Unpacking Secession

The Charleston Mercury's extra announcing South Carolina's secession.

The Charleston Mercury’s extra announcing South Carolina’s secession.

It doesn’t take very long talking about the Civil War with people or reading about it online before one encounters the argument that the southern states had a right to secede. Thus we should not ask why secession took place, but rather why the rest of the nation objected and sought to suppress it. That question has value itself. We should ask it often and intently. It informs a great deal of recent scholarship about the war, in particular the continuing debate over to what extent, how, and when, northern whites understood themselves to fight the war to destroy slavery. The consensus holds that most came to emancipation only reluctantly, only after repeated defeats, and only as a measure necessary to win the war. But giving the question of why the rest of the nation fought the South its due attention should not distract us, as the bad faith debater wishes, from the more important fact that the South seceded to preserve slavery.

All that said, the supposed right of secession deserves some investigation in itself. In Disunion! The Coming of the American Civil War 1789-1859, Elizabeth Varon distinguishes secession from disunion. The latter carried overlapping meanings:

Disunion was invoked by Americans, across the political spectrum, in five registers: as a prophecy of national ruin, a threat of withdrawal from the federal compact, an accusation of treasonous plotting, a process of sectional alienation, and a program for regional independence.

We usually, laypeople and historian alike, call all of those secession. Varon thinks we do so wrongly. To her,

Secession referred to a specific mechanism whereby states could leave the Union, and it reflected complex constitutional theories on the boundaries of state and federal power.

Secession, in Varon’s usage, thus describes how one goes about enacting the program of disunion. For the purposes of this post, I intend to broaden the term just slightly to also include how secession’s advocates understood it. One need not go far to find references to succession in antebellum political works, which plays into the notion that everybody in antebellum America agreed that states had a right to secede. Richard Ellis makes this point in The Union At Risk, and points to an important shift in the constitutional thinking along the way:

Prior to the espousal of the doctrine by the South Carolina nullifiers, most assertions of secession had taken the form of rhetorical flourishes, political ploys, and logical extensions of arguments not fully understood or thought out. Moreover, secession before 1828-1833 was not a doctrine that was associated with a particular interest group or section of the country. A number of the more vociferous New England opponents of the War of 1812 had spoken of it, but the moderates who controlled the Hartford Convention rejected the doctrine, and the entire movement was soon disgraced and lost in the nationalist fervor that swept the country after 1815.

New Englanders also floated secession much less famously, and in fewer numbers, against Jefferson’s embargo. A simplistic reading of that would suggest a national consensus that one could secede, just as a similar reading would find a consensus on states’ rights, but note Ellis’ qualifications. Rhetoric, ploy, and arguments taken to their logical extreme do not a program make. Nor does it follow that if they did, they necessarily further amounted to the assertion of secession as a legal process to which a state had a conventional right. If secession did mean those things, then suppressing it should at the very least come only through a conflict between its exercise and other, similarly compelling rights. One can make a very good argument that in 1860-1 other rights did conflict with any such exercise, but unless one takes secession as the ultimate of all rights then such a conflict seems inherent and inevitable. We come back around to calling out the army and the familiar narrative of 1861-5.

This doesn’t render consideration of methods and understandings moot. Antebellum Americans could understand secession as a different kind of right which they understood themselves as entitled to and yet suppress its exercise by another without contradiction. Though that might seem like a stretch, it relied only upon acceptance of the logic of the American founding. The United States arose through an act of treason against the United Kingdom. The founders levied war against the legally constituted government of the land, precisely the act which they would later declare treason in the Constitution. They claimed as their justification the right of revolution, a decidedly unconventional right.

We understand ordinary rights as involving our ability to do something without interference. What we consider interference depends heavily upon our political convictions, usually with a distinction between a right to do something free from government obstruction against a right to engage in the act in and of itself. The right of revolution doesn’t fit easily into either construction. Those who revolt must expect opposition and at least very likely that they will settle the issue by a contest of arms. Thus one doesn’t have an unhindered right to rise up at will, but rather a right that exists only in retrospect. If you win your war, you have the right. Otherwise, you had the right to hang. In this light, we must consider revolution not as a right like speech where suppression in itself would violate expected norms, but rather one its lack would do so.

The understanding secession as not revolution, but rather an orderly constitutional process, came into American discourse through the innovations of the nullifiers. It did not achieve the status of an accepted dogma even in the South until after Nullification came and went, as one can see here (PDF):

The South, in my opinion, has been aggrieved by the acts of the North, as you say. I feel the aggression, and am willing to take every proper step for redress. It is the principle I contend for, not individual or private benefit. As an American citizen, I take great pride in my country, her prosperity and institutions, and would defend any State if her rights were invaded. But I can anticipate no greater calamity for the country than a dissolution of the Union. It would be an accumulation of all the evils we complain of, and I am willing to sacrifice everything but honor for its preservation. I hope, therefore, that all constitutional means will be exhausted before there is a resort to force. Secession is nothing but revolution.

Here we have an impressive collection of statements. The author deems the South an “aggrieved” victim of Yankee “aggression.” He wants redress. But he loathes the thought of disunion. He distinguishes between constitutional means of the redress he hopes for and secession, which he calls revolution. He doesn’t leave matters there, though. He further writes:

The framers of our Constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled.

That, if not the earlier statements about the South’s suffering, sounds like something Lincoln would say. Robert E. Lee wrote it all to his son in late January, 1861. One can argue that Lee doesn’t make for much of a constitutional thinker. Whatever their abilities, military men have other priorities. Nor does his embrace of the Confederacy later on involve a clear contradiction. Lee would have noticed his fighting the war and in doing so he acted consistently with his understanding of secession as revolution.

Robert E. Lee, Virginia aristocrat, military officer, and future confederate general

Robert E. Lee

At least rhetorically, however, many secessionists did claim they had a legal process. Some might have believed it. During the Secession Winter, they did rather more than make the traditional threats. They employed a method along the general lines that Calhoun laid down in Nullification times. The states, through special conventions, had ratified the Constitution. To Calhoun, this meant that a state convention exercised ultimate sovereignty and could thus un-ratify the Constitution. The Union consisted only and entirely of the Constitution, legally speaking, so by exercising its sovereignty in this way, a state could take itself out of the Union. Other thinkers held that states could do this through ordinary legislation, but Calhoun’s state convention method generally prevailed. Calhoun only had to ignore where the Constitution located sovereignty to manage all this. One can’t blame him for missing it, though. Who reads the first sentence of a document?

Secessionists also differed, even in South Carolina, over whether they should secede unilaterally or not. Many held that secession would come more easily and more defensibly from a convention of the southern states acting in concert. Opponents damned them as secret unionists, pointing to the failure of the Nashville Convention to achieve secession a decade prior. Why would one adopt a method known to fail, unless one wanted the effort to fail too? Some might have done just that, but as a practical matter even while considering unilateral secession South Carolina’s leadership took a very keen interest in what other states planned to do. They had gone out on a limb before and learned that the rest of the South would not follow. That didn’t quite make the first secession a cooperative affair in the mode that the advocates of it wanted, with the whole South going out together, but they both expected and had some informal assurances that other states would follow.

John C. Calhoun

John C. Calhoun

All the secession methods suggested in the antebellum agreed on one point: secession must proceed unilaterally in another way. A state had the power, either through revolution or constitutional process, to secede on its own. The consent of other states or the national government did not enter into it. They might engage in consultation. It might make for better politics for states to go out in a group. But when a state wanted to go, it had gone. This would always invoke the familiar storm of controversy. However, an uncontroversial process for secession exists in principle: the Constitution allows for amendments. If a state could secure the passage of an amendment authorizing secession, either for itself alone or for states in general, that would almost certainly meet constitutional muster. (The Reconstruction Amendments offer a clear case where the text of the Constitution did not, but such direct and obvious counterexamples don’t come up very often.) Somewhat more remotely, states could convene to write an entirely new constitution which would permit secession. Those legal roads exist, but the advocates of secession never seem very interested in them. Rather they want to leave, take the real estate with them, and demand that everyone else smile and wave as they depart.

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