PART VI

SOUTH CAROLINA DARES

Just as the Old South’s civilization encompassed several different cultures, so the southern secession decision involved several different decisions. The verdicts occurred in sequential order and changed as the sequence unfolded. By far the most important of the evolving disunion decisions, not least because it came first, occurred in South Carolina. Despite the speed and unanimity of that precipitous state’s first strike, uncertainty momentarily overcame the necessary daring. South Carolinians’ paralyzing nervousness created a suspenseful climactic moment, with some fleeting conspiracy and some perfectly timed luck helping the first rebels to dare the plunge.

CHAPTER 22

The State’s Rights Justification

In 1860, a democratic obstacle blocked disunionists’ path. Revolution had to be won at the ballot box, not by a coup d’état. Yet most southern voters desired proof that Lincoln’s presidency would menace slavery. They doubted that Republicans could secure an overt act against their Peculiar Institution. They realized that the party would lack a congressional or Supreme Court majority. They cheered the New Orleans Bee’s one-word response to Lincoln’s election: “WAIT.”1

– 1 –

Many procrastinators wished to wait for years, perhaps forever, until Republicans committed an overt antislavery act. Others would hesitate only for months, until a southern convention met and Republicans rejected its ultimatum. No formal or informal poll demonstrated the size of the initial majority for “WAIT.” Nor did any vote demonstrate how many delayers favored only temporary hesitation.

But those in favor of awaiting either a southern convention’s failure or a Republican overt act, taken together, had to exceed 70 percent of southern citizens. In the Upper South, where two-thirds of white Southerners resided, secessionists lost prewar ballot tests by an average of four to one (counting Border and Middle South voters together). Disunionists might have even lost an early November Lower South referendum, if all Cotton South states had voted on the same day. Immediately after Lincoln’s election, a majority of Georgia, Louisiana, Texas, and Alabama voters possessed grave qualms about immediate disunion.

But in early November, while an overwhelming Southwide majority doubted the expediency of disunion, an even larger majority affirmed a state’s right to secede. If secessionists in just one state could secure a majority for the expediency of revolution, and if the federal government coercively denied that one state’s supposedly natural right to withdraw its consent to be governed, many southern states might join their coerced brothers. Thus could the secessionists’ state’s rights justification help swell an initial minority of uneasy rebels into an awesome majority of zealous revolutionaries.

– 2 –

Secessionists’ potentially saving state’s rights creed started as a legalistic bore. The 1860 secessionists (and their fathers and grandfathers) had grown up listening to endless disquisitions on how the states came before the nation, on how the states had ratified the U.S. Constitution, on how the ratifying bodies retained reserved rights and especially the right to withdraw their ratification, and on how the original parties to a contract can rescind the document if its terms are violated. South Carolina’s John C. Calhoun had especially labored (or if you will, lumbered) over a state’s legal right to secede. Confederate President Jefferson Davis and Vice President Alexander Stephens would return to such legalistic hairsplitting in their postwar memoirs.

But Calhoun, having died a decade before disunion, could be only partly the father of secession theory. His bloodless legalisms could not wholly overcome the disunity of the South. Daniel Webster’s unionist argument that the nation came before the states could be a convincing answer. Worse, tired legalisms dulled attention.

Disunionists needed instead an inspiring justification of a state’s holy right to secede, one that aroused cheers even among antisecessionists. In the tradition of 1776—in the (white) people of any single state’s natural right to withdraw consent to be governed—disunionists found their stirring state’s rights dogma. “Secession is pretty hard to comprehend,” wrote a young Virginian. “But we all know the meaning of Revolution!”2

Some 1860 legalistic disquisitions on a state’s right of secession never mentioned any natural right of revolution. More often, secessionists’ state’s rights justification mixed natural right with legal right. In a classic example, Louisiana’s U.S. Senator Judah P. Benjamin told fellow senators that a state held dual rights to secede. “The rights of the states under the Constitution,” declared Benjamin the lawyer, resulted “from the nature of their bargain.” If “sister states” break “the bargain,” the “breach of compact” invites injured states to “consider themselves freed” from the original contract. Yet even “if the bargain be not broken,” added this advocate of southern independence, if “wrong and oppression shall become sufficiently aggravated, the revolutionary right—the last inherent right of man to preserve freedom, property, and safety… must be exercised.”3

Unlike Benjamin, most 1860 justifiers of disunion ignored the bore of contracts and stressed the thrill of 1776. In his Inaugural Address as president of the Southern Confederacy, Jefferson Davis insisted that “the sovereign States” had “merely asserted the right which the Declaration of Independence” declared “inalienable.”4 So too, Professor James P. Holcombe reminded Virginia’s secession convention of “the right of the people to change their government peacefully, whenever they become dissatisfied.”5

To deny the people of a state their right of revolution, secessionists claimed, was to repudiate Americans’ most original contribution to republican theory. English republican theorists had located the magic power of sovereignty, meaning the uncontestable power to issue the final unchallengeable command, inside the government. In contrast, American late eighteenthcentury theorists separated the sovereign from the government. Sovereignty lay in the people, when exercising their authority to make or unmake governments. When the sovereign withdrew its consent to be governed, governance must cease.

The right of the governed to consent to government stemmed from universal natural right, possessed by all peoples at all time. In contrast, the people of a single state’s exclusive right to exercise that natural right drew on parochial historical experience, shared only by U.S. citizens since 1776. Here, Calhoun’s old legalisms did become newly important. As the South Carolina Nullifier had stressed, the people of each colony had withdrawn their consent from English governance. Then the people of each state had switched their consent to be governed from the Articles of Confederation to the U.S. Constitution. So it had always been, affirmed secessionists. Therefore, so it must always be.

Secessionists here descended from the breathless claim that all mankind could exercise a universal natural right, whatever a parochial culture’s experience, to the crabbed plea that only a state could exercise all humans’ right, because of America’s provincial experience. Disunionists thereby fractured natural rights logic but escaped a quagmire. If all humans could deploy a natural right to change their consent to be governed, wives could withdraw consent from husbands, children from parents, slaves from masters, western Virginians from Virginia. Such multiplying withdrawals could demolish all governance. Abolitionists’ fanaticism, Southerners claimed, would produce exactly that anarchistic nightmare.

State’s rights precluded the nightmare. By claiming that a state’s popular convention (or a state’s popular referendum) could alone exercise the right to withdraw consent, the slavocracy handed a sovereign’s invincible decree only to the right males of the right race in the right place. In the Lecompton finale of the Kansas crisis, as we have seen, this southern gospel stopped Howell Cobb (and thus James Buchanan) cold. Cobb could merely suggest that the almighty Kansas Lecompton Convention should submit its constitution to a popular referendum. A cabinet secretary, even if bearing the wishes of a president on a matter of life or death to the republic, remained a mere governmental agent. The underling could never tell a people’s absolutely sovereign state convention what to do. So too, if the sovereign exercised its state’s right to tell the federal agency to stop governing, the government must halt.

– 3 –

No believer in republicanism can renounce all claims that a people have a natural right to switch their consent to be governed. The sacrosanct principle justified the American Revolution and continues to justify national severances that Americans applaud. As these words are written, the separation of ethnic groups, each to consent to their own nation, seems an ideal solution in the former Yugoslavia and may become the best solution in Iraq. But the circumstances of the secessionists’ claim made their natural rights justification problematic—and overwhelming only to those who experienced the black belt.

Americans usually agree with Lincoln that the right to withdraw consent has to be balanced against election winners’ right to rule the losers, unless the winners violate citizens’ natural rights. The southern revolution was profoundly a preventative strike, to preclude natural rights violations that had not yet occurred.6 The largest menace precluded was a perfectly republican debate in the South over slavery. The feared orchestrators of the debate would have been Southern Republicans, assuming office for the perfectly republican reason that the winners have a right to govern with their own governors. The largest reasons Southern Republicans were feared included their perfectly republican right to convince Border South nonslaveholders and the perfectly republican consequence that their democratic agitation might arouse some slaves to seek their right to withdraw their consent to be governed. Thus most Americans who lived outside plantation areas, including Northerners and most Border South citizens, challenged a state’s right to withdraw consent just because an election had been lost.

Conversely, black belt circumstances made a state’s right to withdraw consent overwhelmingly convincing, even to those who wished state secession conventions would WAIT. Southerners’ political religion of consent, like all sacred faiths, had its practical side. If all other proslavery defenses failed, a state could withdraw consent from an abolitionist government, and before that government’s agents could wreak internal chaos. But practicality aside, the right to consent to be governed held emotional sway over whites in black belts, for no other concept lifted the citizen so irretrievably beyond the slave.

Masters supposedly had every right to coerce black serviles without the underlings’ consent. But governments allegedly had no right to dictate to white citizens without equals’ consent. To be ruled without consent was to be reduced to a slave. Few white males in black belts could tolerate that humiliation.

Because enslavement without consent troubled slaveholders, they demanded a charade of consent from their slaves. Nowhere else in the Americas did owners persistently require Cuffees to pretend to love their masters, in homecoming or Christmas performances. No master who cherished such charades could tolerate a government that coerced nonconsenting citizens. Nor could nonslaveholders who lived near slaves abide federal tyrants, clubbing down unconsenting whites as if the coerced were blacks.

Among white males in black belts, the psychological compulsion to defend consent closely resembled the emotional rage to sustain equality. To live in egalitarian America in the neighborhood of coerced slaves was to go wild if Yankees used slurs or pistols to force whites into unequal servility. Slavery as a social system invaded the marrow of southern personality, and never more so than when federal agents coercively violated the (white) people of a state’s sovereign right to shift consent to another government.

– 4 –

Defense of that state’s right did help secession to spread past the first seceders, despite much latter-day disparaging of a state’s rights explanation of why disunion triumphed.7 Nothing else so clearly explains why the mass of black belt whites, while initially considering Lincoln’s prewar menace to black slavery to be dubious, eventually considered Lincoln’s wartime menace to whites’ consent to be monstrous. The problem comes when latter-day state’s rights enthusiasts confuse a state’s right to withdraw its consent to be governed at all, at the moment of disunion, and a state’s right to oppose particular acts of national governance, before disunion. Calhoun’s Nullifiers of the 1830s, seeking to negate a particular tariff act and yet to remain under the government’s sway, tried and failed to obliterate this distinction.

Nullifiers’ failure became slaveholders’ blessing. According to Calhoun and his Nullifiers, if a state won the right to negate nationalistic tariff legislation, a state would thereby gain the right to void nationalistic slavery decrees. But after the tariff issue faded, Southerners sought not to stop but to gain nationalistic slavery decrees, to secure nationalistic slavery protections. So in the 1850s, Southerners usually became the nationalists and Northerners the state’s righters on slavery issues inside the Union.8 Southerners became rigid state’s righters only on a state’s right to withdraw consent from all the Union’s laws, not on a state’s right to hinder particular national laws.

Thus Southerners broke up the National Democratic Party in 1860 over their alleged right to national protection of territorial slavery, if local protection failed. Some Southern Democrats also wanted to use national power to annex the Caribbean, just as national power had annexed Texas (after a very loose constitutional excursion around the necessity to ratify treaties by twothirds majorities). But the Old South’s high nationalism, when it came to using protective national laws inside the Union, reached its apogee, as did the North’s use of state’s rights, in fugitive slave confrontations.

In their so-called Personal Liberty Laws, Northerners often deployed state governmental decrees to thwart national fugitive slave laws. Almost all the notorious Yankee rescues of fugitive slaves, often employing a northern state’s antinational Personal Liberty Laws, occurred in the early 1850s, when the Fugitive Slave Law of 1850 seemed a fresh Slave Power outrage. But the most unforgettable incident, transpiring closer to the secession crisis, destroyed any illusion that the presecession South found anything holy about state’s rights, except a state’s sacred right to secede.

One of the greatest American novels keeps the incident vivid in American memories. Toni Morrison’s Beloved transforms into fictional form the reallife story of a fugitive slave murderess.9 In January 1856, the actual twentytwo-year-old slave, Margaret Garner, fled from Boone County (in northernmost Kentucky) with her four children, her husband, and his parents. The extended family rode over the snow in a large horse-drawn sled, over the eighteen miles from Margaret’s master’s plantation, Maplewood, to Covington, Kentucky, on the Ohio River. Then three generations of Garners walked across the icy river to Cincinnati and to freedom.

Liberty swiftly perished, as did the intact family. The master, Archibald Gaines, discovered that his vanished property hid in Margaret Garner’s cousin’s Cincinnati cabin. When deputy U.S. marshals burst into the cabin, Margaret seized a razor-sharp knife, akin to the killing blades on John Brown’s pikes. With a sweep of the razor, she slit her three-year-old daughter’s throat ear to ear, nearly decapitating the slain child. Better to sever a throat, her defiance screamed, than to allow Massa Gaines to dirty my child back on the plantation. Margaret then went after her other children with a coal shovel, to remove them too from a slave’s misery. But the murderess succeeded only in slicing her sons’ skin before horrified authorities wrestled her down.

While Margaret Garner languished in jail, Ohio’s prosecutors claimed that a state’s exclusive right to try a murderess superseded the federal obligation to return human property. If Ohio established a state’s higher right, the northern state’s murder trial would explore whether southern filth had driven a mother to infanticide. According to rumors in Cincinnati, Margaret might claim that her master had raped her, siring the child that she had saved from his clutches. An outraged jury might free the murderess. An outraged community might speed Massa Gaines’s freed property to Canada.

Margaret Garner’s master did not want her claims aired. His lawyers argued that the national fugitive slave law took precedence over a state’s right to try a murderess. In the courts, the master and national power won. The slave and state’s rights lost. The federal government conveyed the murderess back to Kentucky, whereupon her master sold her downriver to Lower South slavery.

In Toni Morrison’s masterful Beloved, Margaret Garner becomes Sethe. Sethe’s almost decapitated daughter becomes Beloved, returned as a ghost many years later to haunt the murderess. Beloved also haunts all other blacks in Sethe’s community, who shudderingly remember the ghastly act and the Peculiar Institution that yielded such horror. Morrison’s ghost story thus carries the message that slavery’s legacy lived on past its nineteenth-century times, to prey on latter-day American memories.

Sethe, alias Margaret Garner, must haunt memories of those who think that antebellum Southerners routinely supported state’s rights. The image of that defiant fugitive slave, wielding the knife (in her mind) mercifully, epitomizes the runaways who would not be reduced to Cuffees—who belied their powerlessness by forcing their masters to war against routine state’s rights. The blood showering Margaret Garner’s cousin’s cabin, bespattering the latest slave family divided, also epitomized the slaveholders’ prewar sense of state’s rights gone Yankee and crazy.

Against a northern state’s supposed right to defy national fugitive laws, slaveholders had used the National Democratic Party to turn the national state into a nationalistic policeman. Southerners who wielded national power had seized Margaret Garner from northern state’s righters’ hands, before Archibald Gaines’s purse, honor, and reputation had been emptied. So too, the South’s use of the national state had for years kept slavery protected in Kansas Territory. By sustaining slavery with the national government, southern moderates had kept disunionists at bay. But now the National Democratic Party lay in ruins; disunionists marched to the fore; and a very different form of state’s rights could sustain the ultras.

By raising state’s rights to the highest plane, having nothing to do with such lowly matters as tariffs or banks or internal improvements or fugitive slaves or territorial laws, secessionists in any one state could deploy a people’s towering elevation over all governmental agents. If the federal agency coerced the people of a single state who had claimed their state’s right to remove their consent and never to be enslaved, the state’s rights justification could bring other southern states charging to the rescue, whatever they thought of the expediency of the first secession. But an initially lonely southern majority in a single state still had to be highly motivated, to dare rest its fate on the state’s rights justification.

If you find an error or have any questions, please email us at admin@erenow.net. Thank you!