|
"States'
Rights: Do We have It All Wrong?"
A Guest Editorial by Eric
Longley
Under the conventional narratives of
the Civil War, the Southern states seceded from the United States on
account of "states' rights." Contemporary political debate over the
war takes this "fact" as a starting premise. Modern-day Union
supporters say that the Southern states invoked "states' rights" in
order to defend the institution of slavery, draping the mantle of
"states' rights" over the practice of slavery like a Klansman
draping a hood and cloak over his body. The Union narrative then has
the heroic Abraham Lincoln invoking the majesty of the federal
government to vindicate national supremacy, suppressing the "rebels"
and their barbarous "peculiar institution." Under this narrative,
"states' rights" is an exploded doctrine invoked in order to justify
oppression committed by the states and to oppose valiant federal
efforts to uphold human dignity and freedom. A counter-narrative is
told by modern-day Confederates. Under this narrative, the real
issue in the Civil War was the defense of the states against an
overweening central government in Washington. The Confederacy fought
the North, not just to defend slavery (assuming this motivation is
acknowledged at all), but to resist a federal government which was
trying to take all power into its own hands. In the name of
suppressing the Confederacy, goes the narrative, the United States
government assumed dictatorial powers and trampled the states
underfoot, setting the United States on a tragic course of federal
despotism and consolidation of power. The neo-Confederate narrative
has the North hypocritically posing as the champion of the slave,
when in fact it was fighting to fasten the chains of tyranny upon
the entire people.
In both of these
scenarios, the North is portrayed as representing the side of
federal supremacy and the South is portrayed as upholding the banner
of "states' rights" (I put "states' rights" in quotes because I
think that a more appropriate term would be "federalism." However, I
defer to the common usage). Some people-myself included-reject both
of these narratives and argue instead that "states' rights" was a
weapon which was used by both North and South in the struggle over
slavery-a struggle which led up to the Civil War.
To illustrate the
flexibility with which the participants in the slavery debate could
invoke the principles of “states rights” and federal power, look at
the resolutions of secession passed by some of the deep-South states
in the wake of Abraham Lincoln’s election as President of the United
States in 1860 (the deep-south states seceded in response to
Lincoln’s election; other Southern states seceded when Lincoln
decided to use force to re-conquer the seceded states). In late 1860
and early 1861, special conventions in several deep-South states
voted to take their states out of the Union. These declarations of
secession, on the surface, represent the ultimate embodiment of
so-called "states rights.” Under the doctrines espoused by the
seceding states, the United States Constitution was a compact or
treaty among sovereign states who agreed to abide by certain rules.
The seceding states claimed that Northern states had broken the
rules set out in the Constitution, and that therefore, under the
normal principles governing contracts and treaties, Southern states
need no longer be bound by the Constitution, but could instead
withdraw from the United States.
Secession is pretty much
the ultimate embodiment of states’ rights. It is based on a doctrine
of sovereign states getting together to form a Union, subject to
withdrawal if the withdrawing state thinks other states are not
complying with the terms of the compact (the Constitution).
In response to the
secession of Southern states, the federal government (now controlled
by the North) asserted that the Union of the states was unbreakable,
that secession constituted rebellion and treason, and that the full
force of the federal army would be employed to put down the
“rebellion.”
These dramatic events
certainly seem to put the Southern states in the role of defending
states rights and seem to cast the North as the champion of federal
power.
Look beneath the
surface, however. Consider that, prior to the election of Lincoln,
the Presidency had been held by a succession of Southerners and
“doughfaces” (Northern men with Southern principles-a derogatory
term coined by a Southerner, John Randolph). The South also
controlled the federal judiciary and (for much of the prewar period)
had significant influence in Congress. As we shall see, the
Southern-dominated federal government asserted its authority on
behalf of slavery, at the expense of the “states’ rights” of
Northern states which opposed slavery.
To illustrate my point,
let me take a few of the grievances enunciated in the secession
ordinances of some deep-South states. The “grievances” in these
resolutions describe alleged aggression by the North against the
institution of slavery in the South (adding in a few other
complaints about high tariffs [Georgia] and inadequate protection
against Indians [Texas]). The complaints include allegations that
slavery has been kept out of the federal territories, outrage at
John Brown’s attack on Harper’s Ferry, and so on.
But there is one
category of grievances which has to do with the behavior of the
Northern states. As discussed above, the seceding states believed
that Northern states had violated certain Constitutional provisions
which allegedly protected slavery. When we examine these alleged
violations, we notice that the seceding states’ resolutions are
complaining that the Northern states have supposedly asserted
states rights in an improper manner as part of their struggle
against slavery, and that the Northern states have interfered
with federal supremacy on the issue of slavery.
For example: A main
cause of complaint in the declarations of secession is that Northern
states are hindering the enforcement of the fugitive-slave clause of
the U. S. Constitution. That clause declares that slaves who flee
from one state to another must be returned to their masters.
Although the fugitive-slave clause does not specify the procedure to
be followed in recapturing fugitive slaves, Congress had passed two
laws-one in 1793 and one in 1850-which provided procedures for
reclaiming fugitives. The 1793 law said that the master or his agent
must go to the free state where the fugitive is hiding out, arrest
the fugitive, bring the fugitive before a state or federal court,
and obtain an order requiring the fugitive to be returned to
slavery. The 1850 law made the fugitive-slave statutes much tougher.
The 1850 law allowed lowly federal commissioners, as well as federal
judges, to order fugitives back into slavery. The 1850 law also
authorized the federal government to use federal marshals and U. S.
troops to seize and return fugitives.
Under these two laws,
blacks had been arrested in the North, adjudged to be fugitive
slaves, and returned to slavery. In cases where there was resistance
to sending a fugitive back to slavery, the feds sent in the armed
forces to prevent the fugitive from being liberated. If the arrest
of a fugitive slave was prevented by mob violence, or if the attempt
to recover a slave ended in violence, the feds would take into
custody those persons who resisted federal authority and put them on
trial.
In short, the feds made
great efforts to enforce the fugitive slave law. So what was the
South’s beef against the Northern states? Let us quote from the
Mississippi Convention’s declaration of secession:
"[Hostility to slavery] has
nullified the Fugitive Slave Law in almost every free State
in the Union...."[emphasis added]
And from the South
Carolina Declaration:
"The States of Maine, New
Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island,
New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin
and Iowa, have enacted laws which either nullify the Acts
of Congress [i.e., the Fugitive Slave laws] or render useless
any attempt to execute them." [emphasis added]
Take note of the word
“nullify.” The doctrine of nullification is associated with South
Carolina leader (and former nationalist) John C. Calhoun. In the
1830s, South Carolina had declared a federal tariff law to be
unconstitutional and unenforceable within South Carolina. Calhoun
had justified the action of his state by arguing that a state had
the power to “nullify” any federal law it considered to be
unconstitutional. Once a state did this, then the federal law could
not be enforced within the nullifying state unless a specific
amendment to the U. S. Constitution was adopted, ordering the
nullifying state to comply with federal law. This would mean that
states had a veto over federal laws, a veto that could only be
overridden by a two-thirds vote in congress plus three-fourths of
the states.
Calhoun’s nullification doctrine was
so extreme that many states-rights Southerners rejected it. For
instance, President Andrew Jackson (who was from Tennessee) promised
to send in federal troops to force South Carolina to obey the tariff
law (a compromise was ultimately arranged and the crisis was ended).
Nullification, as defined by South
Carolina’s foremost statesman (Calhoun), represents the strongest
position of the ultra states-rights school. But South Carolina,
which had invoked the nullification doctrine against a tariff law it
considered unconstitutional, objected to the Northern states
allegedly nullifying the Fugitive Slave law, which many northerners
considered unconstitutional. The tables seem to have turned, and it
is the Southern states which demand enforcement of a federal law
(the Fugitive Slave Law) in the face of alleged nullification by
Northern states.
But were the Northern
states actually nullifying the Fugitive Slave Law? There is
in fact one example of a Northern state doing so. An abolitionist
named Sherman Booth helped rescue an alleged fugitive slave who was
in federal custody. The slave escaped, but Booth was tried by a
federal court, convicted, and sentenced to prison for assisting in
the slave’s escape. All of this happened in Wisconsin, and Booth
served his imprisonment in Wisconsin. The courts of Wisconsin,
culminating in the state Supreme Court, ordered Booth released from
the federal pen, on the grounds that the Fugitive Slave Law of 1850
was unconstitutional. When the U. S. Supreme Court tried to review
the case, the Wisconsin Supreme Court attempted unsuccessfully to
prevent such a review.
The U. S. Supreme Court
took the case anyway, and, in a decision which ringingly upheld
federal power, declared that no state court could challenge the
imprisonment of any person who was locked up under the authority of
the United States. If Booth was illegally imprisoned, he would have
to go to a federal court, not a state court, in his quest for
release.
To anyone but a
hard-line nullificationist, the U. S. Supreme Court’s opinion is
certainly correct. If someone is illegally locked up by the feds, he
can get released by a federal court (except in emergencies like the
Civil War), so there is no need for such a person to apply to the
state courts. Allowing state courts to release federal prisoners
would give the states a veto over the enforcement of federal law
within their jurisdictions. In other words, taking the side of the
Wisconsin Supreme Court would have the same effect as taking the
side of South Carolina during the nullification dispute. But with
the shoe being on the other foot, South Carolina disapproved of
Wisconsin’s nullification and supported the exertion of federal
authority.
At the time of the
Wisconsin crisis, Northern opponents of slavery took up the cry of
states rights. For example, the Supreme Court of Ohio, in a
situation like that of the Booth case in Wisconsin, heard a case
challenging the imprisonment of a person under the Fugitive Slave
Law. The court upheld the law by a 3-2 vote. Had the court's vote
gone the other way, Ohio Governor Salmon Chase was prepared to call
out state forces to release federal prisoners held under the
Fugitive Slave Law. Ohio Republican leaders, including Chase, saw to
it that a Republican state judge who had voted in favor of the
Fugitive Slave Law was defeated at the next election. Salmon Chase
later became Secretary of the Treasury under Lincoln and was
appointed by Lincoln to succeed Roger Taney as Chief Justice of the
United States.
Republican Senator
Benjamin Wade of Ohio praised "noble Wisconsin," adding, "I am no
advocate for Nullification, but in the nature of things, according
to the true interpretation of our institutions, a State, in the last
resort, crowded to the wall by the General [i.e., federal]
Government seeking by the strong arm of its power to take away the
rights of the State, is to judge of whether she shall stand on her
reserved rights....Wisconsin has availed herself of those great
principles that Virginia asserted in times of danger." Wade was here
referring to the Virginia Resolutions of 1798, which denounced
allegedly unconstitutional laws passed by the federal government and
asserted a power on the part of a state to protest against federal
usurpation. During Reconstruction, Senator Wade was to be known as
one of the "Radical" faction, but for now his rhetoric was of the
strong states-rights kind.
Republican activist Carl
Schurz, who served as a lawyer for Sherman Booth, had the following
apt comment about the Wisconsin crisis: "The Republican Party went
to the very verge of Nullification, while the Democratic
party...became an ardent defender of the Federal Power...."
(Congress had, in 1850,
declared that people imprisoned as fugitive slaves could not
challenge the legality of their imprisonment in court. This was
clearly unconstitutional, and if the federal courts refused to hear
petitions for release on behalf of fugitive slaves, an argument
could be made that state courts were entitled to fill the void and
hear such petitions. Ohio probate Judge John Burgoyne made such a
decision in a fugitive-slave case. Sherman Booth, however, was not
held as a fugitive slave, but as a rescuer of fugitives. The federal
courts were open to him, so Booth had no justification in asking the
state courts to set him free).
What about other
instances of alleged nullification by the Northern states? Before
taking up this question, we need to provide some legal context. The
U. S. Supreme Court had given an important opinion about fugitive
slaves in 1842. Pennsylvania had passed a law saying that anyone who
tried to take a black or mulatto inhabitant of Pennsylvania out of
the state in order to put that person into slavery was guilty of
kidnapping. The U. S. Supreme Court struck down this law, holding
that slaveowners and their agents could track down fugitive slaves
in the free states and bring them back to slavery, without the
interference of state authorities, unless a breach of the peace was
committed (meaning, presumably, that the fugitive or his friends put
up a fight).
Curiously, the Court
ignored the Constitution’s specific requirement that a fugitive
slave “shall be delivered up on claim of the [master].” This would
appear to mean that, if he wanted his slave back, a master would
have to file a specific “claim.” The claim would presumably be filed
with a state or federal judge, or with a federal commissioner, as
authorized by the federal fugitive slave laws of 1793 and 1850. Mr.
Prigg had filed such a claim, asking a state judge to certify his
kidnap victim as a fugitive slave. The state judge refused Mr.
Prigg’s request, but Mr. Prigg took his victim back to slavery
anyway. Thus, under the Supreme Court’s decision, states could not
even require that alleged fugitives be given a hearing before being
sent into slavery. In disregarding the power of the free states to
protect their own inhabitants against kidnapping, the Supreme Court
was trampling states’ rights underfoot in the name of protecting
slavery.
Ironically, however, the
Prigg decision ultimately supported states’ rights. Here’s
how: The Court ruled that the recovery of fugitive slaves was a
federal matter, and not a concern of the states. In other words, the
fugitive slave issue was the feds’ baby, and the free states didn’t
have to help the feds recover fugitives. As a matter of states’
rights, the Northern states could choose not to assist the feds in
their man-catching efforts.
Based on the Prigg
decision, many Northern states decided that they would leave the
enforcement of the Fugitive Slave Laws to the federal government,
and would not help the feds in fugitive cases. This means (depending
on the state) that alleged fugitive slaves could not be housed in
state jails, could not be arrested by state police, and could not be
returned to slavery by state courts. In Massachusetts, where state
officials were prohibited from getting involved in fugitive-slave
cases, a case arose in which the same man was both a state judge and
a federal commissioner. The judge, wearing his federal hat, ordered
a fugitive to be returned to slavery. The state of Massachusetts
then removed the person from his state judicial position. From a
states’-rights standpoint, the sovereign state of Massachusetts was
fully authorized to decide for itself who should hold state offices
such as judge. From the pro-slavery standpoint, Massachusetts was
being less than cooperative with federal authorities.
So, based on
states’-rights doctrines recognized by the U. S. Supreme Court in
the *Prigg* decision, many Northern states decided to let the feds
take upon themselves the odium of enforcing the fugitive slave laws.
The feds were all too willing to do this. Of course, popular
resistance and other obstacles often made it difficult for the feds
to enforce the fugitive slave law. Like other laws, this one was not
always enforced (In his First Inaugural, Lincoln pointed out that
the laws against the foreign slave trade weren’t being fully
enforced either). But to accuse Northern states of failing to
enforce the Fugitive Slave Law, when as a matter of states rights,
recognized by the Supreme Court, they didn’t have to, was to make
unwarranted charges.
The conflict between
states’ rights and slavery was dramatically illustrated in one case.
In the free state of Pennsylvania, three federal marshals tried to
arrest fugitive slave William Thomas, and shot him when he resisted
and fled. The wounded Thomas fled into a river, wading in up to his
neck. Thomas refused to come out until the federal marshals left,
and he succeeded in escaping from the clutches of his pursuers.
Pennsylvania authorities
arrested the federal marshals and brought them to trial for assault
and battery with intent to kill. Had there been a trial, the
marshals would have been presumed innocent until proven guilty
beyond a reasonable doubt, and the state court would have been
obligated to acquit the marshals if the evidence showed that the
shooting of Thomas was done in the legitimate performance of the
marshals' official duty.
If there is any
principle that a states-rights advocate would defend, that principle
is that a sovereign state has the right to prosecute and punish
persons who offend the public peace by committing or attempting
murder. By offering the accused federal marshals a full and fair
trial, with the opportunity of presenting any available legal
defense, the state was, from a states’-rights point of view,
exercising its prerogatives in a responsible manner, so as to give
full weight to the defendants' prerogatives as federal officials.
However, the defendant
federal marshals never went to trial. Instead, they persuaded a
federal court to stop the state from proceeding against them. The
federal court reasoned that, since the federal marshals were merely
performing their duties as federal officials, no state could punish
them for the performance of their duties. Apparently, the duties of
a federal official include killing or wounding fleeing slaves who do
not pose any danger to the community (The federal judge who rendered
this decision was Justice Grier of the U. S. Supreme Court, a
Pennsylvanian who would later gain a niche in history by joining
Chief Justice Taney's opinion in the Dred Scott case).
It is ironic that, in
getting the federal court to dismiss the state proceedings against
them, the federal marshals relied on the so-called Force Act, a
statute passed in the 1830s in response to the South Carolina
nullification crisis. During the crisis, South Carolina authorities
had indicated that federal customs officials who tried to enforce
the tariff law would be treated as lawbreakers. Congress, to prevent
states from harassing customs officials or other federal officers,
empowered the federal courts to set free any federal official who
was imprisoned by a state merely for doing his job. It is the Force
Act, drawn up with the South in mind, which was invoked to protect
federal officials from harassment by the free states who thought
that killing slaves was taking enthusiasm for the job too far.
Pennsylvania authorities arrested the marshals two more times, and
each time a federal court released the marshals under the Force
Bill. The proceedings in this case were later cited with favor by
the United States Supreme Court in an 1890 decision (Re Neagle).
In 1855, a doughface
Senator (Isaac Toucey, D-Conn) introduced a bill to prevent
abolitionists from harassing federal marshals who tried to enforce
the Fugitive Slave Law in the free states. Under the bill, lawsuits
filed in state court against federal officials could be transferred
into the federal courts (which, as we have seen, were more
sympathetic to slavery than the state courts). Republicans denounced
the Toucey bill. Salmon Chase (the future Chief Justice) called the
Toucey bill "a bill to establish a great, central, consolidated
Federal Government. It is a step-a stride rather-towards despotism"
(remember George Wallace throwing down the gauntlet at the feet of
the "tyranny" of the federal courts? The future Chief Justice sounds
a bit like that). Another Republican foe of the bill said the
measure would "abrogate the functions and jurisdiction of the State
tribunals [i.e., courts] [and was] not for a moment to be
tolerated." The bill was defeated, but Republicans passed a similar
bill after the Civil War.
The secession resolutions also
complained that Northern states were sheltering criminals whom the
Southern states wanted to put on trial. For instance, South
Carolina’s declaration says:
"[T]he States of
Ohio and Iowa have refused to surrender to justice fugitives
charged with murder, and with inciting servile insurrection in
the State of Virginia."
Under the U. S.
Constitution, a person who is accused a crime in one state and who
flees to another state must be extradited, for trial, to the state
where the crime supposedly occurred. However, the U. S. Supreme
Court, around the time of the secession crisis, decided that, unlike
the case with fugitive slaves, fugitive criminals could not be sent
back to the state they fled from by order of the federal government.
Instead, the Supreme Court held, it is for the governor of the state
to which the alleged criminal fled to decide whether to grant
extradition. In the spirit of this decision, many Northern governors
refused requests from Southern states to extradite people who had
allegedly helped slaves escape, incited insurrection, or gotten
involved in slavery-related killing. The alleged criminals continued
to reside in the Northern states which had given them shelter. Under
states-rights doctrine, wasn’t it up to the Northern states to
decide whether or not to extradite alleged criminals? Not according
to the resolutions of secession-it was a federal issue, not a state
issue, from the South’s point of view. One may presume that Northern
governors refused to extradite people accused of slavery-related
crimes in Southern states on account of having a public policy
against slavery, or because of doubts that a person accused of
crimes against the slavery system in a Southern state might receive
less than a scrupulously fair trial in that state. But Southern
states seethed at this particular exercise of “states’ rights.”
(The modern Supreme
Court, by the way, has said that the federal courts can order the
extradition of an alleged criminal from one state to another,
thereby overturning its earlier ruling.)
Another Southern
grievance had to do with the so-called right of sojourn, that is,
the alleged right of a slaveowner to take his slaves temporarily
into a free state and, during his sojourn in that free state, to
keep his slaves in a state of slavery. From the Georgia convention’s
declaration of secession:
"In several of our confederate
States [i.e., Northern states] a citizen cannot travel the
highway with his servant [i.e., slave] who may voluntarily
accompany him, without being declared by law a felon and being
subjected to infamous punishments."
From South Carolina’s declaration:
"In the State of New
York even the right of transit for a slave has been denied by
her tribunals..."
The New York case
involved a slaveowner who had taken his slaves with him to New York.
His slaves had decided to stay in New York as free men, and the New
York courts had ruled that, having been brought into the state with
the approval of their master, the slaves were free under New York
law.
This decision was fully
in accordance with states’ rights precepts. The federal Constitution
said that a slave who escaped from his master in a slave state
and fled to a free state had to be returned to his master,
regardless of whether the state to which the slave fled wanted the
slave to remain free or not. However, nothing in the Constitution
specifically said that a slave who was brought into a free state
with the consent of his master had to be returned to slavery.
The Tenth Amendment to the Constitution, revered by states-rights
supporters, decreed that all powers which were not granted by the
federal Constitution to the federal government, and which the states
were not forbidden to exercise, were reserved to the states. To a
true states-righter, therefore, it would be up to the free states to
decide whether to emancipate slaves who entered the state with the
consent of their masters (in the famous Dred Scott case, the
slave, Scott, had accompanied his master to the free state of
Illinois as well as to federal territory. Scott had then returned,
voluntarily, to the slave state of Missouri, and he was re-enslaved
under Missouri law. If Scott had only stayed in Illinois, he would
probably have been free).
(Abraham Lincoln had
worried that the New York decision might be reversed by the U. S.
Supreme Court. Lincoln was worried about a potential Dred Scott II
decision which would legalize slavery in the free states, just as
the high court had legalized slavery in the territories. However,
the U. S. Supreme Court never overruled the New York decision, and
there was no Dred Scott II.)
Contrary to the whining
of Georgia and South Carolina, slaves who were voluntarily brought
into the free states were not automatically emancipated. The federal
government intervened in several cases in an attempt to re-enslave
such people. This federal intervention once more belies the notion
that states rights=slavery.
One example took place
in the state of Ohio. A female slave who was traveling through that
state with the consent of her master was released by order of a
state court. The feds arrested the slave as a “fugitive,” although,
as we have seen, the definition of a fugitive slave applied only to
slaves who escaped from the plantation and entered a free state
against the master’s will. Nonetheless, a federal commissioner
ordered the girl returned as a fugitive, and U. S. Supreme Court
Justice John McLean ordered the Ohio courts not to interfere with
this legalized kidnapping (This did not stop Justice McLean from
trying to get the Republican nomination for President).
In another case, the
feds tried to re-enslave Jane Johnson and her two children, slaves
who had been brought into the free state of Pennsylvania by their
master, John Wheeler, a prominent diplomat. When the diplomat’s boat
was in Pennsylvania waters, abolitionist Passmore Williamson boarded
the boat and informed the blacks that they were free under
Pennsylvania law. With the help of some Pennsylvania blacks, the
three ex-slaves said "hasta la vista" to their former master and
went off to live as free people.
Wheeler was really
pissed, and he filed an incredible lawsuit in federal court. Showing
enormous chutzpah, and invoking the type of legal logic usually
associated with Alice in Wonderland, the ex-master claimed that his
former slaves were being unlawfully imprisoned by Williamson.
Wheeler asked the abolitionist to produce the blacks in court so
that the blacks could be freed from their alleged unlawful
imprisonment- by being restored to slavery! The federal judge bought
Wheeler's legal reasoning, and ordered Williamson to produce the
black people he had supposedly imprisoned.
Williamson spent some
time in prison for failing to produce the blacks. Johnson,
Williamson's supposed prisoner, appeared before the court to declare
that Williamson had never held her in custody. The federal court
didn't want to be confused with the facts-it said that Johnson had
"no status whatever" in the proceedings. Finally, common sense
prevailed and the court was persuaded that Johnson and her children
were not in Williamson's custody, a fact which had been totally
obvious from the beginning. So a federal court, under a highly
dubious legal theory, had tried to re-enslave people whom the
sovereign state of Pennsylvania had proclaimed to be free. Talk
about trampling on states’ rights!
When the Confederate
States of America wrote its Constitution, states were required
to permit out-of-state slaveowners to hold slaves. In other words,
the CSA Constitution abridged states’ rights in the interests of
slavery. Yet we still hear arguments that the CSA was founded on the
principles of states rights.
From the Georgia convention's
declaration of secession:
"The public law of
civilized nations requires every State to restrain its citizens
or subjects from committing acts injurious to the peace and
security of any other State and from attempting to excite
insurrection, or to lessen the security, or to disturb the
tranquility of their neighbors, and our Constitution wisely
gives Congress the power to punish all offenses against the laws
of nations."
In other words, Georgia
was complaining because Northern states refused to suppress
abolitionist agitation. Georgia is also asserting that the Northern
states have a legal duty to suppress such agitation, and that
Congress can pass laws against such agitation as an offense against
the law of nations! But under states’ rights doctrine, it is up to
the states, not Congress, to decide whether to respect the
free-speech rights of their own citizens (remember that the 14th
Amendment, which arguably protects free expression in the states,
had not been passed yet). In the parlance of states’-rights
advocates, the handling of allegedly dangerous speech is part of the
police power of the states, not part of the power of Congress. Under
states’-rights doctrine, the southern states were free to
prohibit-and did prohibit-speeches and publications which criticized
slavery. Just as the Southern states had the power to forbid
such discussion, the Northern states had the power to permit
it.
If a Northern state
decided it was legal to advocate abolition in that state, wasn’t
such a Northern state simply exercising its states rights? What
happened to a state’s sovereign right to govern its own internal
affairs? Again, Georgia is more concerned about protecting slavery
than it is about consistently advocating states-rights doctrine.
From South Carolina’s
declaration:
"This sectional
[i.e., Northern] combination for the submersion of the
Constitution, has been aided in some of the States by elevating
to citizenship, persons who, by the supreme law of the land, are
incapable of becoming citizens; and their votes have been used
to inaugurate a new policy, hostile to the South, and
destructive of its beliefs and safety...."
This may be a reference
to the fact that some (though hardly all) Northern states allowed
blacks to vote. Maine, for instance, had dared to disagree with the
U. S. Supreme Court’s Dred Scott decision. The U. S. Supreme
Court had said that black people were not citizens; the Maine
Supreme Court had said that black people *were* citizens and, as
such, entitled to the franchise. South Carolina’s resolution failed
to acknowledge that, even under the Dred Scott decision,
states remained free to give citizenship rights to blacks within
their own borders, provided that such citizenship status need not be
recognized by other states. What the state of Maine had effectively
done was to allow blacks to enjoy civic rights, including voting
rights, in Maine, while leaving other states free to deny
blacks such rights. Under states-rights doctrine (and South Carolina
was the Vatican of states-rights orthodoxy), how could South
Carolinians meddle with the decision of the sovereign state of Maine
as to who would be allowed to vote in Maine elections? Also, if
black voting was unconstitutional, what about neighboring North
Carolina, a fellow slave-state, which until 1835 allowed free blacks
to vote under the same conditions as whites?
(In any case, South
Carolina’s complaint about black people voting was exaggerated.
Maine was rare, even among Northern states, in allowing blacks to
vote, and Northern blacks with voting rights were so few in number
that they could hardly sway elections, so South Carolina’s claim
that black votes were hurting Southern interests was an exaggerated
claim).
It is also possible that
South Carolina disagreed with laws in some Northern states which
allowed foreigners to vote. This practice was sufficiently
objectionable that the Confederate Constitution later limited voting
rights to citizens only. From a states-rights perspective, this is a
curious restriction on the freedom of a sovereign state to set
voting qualifications, and another refutation of the notion that the
CSA stood for states’ rights.
(The Confederate
Constitution contained several provisions which were favorable to
states’ rights. However, it also contained provisions which limited
states’ rights. The matter is a wash.)
Secessionist states, in
justifying secession, cited as part of their justification the fact
that Northern states had (consciously or unconsciously) invoked
“states’ rights” in such a way as to oppose the interests of
slavery. That states which were, by seceding, making the ultimate
assertion of “states’ rights,” should justify their action by
denouncing the exercise of “states’ rights” on the part of other
states, is one of the ironies of history.
In this essay, I have
followed the man-bites-dog principle. When a dog bites a man, it’s
not news. When a man bites a dog, it is news. The instances I
have cited in which Northern states invoke states’ rights to oppose
slavery, or in which the federal government infringes on states
rights in order to support slavery, come under the heading of
man-bites-dog. There are, of course, examples of Southern spokesmen
invoking states’ rights in defense of slavery, or of anti-slavery
spokesmen invoking federal authority to oppose slavery. The latter
cases come under the heading of dog-bites-man, since they fit in
with the notions of many people that states’ rights was only
used in defense of slavery.
The only point which I
am trying to make in this essay is the point made by the Republican
Carl Schurz: "...in the North, as well as in the South, men's
sympathies with regard to slavery shaped and changed their political
doctrines and their constitutional theories. In the South, it was
State-Rights or the supremacy of the Federal power, as the one or
the other furthered the interests of slavery; in the North, it was
State-Rights or the supremacy of the Federal power, as one or the
other furthered the interests of freedom."
For Further Reading:
Blue, Frederick J. Salmon P. Chase: A Life in Politics. Kent,
Ohio: Kent
State University Press, 1987.
Campbell, Stanley W. The Slave Catchers: Enforcement of the
Fugitive Slave
Law, 1850-1860. Chapel Hill: UNC Press, 1970.
Duker, William F. A Constitutional History of Habeas Corpus.
Westport,
Conn: Greenwood Press, 1980.
Fehrenbacher, Don. Slavery, Law, and Politics: The Dred Scott
Case in
Historical Perspective, New York: Oxford University Press, 1981.
Trefousse, Hans Louis. Carl Schurz, a Biography. Knoxville:
University of
Tennessee Press, 1982.
Warren, Charles. The Supreme Court in United States History.
Boston:
Little, Brown, 1922.
Wilson, Henry. History of the Rise and Fall of the Slave Power in
America.
Boston: Houghton, Mifflin, 1872-1877.
|
