Michael Lind, a Whitehead Senior Fellow, also takes issue with Lincoln's argument

Michael Lind, a Whitehead Senior Fellow, also takes issue with Lincoln's argument

Michael T. Griffith

2006

@All Rights Reserved

Fourth Edition

On July 4, 1861, President Lincoln said in a message to Congress, "The Union is older than any of the States, and, in fact it created them as States." Political scientist Samuel H. Beer restated this nationalist argument in To Make a Nation: The Rediscovery of American Federalism (1993), when he wrote that "the reallocation of power by the Constitution from state to federal government was simply a further exercise of the constituent sovereignty which the American people had exercised in the past, as when they brought the states themselves into existence."

The argument is flimsy. For one thing, it implies that without permission from the Continental Congress, the colonial populations would not have abolished their colonial governments and created new republican governments. To make matters worse for the nationalist theory, the phrasing of the Declaration of Independence supports the compact theory by referring to the formation of new state governments by the authority of the people of the colonies when it means the people of Massachusetts, the people of Virginia, and so on. And these colonial peoples, which became the peoples of the first states, had come into existence generations earlier--when each colony had been established by royal charter, if not before.

Nationalists also emphasize the description of the United States as "one people" in the Declaration of Independence: "When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands, which have connected them with another." But elsewhere the Declaration refers to the colonies in the plural, and concludes that "these United Colonies are, and or Right ought to be, Free and Independent States." The author of the Declaration, Thomas Jefferson, was a fervent champion of the compact theory. Indeed, the Declaration claims that for generations the individual colonies had been separate states in a federal empire held together only by personal allegiance to the British monarch. During the Constitutional Convention, Maryland’s Luther Martin summarized the view that was implicit in the Declaration: "At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one." (Lind, "Do the People Rule?," The Wilson Quarterly, February 1, 2002, from online reprint of article found at http://www.newamerica.net/index.cfm?pg=article&pubID=719)

Two states, North Carolina and Rhode Island, initially declined to ratify the Constitution. They remained free, independent states, and Congress treated them as such until they ratified the Constitution a short time later.

The federal government wouldn't have been created had it not been for the states, because each state had to agree to call a ratifying convention. Garraty and McCaughey note that the state legislatures "could have blocked ratification by refusing to call conventions" (The American Nation, p. 158).

For that matter, it was the states that sent delegates to the Constitutional convention in the first place, and that convention was held as a result of an action taken by a state legislature. The Virginia legislature issued an invitation to the other states to send delegates to a convention in Annapolis, Maryland, in 1786. Only five states showed up. The delegates who went to Annapolis drafted a report that recommended that Congress call a convention in Philadelphia the following year. Congress did so, but Congress could not compel the states to send delegates to the Philadelphia convention. However, only Rhode Island declined to send delegates.

9. Thomas Jefferson said in a letter to William Crawford in 1816 that he would allow a state to leave the Union, even if he didn't approve of the state's reason for seceding. Said Jefferson,

The alternatives between which we are to choose [are fairly stated]: 1, licentious commerce and gambling speculations for a few, with eternal war for the many; or, 2, restricted commerce, peace and steady occupations for all. If any State in the Union will declare that it prefers separation with the first alternative to a continuance in union without it, I have no hesitation in saying "let us separate." I would rather the States should withdraw which are for unlimited commerce and war, and confederate with those alone which are for peace and agriculture.

10. The Hartford Convention, consisting of delegates from the New England states, declared in 1814 that a state had the right to assert its own authority over the federal government's authority, and that a state could secede from the Union, even in time of war, in cases of "absolute necessity" (Brinkley et al, American History, p. 230).

11. President John Quincy Adams said that if sectional differences between the states became too severe it would be better for the states to go their own way in peace than to be constrained to remain together:

The indissoluble link of union between the people of the several States of this confederated nation is, after all, not in the right, but in the heart. If the day should ever come (may Heaven avert it) when the affections of the people of these States shall be alienated from each other, the bonds of political association will not long hold together parties no longer attached by the magnetism of consolidated interests and kindly sympathies; and far better will it be for the people of the disunited States to part in friendship with each other than to be held together by constraint. (Speech given at a celebration of the 50th anniversary of the inauguration of George Washington, April 30, 1839, as quoted in the Hon. Joseph Wheeler, "Slavery and States Rights," reprinted in Richmond Dispatch, July 31, 1894, emphasis added)

12. Renowned legal scholar William Rawle, in his highly regarded book Views of the Constitution, said a state had the right to secede from the Union. Rawle's book was used for a time in the early 1800s at the U.S. Military Academy at West Point. The North American Review described the book as "a safe and intelligent guide." Rawle served as a delegate to the Pennsylvania Constitutional Assembly of 1789 and later accepted President George Washington’s request to become the first U. S. Attorney for Pennsylvania. Rawle was also the chancellor of the Pennsylvania Bar Association. Here is a sample of what Rawle taught about the right of secession:

If a faction should attempt to subvert the government of a state for the purpose of destroying its republican form, the paternal power of the Union could thus be called forth to subdue it.

Yet it is not to be understood, that its interposition would be justifiable, if the people of a state should determine to retire from the Union, whether they adopted another or retained the same form of government, or if they should, with the, express intention of seceding, expunge the representative system from their code, and thereby incapacitate themselves from concurring according to the mode now prescribed, in the choice of certain public officers of the United States. . . .

It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.

This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood. . . .

The secession of a state from the Union depends on the will of the people of such state. The people alone as we have already seen, bold the power to alter their constitution. (Rawle, Views of the Constitution, Second Edition, Philadelphia: Philip H. Nicklin, Law Bookseller, 1829, chapter 32)

13. At no time did the Confederacy attempt to overthrow or destroy the federal government. McPherson acknowledges in a few places that the South was only seeking its independence and wasn't trying to conquer the North (pp. 310, 534, 646-647; cf. pp. 693, 721). However, he repeatedly refers to the Confederates as "rebels" and several times uses the words "rebellion" and "insurrection" in reference to the South's attempt to obtain independence. If the South had sought to overthrow or destroy the federal government, that would have constituted rebellion and insurrection. But the South did not do so. The Southern states only sought to leave the government, not to destroy it. Every single institution of the federal government would have remained the same if the South had been allowed to go in peace. The only differences would have been that there would have been fewer members of the House and Senate and no revenue from tariffs on Southern goods. The form and nature of the federal government would not have changed at all--only its size and the amount of revenue it collected would have been different. Ostrowski makes a good point in this regard concerning Lincoln's claim that secession would "destroy" the government:

We turn next to Lincoln's discussion of the Constitution as he believes it relates to secession. He argues that while states have reserved powers under the Constitution--presumably referring to, but not mentioning, the Tenth Amendment--secession cannot be such a power since it is "a power to destroy the government itself." This is of course hyperbole and abuse of language. To depart from is to destroy, according to Lincoln. If the union government was "destroyed" by secession, what was the entity that put a million troops in the field to stop it?

Secession does not destroy the federal government; it merely ends its authority over a certain territory and sets up a new government to take its place in that territory. (Ostrowski, "An Analysis of President Lincoln's Legal Arguments Against Secession")

14. Hinton Helper spoke approvingly of the possibility of a violent slave insurrection in his famous 1857 book The Impending Crisis of the South. McPherson says a number of things about Helper's book, including the fact that several Southern states attempted to ban its distribution (pp. 199-200). But for some reason McPherson doesn't mention Helper's endorsement of violent slave insurrection. McPherson also fails to mention that Helper was a shameless racist. Professor Francis Simkins said the following about Helper and his book:

Helper made invidious comparisons between the wealth of the sections [the North and the South]. . . . Although he hated the Negroes to the extent of wishing them expelled from the country, he attacked the slaveholders violently and suggested servile insurrection as a means of ridding the white masses of their [the slaveowners'] degradation. (Simkins, A History of the South, Third Edition, New York: Alfred A. Knopf, 1963, p. 192)

Among other things, Helper told slaveowners that he and his fellow abolitionists would abolish slavery "peaceably or by violence . . . one way or another." He then asked slaveowners, "Do you aspire to become the victims of white non-slaveholders' vengeance by day and of barbarous massacre by negroes by night? Would you be instrumental in bringing upon yourselves, your wives, and your children, a fate too terrible to contemplate?" Perhaps such statements shed more light on why some Southern states sought to ban distribution of the book and why many Southerners were upset over the fact that dozens of Republican leaders signed an endorsement of the book. It is hard for most of us to bear in mind that slavery was legal back then and that it had existed in the states for over two hundred years before the war began. To put this in a modern context, imagine how most Americans would react if dozens of leaders of a major political party endorsed a book that approved of killing abortion doctors and bombing abortion clinics. Many people believe abortion is a serious sin and that it involves the taking of innocent human life. However, no responsible citizen would endorse a book that sanctioned violence against abortion doctors and their clinics.

15. Lincoln approved the Dahlgren Raid, which included a special order to kill Jefferson Davis and the entire Confederate cabinet. Historian William Tidwell provides some details:

This raid was under the command of Brigadier General Judson Kilpatrick, but it was fated to be remembered in history as Dahlgren's raid. . . .

He [Kilpatrick] appears to have gone over his supervisors' heads and won Lincoln's personal approval for the scheme.

As a condition in the plan approved by Lincoln, Kilpatrick was asked to take with him cavalry Colonel Ulric Dahlgren, the son of Admiral John Dahlgren, whom Lincoln greatly admired. . . . Kilpatrick apparently left much of the detailed planning of the raid to Dahlgren, which, in view of the association of Lincoln to the elder Dahlgren, later reinforced the southern belief that the operation was personally sponsored by Lincoln. . . .

Dahlgren led his force around Richmond to the north and tried to get around the Confederates chasing Kilpatrick. During the night of 2-3 March 1864 his group broke into two segments, and Dahlgren was ambushed in King and Queen County and killed leading the smaller segment.

On the morning of 3 March several papers were found on Dahlgren's body and taken to Richmond, where they caused a tremendous uproar. The papers included the draft of an address that he apparently meant to read to his men: "We hope . . . . to destroy and burn the hateful city [Richmond], and . . . not allow rebel leader Davis and his traitorous crew to escape." Also among the papers was a special order stating, "The men must keep together and well in hand, and, once in the city, it must be destroyed and Jeff Davis and his Cabinet killed."

The ferocity of these statements sounded a new note in Union policy toward the war, but it was not unexpected to a growing body of opinion in the South. . . .

The Confederate editorial opinions about the Dahlgren papers cannot be dismissed as mere bombast. The Confederate leaders knew that these papers had been found on Dahlgren's body and they had them in hand. More, their excellent intelligence apparatus in Washington would have been dense in the extreme if it had not picked up the various stories floating around that both Lincoln and Stanton [Lincoln's Secretary of War] were involved in planning the raid. . . .

General Kilpatrick claimed to have read papers similar to those quoted by the Confederates but without the offensive language. There was a general outcry of "forgery" in the North, but the Confederates had photographic reproductions of the papers circulated to the Union and to foreign governments. In the surviving photographs the papers appear to be genuine, and a study of the timing involved indicates it would have been extremely difficult for the Confederates to have fabricated such convincing material in so short a time. (Tidwell, Come Retribution: The Confederate Secret Service and the Assassination of Lincoln, Barnes & Noble Edition, New York: Barnes & Noble Books, 1997, pp. 242-243, 245-246. Note: In case some might be wondering about the subtitle of Tidwell's book, Tidwell does not believe Jefferson Davis or the Confederate Secret Service were behind Lincoln's assassination)

16. The South had a vigorous free press during the war. To his credit, Ken Burns included this fact in his well-known PBS documentary series The Civil War.

17. Jefferson Davis never shut down opposition newspapers, even though some of them bitterly attacked him and his policies. Dr. Emory Thomas notes that Davis had "ample opportunity" to suppress hostile newspapers but never did so:

Davis, unlike Lincoln, never closed down opposition newspapers. He had ample opportunity, however. In his own capital, two of five dailies were hostile. (Thomas, The Confederacy as a Revolutionary Experience, University of South Carolina Press, 1991, p. 75)