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
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 govern-ments long persist without foreseeable resolution, what extraordinary options do the governments and the people have? That is, what options are available beyond discussion and compromise in the federal legislative and executive Do the states, on behalf of themselves and their citizens, have rights that ...
IJames Madison’s Views
1 “A Real Nondescript”James Madison’s Thoughts on
...1 “A Real Nondescript”James Madison’s Thoughts on States’ Rights and FederalismJack N. Rakove, Stanford UniversityOn 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 con-stitutional theory of nullification emanating from South Carolina. “It seems strange that it should be necessary to disprove this novel and nullifying doc-trine,” Madison observed, “and stranger still that those who deny it should be ...
2James Madison and theConstitution’s “Convention forProposing Amendments”
...2James Madison and the Constitution’s “Convention for Proposing Amendments”Robert G. Natelson, The Independence InstituteThe Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for pro-posing Amendments, which, in either Case, shall be valid to all Intents and ...
3 States’ Rights, Southern Hypocrisy,and the Crisis of the Union
...3 States’ Rights, Southern Hypocrisy, and the Crisis of the UnionPaul Finkelman, Albany Law SchoolDecember 20, 2010, marked—one cannot say celebrated—the sesqui-centennial 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 of the whole population were colored slaves, not distributed generally ...
4 Still Too Close to Call?
...4 Still Too Close to Call?Rethinking Stampp’s “The Concept of a Perpetual Union”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 argu-ments 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 now, in opposition to secession.1 Stampp is probably the greatest Civil War his-...
5 Secession and Breach of Compact
...5 Secession and Breach of CompactThe Law of Nature Meets the United States ConstitutionIn 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 Carolina, who became the principal intellectual mentor of John C. Calhoun. In ...
6 William Rawle and Secession
...6 William Rawle and SecessionLegal Rights and Political WrongsH. Jefferson Powell, Duke University School of LawThe 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 obso-lete, but so as well are some of the concepts that statesmen and lawyers used ...
IIIImpact of the 14th Amendment
7 The 14th Amendment and theUnconstitutionality of Secession
...7 The 14th Amendment and the Unconstitutionality of SecessionDaniel A. Farber, University of California, BerkeleyApril 18, 1861, was a fateful day in American history. On that day, a tal-ented 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 that the Framers would never have “exhausted so much labor, wisdom, and for-...
IVContemporary Viewsof Interposition, Nullification,and Secession
...8 InterpositionAn Overlooked Tool of American ConstitutionalismChristian G. Fritz, University of New MexicoThe 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 nul-lification (and, by extension, secession), interposition as a legitimate aspect of American constitutionalism has been a casualty of politics and sloppy history. ...
9 Originalism’s Limits
...9 Originalism’s LimitsInterposition, Nullification, and SecessionLee J. Strang, University of Toledo College of LawConventional 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 these two facets of conventional wisdom to exemplify an originalist approach to ...
VCritical Views of Federalism,States’ Rights, and Memories ofSecession
10 Union and States’ Rights 150Years after Sumter
...10 Union and States’ Rights 150 Years after SumterSome Reflections on a Tangled 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, whether weak or strong, from decentralization. The latter is merely a technique ...
11 Remembering OurSecond Revolution
...11 Remembering Our Second RevolutionSesquicentennial Reflections on “We do not repeat because we repress, we repress because we repeat.” Slavery and secession rest in uneasy union at the Fort Sumter National Mon-ument. 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 ...
Publication Year: 2013
Series Title: &Law