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Compromising the Nature of the Union

The Framers of the Constitution recognized that in a country as extensive as the United States, compromise between partisan groups was the price of Union. The zone of acceptable compromise had constantly to be calculated and reconsidered because Americans put the Constitution to practical use by using it as a partisan instrument to win substantive policy conflicts. As the country developed, the statesmanship of the Founders was looked to as a heuristic standard in debate over the nature of the Union. Appeal to the tradition of compromise proved illusory when the geopolitical sections that constituted the country fell into irreconcilable conflict.

The war between the states in significant part resulted from the design of the Constitution. The Federal Convention created a states-union, as opposed to an aggregate popular sovereignty nation-state or a continental empire. A states-union is an association of independent polities joined in a voluntary mutual pact, in contrast to a unitary sovereign state based on one-sided assertion of will into which subordinate member states are incorporated.[1]

States-union constitutionalism solved the theoretical problem of the locus of sovereignty, traditionally defined as unitary and indivisible, by delegating governing authority to elected representatives and agents of the people. The judgement of the people as a whole is “recessed” until called upon or “engaged” to exercise the constituent authority of the nation as a whole in a crisis such as war or revolution.[2]

The mutuality of states-union constitutionalism is the source of ambiguity that permits or encourages exit or secession as legitimate political policy in the event that the price of union—the zone of acceptable compromise— is judged to be prohibitive. In the view of political scientist David C. Hendrickson, the American Union in the 19th century was “a raging state system, disguised by the forms of a constitution,” which averted periodic wrecks by skillful diplomacy. An “international system in embryo,” it was “no more exempt from the specter of war than any other system of states.”[3]

In the first American party system, Republicans and Federalists explored the legitimacy of interposition and nullification as constructions of the Union intended to prevent the exercise of unjust and abusive federal governmental powers. This party system disintegrated as a result of conflict over tariff policy in the 1820s.

In 1828, South Carolina asserted the doctrine of nullification or state veto articulated by Vice President John C. Calhoun in protest against the “tariff of abominations” adopted by the National Republicans (or Whigs, as they would later be called). President Andrew Jackson, leader of a new party of Democracy, issued a proclamation to the state of South Carolina defending federal authority and declaring nullification and secession to be treasonable if exercised by force.

Congress passed a Force bill authorizing the president to exercise his constitutional powers in support of federal law against civil or military state obstruction. Under the influence of Kentucky’s Senator Henry Clay, leader of a new anti-executive Whig party, Congress adopted a compromise tariff bill calculated to protect the economic interests of Northern manufacturers and Southern planters.

The doctrine of nullification concerned sectional political economy, not slavery. Controversy over nullification, however, coincided with the rise of abolitionism in ways that complicated the incentives of republican society and government. Rather than pursuing sectional economic interests, abolitionists professed redemptive moral-philosophic ends that inspired condemnation of the Constitution that was intrinsically disunionist. The Founding charter was, they said, a “covenant with death.”

Compromise over slavery was a practical necessity in the framing and ratification of the Constitution. Subsequently, a balance between free and slave states was maintained in order to keep slavery out of national politics. In 1803, the Louisiana Purchase expanded the scope of U.S. authority across territory of imperial scope. How to settle, cultivate, and govern the vast geopolitical land mass being incorporated into the United States became the obsession of American politics in the era of the second party system, 1833 to 1850.

As early as 1819, Northern opposition to the admission of Missouri Territory as a slave state provoked ominous controversy over the republican nature of the Union. Challenging the rule of balancing the free and the slave states, Federalists passed a bill for Missouri statehood requiring the gradual abolition of slavery. A compromise was adopted admitting Missouri as a slave state and Maine as a free state. Most significantly, the Missouri Compromise act of 1820 prohibited slavery in Louisiana Purchase territory north of latitude 36/30.

In the 1840s, the Democratic Party abjured the tradition of compromise over slavery as the price of Union. In summary fashion, President James K. Polk annexed the independent Republic of Texas as a slave state and declared war against Mexico under the expansionist banner of “Manifest Destiny.” In reaction to the pro-slavery policy of the Polk administration, U.S. Representative David Wilmot (D-Pa.) in 1846 introduced a resolution prohibiting the extension of slavery in territories acquired from Mexico. Intended to broaden the Missouri Compromise’s prohibition of slavery in Louisiana Purchase territory, the Wilmot Proviso stirred enough controversy to roil the second party system to the breaking point.

In 1850, against the background of secessionist agitation in the South, Congress legislated a grand compromise to preserve the Union. California was admitted to the Union as a free state, tipping the sectional balance to the North. At the same time, a more aggressive fugitive slave law was enacted to satisfy Southern demands. Also in the Compromise of 1850, the slave trade in the District of Columbia was abolished. The western border of Texas was settled and its public debt assumed. And the Wilmot Proviso was repudiated by territorial legislation authorizing citizens to exercise the right of popular sovereignty in deciding whether slavery would exist in Utah and New Mexico.

Democratic administrations in the 1850s proved incapable of maintaining the peace. Causes of incipient disunion included the ambiguity and instability of states-union as a constitutional order, territorial expansion, the decline of sectional comity, the rise of mass political parties, and a “politics of conscience that deplored [political] compromise as an unacceptable compromise of moral principles.”[4]

The Kansas-Nebraska Act of 1854 marked the fatal first step to disunion. Introduced by Senator Stephen A. Douglas (D-Ill.), the act declared popular sovereignty to be the rule for deciding whether slavery should exist in territories of the United States. In a fury of condemnation, Free Soilers, former Whigs, and a significant number of Northern Democrats formed the Republican Party with the objective of placing slavery in the course of ultimate extinction by prohibiting its extension into the territories.

The Kansas-Nebraska Act released the forces of revolutionary violence. In 1856, armed conflict erupted in Kansas between proslavery and antislavery partisans seeking to organize a territorial government. In 1857, the Supreme Court issued the Dred Scott decision, holding that Negroes were not citizens of the United States and that Congress lacked authority to prohibit slavery in the territories. And in 1859, the abolitionist John Brown, backed by Northern abolitionists, undertook a slave rebellion in Virginia. Brown and his followers were tried, convicted, and hanged by the state of Virginia.

The nature of republican government by popular consent and the claim of secession as a constitutional right of state sovereignty were at issue in the election of 1860. Candidates of four parties competed: Abraham Lincoln, Republican; Stephen A. Douglas, Northern Democrat; John Breckinridge, Southern Democrat; and John Bell, Constitutional Unionist. With a plurality in the popular vote and a majority in the electoral college, Lincoln was constitutionally elected President of the United States.

The inauguration was to take place in early March 1961. Before it did, in December 1860, South Carolina seceded from the Union; and in February 1861, seven seceding states met in convention to form a Confederate constitution. In April 1861, the Confederate States of America attacked Fort Sumter in South Carolina, President Lincoln called out state militia to suppress rebellion, and the Civil War began. As David Hendrickson observes, it came “as the long-prepared and seemingly inevitable cataclysm that nevertheless arrives as a profound shock.”

Each side claimed to be the true bearer of American republicanism and accused the other of constitutional error and infidelity. The nature of the conflict was such that, in a peculiarly American way, the cause of constitutionalism claimed by the sectional rivals was identified with the right of revolution in the Declaration of Independence on which the Union was founded. Although it did not confer legal privilege or immunity, the right of revolution was a reminder and safeguard of the natural rights basis of republican constitutionalism that could not be abrogated or abolished from American political life.

The meaning and significance of the right of revolution was a contested concept. President James Buchanan, in his annual message to Congress of December 3, 1860, declared that no state at its “sovereign will and pleasure, may secede from the Union in accordance with the Constitution and without any violation of the constitutional rights of other members of the Union.” Nevertheless, said Buchanan, the South had a right to repeal Northern laws interfering with the rendition of fugitive slaves. If refused, “the injured States, after having used all peaceful and constitutional means to obtain redress, would be justified in revolutionary resistance to the government of the Union.” Buchanan concluded: “This is revolution against an established government, and not a voluntary secession by virtue of an inherent constitutional right.”

In January 1861, Senator Jefferson Davis (D-Miss.) stated that, when the authors of the Declaration of Independence declared as an inalienable right the power of the people to abrogate and modify their form of government whenever it did not meet the ends for which it was established, “they did not mean that force could only be invoked when that right was wrongfully denied.” Great Britain denied the right in the case of the colonies, and “therefore our revolution for independence was bloody.” If Great Britain had admitted the great American doctrine, there would have been no bloodshed.

Davis put a rhetorical question: “Are we now to roll back the whole current of human thought, and again return to the mere brute force which prevails among beasts of prey, as the only method of settling disputes among men?” And answered it: “If so, the blood of the Revolution was shed in vain,” and “no great principles were established; for force was the law of nature before the battles of the Revolution were fought.”

President Abraham Lincoln, in his first Inaugural, March 4, 1861, declared:

I hold, that in contemplation of universal law, and the Constitution, the Union of these States is perpetual. No government proper, ever, had a provision in its organic law for its own termination. Continue to execute all the express provisions of our national Constitution, and the Union will endure forever.

It was the nature of the Union “that no State, upon its own mere motion, can lawfully get out of the Union.”

Lincoln went on:

Plainly, the central idea of secession, is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.

He further declared that “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 tomember, or overthrow it.”

If there was a more principled and prudential way to think about the crisis of the house divided, John Quincy Adams warrants consideration. In The Jubilee of the Constitution (1839), Adams wrote: “To the people [of the states] alone is there reserved, as well as the dissolving, the constituent power, and that power can be exercised by them under the tie of conscience, binding them to the retributive justice of Heaven.” He asserted, “With these qualifications we may admit the same right as vested in the people of every state in the Union, with reference to the General Government, which was exercised by the people of the United Colonies, with reference to the supreme head of the British empire, of which they formed a part—and under these limitations, have the people of each state in the Union a right to secede from the Confederated Union itself.”

Adams continued:

Thus stands the RIGHT. But 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 . . .  when the affections of the people give way to cold indifference, or collision of interest should fester into hatred, the bands of political association will not long hold together parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; and far better will it be for the people of the disunited, to part in friendship from each other, than to be held together by constraint.

“Then will be the time,” wrote Adams, “for reverting to the precedents which occurred at the formation and adoption of the Constitution, to form again a more perfect union, by dissolving that which could no longer bind, and to leave the separated parts to be reunited by the law of political gravitation to the center.”

[1] Murray Greensmith Forsyth, Union of States: The Theory and Practice of Confederation (Leicester University Press, 1981).

[2] Daniel H. Deudney, Bounding Power: Republican Security from the Polis to the Global Village (Princeton University Press, 2007).

[3] David C. Hendrickson, Peace Pact: The Lost World of the American Founding (University Press of Kansas, 2003), p. 221.

[4] Peter Knupfer, The Union As It Is: Constitutional Unionism and Sectional Compromise, 1787-1861 (University of North Carolina Press, 1991), p. 164.

This essay is adapted from remarks delivered at the Philadelphia Society’s Fall 2016 Regional Meeting.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on November 10, 2016 at 17:44:20 pm

"States-union constitutionalism solved the theoretical problem of the locus of sovereignty, traditionally defined as unitary and indivisible, by delegating governing authority to elected representatives and agents of the people. The judgement of the people as a whole is “recessed” until called upon or “engaged” to exercise the constituent authority of the nation as a whole in a crisis such as war or revolution."

If I'm reading this [section of a most excellent essay] correctly, the judgement of the whole people is exercised at election time. But when is the judgement engaged for war or revolution? Those are military actions, which are government actions. I don't have easy access to Deudney, so perhaps someone could help me out with this?

The general theory of representative government discussed is certainly correct. There is an important difference between the Framer's republic of democratically elected representation with a recessed demos, and our modern democratic republic. I think just me an'a handful of historians get that.

Was the slide from a states-union into a nation-state the result of the people's inability to properly exercise revolution? Or reform? My relatively light reading of American history tells me that before the Civil War the leaders of the southern states tried to apply Adams' solution to dissolution and rejected the national government. The northern leaders did not reject those claims. Rather, they only rejected the propriety in which those claims were made, saying that the leaders were not properly elected representatives and did not properly represent the judgement of the southern people.

(Lincoln's reasoning always seems confused to me. IMHO, he was overrated as a president, but deservedly honored for holding the nation together. He was a strong advocate of the Declaration of Independence, and at the same time rejected the right to revolution when the ability to reform was unavailable to the demos. Go figger'.)

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Scott Amorian
on November 10, 2016 at 20:37:17 pm

" A states-union is an association of independent polities joined in a voluntary mutual pact, in contrast to a unitary sovereign state based on one-sided assertion of will into which subordinate member states are incorporated."

AND

" An “international system in embryo,” it was “no more exempt from the specter of war than any other system of states."

The author is being a bit too *clever" here in making the (semi-masked) assertion that the United States was, and was intended to be, a collection of independent states. He substitutes "polities" for States in the first quote but it is clear from his following statement(s) that he wishes to assert that the US was no more than an *embryonic* european nation-state system.

This would come as a surprise to all of the founders, other than the most radical of the Anti-Federalists; nor did the early States behave in such a fashion after the adoption of the Constitution. also, one should consider this simple statement: In order to be an independent nation (State) one must a) behave as one and b) BE RECOGNIZED by other nations (States) as being independent and so order all intercourse between the two entities.

Clearly, this did not happen with the young American States; nor did they have the power to commerce between each other, declare war, establish a currency, coin monies, etc. etc.
So let us not accept this nostalgic hope for a "system of independent states (nations) only loosely tied to a central (coordinating) body.

That being said, it is also CLEARLY established by both historical record (Consitution, debates, etc) and historical practice that at least until the early 20th century (17th Amendment nicely dovetails with the loss of State status) the States were far more robust political entities than the present situation would indicate. SCOTUS rejection of the "incorporative" INTENT of the 14th Amendment served only as a reprieve from centralization - it proved to be somewhat short-lived, BTW.

Nevertheless, there was never a consensus as to withdrawal from the Union. It varied from crisis to crisis - with some Northern states espousing it for their crisis while the south denied it; later the tables would be turned. Yet, never was there a CONSENSUS on secession. Rather, the general view was that the union was, as Lincoln said, indissoluble (with qualifications, again as expressed by Lincoln above and others). BTW, Lincolns immediate concern, and one he forcefully expressed had to do with the "unwillingness" of some members of the Union to accept "government by consent of the governed", i.e. in this case a legally elected President (Ole Abe, of course). For Lincoln to accept that one could simply decide to NOT ACCEPT A MAJORITY decision (ELECTION RESULTS) WOULD MEAN THE denial OF ALL politics. Lincoln was a bit more "nuanced" ( a favorite term of the liberals, I know) than above comments would indicate.

And while some may deny him a vaunted status as a great President, there is no escaping the fact that he was a Great Statesman. In truth, the reality of Lincoln is actually more impressive than the hagiography and myth that has developed around him.

Lastly, the author does make some solid points regarding structural and or political factors that may serve to neutralize the Union. I rather liked it, if not in full agreement.

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gabe
on November 10, 2016 at 21:05:23 pm

I agree, its an excellent essay!

"Lincoln’s reasoning always seems confused to me." I tend to disagree - I will try to explain why.

"Continue to execute all the express provisions of our national Constitution, and the Union will endure forever." - I think this is the crux of Lincoln's reasoning, because as I understand it, the original Constitution (prior to 1865 and the 13th Amendment) didn't guarantee the right to hold slaves, but only that no action would be/could be taken to abolish or restrict slavery prior to 1808 - (Article I, Section.2 & 9, clause 1, Article IV, Section. 2 & Article V), in a sense, the issue of slavery was merely kicked down the road to be settled at a later date.

As such, Lincoln's reasoning maintained, 1) There never existed a right to hold slaves, based on natural law (there is never a right to do a wrong) and 2) the Constitution did not give the right to own slaves, but rather not to act on restricting or abolishing the practice prior to 1808, 3) therefore, as the government did, "Continue to execute all the express provisions of our national Constitution", the Southern States had no legitimate cause under the Constitution or Declaration of Independence to exercise a right to move to secession or revolution.

I think Lincoln did also believe, since slavery was in violation of natural moral law, that the individual states had no right to legislate an unjust and unmoral law (to legalize slavery), thus the arm of the Federal government was justified if it were to extend its reach into the states domain for the purposes of reversing as unconstitutional, an unjust state law.

As an aside, it is further my understanding that Lincoln, as President, sworn to uphold the Constitution, and grasping that the Executive Branch has the same constitutional power as the Supreme Court (and Congress) to interpret the Constitution, rejected Dred Scott decision in its interpretation of the Constitution, and while he accepted that he was bound by the decision in that particular case, he rejected that it bound him generally and, he therefore, deemed the Executive not to be bound to apply the decision for general enforcement.

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Paul Binotto
on November 10, 2016 at 21:11:03 pm

You make some excellent points, Mr. Gabe!

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Paul Binotto
on November 11, 2016 at 12:44:34 pm

Paul:

Absotively - regarding Lincoln and Dred Scott as well as Lincoln's belief (correct to my mind) that the Executive is as much entitled (and properly charged) to interpret the Constitution as is the Judiciary.

Great points!

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gabe
on November 11, 2016 at 19:20:11 pm

Thank you, Mr. Gabe.

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Paul Binotto
on May 27, 2017 at 21:22:51 pm

I don't agree:
https://henkvanhoutum.nl/wp-content/uploads/2012/09/Houtum-The-Mask-of-the-Border.pdf

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beckett73

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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