, Article II makes clear that "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." This sentence is divided into two clauses, the first speaking of states retaining their sovereignty, freedom, and independence, and the second reserving to the states those powers and rights not expressly delegated to the United States.
Resolving the apparent conflict between Article II and Article XIII as it respects the issue of secession is unnecessary for our purposes. Suffice it to say that the Articles expressed a desire for perpetual union, while recognizing the independence of states, and omitting any clear mandate or enforcement mechanism that prevents state secession. They also established a decentralized federal system without a strong executive power which apparently failed to arouse any secessionist impulses in its short tenure.
The union established by the Articles of Confederation, in spite of its exhortation of perpetuity, was terminated by nothing other than a secession! The proposed Constitution provided that it would take effect upon ratification by nine states. On 21 June 1788, New Hampshire became the ninth state to ratify. On that date, a new union was formed, exclusive of Virginia, New York, North Carolina, and Rhode Island, which had not yet ratified. That new union seceded from the union formed by the Articles of Confederation in violation of Article XIII, which barred any alteration in the Articles save by unanimous consent.
Significantly, the exhortation of perpetuity from the Articles—which was repeated five times—was dropped by the new Constitution. In response to this embarrassing fact, Lincoln argues that the phrase "a more perfect union" in the preamble implies at least the perpetuity of the Articles. Evidently, the Framers either disagreed or chose to be silent on the matter. (Indeed, common sense suggests that perpetual-forced-unions are less perfect than consensual ones, about which more later.) Their omission is especially significant since the term "perpetuity" was part of the full name of the Articles: "Articles of Confederation and Perpetual Union." Thus, the Framers could not have missed the term.
More importantly, a comparison of the two texts reveals, contrary to popular thought, that much copying was done by the Framers of the Constitution. Entire clauses from the Articles were imported virtually word for word into the Constitution. Examples include the following clauses: privileges and immunities, extradition, full faith and credit, congressional immunity while in session, ban on state treaties, and ban on state imposts and duties. The Framers were clearly conversant with the text of the Articles, yet no mention of perpetuity appears in the Constitution.
Neither does the Constitution explicitly say anything about state secession. The word "secession" does not appear in the Constitution. The Constitution neither prohibits a state from leaving the union nor explicitly authorizes a state to do so. Nor does it explicitly authorize the federal government to forcibly retain a state that has seceded.
Secession was apparently not discussed at the Constitutional Convention. This may have been a deliberate omission:
"It would have been inexpedient to have forced this issue in 1787, when the fate of any sort of a central government was doubtful. But [this] subject [was] probably not even seriously considered at that time.
President Buchanan later argued that if states had the right to secede, all that anti-federalist concern about potential federal tyranny was pointless. This is a clever, but strange, legal argument. It uses circumstantial evidence to establish what certain opponents of the Constitution might have thought it meant on a point which was not widely discussed or considered at that time. Such a method of constitutional interpretation is tertiary at best. This article relies primarily on textual analysis and secondarily on consideration of the purposes of the drafters and ratifiers and their historical circumstances. It is not at all clear why what opponents of the Constitution might have thought it meant should be a criterion of interpretation.
Even if it is considered important, however, there are still problems with the argument, since many historians have concluded that most people of the time believed the states retained the right to secede. Since the Constitution expanded the powers of the federal government, omission from it of any mention of secession or perpetuity certainly removes a potential source of opposition to ratification.
Another problem with Buchanan's argument is that its initial premise is dubious. That is, it assumes that if a right to secession existed under the proposed Constitution, opposition to it would have been less severe. However, even if the Constitution explicitly allowed states to secede, opponents of a strong federal government nevertheless had strong incentive to oppose it for the simple reason that the new Constitution meant the death of the minimalist Articles of Confederation. Finally, even if antifederalists believed that the states retained the right to secede under the new Constitution, they could well have thought-with perfect foresight-that the federal government would nevertheless ignore that right, and use military force to prevent such a lawful secession. Thus, Buchanan's argument is mere sophistry.
This review of the legal history of the states contradicts Lincoln's claim that the states had always been part of a superior union which implicitly forbade secession. In fact, such a claim is preposterous. At various times, the states had been loosely joined for their common defense without a constitution, while at other times, certain states had been left entirely out of the union. The very birth of the states as independent entities took place when they ratified a Declaration of Independence which enshrined a right of secession as an inalienable right of the people of each of the states."
[James Ostrowski, "Was The Union Army's Invasion Of The confederate States A Lawful Act? an Analysis Of President Lincoln's legal Arguments Against Secession," in David Gordon (editor,) "Secession, State, and Liberty." Transaction Publishers, 1998, pp.159-164]
I highly recommend that book, and in particular the remainder of Ostrowski's 35-page article (pages 155-190.) Other topics in the article include, "Was the Invasion Justified by the Seizure of Fort Sumter?"; "A Thought Experiment"; "Lincoln's Political Arguments Against Secession"; and "Legal Developments Since 1861."
Mr. Kalamata
I have not read anything by Mr. Ostrowski that I can remember but I did read the excerpt you posted.
Very good and helpful. I plan to read more of his work. Thank you for the references.
I continue to be amazed that President Lincoln sought to use the Declaration of Independence to argue that it was wrong for 13 states to seek independence.
In hindsight, we can only conclude Mr. Lincoln was not misreading the Declaration of Independence - he was rejecting the premises of the DOI. And today - on this site - students of Lincoln will tell you right quick: “There is no natural right of independence!”
By this they mean no right for the colonies and no right for the southern states. And perhaps no right for anyone, anywhere in the world to seek independence.
Of course, Lincoln and Lincolnites reject the plain meaning of the original United States Constitution as well.
That is where we stand today but thankfully we have the one million page Federal Registry to regulate our conduct.
Or is it two million pages now that the size of scaffold toe board gaps is a federal matter?