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How We Can Know that the South’s Decision to Secede Was an Act of Outlawry


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 — throughout this series, of which this is the 8th entry — 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?

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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