On Secession: Of State Rights

(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 [1869], 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.

5 thoughts on “On Secession: Of State Rights

  1. Lyle Smith January 16, 2011 / 11:43 am

    My first semester of college I had an all night long dorm argument about why the Civil War was fought with a friend of mine. I said economics and he said State Rights… and we went round and round.

    He’d tell you today it was about slavery. I think he’s just heard state rights, state rights, state rights while growing up and in school. Of course he knew state rights and slavery were linked… but the popular history meta-discussion at the time emphasized state rights over slavery; like there was some finer political point to be made by the South than the economics of slavery.

    It is simply a false narrative that a lot of people accept as truth. I think people are proud of their dead Confederates, proud of where they’re from, and just choose to put all that in the most pristine light they can… despite there being a lot of ugly to look back at. The fact is people understand very well that slavery was a serious abomination and counter to the latterday spirit of the founding documents, and so it just has to be about something other than slavery.

    A good public example of this recently was one of the men behind the Secession Ball in Charleston. He was interviewed by a radio station and the first thing out of his mouth was that slavery was an abomination. He said that two or three times before descending into ahistorical arguments about secession and the reasons for having the ball. He’s compartmentalized slavery away, and only sees myriad political issues as the rational behind secession.

    False narratives are common in popular history and politics though. It’s some kind of group think thing that just is what it is, and that just takes time to unravel itself.

  2. Matt McKeon January 17, 2011 / 12:23 pm

    I think that the belief in “states’ rights” was sincere enough. But when ever slavery and states rights came in conflict, states rights lost.

    • Brooks D. Simpson January 17, 2011 / 12:35 pm

      The interest in state rights was sincere (on both sides of the Mason-Dixon line) but it was not consistently applied across the board.

  3. Mark January 21, 2011 / 7:40 am

    Of all the myths about the Civil War, none is so absurd, or so often repeated, that the Southern leaders fought for states rights.

    The Southern leaders hated state’s rights almost as much as they hated free speech — and they violently supressed free speech from 1820’s on — which is another story.
    In fact, the Southern Ultimatums — reported in Southern newspapers loudly and proudlly — were the most anti -states rights document possible.

    The Southern leaders demanded — on threat of war — that NO state could stop slavery in ITS OWN BORDERS. States must have NO say, whatesover, in any civil rights issue, no state may decide their own laws about how to hand trials , or even have trials, for suspected run away slaves, or their children.

    Specifically, Kansas must ACCEPT and respect slavery, even though the people of Kansas had just voted 98% to 2% to keep slavery out FOREVER.

    Slavery MUST be spread in the territories by the government! These Ultimatums were as looney as you can dream up. It was as if Hitler had issued Ultimatums to England, that England must invade Poland for the amusement of the Germans. Even HItler, in his wildest delusions, would not demand England invade Poland for the amusement of Germany.

    But the Southern leaders demanded Lincoln and the North spread slavery for the South. That is how nutty Southern leaders were.

    Go read their own Ultimatums. The Southern newspapers announced them loudly and proudly. Richmond newspapers headlines about the Southern Ultimatums read “THE TRUE ISSUE”. Newspapers North and South carried the Southern Ultimatums.

    All five of the Ultimatums were about one thing — the SPREAD of slaver against the will of the people. People must have NO say in slavery, or slave issues, even within their own state.

    Who would decide what states could and could not do? Who would decide if a state could give civil rights of ANY type to ANYONE? The slavers. Slave owners would have total and final, first and final, say about what states did in their own borders, in their own courts, in their own legislatures.

    The Southern ULtimatums demanded specifically that state legislatures pass laws to suit the SOuthern leaders wishes!

    When Lincoln refused to obey these insane demands, the South attacked.
    The South’s own leaders — their own newspapers — their own history — were violently opposed to state’s rights.

    It is a mockery of logic, of the clear history of Southern demands, to allow these lunatics to pretend the South gave a rat’s behind about State’s Rights — they literally went to war to STOP states rights.


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