Defenses of the Right of Secession

Smith discusses the doctrine of state sovereignty, as defended by Alexander Stephens, Thomas Jefferson, and John C. Calhoun.

George H. Smith

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In 1868 and 1870, Alexander H. Stephens, former Vice-​President of the Confederacy, published a massive two-​volume work (A Constitutional View of the Late War Between the States) that defended the doctrine of state sovereignty and the right of secession. In over 1400 pages, Stephens defended the Lost Cause with considerable skill, tracing the relationship between the states and the federal government from the Revolutionary War, though the Articles of Confederation and the Constitution, up to the Civil War. Although Stephens identified slavery as the “proximate cause” of the war, he believed that fundamental differences between constitutional interpretations lay at the root of the conflict.

Stephens said little that was new, but, in tracing the history of the state-​rights doctrine, he discussed every major argument on both sides of the conflict. His accounts, including his summaries of the anti-​secession side, are quite objective and thus remain useful to the modern reader. In fact, I know of no other work that equals A Constitutional View in its thoroughness or scope. Especially valuable are the lengthy quotations provided by Stephens from a wide variety of sources. In his ambitious three-​volume study of the American mind, Main Currents in American Thought (1927, 1930), Vernon Parrington spoke highly of Stephens’s work.

The case for states rights has never been more convincingly put than in this monumental study. The first volume in particular, which deals with the history of the Constitution, is an acute and able work. The thesis on which it rests is the doctrine which Paine and Jefferson derived from the French school, namely, that a constitutional compact is terminable. Elaborated by Stephens and applied to the case in question, the doctrine becomes this: that the right of secession is a civil as well as a revolutionary right; that it is implied in the compact originally entered into by the several states; that any state may rightfully take back what it had peacefully granted, when such action shall seem to it desirable. The sovereign commonwealth has never abrogated its sovereignty; the Constitution is a Federal compact amongst equals; the United States is a federated Union, not an organic nation.

Stephens was a liberal of the Jeffersonian school. While serving as Vice-​President of the Confederacy, he opposed the statist measures, including conscription and the suspension of habeas corpus, imposed by the Confederate President, Jefferson Davis. There was no love lost for Stephens among the fans of Davis, some of whom called Stephens a traitor to their cause.

In contrast to those followers of Alexander Hamilton who advocated coercive allegiance to a strong centralized (or “consolidated”) government, Stephens defended voluntary allegiance; only the spontaneous allegiance of citizens will sustain a just and enduring government. And, like Jefferson, Stephens argued that local communities are the best breeding ground for voluntary allegiance. He wrote:

A Government, to be worth anything…must be strong. Its parts and members must be hold together by force of some sort. This I cordially admit. We do not differ as to the force or its extent; we differ only as to its nature and character. Should it be a physical or moral force? In my judgment, the strongest force that can hold the parts of constituent elements of any government together, is the affection of the people towards it.

Stephens maintained that Thomas Jefferson had supported the right of secession. “He fully believed in the right of any State to withdraw when the terms of the Compact were broken by the other parties to it, and he believed in the perfect and absolute right of each party for itself to judge, as well of infractions of the Compact as well as the mode and measure of redress.” Secessionists who appealed to Jefferson as a significant precedent typically cited his Kentucky Resolutions of 1798, which were a response to the Alien and Sedition Acts passed during the administration of John Adams. Jefferson condemned the Acts as unconstitutional; and during the age before the Supreme Court was accepted as the final arbiter of constitutional matters, Jefferson argued that states should be the final judge. Jefferson’s first resolution stated:

Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-​government; and that whenever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-​States forming, as to itself, the other party: That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that in as in all other cases of compact having no common judge, each party has an equal right to judge for itself, as well as infractions as of the mode and measure of redress.

Jefferson argued not for the right of secession per se, but for the right of a state to nullify a federal law that it regarded as unjust. John C. Calhoun used essentially the same argument to justify the right of South Carolina to nullify the extremely high tariff passed in 1828—the Tariff of Abominations, as its critics called it—that benefitted the manufacturing interests in the North at the expense of the agrarian interests in the South. But the state-​rights argument against the tariff could easily be used to justify the right of secession. Indeed, some opponents of the tariff threatened secession if their grievances were not addressed, and those threats continued sporadically until the secession crisis of 1860.

The case for state-​rights was nicely summarized by Dwight Dumont in his 1933 book, The Secession Movement, 1860-1861.

The state-​rights men considered the federal government an agent of the sovereign states, entrusted with certain carefully defined powers, for the performance of specific duties. State governments, they maintained, did not derive any power whatsoever from the Constitution or the federal government; on the contrary, whatever powers the latter possesses were bestowed upon it by the states through the Constitution. Its powers being derivative, the state which delegated them might take them away. Whatever powers had not been delegated to the federal government nor prohibited by the states had been reserved to the respective states. The fact that a division of powers had been made confirmed the intention of limitations, and implied a power capable of enforcing restrictions. The question was, where did this power of determining the extent of limitations and reserved powers reside? Webster and the federal school said that in all suits in law and equity the Supreme Court was the final judge, and that in cases not capable of being argued before that tribunal Congress must judge of, and finally interpret, the powers of the federal government. Calhoun, Hayne, and the state-​rights school held this doctrine to be a presumption utterly unwarranted either by interpretation of the Constitution itself or the circumstances of its inception. They regarded the Constitution as an instrument of union between states which had never surrendered their sovereignty nor agreed to unlimited submission to the government created by the compact. The states, and not the government so created, were the final judge of the extent of their reserved power. In case the federal government arrogated authority beyond the limits of the delegation or encroached upon the reservations, each state had the right to determine for itself the nature and extent of remedial measures.

The argument for state rights was not a slam dunk. The Constitution is not entirely clear on this issue, as we see in provisions that seem to favor a consolidated national government over a confederation of sovereign states. But, on the whole, I think that secessionists had a better constitutional case. Their case, however, was substantially undercut by the unfortunate fact that Southerners typically appealed to state rights to defend the institution of slavery. For many years after the Civil War the doctrine of state rights was associated with slavery, as well as with the right of rebellion. These associations made the doctrine of state rights anathema to many Northern intellectuals, who adopted an organicist theory of the United States in its place—a perpetual union that could never be dissolved.

To mention just two changes in the post-​war attitude: Before the Civil War it was common to refer to the United States with a plural verb: The United States are…. After the Civil War, however, it became more common to use the singular verb: The United States is…. In addition, the word “union,” which suggested a confederation of sovereign states, gave way to “nation.”