Tuesday, January 03, 2023

Making Constitutional and Legal Sense of Secession and the Problem of Crybaby Losers of a Legitimate Election

Guest Blogger

This post was prepared for a roundtable on Federation and Secession, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Paul Finkelman

Some political theorists, constitutional scholars, and historians argue secession was legitimate, legal, or at least constitutionally permissible. Overly legalistic professors claim that because the Constitution did not prohibit secession the states could voluntarily leave the Union. Scholars skeptical about nationalism, applaud the devolution of countries through secession. Sandy Levinson has argued that the Americans in 1776 were actually secessionists, not revolutionaries. 

Most of these positions—including the question of legitimacy—are historically misplaced. Furthermore, in the context of the United States those theorists enamored by secession end up endorsing outcomes that are inconsistent with basic human rights and fundamental justice.

The southern states seceded to preserve slavery forever and to create a self-consciously white supremacist nation. As Confederate Vice President Alexander Stephens made clear: 

Our new government is founded upon . . . its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.[1] 

Southern secession created the world’s first nation explicitly dedicated to white supremacy, racism, and slavery.  

A peaceful separation of the slave and free states was not impossible, just as a married couple can obtain a divorce. But, like a divorce, a separation requires negotiation, compromise, and a division of assets and liabilities. It cannot be done unilaterally or legitimately accomplished by one side making war on the other. In 1861 secessionists rejected negotiations. Southerners unwisely preferred to start a war, even though Lincoln had not lifted a finger to interfere with secession. But wisdom was in short supply in Jefferson Davis’s cabinet. A century-and-a-half after the Civil War, some places in the South—and the American political system—remain scarred by the violence and destruction the South brought upon itself. 

I: A Theory of Separation 

Secession is not a constitutional or legal right. Secession is a political process, governed, in the United States, by a theory of government that almost all Americans accepted from 1776 to 1860. In the Declaration of Independence Thomas Jefferson developed this theory:  

We hold these Truths to be self-evident, that all Men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are Life, Liberty, and the Pursuit of Happiness; that, to secure these Rights, governments are instituted among Men, deriving their just Powers from the Consent of the Governed; that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shown that Mankind are more disposed to suffer, while Evils are sufferable than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.  

Here Jefferson set out five basic principles on when and why secession (or Revolution) was legitimate and justified: 

1: Legitimate government exists with the consent of the governed. The “governed”—the American people (“We the people”)—accept the system and process. In contested elections there are always winners and losers, but by participating in elections, voters consent to the outcome, as long as the process is legitimate and honest. Thus, “governments” derive “their just powers from the consent of the governed” through elections. In 1775 Americans were denied “consent” and had no representation in Parliament, which in conjunction with the Crown, persistently denied Americans a right to self-government. 

2: If a government becomes “destructive” to this process, it might be overturned. This describes the British treatment of the American colonial legislatures, willy-nilly vetoing their laws. 

3: That long established governments cannot be overturned through violence for minor violations of the rule that the people be represented. The impossibility of the Americans ever having self-determination or being represented in Parliament was not “minor.” 

4: The corollary to number three is that “a long train of abuses and usurpations” which “evinces a design to reduce them [the people] under absolute despotism” legitimizes revolution, or secession. While Jefferson’s list of complaints is exaggerated, many were quite real, especially those denying Americans due process of law, dragging people charged with crimes before admiralty courts, overruling colonial laws, and the “intolerable acts” imposed on an entire colony. 

5: Finally, there is Jefferson’s opening clause: “That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”[2] His argument suggests that if secessionists or revolutionaries intend to create a government to suppress equality, liberty, and the pursuit of happiness, then the actions are illegitimate. The context of this language, in 1776, is complex, because in 1776 every nation in the Atlantic world accepted the legitimacy of slavery. The African slave trade was legal everywhere, although all the American states suspended the African trade when the war began. At the time Britain dominated the African trade and was adamantly opposed to any interference with this commerce or with slavery throughout its empire. Jefferson asserts that the Declaration itself was necessary because “a decent respect to the opinions of mankind requires” that the Americans explain why they are revolting against Britain. Because all the world recognized slavery and the African trade, and Britain was the largest slave trading nation in the world, there was no need to explain why, as Samuel Johnson noted, “we hear the loudest yelps for liberty among the drivers of negroes?”[3] 

Acting under the theory of “separation” set out in the Declaration, the Americans declared themselves independent from Britain, creating “The United States of America,” with a founding constitutional document, the Articles of Confederation, pledging to form a “perpetual Union.” Nothing in the Articles suggested that there was a way to leave the Union. 

In 1787 delegates from twelve states proposed a new governing document, the Constitution, which did not dismantle the existing perpetual union. Rather, the Constitution was designed to make it “a more perfect Union.” Eleven states speedily approved the Constitution through a democratic process, as voters choose delegates to state ratifying conventions.[4] Voting rights varied by state. Women could vote in New Jersey and free Blacks voted on the same basis as Whites in Massachusetts, New Hampshire, New York, New Jersey, Pennsylvania, and North Carolina, and probably in Connecticut and Maryland as well.[5]  

In the fall of 1788, the eleven ratifying states elected representatives and senators to the new Congress and voted for the new president. In March 1789, George Washington and John Adams were sworn in as president and vice president, and the new Congress met. The Constitution did not abolish the existing Union or remove any state from that Union. 

North Carolina and Rhode Island had not ratified the Constitution, but significantly neither state rejected it. North Carolina’s ratifying convention adjourned without a vote and Rhode Island had not yet called a ratifying convention. No one thought these states were no longer in the United States. Presumably, had some foreign nation attacked one of them, the other states and the national army would have come to their defense. Mail travelled among all the states. Political leaders in all thirteen states communicated with each other, and commerce and trade continued. There were no travel restrictions, or the need for passports, between the two states and the other eleven. Relations among the citizens of eleven and the two were as amicable as ever. George Washington took office under a United States flag with thirteen stars and stripes.[6] 

While not represented in the new Congress, the two were part of the United States. Thus, on September 24, 1789, Congress authorized the transmission of the proposed amendments that would create the Bill of Rights to all thirteen states. By 1790 both North Carolina and Rhode Island had ratified the Constitution and the proposed amendments. 

The perpetual Union remained under the Constitution, which every state supported and endorsed. As the nation grew, from thirteen states in 1776 to 33 by 1860, each new state accepted the terms of the Constitution and the existing concept of a perpetual Union. With the exception of Texas, which was an independent Republic when it agreed to be annexed by the United States, all of the other new states were created by Congress out of land owned by the entire people of the United States or land already part of existing states. The new places that became these new states had no independent political existence before Congress transformed them into territories and then states. 

II: Slavery, Race and Southern Secession 

The southern states seceded to protect slavery and to preserve white supremacy. South Carolina’s Declaration of the Causes of Secession complained northerners had 

united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that “Government cannot endure permanently half slave, half free,” and that the public mind must rest in the belief that slavery is in the course of ultimate extinction. 

Lincoln never used such language in the 1860 campaign, and the Republican platform reaffirmed that the national government had no power to interfere with slavery in the existing states. Put simply, South Carolina did not like the outcome of an election, so it claimed the right to leave the Union. It is also worth noting that no northern states had ever threatened secession when the one slaveholding or proslavery president after another was elected for 1788 to 1856. 

Despite post-War southern claims, the South did not secede over “states’ rights.”[7] The “states’ rights” argument presumes the national government had been oppressing the southern states. But there is no evidence of this. The South had dominated American politics since 1789. Congress, with the support of southern delegates, had restricted the spread of slavery in the Northwest Ordinance of 1787 and the Missouri Compromise in 1820. But by 1860, there were no restrictions on slavery in the territories. The Compromise of 1850 and the Kansas-Nebraska Act of 1854 allowed slavery in all the remaining territories acquired in the Louisiana Purchase and the Mexican Cession. In Dred Scott v. Sandford (1857) the Supreme Court declared any restriction on slavery in the territories was unconstitutional. This made slavery legal in every existing federal territory. Slavery flourished in the nation’s capital, although public auctions (but not private sales) were banned in 1850. Federal law prohibited free Blacks (and slaves) from serving in the army, receiving passports, delivering the mail, or becoming naturalized citizens.[8] Free Blacks who entered southern states were often subject to immediate arrest. The Fugitive Slave Law of 1850 allowed the removal of northern Blacks (even those who might be free) after a summary hearing without a jury, where they were denied the right to testify on their own behalf, and, in a clear violation of the Constitution, denied the privilege of the writ of Habeas Corpus. Congress had provided for federal commissioners in every county of the nation to enforce this law with the help of U.S. marshals, federal troops, and state militias. Federal laws and policies never harmed slavery or denied the southern states the right to regulate race, status, and even freedom of speech and the press to protect slavery. 

Indeed, rather than claiming their states’ rights were being violated, the secessionists demanded an end to northern states’ rights. The secessionists would have abolished freedom of speech, press, religion, and association in the North, to suppress any criticism of slavery. While Southern states refused to recognize the liberties and rights of free Blacks from the North, through their “states’ rights,” they wanted to prohibit Northern states from emancipating any slaves voluntarily brought into free states. 

Secession combined two themes. First, the slave states had a “my way, or the highway” approach to race and slavery. The North had to acquiesce to the demands of the South. Second, secession was the political response of the ultimate sore loser. Southerners had happily participated in presidential elections since 1788, and with the exception of John Adams and John Quincy Adams, all presidents had been slaveowners or pro-slavery northerners. But Lincoln believed “[i]f slavery is not wrong, nothing is wrong.” One electoral loss was enough for eleven slave states to take their football and go home. For the South, there was no “long train of abuses”—only the election of one president who hated slavery. There were no “abuses” because the Confederacy began before the new president took office. 

Ironically, had they not seceded, the thirty slave state senators could have found six (or more) northern senators to join them in blocking any legislation that would have harmed slavery. 

III: Applying the Theory of Separation to the Slave South 

How do the legitimating elements of secession or revolution in the Declaration of Independence connect to the actual historical events and circumstances of 1860-61?

1: The Consent of the Governed. 

All the Confederate states initially entered the Union on their own, with the consent of their electorate. Virginia, North Carolina, South Carolina, and Georgia had existed as independent states before ceding that independence by joining a “perpetual Union.” Tennessee, Louisiana, Mississippi, Alabama, Florida, and Arkansas had no independent existence before statehood. As territories, created by Congress, or part of an existing state, the people voted for statehood. Texas had been an independent Republic before voluntarily abandoning that status for statehood. All of these states accepted their subordinate status to the United States through a democratic process that included electing delegates to ratification conventions, writing and ratifying new state constitutions, ratifying them through elected representative or plebiscites, and accepting statehood. Clearly, the people of the states gave their “consent” to be in a “perpetual Union.” 

Once in the Union, southerners reaffirmed their consent by electing members of Congress and voting for the President in elections from 1788 until 1860, when as sore losers, they left the Union because they did not like who was elected President. Before 1861, the national government built roads, forts, harbors, lighthouses, and other internal improvements in the South and armed southern militias. The people of the United States paid for the forced removal of most native Americans from North Carolina, Georgia, Tennessee, Alabama, and Mississippi, even though those Native nations were at peace before these removals. The United States transferred land taken from Natives to southern whites. Southerners also benefitted when the nation’s military force protected them from Native Americans, foreign enemies, and their own slaves. Southern whites were given full scholarships to West Point and the Naval Academy. Among the many recipients of this taxpayer funded education were the future Confederate president, Jefferson Davis, and some 150 Confederate generals, including Robert E. Lee, Thomas J. “Stonewall” Jackson, J.E.B. Stuart and Joseph E. Johnston (the highest-ranking U.S. Army officer to join the Confederacy). 

Before 1861 Southerners dominated the key Congressional positions, including Speaker of the House and Senate majority leader. Southerners were almost always a majority in presidential cabinets. The Supreme Court usually had a slaveholding majority, and most northern justices were proslavery doughfaces. Two slave-holding Chief Justices served from 1801 to 1864. The Supreme Court supporting slavery in Prigg v. Pennsylvania (1842), Dred Scott v. Sandford (1857), and Ableman v. Booth (1859), with 1, 2 and 0 dissents from northerners on the Court. 

Of the first fifteen presidents, eleven were southern slaveholders or northerners from slave owning families. From 1789 to 1861 southern-born slaveholding presidents served as president for 50 years while northerners served for only 22 years, but for fourteen of those years the president was a proslavery northerner. All five of the two-term presidents were southern slaveowners. No one, with a straight face, could argue that the South was not represented—or even over-represented—in the United States government. 

The Confederacy could not meet the first criteria that would legitimate secession or revolution—the lack of the consent of the governed. From 1789 to 1860 Southerners had consented to the form of the national government, over and over again. 

2: Destructive to the Interests of the Governed. 

From 1789 until 1861 federal laws, executive policies, and Supreme Court decisions supported slavery. This support grew in the years before secession. In 1845 Congress annexed Texas—an “Empire for Slavery.” In 1846-48 the United States fought a war of aggression with Mexico that most Americans, North and South, saw as aimed at gaining new territory for the expansion of slavery. The Compromise of 1850 gave the South a new fugitive slave law which created the first national law enforcement system in the United States and guaranteed that the taxpayers of the nation would expend significant amounts of money to return fugitive slaves to their owners. The Compromise allowed slavery in all the remaining territories acquired from Mexico, including land that was well north of the Missouri Compromise line, gifted millions of dollars to Texas, to pay debts it accrued while an incompetently run independent Republic, and gave vast amounts of land to Texas that had never been considered part of the Mexican state of Tejas. The Kansas-Nebraska Act (1854) repealed the Missouri Compromise’s limitations on slavery in the remaining unorganized territories that had been part of the Louisiana Purchase. Two northern presidents spent considerable energy and money sending an army into Kansas, in an ultimately unsuccessful attempt to force that territory to come into the Union as a slave state, over the objections of the free state majority. In Dred Scott (1857) the Supreme Court, with the votes from two of four northern Justices declared Congress could not prohibit slavery in any federal territories. In a concurring opinion Justice Samuel Nelson of New York, strongly hinted that slaveowners had a constitutional right to take their slaves into the free states. In the 1850s three northern presidents vigorously enforced the 1850 fugitive slave law, prosecuting many northerners for opposing it. While a handful of fugitives were rescued, about four hundred were returned to the South at considerable cost to the taxpayers. In Ableman v. Booth (1859) a unanimous Supreme Court, which included four Northerners, one of whom was personally antislavery, upheld the 1850 law, emphatically rejecting the states’ rights claims of Wisconsin that it could protect Black residents and their White allies in a fugitive slave case. That year federal troops captured the abolitionist John Brown, when Virginia authorities and the local militia, were unable to do so. 

Far from being destructive of the interests of the South, the national government expended time and significant amounts of money to protect slavery. Once again, the secessionists failed to meet the test set out in the Declaration of Independence for when secession might be legitimate. The national government was always supportive, and never destructive, of southern interests. 

3: Deference to long established governments. 

Since the Revolution the South had benefitted from the long-established national government. The governments of some northern states were hostile to slavery and did not cooperate with the enforcement of the fugitive slave law. But, in Prigg v. Pennsylvania (1842) the Supreme Court held that Congress could not obligate the states to do so, and the 1850 law was designed to make state enforcement unnecessary. Northern states did not offer comity to southerners who wanted to bring slaves into their jurisdiction and South Carolina complained about this in its secession declaration. But the slave states similarly refused to give comity to visiting northern Black citizens. When Massachusetts sent representatives to Charleston and New Orleans to negotiate some modus vivendi on this issue, local officials hurried them out of the state, refusing to even discuss the matter. White northerners visiting the South risked arrest for the mere possession of newspapers or books that criticized slavery. Meanwhile, the North offered great hospitality to southerners, who visited their cities, engaged in commerce with the North, and sent their children to northern colleges. The southern nationalist John C. Calhoun studied at Yale and the southern legal scholar Thomas R.R. Cobb used northern libraries to conduct his proslavery research. Some northern clergymen preached in support of slavery as did visiting southern clergymen. In the South it was illegal for anyone, even clergymen, to challenge slavery. 

Thus, on the issue of a long-standing government, there were no legitimate southern grievances against the federal government. While deep South secessionists complained that the North would not cooperate with the return of fugitive slaves, the people of the four most northern slave states, where most fugitives escaped from, remained loyal to the United States, in part because they believed the Union worked in their favor and even the fugitive slave law was working reasonably well.[9]

4: Revolution or secession are legitimate in response to a “a long train of abuses and usurpations” which “evinces a design to reduce” a people to live “under absolute despotism.” It is impossible to find any abuses, much a less a long train of abuses, that the federal government imposed on the South. With the exception John Adams and John Quincy Adams, every U.S. president was either a southern born slaveowner or a proslavery northerner. Martin Van Buren and James Buchanan came from slave owning families. No president, not even John and John Quincy Adams, ever initiated policies that harmed the South or slavery. Some northern political leaders were openly hostile to slavery and three major national churches—Presbyterians, Methodists, and Baptists—has schisms over slavery. But this was not political policy and had nothing to do with the federal or state governments. Northern states exercised their states’ rights to end slavery and emancipate slaves brought within their jurisdiction. But this was not a national policy, and it was also the mirror image of policies by the Southern states that were hostile to the rights of visiting northerners, Black and White. None of this was part of national policy, and none of this rose to the level of a long train of abuse. 

Once again, the South failed to meet any standard for a legitimate renunciation of its mutual obligations under the perpetual union. 

5: Finally, there is Jefferson’s assertion that “a decent respect to the opinions of mankind requires” requires an explanation for secession, which is tied to Jefferson’s assertion “That all men are created equal” and are entitled to “life, liberty, and the pursuit of happiness.” Certainly in 1860 most of the western world did not believe in “equality” for all people. Europe was governed by hereditary monarchs and princes. A British laborer, farmer, or seaman was clearly not “equal” to members of Parliament or Queen Victoria. But, unlike 1776, most western Europeans agreed that slavery was fundamentally wrong, and Blacks deserved basic rights. A nation based on slavery and the complete subordination of all people of African ancestry was clearly hostile to “a decent respect to the opinions of mankind.” One might make a theoretical argument about secession in a historical vacuum, but in the American context, this argument cannot be divorced from the reality that, as Alexander Stephens put it, secession embraced the idea that “the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition.” This hardly comported with the “the opinions of mankind” in 1861. 

IV: Southern Irrationality and What Secession War Really About 

In 1860 mainstream constitutional thinkers, on all sides of the slavery debate, agreed on the following: 1) Congress had no power to interfere with slavery in the states where it existed; 2) the Supreme Court had upheld the Fugitive Slave Laws of 1793 and 1850 and while states were not obligated to help enforce the laws, they could not obstruct them; 3) slaves were privately held property, and any emancipation scheme by the federal government would require compensation under the fifth amendment; 4) any amendment to the Constitution harming slavery would require a two-thirds vote in both houses of Congress and ratification by three fourths of the states. With fifteen slave states in a 33 state Union, such an amendment would be impossible to pass in Congress, and if by some reason it did pass, the 15 slave states could block its ratification. Indeed, today, in 2022, the 15 slave states that existed in 1860 could block any amendment, since it would require 45 states, in a 60-state union, to outvote the slave states. When we think this through, we realize that the Constitution protected slavery forever. 

In his first inaugural Lincoln acknowledged this understanding of the Constitution: “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so. Those who nominated and elected me did so with full knowledge that I had made this, and many similar declarations, and had never recanted them.” He then quoted from the 1860 Republican platform: 

the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend. 

Seven states had seceded before Lincoln took office. But the leaders of those states were fully aware of Lincoln’s position and that of the Republican Party. 

The Republicans were pledged to allow no new slave states into the Union, which in theory threatened the South. But there was no reason to believe the Republicans would become a permanent majority, or that Lincoln would win reelection. No president had been reelected to a second term since 1832. As noted above, absent secession, a coalition of Southerners and northern Democrats would have controlled the Senate after Lincoln’s election, thus preventing the passage of any anti-slavery legislation. 

Southerners had never believed in a theoretical right of secession. During the War of 1812 they condemned northern Federalists who met at the Hartford Convention to consider seceding from the Union because the Constitution favored slavery. Southern members of Congress pushed through a censure motion when John Quincy Adams, serving in the House after his presidency, read a petition from some Garrisonian abolitionists asking for a peaceful dissolution of the Union. Adams adamantly opposed the petition. But Southerners seeking political theater successfully pushed for a trial to expel him. They failed to expel him, but made the clear point that northerners, and opponents of slavery, had no right to even talk about disunion. 

Secession was always a southern political threat to blackmail northerners to support them at every turn in American history. The election of Lincoln changed the game because he might resist their blackmail and their insistence on always getting their way. 

So, the Deep South left the Union. Lincoln did not confront the putative Confederate nation and persistently invited the southerners to peacefully return to their Constitutional role. Perhaps if they had remained in Congress, there might have been a peaceful accommodation and separation. But the slaveholding leaders of the South were uninterested in accommodations or negotiations. They believe their own propaganda and lies, that the North was too weak to fight, and they were too strong to lose. So, the Confederacy attacked the United States of America. 

This eventually led to a final resolution of the legality of secession, which took place at Appomattox Courthouse on April 9, 1865. 

Paul Finkelman holds the Rydell Visiting Chair at Gustavus Adolphus College. You can contact him at

[1] Alexander H. Stephens, “The Cornerstone Speech,” reprinted in Paul Finkelman, Defending Slavery: Proslavery Thought in the Old South (Boston: Bedford Books, 2020) 88, 90-91. 

[2] In regard to slavery Jefferson never applied these principles in his personal or political life., and never considered his hundreds of slaves “equal” or entitled to “liberty” or to “pursue” their own “happiness.” Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (3rd ed.) (New York and London: Routledge, 2014). 

[3] Quoted in Donald L. Robinson, Slavery in the Structure of American Politics, 1765-1820 (New York, 1971) 80. 

[4] This contrasts with the early state constitutions. Except for Massachusetts, the state legislature promulgated the early state constitutions, without any input of vote from the people of the states. 

[5] Paul Finkelman, “The First Civil Rights Movement: Black Rights in the Age of the Revolution and Chief Justice Taney’s Originalism in Dred Scott,” 24 University of Pennsylvania Journal of Constitutional Law 676 (2022). 

[7] Paul Finkelman, States’ Rights, Southern Hypocrisy, and the Coming of the Civil War, 45 Akron Law Review 449-478 (2012).

[8] Paul Finkelman, “Race, Slavery, and Federal Law, 1789-1804: The Creation of Proslavery Constitutional Law Before Marbury, 14 University of St. Thomas Law Journal 1-26 (2018).

[9] Stanley Harrold, Border War: Fighting over Slavery before the Civil War (Chapel Hill: University of North Carolina Press, 2010).

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