Алистер Смит - The Spoils of War - Greed, Power, and the Conflicts That Made Our Greatest Presidents

As clearly and rigorously as Jefferson argued the case for the replacement of laws every nineteen years, once in the office of president he seems to have had a change of heart. He did not, after all, promote the dissolution of the United States as his second term drew to a close nor, as far as we can tell, did he urge his hand-picked successor, James Madison, to dissolve the government. So, it is pretty clear that the Constitution was accepted as an ongoing body of fundamental law even by people, like Jefferson, who felt that to impose existing law on future generations was “an act of force, and not of right.” Yet he, no less than the federalists who were enthusiastic about the Constitution, embraced the idea that it defined how states and the federal government were to relate to one another and how the people in the United States were to be governed.

Still, as the country became more secure and grew, it was not devoid of those who argued that secession was the right of any discontented people. Those who advocated the right of secession expressed a sentiment consistent with the Declaration’s statement that “when a long train of abuses and usurpations, pursuing invariably . . . absolute Despotism, it is their [that is, the people’s] right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” For example, a member of the House of Representatives argued on January 12, 1848:

Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right—a right which, we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can may revolutionize, and make their own of so much of the territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority , intermingled with, or near about them, who may oppose their movement.36

The person who made this argument on the floor of that august institution was a one-term freshman member of Congress named Abraham Lincoln. A mere thirteen years later, then president Lincoln seems to have utterly disavowed his support for this “most sacred right,” with one crucial exception, to which we turn momentarily.

First, however, we should consider that today a politician reversing his stance on so large an issue would be accused of flip-flopping, adjusting his principles to be aligned with the mood of the voters at the moment. And indeed, Lincoln made no pretense about the political foundation of his antisecessionist position in the 1860s. He had run on a particular platform and he did not plan to abandon his core constituency for the sake of keeping the Union together. For instance, President Buchanan asked Duff Green, a close friend of Lincoln’s, to solicit his views on a compromise solution to avoid dissolution of the Union. Lincoln responded positively to possible constitutional amendments to protect the South’s interests without agreeing to the spread of slavery. However, he ultimately opposed the package of compromises known as the Crittenden Compromise, including six constitutional amendments, because they were inconsistent with the Republican Party platform on which he had run. Duff Green reported back to President Buchanan that “Lincoln promised to write out his views in a letter . . . but the president-elect sent the letter first to close party operatives in Washington, Radical Republicans who never allowed the letter to go public.” As Green’s biographer reports, as a result, “Green . . . blamed them for the War between the States.”37

As to the one crucial exception to Lincoln’s latter-day disavowal of the “most sacred right” that he endorsed in 1848, we must recognize that in the context of the South’s secession, Lincoln had no hesitation in ignoring, reinterpreting, or outright distorting the intent of the authors of the Constitution when he granted statehood to West Virginia upon their secession from secessionist Virginia. Article 4, Section 3, clause 1 of the Constitution of the United States says, “New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” Now as it happened, the people in the northwestern portion of Virginia objected to their state’s secession. In the spirit of Lincoln’s speech in 1848, they “revolutionized” against the state of Virginia by forming their own government, “erected within the Jurisdiction” of Virginia contrary to the Constitution. They could not have formed such a state under the Constitution if President Lincoln considered Virginia to still be part of the Union, with only its elected officials engaged in the illegal act of secession. Rather than viewing West Virginia’s secession from Virginia as an act contrary to the Constitution, Lincoln and the remaining, loyal state delegations in the House and Senate accepted the secessionist government of West Virginia as legitimate, seating two senators and their House members in Congress.

Lincoln’s position was consistent with the Constitution only if he, an accomplished attorney, accepted that Virginia was no longer part of the United States (as it declared to be the case). In that instance, West Virginia’s formation would not have violated the Constitution. However if Virginia was considered still part of the Union, as Lincoln deemed it to be, then West Virginia’s admission to the Union was impossible without the agreement of Virginia’s legislature—agreement that was not forthcoming.

As we have noted, apart from establishing conditions for the creation of a new state from an existing territory, the Constitution is silent on the subject of secession. In a somewhat remarkable post–Civil War finding, the Supreme Court ruled, in a divided decision, in Virginia v. West Virginia , 78 U.S. 39 (1871) that the State had assented to the withdrawal of the counties that formed West Virginia, making that action consistent with the Constitution. Furthermore, in Texas v. White , 74 U.S. 700 (1869), again in a divided vote, the Supreme Court judged that the Constitution provided for the “perpetuity and indissolubility of the Union”; that is, the Constitution, previously thought not to address the matter at all, prohibited secession, although it also acknowledged that the Union might be dissolved by “revolution, or through consent of the States.”

Thus, in a set of post–Civil War decisions, the court found that the Constitution denied the most sacred right that congressman and legal authority Abraham Lincoln argued for in 1848. We are in no position to question the wisdom of the court in the 1870s. Still, we must note that Lincoln gave the greatest historic weight to his view in support of internal revolt—perhaps we could call it “civil war”—in the sentences that immediately followed the quotation on page 127. He invoked the American Revolution, noting that it had been justified when the local majority rose up against the pro-British colonists: “Such minority was precisely the case of the Tories of our own Revolution. It is a quality of revolutions not to go by old lines, or old laws; but to break up both, and make new ones.”38

President-elect Lincoln faced not merely talk of secession but also the votes of virtually all southern states to secede from the Union. He was repeatedly pressed to look for a compromise and he routinely declined. He claimed that the secessionists for their own purposes ignored his clear statements that he meant not to alter the federal bargain and that there was no point in repeating his words to people who chose not to listen. In the same letter to Senator Hale that we quoted earlier, he said in this regard, “There is, in my judgment, but one compromise which would really settle the slavery question, and that would be a prohibition against acquiring any more territory.”39 William Herndon, Lincoln’s law partner, summarized Lincoln’s view on compromise quite succinctly: “Away—off—begone! If the nation wants to back down, let it—not I.”40