Federalism, Slavery, and Freedom's End 1

The South destroyed the Northern states' rights and caused the Civil War.

With the rise of the Tea Party and a new focus on Constitutional limits to the size and power of the Federal government, the liberal media is reaching back to middle-school history class for clubs to beat the right with:

States' rights are bad, because the South fought for "states' rights" to own slaves, and that's evil!

Which, of course, is what we were all taught, more or less.  It's been the unquestioned narrative for a hundred years; part of the background scenery against which our modern political conflicts are played out, unquestioned by all.

But it should be questioned - because it's not true.  The Civil War did not come about because the North suddenly decided to violate the rights of the South to own slaves.

In reality, the fuse of the Civil War was lit by the exact opposite: After centuries of peaceful coexistence, the South suddenly decided to violate the right of the North not to participate in slavery!  The abolitionist explosion, increasing tension, and eventual war were the direct and inevitable result of this Southern assault on the principles of federalism and state's rights - the reverse of what we've all been taught.

Let's see why - and then, we'll see why it matters profoundly to today's combative political climate and our nation's future existence.

The Peculiar Institution

It's customary for moderns to look back on the pre-Civil War South and wonder incomprehensibly how any civilized people could possibly have thought that they had the right to own other human beings.  That's just so self-evidently wrong; Southerners must have been devils incarnate!

How easily we forget that, prior to 1800, every single civilization throughout 5,000 years of recorded human history had permitted slavery: the concept of owning other human beings was so commonplace as to rarely have been questioned by anyone, anywhere.  Some civilizations had more slaves than others, of course, and there were pockets of anti-slavery sentiment; still, the supposedly archetypal free state of Massachusetts permitted slavery until after the Revolutionary War.

At the time the Constitution was written, most of the colonies which had banned slavery had done so a scant decade earlier.  The idea that "all men are created equal" was utterly new and revolutionary in every conceivable way; is it any wonder that the principle wasn't instantly adopted across the board?

The true marvel is that, even with the wealthiest half of the colonies clinging to slavery, nowhere is "slavery," "Negro," or any other pejorative term used in the Constitution.  The Founders understood the reality of slavery and knew that they had not the ability to eliminate it on the spot, but they shamefacedly slid around it as in Article 1 Section 9:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

This is remarkable in itself: they managed to set a specific date after which the slave trade could be outlawed, contrary to all of recorded history and custom.  Not only that, they discouraged the slave trade by imposing a tax on it.

Sure enough, with the strong support of President Thomas Jefferson, importation of foreign slaves was outlawed at the first moment the Constitution allowed, effective January 1, 1808.

At that point, slavery fell squarely under the principles of federalism: each state could do as it pleased within its own borders.  Massachusetts, Vermont, and the rest of the north strictly forbade the practice; Mississippi, Virginia, and points in between endorsed, supported, and enforced slavery.

Here is where we discover an important fact of human nature: for the vast majority of Americans, that was good enough.  If you didn't like slavery, you could live in Massachusetts and never have anything to do with it; if you thought slavery was fine, Alabama welcomed you.

Of course there were a handful of fervent abolitionists who felt slavery should be illegal everywhere, but they were generally seen as extremist loons and were ignored by almost everyone.  Live and let live, the first principle of American federalism, prevailed.

This state of equilibrium was not to endure for long.  Being permitted to keep their "peculiar institution" wasn't enough for the South.

The Corrupting Power of Evil

After the Revolution but before the Constitution, the Continental Congress had enacted the Northwest Ordinance governing American territory not yet organized into states - basically, the Midwest.  Among other things, this law banned slavery from the territory, though it required the return of fugitive slaves captured there.

At the time, the South was perfectly content to discourage new competing tobacco plantations which were thought to require slavery for profitability.  It wasn't long before the South realized their mistake: allow too many free states into Congress, and before long the free side would have the 2/3 majority required to change the Constitution and outlaw slavery altogether.

Whether this would actually have happened or not cannot be known, but the South decided to make sure it couldn't by recruiting more slave states.  The Missouri Compromise accepted a matched pair of states: Missouri as a slave state, and Maine as free.  It also, for the first time, explicitly set a geographical boundary determining slavery or freedom of future territories.

Thomas Jefferson immediately realized what the end result would be:

...but this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union. It is hushed indeed for the moment. But this is a reprieve only, not a final sentence. A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper.

Despite Jefferson's fears, the compromise model held for a while: in 1836-37, Arkansas and Michigan were admitted as slave and free respectively, maintaining the balance.

Then, in 1854, the South made another play to expand slavery with the Kansas-Nebraska Act.  This law simply gave each territory or state the right to be slave or free as it saw fit.

Sounds fair, doesn't it?  Alas, the South had a trick up their sleeve: in a preview of modern techniques of election fraud, at election time in Kansas territory pro-slavery partisans from neighboring Missouri would simply cross the Mississippi river, present themselves as backwoods Kansas residents, and vote the pro-slavery line.

The growing abolitionist movement decided to fight fire with fire, sending their own teams of antislavery voters and settlers.  The ongoing clashes escalated into a low-grade civil war, known as "Bleeding Kansas;" the Kansas question wasn't finally decided until the main Civil War was just around the corner rendering the travails of one single state moot.

Not only did Bleeding Kansas horrify the general American population, it made something perfectly plain that before had been theoretical: both slaveholders and abolitionists were willing to kill and die for their respective political positions should the opportunity to make a difference present itself.  The only possible way to avoid bloodshed would be to lock down the rules once and for all in a way that could keep everybody more or less content on their own turf.

It should come as no surprise that a Southern-dominated Supreme Court did the exact opposite: instead of making a rule everyone could live with, the justices tried instead to lock down the rules to the pure advantage of the South, without regard for what the North could stomach.

Rubbing The North's Nose In Slavery

The infamous Dred Scott case is today held up as the ultimate in judicial malpractice and unfairness.  Scott, a slave, was taken by his owner to multiple states both slave and free.  Having thus lived in states where slavery was illegal, Scott took the not-unreasonable position that he could no longer be a slave and should be recognized as free.

In a pure federalist model as envisioned by the Constitution, Scott would be right.  Mississippi can, if it so chooses, enforce slavery; but it cannot force Massachusetts to enforce an institution it despises.  Therefore, if a slave makes it to Massachusetts, he is automatically free and no force should be able to claw him back, any more than Massachusetts has the authority to send forces to Mississippi to free slaves there.

Unfortunately, Southern slaveholders had been increasingly irritated by the ability of their human property to escape across a state line and thumb their noses at their former masters.  They hoped that the Supreme Court would use the "full faith and credit" clause of the Constitution to require Northern states to send back their private property once ownership was established.

They got that, and more besides.  Chief Justice Taney infamously pronounced that

The Negro... had no rights which the white man was bound to respect.

Outlawing slavery in the territories?  Unconstitutional!  Refusing to send back escaped slaves?  Unconstitutional!  Considering slaves free once they set foot in a free states?  Unconstitutional!

Outlawing slavery at all, in your own state?  Well, Taney didn't say, but the unmitigated racism of his opinion made the logic crystal clear that, in the opinion of the Court, black people could never be citizens anywhere in the United States on any terms whatsoever.  The South had won complete victory - or so it seemed.

Letting Slip the Dogs of War

This victory turned out to be far more costly than anticipated, however, because they destroyed the fig leaf that made coexistence possible.

Up until Dred Scott, a Northerner could know that slavery existed and hate it in his mind, but he'd never confront it personally in a way that would force him to actually do anything about it.  After all, slavery was banned in his state; the handful of blacks there were not in chains; and he voted religiously for anti-slavery candidates, did he not?  It wasn't his fault that his fellow abolitionists had not the voting power to outlaw the practice nationwide.

Now, thanks to the Court's decision, God-fearing Massachusetts sheriffs and marshals would be forced to arrest escaped slaves living freely in their own state; march them in chains down the street in front of their goggle-eyed neighbors and fellow-churchgoers; and send the recaptured blacks back to a bondage which, Northerners believed, violated every principle of justice and the law of God.

The South and the Court had destroyed the rights of the Northern states to not participate in slavery.  The people of the North were being forced - personally and by proxy of their tax dollars - to support an institution they believed abominable.

What other result could there be but war?  If the South had left well enough alone and maintained slavery only in the states that wanted it, it's possible that passions would never have reached the point of war.  That wasn't good enough for them, however, and in winning a court battle they ultimately lost everything.

What has this to do with us today?  Our Supreme Court has continued its tradition of rushing in where legislators fear to tread and taking sides in contentious matters best left to lawmakers.  In the next article in this series, we'll explore the exact parallels between the Pyrrhic victories of the slaveowning South and today's imprudently triumphant Left.

Petrarch is a contributing editor for Scragged.  Read other Scragged.com articles by Petrarch or other articles on Law.
Reader Comments

This is a very profound viewpoint. I have never considered the case you're laying out here, but you have a very good point. States rights goes in both directions. Furthermore, the Founders didn't like slavery, but they had to force themselves to allow states to come to that decision on its own.

January 25, 2011 1:30 PM

In realizing that citizens HAD to come to important conclusions such as slavery on there own, our founders were far wiser than modern liberals who believe that the Supreme Court can force Americans to fall into line on divisive issues such as abortion and gay "marriage."

Tyrannical people don't like the idea of states' rights. They want to run it all.

January 25, 2011 7:34 PM

Ifon said, "Furthermore, the Founders didn't like slavery, but they had to force themselves to allow states to come to that decision on its own."

Ifon, I do appreciate your point but I think we need to remember that when we say, "the Founders" we've lumped together quite a few personalities. Many of the "Founders" owned slaves, even those like Washington who (though I like him) was quite hypocritical. He agreed to free his slaves after the death of his wife.

October 23, 2011 7:43 PM

Actually, regarding Washington, the reason he freed his slaves after his wife's death was because that's all he could legally do. They weren't his slaves - they were his wife's, she inherited them from her side of the family. He did the best he could under the law at the time.

October 23, 2011 11:22 PM

The North did not secede from the South because it objected to the Fugitive Slave Act or Dred Scott. Both could have been reversed had the South been allowed to secede. The War of Northern Aggression began because Lincoln insisted on warring on the South to deny those States their natural right to leave the United States. Saying the South caused the war is perverse.

April 3, 2016 12:37 AM
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