On Constitutional Rights, Natural Rights, Secession, and Revolution

Recently a vocal defender of Confederate heritage declared:

Rights endowed by the Creator trump those secured by the Constitution, so people have the right to secession whether there’s a Constitutional amendment or not.

This statement’s problematic. Let’s see what those problems might be …

I note that our commenter chooses to channel William Henry Seward, who spoke in 1850 of a higher law than the Constitution. She evidently concedes in this declaration that one need not look for a constitutional right of secession: it is to be found in “rights endowed by the Creator.”

It’s worth pointing out that advocates of secession in the American South would have rejected this reasoning at the time. They spent much time arguing that secession was indeed a constitutional right. They stayed far way from a nature right of revolution as the justification for their action, and with good reason: because the rights Jefferson enumerated were “life, liberty, and the pursuit of happiness,” all of which are compromised by slavery. Indeed, what’s she’s done is to set the table for an argument that the United States was simply acting to achieve the promise of the Declaration of Independence when it sought to secure the rights of enslaved blacks to “life, liberty, and the pursuit of happiness” through military conflict. Several recent scholars would support that notion, notably James Oakes, who has argued for the fundamentally antislavery nature of the United States war effort.

Moreover, secession is not understood as a natural right. That’s reserved to the right of revolution. The commenter does violence to Revolutionary political thought to claim otherwise. Moreover, we’ve heard many times that the secessionists did not wish to alter or to destroy the United States: they just wanted to leave it, and then be left alone (although I doubt that sentiment would have persisted had fugitive slaves continued to flow northward, for the Fugitive Slave Act of 1850 covered the United States, not foreign countries).

In short, our commenter thus embraces the moral right of the United States to wage a war to secure the promise of the Declaration of Independence (isn’t freedom a God-given right?) and rejects arguments about the constitutionality of secession by saying that such claims are unnecessary. She does not seem to understand (and thus proceeds ahistorically) from the fact that those who advocated secession in 1860-61 explicitly claimed it was a constitutional right. If anything, she finds them wrong-headed.

In the end, therefore, our commentator finds common ground not only with William Henry Seward but also the president under whom he served as secretary of state. As Abraham Lincoln said on March 4, 1861 (in an address reviewed by Seward before its delivery):

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember, or overthrow it.

Lincoln understood the difference between secession and revolution. It is only because our commenter does not that she’s led astray into a land of confusion.

Otherwise they are in perfect agreement. And we’re glad to see that. It isn’t every day that we see a defender of Confederate heritage (and an advocate of southern independence) embrace the thinking of William Henry Seward and Abraham Lincoln.

Cherish the thought.

18 thoughts on “On Constitutional Rights, Natural Rights, Secession, and Revolution

  1. Mark DC (@FilmCriticOne) February 28, 2014 / 1:22 pm

    Im dont take any article or person seriously who doesn’t grasp that Southern leaders themselves were quite loud and proud of their demands to spread slavery for GOD and white survival, as the “cornerstone” of their nation. The ONLY nation on earth, by the way, as Confed Vice President rightly pointed out (he was bragging of it) on the “great moral truth” that blacks are inferior beings and ordained by GOD to be enslaved and punished.

    If you don’t allow that Confederate leaders own loud and proud statements and documents, about their reasons and motivations, have anything to do with their reasons and motivations, then you are just playing nonsense. 150 year of nonsense is enough, enough already. Enough nonsense not just by the Southern apologist, but also nonsense by those who pander to Southern apologist by conjuring up distorted out of context quotes for some kind of “equivalency” by Lincoln and others who moved heaven and earth to stop slavery, first by stopping the South’s ability to enforce their war ultimatums, to spread slavery.

    Quit playing at history, or call it something else. History should be about truth and facts, not making up spurious and convoluted narratives of honorable anti slavery men who just happened to own and have slaves whipped, and happened to demand spread of slavery for GOd, and happened to brag about it, at the time.

  2. Joshism February 28, 2014 / 3:22 pm

    “Rights endowed by the Creator trump those secured by the Constitution…”

    At least the rights secured by the Constitution are fairly well spelled out (with some gray areas). What rights are endowed by the Creator? Those recognized by the Declaration of Independence? The Judeo-Christian 10 Commandments? If you’re an atheist (i.e. you believe there is not Creator) does that mean you don’t have any rights? This seems like a far grayer area than Confederate uniforms…

    • Christopher Shelley October 27, 2014 / 4:08 pm

      Not necessarily. Plenty of deists believed in natural rights. Where they come from is less important than the notion that everyone is indeed born with them. Fortunately, “endowed by their Creator” doesn’t specify who or what this creator is. That leaves plenty of room for non-believers.

  3. tmheaney February 28, 2014 / 3:47 pm

    Also, rights provided by a Creator are given to individual human beings, not to any political structures or arrangements (e.g. “states”). (As the Declaration, well, declares, “Governments are instituted among men.”) Individuals did not attempt to “secede” from the Union, states did. Asserting that God grants “rights” (like secession) to arbitrary political entities (like states) is a really weird argument.

    One could argue, I suppose, that individuals could raise the banner of revolution _through_ state secession, but then secession would just be revolution by another name.

  4. neukomment February 28, 2014 / 4:35 pm

    They always have to drag God into their mantra of delusion… God through His Providence has spoken and the Confederacy was found wanting… Of course as you have already pointed out, in their perverted “theology”, God given inalienable rights did not apply to dark skinned human beings created in the image of God who happened to be from Africa…

  5. Ned February 28, 2014 / 6:24 pm

    I think it is worth pointing out that secession is considered to be an action of a State, which is just a legal structure and bureaucratic organization created by people and not something endowed with rights by the Creator.

    • Brooks D. Simpson February 28, 2014 / 7:16 pm

      Details, details. After all, this is heritage, not history.

      • Ned February 28, 2014 / 8:06 pm

        Haa haa.
        I should I paid attention to the other comments — tmheaney did a better job expressing my point.

        • tmheaney March 1, 2014 / 12:12 am

          I don’t know — I took at least twice as many words to say the same thing!

  6. Mark DC (@FilmCriticOne) February 28, 2014 / 7:21 pm

    DO you really believe, for a minute, that Southern leaders cared about “states rights”? Not only did they flip flop on states rights by demanding the spread of slavery into Kansas against repeated votes against slavery there (plus a four year bloody war against slavery), but men who have women whipped, sell children, and even burn men to death for resisting slavery violently, do not really care about rights.

    State’s rights was ALWAYS an excuse, never a reason, for slavery. And when the charade of states rights was exposed — when Southern leaders demanded the spread of slavery as a War Ultimatum,against the will of Kansas — Davis and others simply changed to the Dred Scott excuse .

    Davis was an excuse generator for slavery. IS it over “scholars” heads to point out he flipped flopped on states rights, and demanded the spread of slavery AGAINST will of Kansas, as a war ultimatum?

    Stunningly, most history professors even, do not seem to grasp the words in Dred Scott decision, that blacks were “so inferior”: they were not human — not persons, literally not persons, for purposes of the Constitution. Go read the decision!! Blacks were – emphatically, and clearly — deemed inferior beings, SO inferior they were not human people, but an IT — a property.

    Even such “scholars” as Eric Foner soft peddles the horrors of Dred Scott unilateral ruling that blacks were inferior beings. That’s a quote — INFERIOR BEINGS. Eleven times in that decision, blacks were labelled inferior. The order of the court, was that blacks were SO inferior, they were not persons

    . Yes, I said that above, but since most folks never heard of that stunning basic order by the court, you might need to hear it a few times. Blacks were officially, proudly, declared inferior beings, SO inferior they were property, no different than a bucket of muck or a cow, for purposes of the US Constitution.

    And remember Davis was so proud of that, he used Dred Scott as the only reason slavery should continue and that states had no right to decide for themselves. That’s right, according to Davis by 1861. states COULD NOT decide slavery issue themselves, because blacks were no persons. Go on, he wrote that in his own book, go read it!

    Lincoln, of course, was not fooled by Southern apologists like Foner, who claimed Dred Scott was about “Congress’s right to bestow citizenship”. No no, bestow nothing. Black inferiority was a direct order by Southerners on US Supreme Court that blacks were not persons, officially NOT persons at all, but property. P R O P E R T Y.

    Think that was a small issue, too complex to tell high school students? Nonsense, it’s the most basic ruling and fact in Southern demands to spread slavery — according to Southern leaders themselves!! Not some historian later, but Southern leaders at the time boasted of this.

    Lincoln railed against this, called out the court on this vile and illegal pronouncement, in fact, he called them out on it, over and over. Read this House Divided Speech, read his Lincoln Douglas debates, which were largely about Dred Scott decision, on this very point!

    When Lincoln spoke of the right of people to overthrow the government, he was speaking of the Dred Scott decision — if you read his speeches in context, you would know that. But you’d have to read the entire speech, not some carefully selected out of context quote or misquote.

    Davis and Southern leaders used the Dred Scott decision as proof they should be able to spread slavery at will, because blacks were not persons. DAVIS wrote about that clearly — he agreed with it. Lincoln spoke about that clearly — he was aghast that the Court would rule blacks are sub human — inferior beings.

    So, does our education system tell students blacks were officially declared an IT — property, not persons? No. Does anyone expose Davis for his boasting that Dred Scott gave the South the right to spread slavery into areas no matter how the white voters there voted against slavery? No.

    Does anyone show Lincoln’s focus on the horror of Dred Scott, precisely because it ruled blacks were SO INFERIOR they were not human persons? NO.

    To a large extent, we have adopted Jeff Davis verbiage, about his “concern” for states rights, never pointing out he loathed states rights when it got in the way of spreading slavery, and never revealing his adoration of the Court’s ruling that blacks are “so inferior: they were property, NOT persons.

    Why teach anyone that the Southern leaders cared about states rights — utter nonsense. That was always an excuse. An excuse they jettisoned as soon as states rejected slavery, and embarrassed Southern leaders, in Kansas.

    • Brooks D. Simpson February 28, 2014 / 10:38 pm

      Eric Foner as a “southern apologist?” You lost me there.

      • John Foskett March 1, 2014 / 9:34 am

        Yeah. There are a lot of what the law refers to as “excited utterances” in that comment. I’m guessing that Fehrenbacher is guilty of the same sin. It’s risky business, actually looking at Taney’s opinion from an intellectual/scholarly standpoint. At the risk of painting myself as another Confederate “apologist”, I’d point out that much of Taney’s opinion could rightly be called dictum because the Court’s resolution of the jurisdictional issue meant that it could have ended on that point (a principle espoused by one of the dissents, at least). Then, of course, there are the numerous concurring and dissenting opinions.

        • chancery March 2, 2014 / 1:37 am

          The “dictum” argument was a useful shorthand for Lincoln and the Republicans in the political campaigns from 1857-60, but it doesn’t hold up very well after several generations of reflection and scholarship. The analysis of what is and isn’t binding in judicial decisions is a tricky one and unfortunately usually fluid rather than fixed, in all but the most trivial cases. Although the question of negro citizenship involved issues of standing, they were just a wrapper; the core issue was federal subject matter jurisdiction, another slippery subject (“drink deep or taste not the Pierian spring”) (Yes, I’m a lawyer, but I have no pretensions to scholarly authority.)

          _Both_ of the main branches of Taney’s opinion (negro citizenship and Congressional power to prohibit slavery in territories) dealt with federal subject matter jurisdiction, and Taney was not required to omit discussion of the second branch because he had ruled against jurisdiction in his disposition of the first branch. (The wise angel of “Prudential avoidance” might have softly counseled that he avoid declaring an act of congress unconstitutional, but Taney was not in the listening vein.)

          You mention Fehrenbacher’s “The Dred Scott Case,” a wonderful, absorbing book. I read it last year, and was persuaded that the treatment of Congressional power over slavery was not dictum but an alternate holding on the underlying question of federal subject matter jurisdiction. A decision with alternate holdings has certain instabilities and vulnerabilities in the subsequent development of case law, but it is not to be pushed aside in the same was as judicial dicta, let alone a readily disregarded “obiter dictum.” McPherson touches on the argument at p. 175, but you have to return to Fehrenbacher for the full dose.

          That doesn’t change the fact that the decision was wrong, damnably wrong. The real problem with _Dred Scott_ is that it resulted from an “’emotional commitment [to slavery] so intense that it made perception and logic utterly subservient,'” and was therefore “essentially visceral in origin … a work of unmitigated partisanship, polemical in spirit [with an] extraordinary cumulation of error, inconsistency, and misrepresentation.'” McPherson at 174 (quoting Fehrenbacher).

        • Christopher Shelley October 27, 2014 / 4:19 pm

          Lincoln was not fooled by Eric Foner…

          I’m not sure what one can say here.

  7. Brooks D. Simpson February 28, 2014 / 10:39 pm

    Our Confederate heritage advocate takes a third swing at secession:

    Secession…is a type of revolution.

    A partial revolution, perhaps. It is a method of altering or abolishing the government, which Thomas Jefferson identified as a right of the people.

    Does it matter that the vehicle for implementing secession is the state? Does that make it no longer a right? Nope. In fact, it’s logical. Why not use what’s already in place? Why re-invent the wheel?

    Strike three. Never have I seen someone make such a complete hash of constitutional theory and political thought. So long as advocates of southern independence rely on people such as this person, the republic is safe. After all, if the best expression of one’s political activism is a muddled-headed series of posts on secession, we can rest assured that she’s incapable of doing anything else.

    The challenge remains intact: if you want to claim unilateral secession as a constitutional right, pursue it through the amendment process. Otherwise, you’re useless.

    • John Foskett March 1, 2014 / 9:11 am

      Actually, I like that. Because if it’s “partial revolution”, it is by definition a “partial rebellion”. And the Constitution authorizes the federal government to crush rebellion. Back to the drawing board…..

  8. Nancy Winkler March 1, 2014 / 11:00 am

    Dr. Simpson, is it spelled state’s rights, states’ rights, or state rights? Thanks.

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