Monday, September 09, 2013

Minority Unionists

In addition (or rather, as part of) John Stuart Mill's moral critique of the Southern secessionists, he asks:

Before admitting the authority of any persons, as organs of the will of the people, to dispose of the whole political existence of a country, I ask to see whether their credentials are from the whole, or only from a part. And first, it is necessary to ask, Have the slaves been consulted? Has their will been counted as any part in the estimate of collective volition? They are a part of the population. However natural in the country itself [meaning the United States], it is rather cool in English writers who talk so glibly of the ten millions [of southerners]…., to pass over the very existence of four millions who must abhor the idea of separation.

More on this theme from Seth Barrett Tillman:

First, we do not have good evidence that even a majority of the adult white males in each rebel state supported secession at the time purported state conventions issued their ordinances of secession. The secession conventions were hardly models of transparency or one-(white)-man-one-(white)-vote equality in terms of fair representation. See, e.g., Akhil Reed Amar, America’s Constitution: A Biography 354 (2005) (explaining—in model clarity—that “state-secession votes occurred in assemblies skewed by state-law variants of the federal three-fifths clause—laws that gave plantation belts undue weight in the ultimate outcome”). I am in Ireland now, and so, I do not have easy access to much American material, but (as I remember) there is good authority for the view that a majority of the adult white males in Georgia did not support secession in 1861.

Second, if secession were/is a valid political principle, even absent concrete and substantial wrongdoing by the government from which one is seceding, then it does not stop with states seceding from the federal government. Many Southern states had counties and large regions where the white population was overwhelmingly loyal to the Union. E.g., Northern Alabama and Mississippi, western Virginia (prior to recognition of West Virginia statehood as the legitimate successor to rebel Virginia). Likewise, every rebel state (South Carolina excepted) produced organized loyalist regiments, and even South Carolina sent many white men who enlisted in Union regiments. Those loyalist counties and regions also produced active pro-Union militias in their home states. At no time did any rebel assembly or governor allow these counties and regions to remain in the Union or secede from the rebel state. The rebel position was never secession pure and simple, but secession in the context of organic, fixed, immutable states—against all. Secession was something rebels could do to others (based on a whim and fear of future wrongdoing at the hands of the newly elected Lincoln administration), but not which others could do to them (to the extent that rebels murdered Unionists, exiled them, and had their homes burned to the ground merely because loyalists continued to express political sympathy for the flag their fathers and grandfathers fought and bled for).

The problem of vindicating the citizenship of minority unionists trapped behind the lines of territorial secession, and to ensure that the territory claimed by secessionists bears some proportion to the popular sentiment of its inhabitants, is perhaps the most fraught of the issues implicated in a generalized support for self-government. It certainly applies to the North Alabamans . . . as it did to the Confederates of the Allegheny Mountain region of West Virginia, the Tories after the War for Independence, the Sudenten Germans in the 1930s, and the ethnic Russians of the Baltics in the 1990s. Ideally, such issues can be resolved by negotiation, but as these examples illustrate, by the time secession has been gotten around to, idealism of any kind is in short supply. The depressing reality seems to be that the strong do as they will, the weak endure as they must.

But to the extent we look to reasoning rather than force of arms to decide the matter, I want to inspect the claims made on behalf of the Union loyalists.

The slaves didn't vote. True enough. And freedmen in the North were allowed to vote in only four states at the time of the Civil War. (I researched this, but if this or any other of the historical assertions I make in this post are shown to be in error, I will correct them.)

The votes of poor whites were diluted. Also generally true in the North. Indeed, this was established practice in may states until the Supreme Court decision in Reynolds vs. Simms in 1964; it probably wasn't much questioned at the time of the Civil War. Can the North claim in good faith to vindicate rights they themselves do not observe?

Blacks and/or poor whites did not support secession, and whose equal franchise would have blocked it. This is certainly a plausible assertion, and is probably what is got at by the first two objections above. But is there any actual evidence for it? I can think of very little that the industrial capitalism of the 1860 North offered to either blacks or poor whites that was much superior to what they had: cradle-to-grave care, however mean, for slaves, and some measure of rough independence for poor whites. I am struck by the fact that even after emancipation, many slaves chose to remain with the life they knew, even in the service of such as Alexander Stephens.

The South only wanted "secession in the context of organic, fixed, immutable states". This was certainly the South's strongest legal (as opposed to moral or philosophical) case under the existing political arrangements, and arguments to the contrary strike me as particularly bad. The Federal union was the creature of the state governments, not the other way around, and I see very little in American history prior to the war supporting the notion that union ought be anything other than voluntary. The same cannot be said of sub-state regions. That doesn't vitiate any claims to independence these regions might make, only to say that those claims are philosophical rather than legal.

The South did not respect loyalist regional predominance. True enough in the cases cited above. But while I would recognize the right of Northern Alabamans to self-government, it is not at all clear that they were actually seeking to be a land-locked Union micro-province in the heart of the Confederacy; rather, they supported the status quo ante: a unified republic. That is certainly respectable, but it doesn't mean that they opposition they faced was merely a matter of the South failing to live up to its principles.

Which is not to say that in its drive for independence, the South lived up to its principles. This history of the run-up to secession is chuck-full of nasty, vindictive, and even murderous behavior by . . . well, most everybody, the South included. It would be very difficult to find a legitimate claimant to self-government less sympathetic than the antebellum South. Knowing where it would eventually lead, I can't help but wonder where were the Henry Clays of 1860, the voices of moderation that might have talked everyone down from the precipice of war if not secession.


Seth Barrett Tillman said...

"The Federal union was the creature of the state governments, not the other way around, and I see very little in American history prior to the war supporting the notion that union ought be anything other than voluntary."

The Constitution of the United States plainly says otherwise.

It states that it is an enactment of "We, the People of the United States", and not "the States", or even the "[u]nited States".


Dr. Φ said...

Seth: thank you for visiting. I am honored that a writer of your stature would take notice of my humble little blog.

I first encountered the "we the people" argument some decade or so ago, probably in the pages of National Review. It was, in fact, the specific argument I had in mind when I wrote that that I found such arguments uncompelling. "We the people" is the kind of rhetorical flourish that ought not override the material provisions -- the delegated powers, the ninth and tenth amendments -- that specifically describe the relationship between the parts and the whole. It's in the same vein as saying that "a well regulated militia" means that "the right of the people" is limited to the National Guard, when in fact we have ample contemporaneous writing that describes in detail what is got at by the 2nd Amendment.

That said, if there is in fact documentation that the Framers intended to dissolve the citizens of the States into a unified body, I would like to know about it

Justin said...

The purpose of government is to unite your collective power to assert your will on other groups. Everything else is hollow rhetoric.

Within the "rhetorical game" they were playing under the American system, the North had NO RIGHT to invade the South. It was a naked powergrab of monumental stature.

Seth Barrett Tillman said...

The Constitution says what it says: You cannot escape its words merely by saying you think it was meant rhetorically. In fact, there was meaningful discussion at Philadelphia about the precise language used in the Preamble.

The 10th Amendment's language does not help you much: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Again -- the States and the "people" get equal status. And no where does this Amendment refer to the "People of the States". Just the "People".

I never suggested that the intent of the Framers was to dissolve the People into a uniform body. But there is nothing in the text of the Constitution or any strong body of extra-textual evidence among the Framers taken collectively suggesting that their intent was to create a federal government which was at the mercy of the States, nor permitting individual states to exit absent consent of the Federal government. The idea that the Framers' text or intent would have permitted unilateral withdrawal by a state against the express wish of the elected national government strikes me as requiring the sort of support that partisans of Gone-With-The-Wind type history never put forward. Because they can't.


Dr. Φ said...

Seth: Clearly, we have fundamentally different priors about human relationships if you argue that our membership in an organization is irrevocable absent express provisions to the contrary. For my part, it never occurred to me to ask my church, say, whether or not I was permitted to resign my membership; I assumed that I could, and would assert that right if the time came.

I would argue that, under the circumstances in which the Constitution was written, the apparent absence of any consideration of exit conditions (else you would be telling me about them) argues that the freedom of the States to exit was considered so obvious by the Framers that it didn't require articulation. How could it be otherwise if self government is indeed a true principle?

Seth Barrett Tillman said...

I don't know about your church, but if I tried to leave my place of worship, by "resigning", by taking the organisation's property with me as part of my "resignation", and then by shooting up the place and anyone who did not go along with my attempt to escape my current dues and obligations based on my unilateral understanding of those dues and obligations -- I think I would have to answer to the other members, their families, and to the authorities.

As for your interpretive maneuver -- it is again nothing more than to restate your personal position and to say it is "obvious I am right" or "silence on the issue permits unilateral state action". Not close, and no cigar. The Necessary and Proper Clause states that where an issue is not expressly addressed it must be settled by a federal statute, with implicit adjudication in the federal (not state) courts to follow.

Your position is that there is a default escape route by unilateral state action. Been there. Done that. Tried it with the Articles of Confederation. The Constitution rejected all that. Jackson knew that in 1832. Anything else is let's pretend.


Justin said...

Seth, your "church analogy" is so poor as to invite question about your reasoning skills and/or motives.

IF your local congregation builds up a church building, THEN voluntarily joins a national body, THEN decides to leave that national body... what?

The national body has a right to take possession of the church building and force the congregants to remain members, under penalty of death? That is EXACTLY what the imperialist North did to the South.

The South did not go shooting anybody up, quite the opposite. The North's action was IMPERIALISM, nothing more nothing less.

Not sure what kind of weird blinders you have to be wearing to assert that a political agreement is ETERNAL and SACROSANCT, "no matter what"...

Dr. Φ said...

Seth: Justin's analogy is much more on point than either of ours, and has the advantage of being exactly what national denominations tried to do (minus the penalty of death part) until the courts slapped them down.

Ironically, you bring up the Articles of Confederation without reference to a far stronger point: Article XIII stipulated that "their provisions shall be inviolably observed by every state" and "the Union shall be perpetual". The Articles were superceded as you point out, and do not undermine the philosophical case for self-government any more than colonial charters bound us to GB forever, but this gives us the best window yet into what the Founders were up to.

Invoking the Necessary and Proper clause requires that the secession be characterized as an "insurrection", which is hardly a fair description of state legislatures, conventions, and referenda.

You'll have to catch me up on what Andrew Jackson said, but he is not the final arbiter of the law.

Anonymous said...

Seth's analogy makes perfect sense if one starts with the assumption that the states belong to the national government. Of course, that's a big part of what is being debated here. Which I think is why there is some talk-past going on here.

I think Phi is correct that looking at this as state units (Texas can secede from the Union, but Adelsverein cannot secede from Texas). So if we were to talk about a right of secession, it would start and could easily end there.

That said, in the overall I lean toward's Seth's point of view. Given all of the entanglements involved, if departure from the union wasn't meant to be a mutual decision, the process would need to be outlined. Otherwise, it's really inviting a war. It's like asserting a no-fault divorce in a place with no divorce law. There is mutual and/or ambiguously owned property involved, if nothing else.

Dr. Φ said...

Trumwill: Quite right, and I was musing today about an alternative history wherein the Southern congressional delegation started the conversation by saying, in effect, "I think we should see other people" rather than just storming out in righteous fury. Could they not have found enough Northern congressmen eager to be quit of them and their Dred Scotts and their fugitive slave laws to put together a working majority in favor of an amicable divorce? That could have been finalized during the lame-duck session? That would have made it MUCH more difficult for Lincoln to launch a war to undo a fait accompli.

Justin said...

trumwell: How is there even a question about which came first? The STATES were primary. In their capacity as sovereign bodies, they consented to be conjoined into a national govt. The Confederate Declaration of Independence goes into great detail about this very issue, as it was the lynchpin of their legal claim. Read it for yourself.

The claim that somehow the states BELONGED to the nation borders on insane. It has literally NO basis in history or reality.

Justin said...

Dr Phi, you are forgetting that the Republican Party was founded for the very purpose of eliminating slavery, and the South now found itself at the mercy of that Northern sectional party who would henceforth utterly dominate federal govt.

The Northern states had, in fact, nullified the provisions of the Constitution which guaranteed the protection of slavery. As the Southern states were at pain to point out, it was only the inclusion of those provisions which enticed them to join the Union in the first place!

Read the Southern perspective here

The South felt that they were backed into a corner by religious fanatics were not even attempting to abide by the Constitution. In light of subsequent events, esp. Lincoln's shredding of Constitutional limitations, that is a fair characterization.

Dr. Φ said...

Justin: I want to offer some push-back on several of these points. It is true that the Republican Party was the abolitionist party. But to characterize the South as being at the "mercy" of the North is to assume that Lincoln would have been able to seize the same powers in peacetime against the hypothetically non-seceding South as he assumed in the context of the war. Perhaps. But this ran contrary to his own stated intentions, in the face of the more extreme abolitionists, to pursue emancipation within the existing constitutional framework. Which framework included the same SCOTUS that had issued Dred Scott and a Senate where the Southern delegation retained the filibuster.

You are going to have to catch me up on Northern nullification, because I am only aware of the de facto nullification of the Fugitive Slave Act, and this not formally, but only in the difficulty of enforcing its provisions in the teeth of Northern juries.

I will have to read the Sunsite content in more detail, but while from the first few paragraphs I see some of the grievances were real and legitimate, some of the others constitute exhibit A in how extreme the Southern demands had become over slavery.

I will concede your final paragraph though: the abolitionist movement was shot-through with violence-prone radicals who would have indeed abrogated the entire Constitution in pursuit of freeing the slaves. I will touch on this in Friday's post.

Seth Barrett Tillman said...

Dear Commenters,

I have been ill, and then recuperating, and so unable to timely respond to your comments. I am better now. Back to the join-the-church-leave-the-church analogy. I think it a fine analogy (and I do not believe the States belonged to the Federal government – quite obviously they do not).

The Church was: the Church of Fort Sumter. The land of Fort Sumter was transferred to the federal government by a (voluntary) act of the South Carolina legislature in 1836. It was permanent federal property – and under the “exclusive” control of Congress under U.S. Const. Article I, Section 8, Clause 17. When SC seceded, they tried to take the Church of Fort Sumter with them. But it was no longer in SC (in the sense of under its legal jurisdiction) or SC government property; Sumter was federal property and the buildings were paid for by the federal taxpayer. So this was not a church leaving a national organisation, but one church trying to outright take – by violent means – the property of another church.

Unilateral secession is not permitted by the U.S. Constitution. But even if it were permitted – you cannot take federal property with you. (Even secessionist Virginia did not demand back the land under Washington, DC.) SC gave that land away and SC did not pay for the buildings. And – just as I said – the scoundrels shot the place up, not caring if anyone died.

If SC fired on Fort Sumter under a federal court order – where the federal government had a real opportunity to litigate the legality of secession, that would have been different. (This would have been before Lincoln had appointed any federal judges or justices – so not a Yankee/Republic Supreme Court.) If SC – by pacific – means sought a federal statute permitting secession, that would have been different too. But unilateral secession, by violent means, trying to take national (federal) property with you as you go out the door – no, that’s bad faith, wrong, illegal.

“Treason must be made odious.” A.J.

Dr. Φ said...

Seth: As you know, I have largely conceded the larger legal claim, and by extension the lesser ones. But since you are concerned with "chronology", let's remember that the South had, in fact, made a good faith effort to offer compensation for Fort Sumter and the other Union forts in the area, which under the circumstances could not simply be left in Union hands. But Lincoln rebuffed those offers, understanding (correctly) that accepting them was a tacit recognition of the Confederate government.

In any case, both Lincoln and the Confederacy were both playing the same game, each trying to provoke the other over Fort Sumter. The South blinked first, much to Lincoln's propaganda benefit.

Seth Barrett Tillman said...

You have conceded that the church analogy works for my position, not yours.

A group of people tried to walk off with other peoples' church (Fort Sumter)... the non-owners offered to buy it, but when the owners would not sell, the non-owners shot the place up to seize someone else's property.

Yep, the church analogy works perfectly.

Dr. Φ said...

Seth: Your analogy breaks down once we realize your church is in the middle of my living room.

Seth Barrett Tillman said...

The analogy works just fine. Fort Sumter was no longer South Carolina's living room. SC gave it away. When you give something away, it is not yours and you cannot take it back. If you take it back by force, and shoot at the lawful property owner in the process, then you are acting wrongly, immorally, and against the law.

Anyway ... I'd urge you to avoid "my living room" as a referent, people could get the wrong idea.


Seth Barrett Tillman said...

Once you give it away ... it is not "your" living room any more. That is what giving away something means -- it is not yours any more. That was the risk you took giving away something in your living room. And if you take back by force something you have given away -- that is a wrong, invalid, and illegal.

It really was and remains simple.


Dr. Φ said...

Fort Sumter was no longer South Carolina's living room. SC gave it away. When you give something away, it is not yours and you cannot take it back.

I would characterize this position as a failure of empathy. I'm pretty sure that if it was your living room, you would feel a bit differently about it being occupied by people who have pretty much indicated they are coming for your whole house.

Anyway ... I'd urge you to avoid "my living room" as a referent, people could get the wrong idea.

Dude . . . you *didn't* just invoke Godwin's Law, did you? Is it to this that the great Seth Barrett Tillman has been reduced, and that only 17 comments in?

Seriously, if you really are who you claim to be, you are welcome to continue commenting here, but I'm going to insist that you bring your A game. This blog may not look like much to you, but it's all I've got!