"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.









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