That old “States’ Rights” story

The first time I visited the American South, sometime in the late 1990s, I took at tour around one of those elegant plantation houses–I think it was in South Carolina–with a Spanish moss-covered avenue of trees, a shaded veranda on which to sip one’s mint julep, and discretely placed slave quarters. The lady showing us the house was dressed in crinolines and beamed at us all with the kind of warm Southern hospitality that suggested that she really was the mistress of this place and we were gentlemen callers. Most of her patter was about the portraits and the furniture, but at one point she assured the group that “that waarr was not about slavery.”

“What was it about then?” I asked, slightly diffidently.

Her answer–of course– was, “it was about states’ rights.”

I’d like to report that at this point I made a series of such devastatingly effective points that she and the smiling, baseball cap-clad retired people with me on the tour all shook their heads sadly and told each other how badly they’d misunderstood their own history. But of course I didn’t do that. I didn’t say anything.

But I’ve heard that line too many times since. We all have. And it seriously pisses me off. So this post is my extended answer to that lady. Not that she’ll read it, or be persuaded if she did.

Because here’s the thing: the idea that the South seceded to preserve “states’ rights” is not only not true; it is the very reverse of the truth.

You often hear people challenge the “states’ rights” canard by pointedly asking what rights the South wanted states to have, other than the right to own slaves. This is a well-intentioned line of argument but it is misleading. It implies that—yes—Confederates were committed to states’ rights but only as a means to protect their human property. That would be bad enough, but it still gets the problem the wrong way around. The leaders of the slave states in fact opposed states’ rights and wanted a strong central government—so long as it was controlled by them, as it was for pretty much the whole time between the Revolution and the election of Abraham Lincoln in 1860.

Southern state governments’ public explanations for secession explicitly mentioned as a provocation the Personal Liberty Laws passed by Northern states in the 1850s. These were state laws designed to neuter the federal Fugitive Slave Act of 1850, which gave Federal agents extraordinary power to by-pass normal law enforcement procedures in order to seize alleged runaway slaves. Supporters of John C. Breckinridge, the candidate of the southern wing of the Democratic Party in the 1860 election, demanded a Federal Slave Code—a set of regulations enforcing the ownership of human “property”. And when they created their new polity—the first nation in the modern world, in the proud boast of Vice President Alexander H. Stephens, to have slavery as its “cornerstone”– its constitution explicitly provided for the central—not state—enforcement of slavery.

The campaigners for secession in the South argued that the victory by the sectional Republican Party was not just part of the ebb and flow of electoral politics but marked a permanent shift in the locus of power in the nation. The demographic reality for many years had been that the free states were more populous than the slave states—even if you included the South’s enslaved people. The gap was widening, and the Republican Party had made it count politically. If this was so, slaveholders had no choice but to leave the Union and form their own nation state in which they would indisputably be in charge.

In the crisis-ridden years leading up to the outbreak of war, Northerners had no doubts that the sectional struggle was in part about states’ rights—the rights of the free states to resist the Slave Power. Some historians still write about the Slave Power as if it was a bogey man designed to frighten Northern voters into supporting the insurgent Republican Party. It is true that Republican politicians had a vested interest in maintaining the feeling among Northerners that they were under threat. But the Slave Power was real enough, if by Slave Power we mean an organised attempt by slaveholding politicians to strengthen Federal protection for slavery, even at the expense of the freedoms of white men in the Northern states.

The Slave Power was motivated by fear: an entirely rational fear from slaveholders’ point of view that slavery would be under threat so long as the legal and political systems in which they lived did not wholeheartedly respect their claim that human beings—at least black human beings—were just another species of property. This was why southerners were so delighted by the Supreme Court’s infamous Dred Scott decision of 1857. Chief Justice Taney argued that slaves were property within the meaning of the Fifth Amendment of the Constitution and that therefore no one could be deprived or his or her “property” without “due process of law.” The immediate consequence of the ruling was that any attempt by Congress to ban slavery from any US territory would be unconstitutional. The wider implication—quickly seized upon by Abraham Lincoln and many others—was that slaveholders could not be deprived of their human “property” even where slavery was banned by state law. Dred Scott, in other words, promised the wholesale nationalisation of the institution of slavery.

Northerners were overwhelmingly opposed to this kind of Federal interference in their right to maintain slave-free societies—and for their kind of society to expand westward “naturally”. Recent historical debate on the Republican Party has centered on exactly how determinedly antislavery they were, but no one doubts their commitment to free soil. But what too many scholars have overlooked is that the other half of the Northern electorate who never voted for the Republican Party were, on this fundamental point, just as determined to resist Slave Power encroachment. In the 1860 election the supporters of Stephen A. Douglas warned of its domination almost as often as did the supporters of Abraham Lincoln.

But is it really fair to say that the real states’ rights champions were Northerners? Didn’t Northerners in the end just want to take control of the Federal government that they feared (with reason) was under the sway of proslavery Southerners?

Well, Republicans definitely didn’t have any principled attachment to states rights. They wanted, in fact, to ensure that the weight of Federal power was used against slavery just as much as slaveholders wanted to use the Federal government in favour of slavery. Republicans wanted the Federal Government to tolerate slavery where it was protected by state law, but prevent it elsewhere.

However, there was one group of political actors in the Civil War era who really were the champions—on principle—of states’ rights: Northern Democrats. One prominent Democrat, the historian George Bancroft, explained that he hated the Dred Scott decision because of his adherence, as he put it, to the “old States-Rights School.” The founders, wrote Bancroft, had meant to leave the subject of slavery “exclusively, unreservedly with the laws of the States.” Or in the absence of a state, a US Territory. To prevent territorial legislatures from exercising their own judgment on this matter struck Bancroft as the essence of the kind of centralization and meddling that as a Democrat he had spent his life opposing.

In fact, savvy Northern observers from all parties had long known that there was a possibility of war over who controlled the Federal government. A fine example was the Philadelphia Whig, Sidney George Fisher. In 1848, Fisher surveyed the state of national politics from his vantage point in his well-appointed study and found little reason for optimism. The nature of slavery, Fisher reflected in his diary, “required Southern control” of the Federal Government. Only by having the assurance that their conception of property would be protected and respected by the national government—not least through judicial decisions—could they have security. “The South want[s] to rule,” Fisher wrote, “but if the North was shut out, civil war would result.” Precisely because they were a decreasing minority, Fisher accurately predicted that the South would feel the need not just to share power but to dominate. He was right, and in the Dred Scott decision nine years after Fisher made this prediction, the South got almost all that it could have wanted. And it duly followed as the night the day that the Northern backlash against this unprecedented Federalisation of slaveholders’ “rights” led to the crisis of secession and war.

So, my old crinolined lady friend: yes, states’ rights were a cause of the Civil War—but only as a rallying cry for Northerners in their struggle to protect their freedoms, as they saw it, from the Slave Power’s control in Washington. And so everything important you think you know about the Civil War is wrong I’m afraid (though I’m sure you’re really good on antique furniture.)






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