Secession and the American Experience

0:00Today the subject gets more radical still. The subject is the general one of secession. And I'm going to try to tailor my remarks in such a way that they don't touch specifically on the southern secession of 1860-61, but instead try to speak more generally about secession itself as a phenomenon. Because then next week we talk about the war and we'll try and confine most of that, if not all, to that session. But today I want to speak more generally about secession and whether it's legal or not, under the Constitution, and then proceed from there and see where that takes us. Because in order to discuss this subject, you have to know a lot of American history, so you learn a lot of it, I think, along the way, even if this is not an immediately practical discussion.

0:50In other words, I don't expect a lot of states to announce that they're seceding in the next couple of weeks. So it's not an immediately practical discussion. But in the course of the discussion, I think a lot of important truths about American history come forth. So I start off by briefly discussing two different competing theories that have existed, well, practically since the beginning of the history of the U.S. anyway. over the nature of the union of the states that was formed under the Constitution. And these two theories might be called the Nationalist Theory and the Compact Theory. The Compact Theory, I'll start with first, is one that is shared by Thomas Jefferson and John C. Calhoun and other important thinkers in the American tradition.

1:46The lesser thinkers probably don't deserve to be lesser, like John Taylor of Caroline and St. George Tucker, who were great Virginians. These are the main theorists of what we would call the compact theory. The compact theory just simply holds that the United States was the creation of separate states, thirteen to be exact at the beginning, and that the nature of the Federal Union is necessarily plural. In other words, it is grammatically The correct, according to the compact theory, to speak of the United States in the following way, to say the United States are a nice place to live, because the emphasis is on the plurality of the union. It is composed of a series of states. That's the central thesis of the compact theory. And the argument is that these states sent delegates to the Constitutional Convention in 1787. Those delegates drew up the Constitution, and then that Constitution was returned singly to each state for ratification. So each state, except Rhode Island, sent delegates to the

2:51Constitutional Convention and then each state voted as a state to ratify the Constitution. If some state had not voted to accept the Constitution, there would have been no legal or moral claim upon them on the part of the other states. Rhode Island stayed out of the of the Union for two years after the necessary nine states had ratified by 1788, but nobody seriously thought that the Constitution bound Rhode Island at that point. If that state's people had not used their sovereign voice to ratify the Constitution, then it did not bind them at that time. So that's the nature of the compact theory, that the United States is formed by separate sovereign states that then delegate to the United States certain The other theory is called the Nationalist Theory, and here we may cite people like Alexander Hamilton, be more likely to support this idea, Daniel Webster, and even Abraham Lincoln himself as famous expositors of this theory.

4:02And this view is that the United States was not formed by a group of states. It's not fundamentally something that's plural, but it is fundamentally singular. The United States is. And thus, according to the nationalist theory, the United States is a single whole. It is a single aggregate of individuals. It is not a plurality of independent states retaining their sovereignty. Now this has this distinction between the nationalist and compact theories is essential to understanding the question of secession or of nullification as we mentioned a couple of weeks ago and indeed of understanding much of early American history.

4:47Because depending on which of the two theories you support that's going to influence heavily how you think about these other matters. Now, the compact theorists have a very good rhetorical point in their favor, which happens to be the fact that the Constitution was ratified by each state individually. There was no national vote of a single American people, but rather each state voted individually. So that would seem to suggest that the Constitution and the Union that it created was formed by states, Because it really was formed by a single aggregate of the people, then why didn't that single aggregate vote to ratify it? Well, I mean, I would suggest, because at that time, no one thought of that single aggregate as having any authority.

5:32The authority rested in the sovereign peoples of each of the individual states. The nationalist theorists would argue that there is no significance whatever in the fact that the Constitution was ratified by states. According to the nationalist theorists, The Constitution is a creation of the whole people, taken as a single aggregate, and that the fact that it was ratified by states was really only a matter of convenience. How else were we going to ratify it? So we did it by state. But that manner of ratification, according to them, does not affect the character of the union, which is fundamentally singular in nature, a single aggregate rather than separate sovereign states. Now, when I say that depending on which of these theories you accept, you're more likely to take one or the other position on other matters, let me put some meat on that statement, and I think you can see that if you are a compact theorist, it is much more likely that you would favor remedies like nullification

6:34or even the ultimate remedy of secession. We'll take secession first. If you believe that initially the peoples of the states were sovereign, not some aggregate of the American people, but the peoples of the individual states were sovereign, and those peoples delegated certain powers to the federal government, entered into this union, well then it's more likely that you would believe that if those peoples of those states decided to enter the union, then also in their sovereign capacity they could voluntarily choose to withdraw from that union. Union. It does seem to follow from the nature of the compact theory that if one exceeds to the union through ratification one can withdraw from it through secession through the same mechanism that is the expression of the will of the sovereign people. Likewise it's easy to understand why a compact theorist would favor nullification because again the emphasis is on the states as the prime movers in the constitutional drama. They create the The Federal Government, they endow it with certain limited powers, and therefore, to protect their own people, the states retain the right as the, in effect, representatives of the sovereign people of their state, to protect their people against any unconstitutional power grabs on the part of the Federal Government.

7:56These things seem to follow from the compact theory, whereas from the point of view of the nationalist theory, both of these would be illegitimate. From the nationalist point of view, if the United States is fundamentally a single whole, then no state can withdraw from it, because it's a single whole. It would be artificial for one state to withdraw from it. No state or no people of a state retains any sovereignty. The sovereignty is held in common, jointly, by all the people. And so secession is therefore illegitimate and even an act of treason under this way of thinking. Even worse would be nullification, because for a nationalist theorist, again, because Because they don't believe the states retain any sovereign authority, nullification would be simple insubordination. There would be no other way you could conceive of it if you held the nationalist view. So these are in some ways incompatible theories and yet they were held by people living in the same country for a good long time. So it's perhaps not

8:50surprising that ultimately these two theories came to blows at one point. Now the nationalist position depends on the idea that the thirteen states that emerged from the war for independence from Britain and then joined together to draft the Constitution, ultimately in some way constituted one single people. The compact theorists argue that the thirteen states were very, very thirteen. We can think of thirteen as an adjective. They were extremely thirteen. The thing they did was thirteen-ish in the sense that every one of these states, as of 1783 or even in the years prior to that, they had their own elections, people in other states couldn't participate in them, they ran their own governments, they had their own militias, they were not responsible to or they did not owe any service to any other state, they were absolutely independent of each other, they were in no sense a single people in that way. But the nationalist view is that no, The 13 states did constitute a single people, and that's why we can say that the Constitution is the creation of a single aggregated people.

10:05Well, this is really the nub of the whole dispute, because at what point do these 13 states become a single people, if that is what is going to be claimed? When does this happen? And this is the problem. It's very difficult to pinpoint a moment at which these 13 separate independent states became a single people. Now, in fact, we note that in 1783, when the War for Independence was officially concluded with the treaty with Britain, the British acknowledged in the treaty the 13 separate states and listed them by name. They listed them individually by name and referred to them in the plural, We are acknowledging the independence of the following entities, not of a single consolidated blob.

10:54We have the fact that the initial document drawn up by these states, known as the Articles of Confederation, drawn up in 1777, ratified in 1781, even before the conclusion of the war with Britain, this initial document, which was later replaced by the Constitution of course, said this, each state retains its sovereignty, freedom and independence and every power, jurisdiction and right which is not by this constitution expressly delegated to the United States in Congress assembled. So here we have a formative document in the American tradition speaking of the states as retaining their sovereignty, freedom and independence which strongly indicates that they had had it already. This document is not granting them sovereignty. They possess the sovereignty and they are retaining it.

11:42So each state retains its sovereign status according to the Articles of Confederation. So they remain very 13 at that point. There is still, as of 1781, no indication that the 13 have become one. And throughout the 1780s we see independent states carrying out functions that seem to indicate that they are each sovereign and not having any direct political connection to any other. Now, the argument was raised that in some way, our common tradition together as members of the British Empire answering to the same sovereign, namely the British government and the king, this in effect rendered us one people, because of our common experience and our common allegiance that was owed to that single sovereign, that made the Americans one people, that in a way is why Abraham Lincoln could say, four score and seven years ago and then say, They then speak of our fathers bringing forth a new nation.

12:39He was thinking of those 13 peoples having become one in 1776. But compact theorists have come back at that and said, if that's true, that we became one people because, well, we were all British colonies together, then why are we not one people with Canada and Jamaica? That we're also British colonies and also answer to the same sovereign. Of course we're not one people with them. Were Britain and Spain and Gaul, were they one people because they were all Roman provinces during the time of the Roman Empire, was another argument that compact theorists raised. Well of course not, they were separate peoples. And a very significant argument was raised by a Virginia legal thinker who was very often overlooked named Abel Upsher. Upsher, in addition to being a great jurist, also served brief terms as Secretary of State and of the Navy in the early 1840s.

13:33And Upsher said, suppose one colony had held aloof from the independence movement and had not chosen to separate from Britain. Would the other colonies have had the moral or legal right to coerce that colony into participating in the independence movement on the grounds that that colony constituted one people with the rest of the colonies? Well, he suggested to ask the question is to answer it. Of course, this is an absurd proposition. It would have have been completely unjust to coerce any other colony, precisely because they were separate. They were not a single people. Well, that's a disputed point that one could go on at great length about. But what I want to suggest to you, at least, is that there are these two theories. Where you come down on these two theories is going to typically influence where your sympathies are going to lie in relation to issues like secession and the rights of the states.

14:28And I think by implication, my own view that the compact theory is, I think, a much more accurate rendering of what actually happened in the formation of the American Union. Let me move on now, briefly, to say just a couple of, make a couple of brief points about Abraham Lincoln, but we're going to speak about him much, much greater length next week, so I forbid us to go off on this tangent. I exclude myself from that proviso. I'm going to go off on the tangent for just a few moments to lead into the final point for today, which is the broader philosophical significance of the phenomenon of secession. Now, any discussion of the civil war or, again, war between the states or however you like to call it, must begin with a point that any professional historian will concede, but which most Americans probably don't realize, which is that Abraham Lincoln did not launch his invasion of the southern states in 1861 to abolish slavery.

15:26He said that over and over again. He said that his aim was to keep the union together. Now in doing so, he wound up with a million and a half people dead, wounded or missing. In fact, Lincoln even said in his first inaugural address that he would support a constitutional amendment that would forever prohibit the federal government from ever interfering with the institution of slavery. if that kind of promise would be what was necessary to keep the union together. The comic book version of Lincoln to which most school children are exposed regularly portrays him likewise as a champion of racial equality. But in a debate with Stephen Douglas in 1858, Lincoln argued that a physical difference between the white and black races prevented them ever from living on terms of social and political equality, and that inasmuch as they could not so live, he favored assigning the and the superior position to the white race.

16:23In his home state of Illinois, Lincoln did nothing during his career to challenge that state's treatment of blacks who could not vote, testify in court against whites, or attend a public school system funded in part by their own tax dollars. Neither were Southerners uniformly in favor of slavery. Southern generals Stonewall Jackson and Robert E. Lee opposed slavery, describing it as a moral and political evil. James Henley Thornwell, one of the most influential southern theologians, put forth a plan for gradual emancipation at the time of the war. The letters and diaries of southern soldiers revealed that most of them believed they were fighting on behalf of the principle of national self-determination and the right of self-government, the same principles they believed the American revolutionaries had fought to defend.

17:09Moreover, every other country in the western hemisphere that abolished slavery in the 19th century managed to do so peacefully. The money spent to wage the Civil War could have purchased the freedom of every single slave and given them all 40 acres and a mule. So, in short, the matter is not nearly as neat and tidy as the popular caricature would suggest. Now, it is true that Lincoln's informed defenders will generally concede all of this and have the honesty to admit that when Lincoln initially called up those first 75,000 militiamen in 1861 to put down the alleged rebellion in the South, he had no intention of waging a war to abolish slavery. What they argue and said is that as the war progressed, the meaning of the Northern War effort evolved in Lincoln's mind, becoming a war not only for the Union but also for human liberation.

18:03The more mystical among them suggests that this had in some sense been the war's purpose all along, But that it was only gradually that Lincoln himself became aware of the significance of the historical moment into which he had been placed. But there's no reason, it seems to me, that this type of argument should be raised only on behalf of the Northern cause and not for the Southern. In other words, isn't it possible that the South's own self-understanding also evolved over the course of the war? So thus, even if some people did believe they had seceded over slavery, as some certainly did, Is it not possible that they too may eventually have begun to appreciate larger issues at stake in the conflict just as Lincoln is said to have done? And here I have to refer to the work of a man I'm privileged to call my friend, Donald Livingston of Emory University, who has identified one of these larger issues that was at stake in the war but that so often is overlooked.

18:55Livingston points out that in the modern age we have seen what Livingston, for lack of a better term, calls federative polities, which I'll get to that in a minute, giving way to modern states. What is a federative polity and what is the modern state? A federative polity is one in which a variety of smaller jurisdictions exist, like families, voluntary organizations, towns and states, and in Medieval Europe institutions like guilds, universities and the church. Each of these social authorities has powers and rights of its own that the central government cannot overturn. Each of them is also a potential source of corporate resistance to the central government. Prior to the rise of the modern state political leaders who desired centralization therefore found themselves up against the historic liberties of towns, guilds, universities, the church and similar corporate bodies.

19:49Today we live in a time when people have been taught to disparage all things medieval as primitive, backward, and oppressive, which by the way is a view that no medievalist worth his salt would adopt today. But it was in the federative polities of medieval Europe that the Western practice of liberty began to take root. It is significant that following the dissolution of the Roman Empire, no continent-wide empire took its place. Ralph Reiko, who is a historian associated with the Institute, points out that instead of experiencing the hegemony of a universal empire, Europe evolved into a mosaic of kingdoms, principalities, city-states, ecclesiastical domains and other entities. A long line of scholars have argued that it was the decentralized nature of European political life beginning in the Middle Ages that contributed to the development of liberty.

20:41The multiplicity of jurisdictions meant that the prince risked losing population and therefore his tax base if he engaged in excessive taxation or interference in his people's economic lives. They could simply move to another political unit close by if their own became too oppressive. The very idea of sovereignty, according to which every political order must possess a single irresistible voice, competent and forceful enough to make its will felt throughout society, was essentially alien to medieval thought and practice. Institutions other than the central government possessed rights that no sovereign, whether a king or a democratic majority, could simply overturn at will. So that is the concept of a federative polity.

21:26Thomas Hobbes, on the other hand, set out parameters for what Livingston calls the modern state in his book Leviathan in 1651, that developed into unexamined premises that later thinkers took for granted. The modern state about which Hobbes theorized is one in which the central government is absolutely supreme and in which society is thought of as being composed not of independent social authorities, as in a federative polity, but of a simple aggregate of individuals. There are no truly independent social authorities in the modern state because nothing is thought to be independent of or prior to the central government. All potential for corporate resistance is gone. In Iran, mere individuals, by contrast, are typically helpless against a strong central government. Instead of a series of layers in a federative polity, society is here conceived of as a single flat plain.

22:19In a federative polity, when another social authority blocked the power of the central government, it was a normal event, even a virtue, as when, for example, medieval towns won many of their liberties by confronting the king and making demands of him, particularly when he needed their aid during a war. But the modern state trains its citizens to think otherwise. When another institution attempts to resist the encroachments of the central government of a modern state, it is guilty of treason. What was once a virtue now becomes the gravest possible crime. The nation, they are taught to believe, is one and indivisible. This new morality, cultivated in the citizenry through the modern state's formidable machinery of propaganda, inclines the people to view the central government's suppression of lesser bodies as something natural and normal, and resistance by those bodies as reprehensible and unpatriotic.

23:13Thus, in a federative polity, autonomous institutions with liberties of their own sometimes had to protect those liberties by resisting the center. Nothing in the modern state, on the other hand, can seriously be described as autonomous except the central government itself. Every other institution is fundamentally subject to and inferior to the central government, and no institution possesses truly inherent and inalienable liberties. Whatever liberties any lesser institution possesses are considered gifts of the central government to be revoked at will rather than held by right. Now it is true that the modern state could protect individuals from the oppressions of these smaller authorities. Thus, for example, the modern state could end slavery in one fell swoop.

23:59But again, as Livingston reminds us, those who favored the modern state for these reasons failed to read the fine print. For the modern state could also carry out great atrocities of a kind the world had never before seen. State slavery now re-emerged, not only in the form of the Soviet gulag and the Nazi concentration camps, but also in the form of universal military conscription, a largely modern idea. In just 4 years, nearly 3 times as many men were killed in World War I as there were slaves in the South. Its sequel, World War II, took over 50 million lives. Tens of millions would perish in slave labor camps, dwarfing the 11 million slaves brought to the New World, 5% of whom went to North America in the 400 years of the slave trade. So what must be emphasized here, according to Livingston, is that what was primarily responsible for this staggering destruction was neither advanced technology nor the wickedness of leaders like Hitler and Stalin.

24:55Even the most powerful monarchs of centuries past could not have engaged in such destruction since their authority was hemmed in by other social authorities that had the power to thwart them. It was the very structure of the modern state that destroyed or co-opted all lesser associations and amassed all power at the center that made these terrible atrocities possible. And now we get to the significance from the American point of view. The Civil War began the transformation of the United States from a federative polity into a modern state, from the compact theory version into the nationalist version. Europeans understood that the war amounted to an attempt to transform the decentralized American system into a unitary modern state. In December 1866, the British spectator was delighted to write, The American Revolution marches fast toward its goal, the change of a federal commonwealth into a democratic republic, one and indivisible.

25:54What had once been a decentralized system in which the states, the Union's constituent parts, actively resisted the central government on a great many occasions in defense of their liberties, would become a unitary modern state in which any such resistance would henceforth be demonized as treasonous. Livingston's conclusion is that we must give the moral benefit of the doubt to people who were fighting to prevent the destruction of America's federative character and who would instead have given the world the moral example of a Federal Republic that acknowledged the sovereignty of its constituent parts. The best Southern thinkers, though of course they could not possibly have known just how strongly vindicated they would be after the atrocities of the 20th century and the crimes of the modern state, understood this principle.

26:41Alexander Stevens, the Vice President of the Confederate States of America said this,

27:11Robert E. Lee wrote to Lord Acton,

27:41which has overwhelmed all those that have preceded it. Livingston says, Had the Confederate States of America survived, the world would have had the model of a vast-scale federative polity with a strong central authority explicitly checked by the ultimate right of a state to secede. It would have shown the world, likewise, that an alternative existed to the modern state, its atrocities and its destruction of competing power centers in society. Instead, movements for national unification, as in Germany and Italy, were and are portrayed as indisputably progressive and as fully in line with the forward march of history. When in fact the world would have been spared a great deal of grief, had a decentralized political order remained the rule in Central and Southern Europe. This is why the South's failure so saddened the great British libertarian Lord Acton, who in a letter to Robert E. Lee in November 1866 wrote, I saw in states' rights the only availing check upon the absolutism of the sovereign will, and secession filled me with hope, not as the destruction, but as the redemption of democracy.

28:45Therefore I deemed that you were fighting the battles of our liberty, our progress and our civilization, and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo. Well, this is why so many people who do detest slavery have nevertheless rejected the standard morality play about the war that is peddled in the typical classroom and in popular culture. With the destruction of state sovereignty that resulted from the northern victory went both the main institutional restraint on the power of the federal government as well as the important moral example of a polity organized along different lines from those of the centralized states that would come to dominate the political landscape in the 19th and 20th centuries and beyond. That, and not a fondness for slavery, explains why Lord Acton, the great British classical Well, I think, although I could go on and talk about authorities who supported the right of secession, that was actually in your reading, so there's no need for me to reiterate that, so I'll just stop here and keep myself to the lower bound of the times of these little talks, and take a little break and then see what on earth you have to say about this, so thank you very much.