From Tenth Amendment Center
The recent controversy over Confederate monuments has reignited debate about the very nature of the War Between the States, also known as the “Civil War.” Union apologists tend to argue that it was all about slavery. Confederate sympathizers claim it wasn’t about slavery at all, but about the power and sovereignty of the states.
As in most things, the truth is much more complex. The Civil War was about slavery. And it was about state sovereignty. And at various times, the North and the South defended and supported both slavery and “states’ rights.”
In a recent article, Paul Craig Roberts asked a poignant question: “How come the South is said to have fought for slavery when the North wasn’t fighting against slavery?”
Roberts correctly unveils some hard truths. Lincoln was not fighting to free the slaves. He had every intention of maintaining the institution of slavery – as long as it would preserve the Union. Lincoln made his stand on slavery perfectly clear in an August 1862 letter to New York Tribune editor Horace Greeley.
“If there be those who would not save the Union unless they could at the same time save Slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy Slavery, I do not agree with them. My paramount object in this struggle is to save the Union, and is not either to save or destroy Slavery. If I could save the Union without freeing any slave, I would do it, and if I could save it by freeing all the slaves, I would do it, and if I could save it by freeing some and leaving others alone, I would also do that. What I do about Slavery and the colored race, I do because I believe it helps to save this Union, and what I forbear, I forbear because I do not believe it would help to save the Union.”
Congress was also all for maintaining slavery, as evidenced by passage of the Corwin Amendment to provide constitutional protection to to the institution where it existed.
In fact, the federal government consistently acted in ways to protect the institution of slavery. For instance, the Fugitive Slave Act of 1850 was a powerful tool to support southern slaveholders.
But while the federal government supported slavery and even acted in ways meant to sustain the institution, individual northern states did not. And this is where Paul Craig Roberts’ analysis goes off the rails.
Roberts wants to frame the war this way: The South fought for its devotion to state sovereignty and the Tenth Amendment, and the North fought for its commitment to the Union and a centralized national government. To support his case, Roberts turns to a document issued by South Carolina to justify its secession formally titled the Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union. Roberts wrote:
“South Carolina saw slavery as the issue being used by the North to violate the sovereignty of states and to further centralize power in Washington. The secession document makes the case that the North, which controlled the US government, had broken the compact on which the Union rested and, therefore, had made the Union null and void…
“The secession document reads as a defense of the powers of states and not as a defense of slavery”
But Roberts’ analysis misses South Carolina’s primary grievance in a significant way: South Carolina was actually complaining about too much northern state sovereignty.
What exactly was South Carolina’s primary complaint?
Nullification.
Southern states were frustrated that northern states had implemented and enforced policies that effectively nullified the federal Fugitive Slave Act of 1850. This is what South Carolina’s leaders said, in their own words.
The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. 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 or render useless any attempt to execute them. [emphasis added]
So, while the federal government supported the South and its institution of slavery, and passed the Fugitive Slave Act to that end, individual northern states defied the centralized authority and were successfully nullifying the federal law.
What the mainstream historians never tell you is that northern states justified their nullification efforts based on “states’ rights” arguments.
The Fugitive Slave Act of 1850 was enacted to aid southern slavers in their efforts to reclaim their “property.” It allowed a slave owner, or his representative, to haul a black person back South into slavery merely on his world. It denied an accused runaway any semblance of due process.
In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence; and the certificates in this and the first [fourth] section mentioned, shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.
It also compelled citizens to assist in fugitive slave rendition if ordered to do so and made assisting suspected runaways a federal crime with stiff penalties.
The Fugitive Slave Act of 1850 vigorously applied federal power for the benefit of slavers to preserve their institution and protect their ‘property.’ Ardent nationalists in the North had no problem with this application of federal authority. For instance, outspoken northern nationalist Daniel Webster supported the act.
But at the state level, northerners rebelled. They asserted state sovereignty and passed aggressive personal liberty laws to thwart execution of the act. In support of their stand, apologists appealed to the notion of “states’ rights,” sometimes directly quoting arguments advanced by John C. Calhoun during the “Nullification Crisis” over tariffs decades earlier.
This wasn’t just a political temper tantrum. Northern states based their nullification efforts on constitutional grounds. Northern lawyers argued that the Fugitive Slave Act was unconstitutional because it denied Fifth Amendment rights of due process.
A second constitutional argument revolved around vesting commissioners and magistrates with judicial power to issue certificates of removal – essentially the authority to judge cases and render verdicts. The Fugitive Slave Act vested judicial power in court appointed commissioners. These officers generally handled arrests and bail, and were not judges. Northern legal experts argued they were never intended to wield actual judicial authority and that the Fugitive Slave Act of 1850 violated Art. 3 Sec. 1 of the Constitution.
Northern states also asserted that they had the authority to direct their resources as they saw fit and were under no obligation to assist with fugitive slave rendition.
In an 1854 fugitive slave case, the Wisconsin Supreme Court declared the Fugitive Slave Act of 1850 unconstitutional. Justice Abram Smith wrote, “Every jot and tittle of power delegated to the Federal Government will be acquiesced in, but every jot and tittle of power reserved to the States will be rigidly asserted.”
So what does this mean?
It was about slavery. South Carolina wanted to keep the institution of slavery intact. Northern states were using nullification to resist slavery. South Carolina wrote: “For twenty-five years this agitation has been steadily increasing.”
South Carolina’s political class believed some people could be property, and it wanted centralized control to keep that in place. The northern states opposed this practice and were using states rights, the 10th Amendment – and most importantly – nullification – to reject slavery. It couldn’t be much more straightforward than that.
Was that Civil War was about slavery? Sure. Was it about state sovereignty? As South Carolina tells us – absolutely. But which side supported what when – that gets a little more complex.
Before the war, northern states fiercely defended state power. They nullified. They undermined the central authority. But after southern states asserted their own authority and seceded, northern support for state sovereignty melted like a Popsicle on a hot summer day.
On the other side of the coin, slavery was clearly the major factor in southern secession. But the war itself wasn’t fought over slavery. Lincoln waged war to keep southern states in the Union, whether they wanted to remain in it or not.
Mike Maharrey
September 05, 2017 at 06:51PM
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