(third in a series)
I must confess that I have never quite understood the emphasis some people place on state rights as the issue that caused secession. My disbelief rests upon a very simple reason: state rights are a means to an end, not an end in itself. Debates over federalism (which is really the structural issue at the heart of this debate over political institutions) were as old as the republic itself, and various sides could use state rights or national supremacy arguments according to which one best served their interests. Thomas Jefferson was very much in favor of restricting the power of the national government in the 1790s, when he was on the outside looking in when it came to first policy (when he was secretary of state), then power (as head of the opposition). As president, he seems to have employed a far more vigorous sense of national power, especially presidential power, as the cases of the Louisiana Purchase, the Barbary Pirates, and the Embargo Act suggest.
The Fugitive Slave Law of 1850 expended the bureaucracy of the federal government to enforce the fugitive slave clause and employed a process that cast aside basic civil rights. Just as northern states had earlier used state rights defenses to pass personal liberty laws, so they again looked to contest the use of federal power in resisting the Fugitive Slave Law, culminating in the Supreme Court decision of Ableman v. Booth in 1859, which struck down Wisconsin’s efforts to employ state rights defenses against the Fugitive Slave Law. John Brown’s raid that same year targeted a federal installation. That followed on the heels of an effort to enact a federal slave code for the territories, and to offer an interpretation of popular sovereignty which defined self-determination in the territories in such a way as to enhance slavery’s prospects to spread. American foreign policy had done much to obtain land that served to promote the expansion of slavery, and to fight wars to secure that same goal. In short, proslavery southerners had no problem using federal power to protect and promote slavery.
Nor is this an issue of minority rights, except, perhaps, the minority of whites who were slaveholders or wanted to be slaveholders. Let’s set aside the obvious fact that the debate over minority rights presupposed that black people had no rights which white people were bound to respect, to paraphrase how Roger B. Taney put it in 1857. For decades there had been efforts to restrict or censor abolitionist agitation: the debates over the gag rule, an effort to compromise the right of petition, and the use of the mails, an effort to dampen free speech, deserve attention. So too does the disregard many white southerners showed for those white southerners who did not support secession.
During the war itself, Confederates did not always apply the notion of state rights consistently. By the middle of the war many white southerners viewed the government at Richmond as being as arbitrary as the government in Washington. If all Confederates had really adhered to state rights as an end it itself, rather than as a means to an end, they would not have bickered among themselves.
And let’s set aside the idea that the Civil War was a battle over the “right” of secession. It was a war over the exercise of that supposed right. People disagreed over whether there was in fact a right of secession. People still disagree (and yes, I’ve heard about Texas v. White , but that really is besides the point; one could argue that the Supreme Court’s been wrong before, and that in any case it was a pro-Republican court; people may accept something as the law of the land but protest against it, as we’ve seen). Year after year various Civil War groups, chat rooms, and whatever debate this point, repeating the same arguments, rarely persuading anyone in the debate of very much, in what remains one of the greatest historical reenactments of the age. The fact is the you must have a reason to want to exercise that right, and secessionists made it very clear that the reason they advocated the exercise of what they believed was a constitutional right was to protect slavery. Again, don’t confuse means and ends. Besides, how many people out there really believe that if white southerners found themselves conceding that there was no right of secession that they still would not have argued for separation through revolution in the name of self-preservation? Let’s recall that conditional unionists believed that there was in fact a right of secession but that it was unwise to exercise it, at least until they were convinced to the contrary. If it had been a war over the right of secession that position would be nonsense.
Secession is best understood as a preemptive response to what the election of Abraham Lincoln signified to secessionists (and they said this repeatedly in the secession winter of 1860-61). Lincoln’s election was a pivotal moment, because the power of the executive branch passed to a man who did not conceal his opposition to slavery as an immoral institution that should be set upon the road to ultimate extinction, first by preventing its future expansion. There was no sense in waiting around to see what would happen next. Oh, sure, Lincoln might claim that he was against using the power of the federal government to destroy slavery where it already existed, but (as events showed) he was not opposed to encouraging slaveholders to abandon slavery on their own (thus his favored position through the end of 1862 of a gradual compensated emancipation followed by voluntary colonization). Moreover, Lincoln’s election was but a first step, with more steps to follow, as the North gained more and more power, and as Republicans grew in strength (remember, northern Democrats remained a mighty force, and they were not pro-emancipation). Advocates of secession understood what Lincoln’s election portended (or at least they thought they did), and were ready to act. Some of them, indeed, had worked to realize just this crisis when they assisted in the fracturing of the Democratic party in the spring of 1860.
State rights as an end in itself had very little to do with this process. State rights as a means to an end … the defense of southern rights … is much more consistent with the historical record. Unionists and conditional unionists did not present themselves as pro-federal power advocates during the secession debates of 1860-61. Rather, they argued that they opposed secession because it was unwise, not called for by the circumstances of the moment, or against their interests (this latter point was especially true among those opponents of secession who did not come from areas with many slaves). One of the most powerful objections to secession had everything to do with slavery and nothing to do with state rights arguments: namely, that if secession led to conflict, even war, slavery would be endangered in the forthcoming contest.
Once one accepts that the state right in question in 1860-61 was the right of a state to protect its domestic institutions (that euphemism for slavery), and that slaveholders had absolutely no problem with using the power of the federal government to protect slavery (at whatever cost), one can learn much about the historically correct context in which debates over state rights and federalism occurred in the years leading to the secession crisis and during the crisis itself.