Nor should this be surprising considering the Negrophobia that prevailed everywhere in the North. It was assumed by the vast majority of Americans, North and South, that America was a white European polity, and that the Indian and African populations were not—and were never to be—full participants in that polity. For example, blacks were excluded from the western territories. Oregon became a state in 1859, and its constitution, which was passed by a vote of eight to one, declared that:
No free negro, or mulatto, not residing in this state at the time of the adoption of this constitution, shall ever come, reside, or be within this state, or hold any real estate, or make any contract, or maintain any suit therein; and the legislative assembly shall provide by penal laws for the removal by public officers of all such free negroes and mulattoes, and for their effectual exclusion from the state, and for the punishment of persons who shall bring them into the state, or employ or harbour them therein.
The constitution of Indiana contained the same prohibition. Lincoln’s state of Illinois prohibited the entrance of Africans unless they could post a bond of $1,000. Free Africans in northern states were severely regulated. The following regulation is from the Illinois revised statutes of 1833:
If any person or persons shall permit or suffer any ... servant or servants of colour, to the number of three or more, to assemble in his, her, or their out-house, yard, or shed, for the purpose of dancing or revelling, either by night or by day, the person or persons so offending shall forfeit and pay a fine of twenty dollars.
And it was the duty of all “coroners, sheriffs, judges, and justices of the peace” who learned of such assemblages to commit the “servants to the jail of the county, and on view of proof thereof, order each and every such ... servant to be whipped, not exceeding thirty-nine stripes on his or her back.”
Emancipation laws in the antebellum North were designed to rid the North of its African population. They typically declared that the children of slaves born after a certain date would, upon reaching a certain age, be emancipated. This meant that adult slaves were not freed and that families could be sold South before children reached the age of emancipation. Emancipation led to a reduction of the African population in the North, not to an increase, as it did in the South. Lincoln’s own solution to the race problem was mass colonization of Africans, and he proposed securing land in Africa and elsewhere for the purpose. Even abolitionists were careful to point out that it was not the slave they loved but the slaveholder they hated, and that emancipation did not at all mean social and political equality with whites.
Slavery was more secure in 1860 than it had ever been. The Supreme Court, in the Dred Scott decision, had declared that Africans were not citizens; and Congress approved a constitutional amendment that would take the regulation of slavery forever out of the hands of the central government. Lincoln said that he had no authority and no inclination to interfere with slavery in the states where it was legal. He could tolerate slavery as a means of controlling what nearly everyone saw to be an exotic and alien population. What he could not tolerate was a dissolution of the Union, loss of revenue from the South, and a low-tariff zone on his southern border. This was the consistent thread running through Lincoln’s policy from 1860–1865. He would not recognize the conventions of the people of the southern states, and he would not negotiate with their commissioners. He would go to war immediately to coerce the states of the deep South back into the Union. And it was this act that Virginia, North Carolina, Tennessee, and Arkansas could not tolerate. They had been opposed to the radicalism of the deep South, and their legislatures had voted firmly to stay within the Union. But they would not answer Lincoln’s call for troops to coerce a state into the Union; this they considered not only unconstitutional, but immoral. And in this they were correct. But so strong is the Lincoln myth and so interwoven with American self-identity that Americans have never been able to confront the stark immorality and barbarism of Lincoln’s decision to invade the South and to pursue total war against its civilian population.
To this we may add that the modern prejudice against secession has also served to occlude the immorality of the invasion. Here was a union of sovereign states only seventy years old. These states had originally asserted their sovereignty in acts of secession from the British empire, and the Union itself had been formed by an act of secession from the Articles of Confederation. Virginia, New York, and Rhode Island reserved the right to secede in their ordinances ratifying the Constitution, and secession was a part of public discourse in all sections throughout the antebellum period. This union, through conquest, purchase, and annexation, had, in fifty years, swollen to some ten times its original size. The Republic of Texas, having seceded from Mexico, had been in the Union only fifteen years. Secession is destabilizing in that it suddenly produces new majorities and new minorities. But annexation is destabilizing in exactly the same way. Rapid expansion led to rapidly shifting majorities and minorities and to conflicts of great and important interests.
By 1860, a choice lay open between either re-negotiating the compact between the states in order to form more perfect unions, as John Quincy Adams counseled should happen, or a powerful section would have to conquer the whole and reconstruct it into its own image, subordinating all else to its own interests. Everything in the older American tradition of the self-government of peoples points to the former path. Lincoln chose the latter path, and in doing so was in step with the nineteenth- and twentieth-century trend of industrial society to consolidationism. Southerners, at great sacrifice, sought to defend that older American notion of self-government, a notion which was pushed to the margins of American consciousness after the Army of Northern Virginia surrendered at Appomattox. But it has not been extinguished, and has greater purchase in the world today than ever before as the consolidated leviathans of the nineteenth and twentieth centuries are being called into question. The Russian invasion of Chechenya is widely regarded as barbarous, but the Russians have a better title to rule Chechenya than Lincoln had to coerce eleven contiguous American states into the Union.
This broader experience enables us to take a fresh look at the morality of Lincoln’s decision. It has been said that, although the Union was originally conceived as a compact between sovereign states entailing a right to secession, it evolved into the notion of an indivisible, organic Union from which secession was impossible. This notion, however, was late in arriving, and was not universally received by 1860. Southerners obviously did not believe it, nor did many northerners. There was tremendous opposition to Lincoln’s invasion of the South. To maintain power, he was forced to suspend the writ of habeas corpus throughout the North for the duration of the war, netting tens of thousands of political prisoners. Some 300 opposition newspapers were closed down. Democratic candidates, critical of the war, were arrested by the military, and the military was used to secure Republican victories at the polls, including Lincoln’s election in 1864.
But the barbarism of suppressing eleven contiguous American states in 1861 can best be brought out by a thought experiment. Today, unlike 1861, everyone has taken the pledge of allegiance affirming an organic union. (It is significant that the origin of the pledge is to be found in the loyalty oaths Confederates were required to take to regain citizenship.) Suppose that California, over a dispute with the central government about immigration, affirmative action, abortion, or some other issue, should, in a legally held convention of the people of the state, claim sovereignty under the Tenth Amendment and withdraw those powers it had delegated to the central government and withdraw from the Union. California is an economic giant. Its population is larger than that of twenty-two American states. Suppose, then, that other states, originally pro-Union, should see it in their interest to enter into a confederacy with California, and that eventually eleven contiguous states should form a western confederacy and send commissioners to Washington to negotiate payment for federal property and to establish a treaty. Would the eastern states be justified in launching an aggressive war to “save the Union”? Perhaps it would be thought that a show of force would cause people to rethink. But if it became clear that the people, at great sacrifice, were determined to gain their independence, could a policy of war aimed now at the civilian population be morally justified merely to preserve the Union?
Or, to vary the thought experiment, northern abolitionists had argued since the 1830s that the northern states should secede from the Union. Secession movements had arisen off and on in New England since 1803. Suppose now that a few New England states seceded over slavery, the tariff issue, and national expenditures for internal improvements. Other states, reluctantly, might find it in their interest to join this union so that by the time Lincoln entered Washington in 1861 he would find himself confronted with the secession of northern states and President of a southern-dominated United States, a Union that would include the eleven states of the Confederacy and most certainly Kentucky, Missouri, Maryland, Delaware, and perhaps others. Would we expect Lincoln to ignore the commissioners of this Northern Confederacy and launch a war to “save the Union?” Would we be celebrating, under his leadership, Stonewall Jackson’s scorched-earth march to the sea, the burning of Boston, and the surrender of Grant to Lee at Scranton, Pennsylvania?
None of this, of course, would have happened. First, it is unlikely that southerners, who had long argued that the Constitution is a compact between sovereign states entailing a right to secede, would have perceived northern secession as treason. Second, the Republican party was a purely sectional party openly hostile to southern interests. And Lincoln, as its leader, was the first and only sectional president in American history. He had received only thirty-nine percent of the popular vote, and had no support outside the North. His goal from first to last was to advance the political agenda of the Republican party, which could be called the New York-Chicago industrial axis. The sectional goal of the Republican party was openly asserted by its most eloquent leaders. Wendell Phillips declared:
It is just what we have attempted to bring about. It is the first sectional party ever organized in this country. It does not know its own face, and calls itself national; but it is not national—it is sectional. The Republican Party is a Party of the North pledged against the South.
Charles Adams has shown that the Republican agenda could not tolerate a low-tariff zone to the south, and that the North had become accustomed to the South’s funding the bulk of the federal revenue through its export trade. And it was just this horror of what an economically independent South would mean to northern industrial interests that Charles Bancroft, writing in 1874, presented as the justification for invading the South:
While so gigantic a war was an immense evil; to allow the right of peaceable secession would have been ruin to the enterprise and thrift of the industrious laborer, and keen eyed business man of the North. It would have been the greatest calamity of the age. War was less to be feared.
A million-and-a-half people were killed, wounded, or missing in the war. The defense of protective tariffs has seldom been so ferocious, or so crude.
Lincoln’s conservative statesmanlike posture about preserving an indivisible union cannot be taken seriously. Not only did he not inherit such a union, the only union he was interested in preserving was a union which was dominated by northern industrial ambition. And it was exactly this that Lincoln, and the Republican party, after his death, accomplished.
But Lincoln also had a philosophical argument for making war on the southern states that brings out the prejudice against secession that is internal to the idea of a modern state. In a message to Congress on 4 July 1861, Lincoln justified his choice of war over a negotiated settlement that allowed the southern states to form their own union:
This issue embraces more than the fate of these United States. It presents to the whole family of man, the question, whether a constitutional republic, or a democracy—a government of the people, by the same people—can, or cannot, maintain its territorial integrity, against its own domestic foes.... It forces us to ask: “Is there, in all republics, this inherent, and fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”
Here we have the familiar argument that a modern state cannot allow territorial dismemberment by secession. This was, of course, the same argument that was used by George III to coerce the American colonies. But Lincoln had in mind not just any sort of modern state (which could include monarchy) but a modern republican state. Being founded in liberty, such states are more liable to dissolution. Thus, the war that is beginning is a dramatic struggle to see whether a modern republican state is really possible. The same theme would be sounded in the Gettysburg Address. If secession is allowed, anarchy follows. As Lincoln put it elsewhere, if a state can secede, then the county of a state can secede, and a part of that county can secede, etc. And, if the American experiment in self-government fails, the world must revert back to monarchy.
There are a number of confusions here. First, the government of the United States in 1861 was not the government of a modern state. Rather, it was a central government of a federative union of states. It was endowed with only enumerated powers and these were delegated to it by sovereign states. The central government was the agent of those states, and the states were the principals in the federative compact. The states themselves were modern states; they had asserted this status in the Declaration of Independence, and had been recognized by the world as such. As modern states, they contained the usual legal prohibition against secession. A county cannot legally secede from an American state, but there is no such prohibition against a state exercising its federative power and withdrawing from the Union.
To describe, as Lincoln did, Virginia and the other southern states as “domestic foes” threatening self-government and to be suppressed by war is not only a spectacular absurdity, it also reveals a hubristic impiety and moral blindness. The first self-governing assembly in the western hemisphere was founded in Virginia. More great statesmen and jurists had come from Virginia than any other state. The leadership of Virginia was crucial in winning the war with Britain, during the period of the Articles of Confederation, and in forming the Union. In her ordinance of ratification, Virginia as a sovereign state, asserted the right to secede, and affirmed this right for every other state. The man often called the “father of the Constitution,” James Madison, always described the Constitution as being a compact between sovereign states. In 1830, Madison could say that it was still not certain that the Union would work. By 1861, it was clear that the Union, as a voluntary association of independent political societies, had failed.
What would the great Virginians, George Washington, Thomas Jefferson, James Madison, Patrick Henry, George Mason, John Randolph, John Taylor, and “Lighthorse” Harry Lee have done? They all supported the Union, believed the Constitution was a compact between the states, and were Virginians first. So when the states of the deep South discussed secession, Virginia called a convention of the people to decide the question, and the convention voted firmly to stay in the Union. It was only after Lincoln had decided on war and called for troops that the convention reconvened and voted to secede. Madison had said in the Federalist that the central government could not coerce a state. To be sure that the will of the people was expressed, the judgment of the convention was put to the people of Virginia, who supported secession by a margin of five to one. Tennessee was also pro-Union, but, in a referendum of the voters, decided to secede by a margin of two to one after Lincoln’s decision to wage war. The pro-Union states of North Carolina and Arkansas seceded for the same reason.
To treat, as Lincoln did, the peoples of entire states who had engaged in deliberate and legal acts of self-government as common criminals and as “domestic foes” aroused deep emotions of resentment and injustice that could be felt only by an American who had received with his mother’s milk the principle, framed in the Declaration of Independence, of the self-government of independent moral and political societies. As the case of Robert E. Lee makes clear, this feeling of resentment had nothing to do with slavery, an institution he thought was on its way to oblivion. It was this deeply felt American resentment that enabled the entire South, 85 percent of whom did not own slaves, to mobilize and to make spectacular sacrifices to keep out an invading army, the government of which was intent on destroying, and did destroy, the corporate liberty of their political societies. It was this sense of state honor that Hamilton had in mind when he said in the Federalist that the central government could never make war against an American state, and which he again asserted again before the New York State convention: “To coerce a state would be one of the maddest projects ever devised. No state would ever suffer itself to be used as the instrument of coercing another.” One cannot imagine the great Virginians of his time disagreeing.
Herman Melville, who had a good eye for the hypocrisy of northern industrial unionism, wrote:
To this conservative and backward-looking image, we should add the forward-looking and “progressive” image: he who looks at Lincoln has seen the consolidationists Bismarck and Lenin.
So Lincoln’s inversion of the original American conception of self-government must itself be inverted. As H.L. Mencken cynically observed of the Gettysburg Address, it was not the Union forces that were fighting for government of the people, by the people, and for the people (a phrase Lincoln borrowed from Webster), but the people of the southern states. And the war was not a dramatic contest to see whether a modern republican state was possible. Virginia and the rest of the southern states were stable, self-governing modern republics whose citizens were loyal and well skilled in the art of self-government. If not conquered, there is every reason to think they would have lasted indefinitely.
All of them were, in fact, conquered, and self-government was destroyed. Virginia was divided and her western counties made into the new state of West Virginia. What Lincoln had presented as the absurdity of allowing a state to secede, namely that counties of that state could also secede, was legitimate after all, provided that it served northern industrial interests. After Lee had surrendered, and unionist governments had been formed in each southern state, and the Thirteenth Amendment outlawing slavery had been ratified by the southern states, they suddenly found themselves, by an arbitrary and unconstitutional act of Congress, expelled from the union and declared “conquered provinces.”
The argument of Lincoln and the Republican party that secession was unthinkable because the Union was indivisible now appeared as the self-serving hypocrisy it was. States could not secede from the Union, but they could be expelled, or more precisely, obliterated. It was during this period of “Reconstruction” that the Fourteenth Amendment was floated. This amendment, since the 1950s, has been manipulated by the Supreme Court to affect a vast transfer of power from the states to the central government, making it virtually impossible for the states to maintain those independent substantial moral communities protected by the powers reserved in the Tenth Amendment. It is fitting that this amendment, which had a corrupt and illegal origin in Congress, was never ratified by the states, and is, thus, not a part of the Constitution! It was simply declared by Congress to have been enacted, something Congress had no authority to do. This shows just how far some Americans had wandered from the original conception of self-government.
The conflict of 1861–1865 was not, as Lincoln said it was, a struggle to see if a modern republican state could survive, but a struggle to see if a vast union of federative republics could survive without the consolidation and consequent destruction of independent moral life that a dominant faction will inevitably seek to impose on the rest. The American experience suggests that it is unlikely, but it must be admitted that our experience with such vast-scale federations is limited, so the question is still open. Since there are obvious advantages to federative unions, the only remedy is to acknowledge a legal right of secession for republics joining the federation. The American failure to achieve a genuine federalism of self-governing moral communities must stand as a challenge to the European Union. It was in recognition of this challenge that Nobel laureate James Buchanan has urged that a right of secession be written into the constitution of the European Union. With the benefit of over a century of experience, the Constitution of the Confederate States of America as an instrument of federalism appears well ahead of its time.
The brief constitutional history I have sketched that views secession as part of the checks and balance system of American federalism is completely unknown to most Americans. The reason is that we have come to believe the nationalist theory of the origin of the Constitution that Lincoln used to legitimate coercing the southern states back into the Union. Plato taught that the guardians of the republic may have to tell a noble lie about its origins. Whether the nationalist theory is a noble lie or an ignoble lie I shall not say. My point is that it is false. It has been said that the War of 1861–1877 decided once and for all the question of whether an American state could secede. But this is only another way of saying that might makes right, a principle that cannot sit well with the American doctrine of government by consent. The great Scottish philosopher David Hume taught a deeper truth; namely, that political authority is founded not on power but on opinion. A change in opinion at a strategic point can transform, in time, an entire political order.
To give an example, America began as a highly decentralized regime of independent moral and political communities jealous of their liberty. These political societies created a central government as their agent and endowed it with enumerated powers. This government was only a speck on the political landscape and its presence was scarcely felt in everyday life. From 1865 to 1965 it underwent a transformation, emerging as the most consolidated and centralized military and financial power in history. Moral and political societies with a life of their own independent of regulation and control by the central government (especially the Supreme Court) are today virtually impossible. By contrast, Canada began as a highly centralized regime under monarchy and has developed into a decentralized regime in which secession as a means of protecting independent moral and political life is part of public debate. There is a tradition in Canada that this change was due in part to Judah Benjamin, the former Secretary of State of the Confederate States of America who, after the war, fled to England and became a distinguished barrister. In a number of cases before the Imperial Parliament, he argued successfully for measures that gave the Provinces more autonomy, thereby setting Canadian federalism on the path to decentralization. Asserting the right to secede, Quebec has already secured rights making it virtually an independent country, thereby making secession perhaps unnecessary.
Let me close with this question. If Hume is right that the authority of government is founded on opinion, and if acceptance of the absurd nationalist theory of the origin of the Constitution advanced by Story, Webster, and Lincoln could serve to legitimate the spectacular change from a decentralized federalism to a consolidated imperial nationalism, what would happen if Americans were taught and came to believe the truth about their own constitutional history?
Donald Livingston is a professor of philosophy at Emory University with an "expertise in the writings of David Hume." Livingston received his doctorate at Washington University in 1965. He has been a National Endowment for the Humanities fellow and is on the editorial board of Hume Studies and Chronicles: A Magazine of American Culture. Livingston is a constitutional scholar and an expositor of the compact nature of the Union, with its concomitant doctrines of corporate resistance, nullification, and secession. The doctrine coincides with federalism, states' rights, the principle of subsidiarity. His political philosophy embodies the decentralizing themes echoed by Europeans such as Althusius, David Hume, and Lord Acton and Americans such as Thomas Jefferson, Spencer Roane, Abel Parker Upshur, Robert Hayne and John Calhoun, which holds the community and family as the elemental units of political society. As Livingston affirms, the compact nature of the Union is opposed to the innovative nationalist theory of Joseph Story, Daniel Webster, and Abraham Lincoln which contends for an indivisible sovereignty, an inviolable aggregate people, and that the American Union created the States following the American War for Independence. This theory as articulated by Lincoln has been characterized by Livingston as "Lincoln's Spectacular Lie." See Donald W. Livingston's article archives.