Individual Liberty — Individual Responsibility 

An answer to JMB regarding the war of 1861

One of my readers, JMB asked this question (reformatted, but otherwise left intact)…

“I read Mr, Walter Williams article, as you had seggested, and I have some questions that maybe you can anser for me...

“Would not our States have, in 1787, fully understood, that if any of them were to attempt to secede from this union, that those reasons for this, should be fully justifiable.

“What were those reasons that were declared by our southern States, and did those reasons in anyway resemble those that had been announced whithin our own Declaration of Independence.

“Should any reasons given suffice.

“And...

“You claim you do not like what South Carolina did, is it because they did not have good enough reasons to use brute force, or is it just simply because they had.

“I do want you to know Mr, Nelson, that I am in no way set against any State, or any collection of them, seceding from a Union of tyranny.”

These questions certainly bear upon the notion I raised when discussing the Requirements Document and Specification for our government, that if our government is failing to meet the requirements laid out for it and failing to conform to its specification that it needs to be altered. I address some of them in a much earlier post about the war of 1861, but I think it's worth another look.

South Carolina clearly believed that the States had a right to secede from the union. When South Carolina seceded in 1860, the State cited the Declaration of Independence, and the treaty with Great Britain ending the Revolution. South Carolina asserted her right to secede based upon the notion that

“Thus were established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrent with the establishment of these principles, was the fact, that each Colony became and was recognized by the mother Country a FREE, SOVEREIGN AND INDEPENDENT STATE.”

Regarding the ratification of the Constitution, South Carolina noted that…

“The parties to whom this Constitution was submitted, were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority.

“If only nine of the thirteen States had concurred, the other four would have remained as they then were-- separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation. ”

Certainly in 1787 South Carolina and a few of the other southern states believed that if the union were to trample upon the rights of the States that the States should be able to secede. They may well have had sufficient resentment against the northern States even in 1787 to only be weakly bound to the union. One of the most commonly misunderstood parts of the Constitution as it originally stood was in Article 2, section 1 where slaves were only counted as 3/5 of a person.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Many people, even today, see this as evidence that the founders considered blacks to be less than human. That is a mistaken impression. The founders added this clause to the Constitution because they did not want the slave holding states to be able to guarantee slavery throughout the union in perpetuity. By reducing the representation of slave holding states in proportion to the number of slaves they were compromising. The compromise allowed slave holding states representation based on the number of slaves they held, but reduced that representation because the slaves were not free to make their own decisions or to vote. That the founders had to compromise with the slave holding states is further evidenced by Article 1 section 9 of the Constitution

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

This effectively prohibited Congress from banning the slave trade until 1808. On January 1, 1808 Congress did ban the importation of slaves, setting off resentment in the southern States, particularly in South Carolina. On April 26th, 1852 the people of South Carolina declared in convention that “the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union;” South Carolina did not secede from the union in 1852, “in deference to the opinions and wishes of the other slaveholding States.”

From the point of view of the people of South Carolina, Congress and the federal government had violated Article 4 section 2 of the Constitution, specifically the “rendition clause.”

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Note carefully the precise wording of the clause. It says “in one State ... escaping into another.” Judicial oligarchy stepped in to help exacerbate the problem. Despite claiming that the federal courts held no jurisdiction to hear suits raised by slaves, since slaves could not be citizens (using some rather convoluted reasoning based upon States not having immigration and naturalization authority), the Supreme Court still went on to rule in the infamous Dred Scott case that, despite Article 4 section 3  of the Constitution, Congress did not have the authority to declare territories (not States) to be free.

So the courts overturned Congress' explicitly authorized power to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;” in a case that they clearly stated they held no jurisdiction over. Essentially they held that the fifth amendment's preservation of property rights (actually a guarantee of due process) trumped Article 4 section 3.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Dred Scott decision was full of sophistry, but it was a victory for the slave holding states. But, the overreaching of the courts is only a small part of the departure of our federal government from the boundaries and limitations placed upon it by the Constitution. It's still egregious, and based upon sophistry, but let's move on. I bring it up merely as a counter-point to the arguments put forth by South Carolina. Essentially both sides of the dispute over federal overreaching “benefited” from it.

South Carolina further asserted that the federal government was in violation of the tenth amendment to the Constitution, and that the non slave holding states were, by extension guilty of violating the “law of compact.”

“Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.

“We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third fundamental principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.

“In the present case, that fact is established with certainty. We assert that fourteen of the States have deliberately refused, for years past, to fulfill their constitutional obligations, and we refer to their own Statutes for the proof.”

South Carolina established a firm case for secession. I won't deny that. The public declarations of their reasoning, and the apologetics for it on the surface seem to be primarily about States Rights and adherence to the Constitution. Underlying all of this though is the issue of slavery, that most detestable institution whereby one man claims to “own” another as “property.” C.G. Memminger's “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union” (adopted by South Carolina on December 24, 1860) relies heavily on the Declaration of Independence and the Constitution. However, it somehow leaves out some rather important parts of what those documents said.

For example, Memminger quotes the declaration but neglects the self evident truths in the second paragraph.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Thomas Jefferson declared that all men are created equal. He further declared that they all were endowed by their creator with the unalienable right to liberty. This is antithetical to slavery. Whether Thomas Jefferson as a slaveholder was hypocritical in this or not isn't the issue. The issue is that by deliberately neglecting to examine this issue, South Carolina engaged in a bit of sophistry and hypocrisy of its own to use its contemptible desire to maintain slavery and the expansion of slavery as a motive to find the federal government and the non slave holding states in contempt.

I happen to agree with their complaints regarding the federal government's failure to abide by the Constitution. It continues to fail to abide by the Constitution today. This failure extends to all three branches of our federal government (four if you count the bureaucracy).  What I find contemptible about the secession of South Carolina isn't their legitimate complaints against the federal government and the other States. Rather it's that they used those complaints to cover their contemptible desire to expand the institution of slavery. ALL of the causes of secession were based around the issue of slavery.

The election of Abraham Lincoln to the Presidency of the United States was the trigger for South Carolina's secession. It was well known that Lincoln favored the North and that he favored a stronger central government. It was also well known that he opposed the expansion of slavery.

South Carolina forced the issue, not only by seceding from the union, but by firing on Fort Sumter (which it could be argued was the act of a sovereign nation attempting to expel a foreign military presence). Whether this was truly about the States' right to secede from a union that violated its own Constitution and the rights of the States or about the vile institution of slavery and the “right” of one man to own another is still open to debate. The consequences though are beyond question.

The thirteenth amendment to the Constitution abolished slavery once and for all within the United States. That is about the only good thing that came of the war of 1861, but the war itself didn't end slavery.

By force of arms, the United States also established that the States have no right to secede or to peacefully extricate themselves from the compact they made with the United States when the United States runs roughshod over the Constitution. This was the North's and Abraham Lincoln's motivation for going to war. Their desire to enforce that “perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia” declared in the Articles of Confederation, in order to prevent the ultimate dissolution of the United States was the motive for war, not the abolition of slavery. It was never repealed, but the Tenth Amendment to the Constitution was nullified at Appomattox.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

South Carolina was right to secede, based upon their Article 4 and Tenth Amendment complaints. Their underlying motivation was deplorable, and the result is far less than satisfactory. Because of that war, the government created by the States now renders the States almost meaningless. Because of that war, all of our rights are diminished and nothing now holds the power of the federal government over our lives in check.