Union and States' Rights: 150 Years After Sumter, A Legal History of Interposition, Nullification, and Secession

3. States’ Rights, Southern Hypocrisy,and the Crisis of the Union

51 3 States’ Rights, Southern Hypocrisy, and the Crisis of the Union PaulFinkelman,AlbanyLawSchool D ecember 20, 2010, marked—one cannot say celebrated—the sesquicentennial of South Carolina’s secession. By the end of February 1861, sixotherstateshadfollowedSouthCarolinaintotheConfederacy.Most scholars fully understand that slavery was at the root of secession and the war thatfollowed.AsAbrahamLincolnnotedinhissecondinauguralin1865,“Oneeighth of the whole population were colored slaves, not distributed generally overtheUnion,butlocalizedinthesouthernpartofit. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war.”1 What Lincoln admitted in 1865, Confederate leaders had asserted much earlier. After secession but before the Civil War broke out, Alexander H. Stephens , the Confederate vice president and one of the two most perceptive and brightestmenintheConfederategovernment,2 forcefullysetoutthereasonsfor secession in his famous “Cornerstone Speech.” Here, Stephens tied slavery to race,makingclearthatthecornerstoneoftheConfederacywasnotmerelychattel slavery, but the total subordination of black people for the benefit of white people. In this sense, the Confederacy was the political grandparent of Nazi Germanyandapartheid-eraSouthAfrica—regimesfoundedontheassumption of the racial and ethnic superiority of the ruling class and the utter inferiority andsubordinationofotherracesandgroups.ThusStephensdeclared,“Ournew government is founded upon...its foundations are laid, its corner-stone rests, 52 States’ Rights, Southern Hypocrisy, and the Crisis of the Union uponthegreattruththatthenegroisnotequaltothewhiteman;thatslavery— subordination to the superior race—is his natural and normal condition.”3 Stephens denounced the Northern claims (which he incorrectly attributed toThomasJefferson)thatthe“enslavementoftheAfricanwasinviolationofthe laws of nature; that it was wrong in principle, socially, morally, and politically.”4 He unabashedly asserted: “Our new government is founded upon exactly the oppositeidea.”5 Stephensarguedthatitwas“insanity”tobelieve“thatthenegro is equal” or that slavery was wrong.6 He proudly predicted that the Confederate Constitution “has put at rest, forever, all the agitating questions relating to our peculiarinstitution—Africanslaveryasitexistsamongstus—theproperstatus of the negro in our form of civilization.”7 StephensechoedSouthCarolina’sdeclaration,explainingthatitwasleaving the Union because AgeographicallinehasbeendrawnacrosstheUnion,andalltheStatesnorth of that line have 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.8 In other words, South Carolina was leaving the Union because Lincoln believed slavery was wrong and should one day—in the far distant future—be ended. ShortlyafterSouthCarolinalefttheUnion,Georgiadidthesame.Beginning with the second sentence of its Declaration of Secession, Georgia made it clear that slavery was the force behind secession: For the last ten years we have had numerous and serious causes of complaint againstournon-slave-holdingconfederateStateswithreferencetothesubject of African slavery. They have endeavored to weaken our security, to disturb our domestic peace and tranquility, and persistently refused to comply with their express constitutional obligations to us in reference to that property, and by the use of their power in the Federal Government have striven to deprive us of an equal enjoyment of the common Territories of the Republic. This hostile policy of our confederates has been pursued with every circumstance of aggravation which could arouse the passions and excite the hatred of our people, and has placed the two sections of the Union for many years past in the condition of virtual civil war.9 paul finkelman 53 Mississippi emphatically made the same point, starting with the second sentence of its own declaration: “Our position is thoroughly identified with the institution of slavery—the greatest material interest of the world.”10 Despitethealmostuniversalunderstandingofseriousscholarsthatslavery and racial subordination were at the root of secession and the Civil War—and thealmostendlessstatementsofConfederateleaderssupportingthisanalysis— aconsiderablenumberofAmericansclingtothebeliefthatsecessionwasabout ‘states’rights’andthatSouthernerslefttheUniontoescapeatyrannicalnational governmentthatwastramplingontheirrights.Advocatesofthisold-fashioned, and simultaneously modern, neo-Confederate ideology rarely discuss the substanceofSouthernstates ’rightsclaims,becausetheywilleitherleadtoanintellectual dead end or lead back to slavery. The relationship of secession to states’ rights is often misunderstood, especially by those who argue that the slave states left the Union to protect their states’ rights. The Southern states did not leave the Union because the national government was trampling on their rights. The states that left the Union never asserted that they were being denied their states’ rights—that the national governmenthadobliteratedthelinesbetweennationalpowerandstatepower .Nor didtheSouthernstatescomplainthatthenationalgovernmentwastoopowerful andthatitthreatenedthesovereigntyofthestategovernments.Onthecontrary, the Southern states mostly complained that the Northern states were asserting their states’ rights and that the national government was not powerful enough to counter these Northern claims. Similarly, the secessionists did...