Union and States' Rights
150 Years After Sumter, A Legal History of Interposition, Nullification, and Secession
Publication Year: 2013
Published by: The University of Akron Press
Title Page, Copyright, Dedication
I am sincerely grateful to Paul Finkelman, who urged me to select the topic that ultimately produced this collection and gave me valuable advice along the way. Dan Farber also provided valuable advice along the way. I am much appreciative. I was fortunate that Farber, Finkelman, Hamilton, and Neff, all eminent scholars, graciously agreed to participate in the Section on Legal History at the ...
This collection addresses questions fundamental to the American Union, from historical, legal, political, and social/moral perspectives. When deep substantive disagreements between the federal and state governments long persist without foreseeable resolution, what extraordinary options do the governments and the people have? That is, what options are available ...
I. James Madison’s Views
1. “A Real Nondescript”James Madison’s Thoughts on States’ Rights and Federalism
On March 12, 1833, four days before his eighty-second birthday, James Madison wrote Senator William Cabell Rives to commend the speech that his Virginia protégé had just given denouncing the dangerous constitutional theory of nullification emanating from South Carolina. “It seems strange that it should be necessary to disprove this novel and nullifying ...
2. James Madison and the Constitution’s “Convention for Proposing Amendments”
This language requires all amendments to be ratified by three-fourths of the states (through legislatures or conventions). It also provides for two distinct ways of proposal: by two-thirds of each chamber of Congress or by a “Convention for proposing Amendments,” called by Congress on application by two-thirds of the state l ...
II. Antebellum Arguments
3. States’ Rights, Southern Hypocrisy,and the Crisis of the Union
December 20, 2010, marked—one cannot say celebrated—the sesquicentennial of South Carolina’s secession. By the end of February 1861, six other states had followed South Carolina into the Confederacy. Most scholars fully understand that slavery was at the root of secession and the war that followed. As Abraham Lincoln noted in his second inaugural in 1865, “One-eighth ...
4. Still Too Close to Call?
In a classic article in the Journal of American History, which was based on his presidential address to the Organization of American Historians in 1978, the great Civil War historian Kenneth Stampp made the claim that the arguments in favor of the constitutionality of secession made by the Southern states were as strong, if not stronger than the constitutional arguments made, then and ...
5. Secession and Breach of Compact
In the crisis of 1860–61, the architects of Southern secession were determined to justify their drastic action in legal terms. Not for them was a resort to naked power politics, in which brute force would be its own badge of legitimacy. This firmly legalistic outlook on the part of Southern leaders had been building up over the preceding decades. An important early figure was Robert J. Turnbull of South ...
6. William Rawle and Secession
The constitutional issue of secession is as dead as any once-live issue in U.S. constitutional law can be, buried beyond recall by “the constitutional experts on Missionary Ridge” who successfully fought a great Civil War to put down the Republic’s one episode.1 Even to understand what the issue involved in its antebellum heyday is a little tricky. Not only is the question obsolete ...
III. Impact of the 14th Amendment
7. The 14th Amendment and the Unconstitutionality of Secession
April 18, 1861, was a fateful day in American history. On that day, a talented fifty-four-year-old army officer was offered the command of the Union Army.1 But on the same day, he learned that his home state of Virginia had decided to secede from the Union.2 Although a Southerner, he was not enthusiastic about the institution of slavery.3 He opposed secession, saying ...
IV. Contemporary Views of Interposition, Nullification,and Secession
The 150th anniversary of American secession is an appropriate time to revisit the idea of interposition, a doctrine that was misconstrued and stigmatized not only in the period leading up to the Civil War but long afterward. Inevitably linked with the discredited constitutional heresy of nullification (and, by extension, secession), interposition as a legitimate aspect of ...
9. Originalism’s Limits
Conventional wisdom on interposition, nullification, and secession has two components: First, prior to the Civil War, it was a plausible—though not necessarily the strongest—claim that states were constitutionally permitted to use the ‘tools’ of interposition, nullification, and secession;1 and second, following the Civil War, that claim became false.2 In this chapter, I use ...
V. Critical Views of Federalism,States’ Rights, and Memories of Secession
10. Union and States’ Rights 150Years after Sumter
Several years ago I published a piece with a question as the title: Is Secession the Achilles Heel of “Strong” Federalism?1 That essay was far from the ‘last word,’ so I want to return to some of the issues that I explored then, which have been supplemented, of course, by subsequent developments. What do I mean by ‘strong federalism’? It is, I believe, essential to distinguish federalism, ...
11 Remembering Our Second Revolution
Slavery and secession rest in uneasy union at the Fort Sumter National Monument. This remains true even after an elaborate ‘interpretive’ renovation by the National Park Service (NPS) in preparation for the sesquicentennial commemoration of the Civil War in 2011. The alterations were made to meet Congress’s demand that Civil War battlefields “recognize and include in all of ...