The Spirit that Drove Us to Civil War is Back– Who Chose War III: The Decision to Secede

I’ve argued that the spirit that drives today’s Republican Party makes a fight over everything. Its choice of war over cooperation and compromise could hardly be clearer. I’ve asserted that the spirit behind today’s Republican Party is a re-emergence of the spirit that drove the South in the era leading up to the Civil War, and that this persistence of the same spirit is revealed by the significant overlap in the character and tendencies of the two forces.

Does that overlap include the tendency to choose war, I have asked? With respect to the political process during the 1850s, I have argued in the previous posting, the answer is yes. It was –predominantly– the South that pressed the political battle and generated the dynamic that polarized the nation so intensely that continuation of the Union came into question.

Now the question is: at the climax of this polarizing process, when the states of the South made the decision to secede and form a separate nation, did that decision in itself represent a choice for war?

union dissolved

It is only recently, after much study, struggle and consultation, that the answer has become clear to me: Yes, in the drama over secession, as in the process leading up to it, the conduct of the South shows that same spirit that prefers war and conflict over peace and cooperation.

Here’s the path that leads me to that conclusion.
First, it should be noted that secession was not an explicit declaration of war.

Second, there’s the question: When the Southerners decided to secede, did they realize the outcome of their decision would be or might be war? Some of the leaders of the secession movement may not have expected war to result, and many may have hoped to avoid it, but – I gather from experts with whom I’ve consulted — they understood that their actions might trigger war. But this willingness to run the risk of war is only a minor part of the indictment.

Third, there’s the question of whether, by seceding, the Southerners were acting as outlaws. Were they were so clearly violating the social contract that by their outlawry they were inviting violence the way, say, Bonnie and Clyde did by robbing banks. Abraham Lincoln believed so, for he was clear in his mind that the Constitution gave the states no right to break up the Union. Having taken the oath of office to defend the Constitution, Lincoln felt obliged as president to treat the secession of the South as an illegal rebellion it was his duty to put down.

(Said Lincoln in his First Inaugural Address: “You can have no conflict without being yourselves the aggressors. You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to ‘preserve, protect, and defend it.’”)

But I will not convict on that basis. While Lincoln regarded secession as unconstitutional, the Southerners had come to a consensus among themselves, over thirty years or so, that secession was their right within the Constitution. The Constitution itself is mute on this point, and whereas I gather that most constitutional scholars would side with Lincoln, the issue was at least debatable, one on which reasonable people could disagree. For that reason, it seems to me that secession cannot be regarded as a clear form of outlawry.

However, there’s another way of looking at how the South preceded: secession itself might or might not be outlawry, but the manner of the South’s seceding was not only high-handed and provocative, but clearly illegal. Their conduct manifests a spirit so insistent on achieving its own will that it refused to abide by the order by which the Southerners, like other Americans, had bound themselves.

Regardless of who might be judged to be right on the constitutionality of secession– the Southerners or President Lincoln—there was no equality of legal status in the American constitutional system between the secessionists and the president. The president is empowered by the Constitution to be the executor of the laws and the defender of the Constitution. Part of his job is to decide what that means, and that responsibility gives him a status far beyond that of citizens generally.

When citizens believe the president wrong, they have two constitutional recourses. 1) They can work to replace him in the next election. Or, 2) they can take the matter to the Supreme Court, which is the ultimate arbiter of what the Constitution allows and forbids. But until the Court gets the last word, the President gets the first word on what will be allowed and what forbidden.

So when President Lincoln –duly elected, fair and square, by the electoral process laid out by the Constitution—tells the secessionists that they have no such right, the Constitution does not allow them to defend their contrary opinion by force of arms.

The secessionists were not willing to wait until 1864 to try to get a government either more to their liking, or amenable to their departure. (They were not even willing to wait, as some of the saner voices in the South proposed, to see whether Lincoln as president would treat them ill, as they expected, or well.) Nor did the secessionists take their arguments about their right to secede to the Supreme Court for judgment by the authority established by the Constitution to decide such questions.

Instead, they asserted their right on their own unauthorized say-so, and chose to wage war against the forces commanded by the constitutionally elected president.

That in itself is lawlessness. Right or not about secession, the Southerners arrogated to themselves a power clearly in violation of the Constitution.

I’ve heard Southerners refer to the Civil War as “the War of Northern Aggression.” That’s not what it was. Until someone in authority said otherwise about the constitutionality of secession, President Lincoln’s actions –given his interpretation of the Constitution—were entirely within his rights and power. His oath of office, indeed, required him to use force, if necessary, against any citizens who would arrogate to themselves the power to overthrow the system by which the Constitution arranged for disagreements of that sort to be resolved.

The Southern attitude — “It must be our way, and we will fight rather than accede to a duly established authority that opposes us”– shows a spirit of war. (It is also the same spirit that today’s Republicans have shown when, through the elections of 2006 and 2008, the American people gave the Republicans’ opponents the power and responsibility to govern.)

So Lincoln was not the aggressor in using force to counter the secession. Whether he made the right choice to do so, however, is not clear to me. This questioning of Lincoln’s basic decision to use force to hold the Union together will be the subject of the next installment.

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6 Responses to “The Spirit that Drove Us to Civil War is Back– Who Chose War III: The Decision to Secede”

  1. Richard H. Randall Says:

    Andy: this comment is not about the foregoing. I just read an editorial about the GOP and its attack on the ACA. One of the comments called the modern GOP, the party of death. bmessina says: The republicans are always on the side of “death”, defund universal Health Care, defund Food Stamps, pollute the air and water, disempower the new Consumer Protection Agency, to name a few of their brilliant ideas. What is it with them?”

    I think that you have discussed this before: I think it is very powerful.

  2. Tom Smith Says:

    I’m glad I finally found someone to agree with me!! Slaves illegally running away from southern plantations before 1863 where wrong to do so, as you say, they didn’t wait to get a “government of their liking” or wait for the Supreme Court to rule in their favor, instead they asserted their right on their own unauthorized say-so, and chose disobey their masters and government commanded by the constitutionally elected president.

    That in itself is lawlessness , the Slaves arrogated to themselves a power clearly in violation of the Constitution.

    The Slave attitude — “It must be our way, and we will run rather than accede to a duly established authority that opposes us”

  3. Nate Says:

    I think you miss the point of the Constitution. The States did not relinquish their sovereignty by forming a “Federal” government. They gave certain powers to a “federal” entity and all other powers were granted to the States under the 10th Amendment. You’ve put the burden of proof of legality for secession on the Southern States, where in fact, the Federal government has the burden to prove it has a right. If it can’t that right is inherently left to the States.

    Lincoln had no right to do what he did and violated the very spirit of the Revolution of the people choosing their leaders. When the South no longer felt they had a fair say in the election of the president and the power of Congress, THE PEOPLE elected to leave. Lincoln was no better than King George in this instance, no matter what title or government he led.

  4. Andrew Bard Schmookler Says:

    That point can be argued, and I believe has been, and resolved other than how you say.

    But be that as it may, Nate, are you going to argue that people have the right to override the constitutional opinion of the President of the United States just on their own say-so, without having to take their case to the judiciary to decide what is and is not constitutional?

  5. Give me a break Says:

    So your argument is the South seceded illegally because they didn’t have Lincoln’s permission? Lol! Pure Yankee rationalization. The USA was born out of secession, thus putting a law in the Constitution banning secession would’ve been beyond hypocritical. The Founder’s didn’t trust government and, coming out of the Revolutionary war, they could not have stomached writing such a tyrannical law. The “Union” was based on the good faith of the states. It was an alliance, as the USA was not seen as one giant country in those days, but a collection of otherwise sovereign states.

    As President, Lincoln’s role was to protect and uphold the Constitution, which permitted slavery by law. His role was not to arbitrarily create Constitutional law where there is, in fact, none. Creating Constitutional law is the business of Congress, not the President. The Civil War was one of Northern aggression. The South seceded legally and peacefully. The North brought war to the South, as evident by the fact almost all the battles were in the South. History truly is written by the winners, however.

  6. Andrew Bard Schmookler Says:

    Your argument, “give me a break,” completely disregards the case I made. What you are saying boils down to: “I agree with the Southerners’ interpretation of the Constitution, therefore they were right to do what they did.”

    Whether or not they were correct in their interpretation, the American system provides means for people to assert their interpretations. Unilaterally over-ruling the constitutionally elected President and then defending their position by force of arms is NOT one of them.

    And the fact that you so completely failed to confront my case — which is NOT based on the assertion that the Southerners were wrong and Lincoln right on the issue of the right of secession — calls into question the level of legal competence you have brought to your judgment about the constitutional issue itself.

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