The Civil War as a Question of Natural Right
The argument against the invented right of “secession” is not a denial of the natural right of any State – indeed, of any individual person – to alter or abolish the federal government or to abandon it when it has become destructive of the ends it was meant to serve. The Declaration of Independence is the most eloquent enunciation of the rights and obligations of the American social compact:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
We see that according to the American social compact, government is instituted for the protection of certain inalienable, God-given rights; it is only when “Government becomes destructive of these ends” that the people who made the compact have a right – no, an obligation – to alter or abolish it. But the Declaration continues. Not only must a revolution have the justice of natural right on its side, it should also be prudent:
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security
The right of revolution is not a Constitutional right; the Constitution cannot logically grant a right for its own destruction; it is not a legal right in any worldly sense; it is a natural right; it is a right that precedes political union. When a people exercise this right, they “assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them.” They return to the State of Nature, in which man is naturally free, subject to no authority at all, save God. God’s Natural Law, which is a common grace to all men, is the only legitimate authority in the world. Political societies are rightly formed only when the end of the contract is to abide by the Natural Law as closely as possible. The Natural Law is always the standard to which a government is held accountable; it is the basis for judging whether a regime is good or bad, as it is the basis for judging whether a break from a regime is justified or unjustified.
The primary justifications presented for “secession” before and during the conflict are 1) the inherent right of any State to secede on its own discretion, following Calhoun’s reconstruction of the Constitution and denial of the compact made on July 4th 1776; and 2) that the North wouldn’t enforce the Fugitive Slave Act and had a general design of abolishing the South’s peculiar institution. These justifications are addressed, respectively, in the first and second sections of this essay. In the second section I argue that the South’s revolution was unjust because the Federal Government did not have a design to abolish the natural rights of the citizens of the slave-labor States; I will show that the centrality of slavery as the principle cause of the war was acknowledged on both sides of the Mason-Dixon line, and that, therefore, the South’s war for “secession” did not meet the standards of the natural right of revolution. Separation for the sake of preserving slavery is not only unwarranted by the American social compact, but it is directly antithetical to it. In the third section I briefly address the legacy of Lincoln in particular, the modern conservative turn against him as rooted in Kantian expectations of morality, and what I argue to be peripheral or foolish justifications for secession made today, such as that of economic determinists. But in the first section I leave the question of slavery – and therefore the litmus test for a rightful revolution – aside. As much as the facts show the obvious centrality of slavery in the controversy, it is equally obvious that the rank-and-file soldiers in the Confederacy (70-80% of which didn’t even own slaves[1]) were principally motivated by patriotism for their respective States. The first justification for secession, which is really no justification at all, is the States rights doctrine, of which John C. Calhoun was the principle exponent. I say it is no justification because no end for secession is vindicated. The South has the right to secede because every State, in Calhoun’s understanding of the Constitution, has a veto power over the Federal Government, to be executed whenever the State sees fit. By finding a legal right to secede, the South avoids giving a just – ification for “secession.” I will argue that Calhoun’s States rights and the understanding of the American social compact by the politically-active South are anathema to the principles of the Founding.
American Social Contract Theory 101: The Natural Right of revolution and the non-right of “secession”
Before we get to Calhoun’s rejection of the American Founding, it is insightful to see how modern defenders of the cause of the South attempt to justify “secession” on the basis –obviously not of slavery – but of States rights and rule by consent a la Calhoun. The absurdity of their position serves to demonstrate the wisdom of the founders and the true understanding of the American social contract. James Ronald Kennedy argues in his book The South was Right! (yes, with an exclamation mark) that the fact that the North acted to preserve the Union is a myth. Those vile Yankees may have said they were for maintaining the Union, but they were really attempting to enslave the South and form an empire. “Yes,” he says, “superficially the North did maintain the Union. But are we discussing geographical boundary lines, or are we discussing concepts such as the free and unfettered consent of the governed?”[2] Kennedy’s position is that the Federal Government had no right to use force to quell the rebellion by the plain and simple fact that the “seceding” States no longer consented to be governed by it. No justifications are needed. The South no longer consented, so it had the right to secede. Period. End of issue. What, are we to deny that rule by consent is a central principle of American government? Ironically, it is precisely the principle of rule by consent that the South was violating with its newfound right of “secession.” Lincoln, in the Gettysburg Address, wonders whether the experiment in true republican government that is America will endure this severe test; whether a nation “conceived in Liberty” can long endure; whether “government of the people, by the people, for the people, shall not perish from the earth.” [3] Why was the Civil War such a test to the American experiment in the mind of Lincoln (assuming he was not the monomaniacal demon, perversely bent on spilling Southern blood that Kennedy portrays him to be)? Is it not obvious that Kennedy’s understanding of rule by consent is ridiculous?
Imagine the consequences if everybody “seceded” from a country whenever they no longer consented to it immediately. When individuals in the State of Nature make a compact to secure each other’s natural rights, it is no light matter. In the Declaration of Independence our Founding Fathers, representing every American, pledged to each other their lives, fortune, and sacred honor. There’s no such thing as no-fault divorce in the American social contract; you cannot get out of it as soon as the union is no longer consensual; you would be violating the “States rights” of every other member of the contract. The only thing that can legitimatelybreak the union is a failure to abide by the Natural Law. There must be a just reason to revolt; there is no such thing as a legal right to secede. The consent of the governed is granted at the moment the contract is made, and this is where unanimous consent is required. The contract is only made between those who agree to the terms of the union –namely, that the end of government is to implement and execute the Natural Law as closely as possible. The rest of humanity is excluded: their natural rights to be respected, but not protected. The members of the union give up a part of their freedom to the government. The government is now established as an arbiter, the lack of which, in the State of Nature, made adherence to the Law of Nature more difficult. Henceforth, differences between the parties of the union are settled by majority rule; otherwise, the union would be incapable of action. Unanimous consent was only necessary to settle the ends of the union; how those ends are to be best secured is determined by the majority. The members of the union count on each other for the protection of their rights; if any member can call it quits as soon as he disagrees with the majority, the union is bound to crumble - and quickly – for “as long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.”[4] Majority rule based on the ends made by unanimous consent is just by nature, but it is also simply necessary for any stable government (irrespective of its ends). The founders understood this as well as the Italian Mafia. Even la cosa nostra couldn’t function properly if its members could call it quits whenever they felt like it. Some big thugs would send you to sleep with the fishes in the East River if you ever gave “the family” the slip. Or imagine a church in which a pastor is left unable to discipline his brothers because they leave the church as soon as the smallest difference of opinion arises. While we should certainly think twice about our membership in a certain church if the pastor differs on core principles, we ought to acquiesce to his more mature knowledge when we know that our core principles are the same. Such is the nature of the American contract: acquiescence to majority rule is possible because the limits and ends of rule (the certain inalienable rights) were unanimously agreed to beforehand. The government is bound to protect the natural rights of the majority and the minority. Kennedy’s understanding of rule by consent is as scary to us now as it was to Lincoln when he saw the pernicious tendency of this logic. What is left of a government when you deny it the power to govern unsatisfied members? It is no government at all; the union would rapidly dissolve and find itself back in the State of Nature.
Now, before we conclude that Kennedy is out of his mind, I hasten to explain that the case that Kennedy, Charles Adams (another modern author), and Calhoun make, is that it is only the federal government that requires the constant consent of all the States. But this remains an absurdity. What power does the federal government have if any State has the right to secede whenever it wants? Are we to understand that the nature of the United States was meant to be like that of the United Nations: every member completely independent, free to abide or not abide by its resolutions? This position is utterly untenable if we see what the founders said about the nature of the Union of the States.
Both Kennedy and Adams follow Calhoun’s lead in justifying their States rights version of the Constitution by quoting the Virginia Act of Ratification of the US Constitution. Here is the relevant passage:
We, the delegates of the people of Virginia, duly elected, … in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the Unites States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby, remains with them and at their will: that, therefore, no right, of any denomination, can be canceled, abridged, restrained, or modified.[5]
Adams says that by this act, Virginia “retained the right of secession.”[6] Kennedy says that “the people acting together through their agent the state retained the legal right to recall any portion of their delegated or usurped sovereign authority.”[7] Kennedy also quotes Calhoun’s comment on this act:
It declares that all powers granted by the Constitution, are derived from the people of the United States; and may be resumed by them when perverted to their injury or oppression; and that every power not granted remains with them, and at their will; and that no right of any description can be canceled, abridged, restrained or modified by Congress, the Senate, the House of Representatives, the President, or any department, or officer of the United States. Language cannon be stronger![8]
Kennedy goes on to simply assert that this act proves Virginia’s – and every other State’s – “legal right to be free.” “We have now seen,” he says, “that any government must receive its legal right to govern from the consent of the governed. If at any time that government denies the consent of the governed, that government by its own action repudiates its legal right to exist!”[9] But Kennedy, Adams, and Calhoun get ahead of themselves. They tell us that this act grants the right of separation and leave it at that. They think they’ve proven their point that a State may secede when it no longer consents to the Federal Government because no entity is a better judge than the State itself of whether it is being oppressed. The assumption is that every State retains absolute sovereignty so that it is the sole judge of whether the Constitution is at every point in time favorable to the State’s interests. If this is the case, the Constitution is a mere treaty between foreign nations. But what the act actually says in no way differs from the Declaration of Independence. In the Virginia Resolution of 1798, Madison and Jefferson reiterate that Virginia “pledges all its powers” to maintain “the Union of the States.”[10] The “pledge” to the Union goes back to 1776, when the people of the several States pledged their lives, fortunes, and sacred honor. The act of Ratification simply reiterates what the Declaration of Independence says about the natural right of revolution. The States may resume their powers when the common government of the States becomes oppressive and injurious. What is the standard of oppression and injury? Is that left for the States to decide? Well, there is no question, of course, that every State, every individual person, will have to judge whether or not the common government becomes destructive of its just ends (this point is also made in the Virginia Resolution and made much use of to defend the “right of secession”). But it matters a great deal whether the State or individual person judges rightly: the Natural Law is the ultimate standard of whether their revolt would be justified or unjustified. To our authors it is enough that the “legal right” is established. But no such legal right has been established. The act merely reiterates the supra-legal right of revolution. If it can be established that a State has a “legal right” to secede, the question of whether it is truly justified in its “secession” is not asked. It is like today’s divorce laws; a woman can divorce her husband if she no longer feels “fulfilled” because she has the legal right to do so: no questions are asked. But whether she was justified by God’s laws is another question. Our authors make the mistake of identifying a legal right in this act, when in fact it is about the natural right of revolution and the definite standard for that right. It is not enough that a State deem it necessary to revolt; there is no such thing as a legal right of secession. The charge that the South makes against the Federal Government is that it denies the South’s “legal right to be free.” In their view, the Federal Government is wrong for even questioning the justice of the “secession,” let alone using force to impede it.
I emphasize again that the South’s misunderstanding of the Virginia Act of Ratification and the Kentucky and Virginia Resolutions is inevitably linked to their misunderstanding of what happened on July 4th 1776. It was the Declaration of Independence, not the Articles of Confederation, not the Constitution, that establishes the social contract between and among the people of the several States. That is where the ends of the Union are established. As Lincoln says, “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”[11]Adams says that this is nonsense; it is only with the Articles of Confederation that something like a union is formed; but, in turn, this union was dissolved to form a new one in the Constitution.[12]Adams is wrong. The Declaration establishes the Union, the Articles of Confederation state that the Union is perpetual, and the Constitution is meant to perfect the Union. The Declaration of Independence set the ends of the Union, the Articles of Confederation proved to be a very imperfect government to fulfill those ends, and the Constitution has proven to be a much better instrument. The Union was not “dissolved” when the Articles of Confederation were dumped; actually, the American people exercised the natural right of revolution to change the government of the perpetual Union; since the way powers were delegated was to be formed anew, the Constitution required a unanimous consent from the people. For the South it is critical to deny that the individual States ever made a Lockean social contract with each other; that they ever gave up a part of their sovereignty to a common government. Consider this letter written by Jefferson (co-writer of the Virginia Resolution) from Paris during the Constitutional Convention: