On November 13, 1860, Senator Robert Toombs rose before his fellow Georgians and argued vehemently for secession from the Union, reasoning that, with the election of Abraham Lincoln, “[t]he Executive power, the last bulwark of the Constitution to defend us against these enemies of the Constitution, has been swept away, and we now stand without a shield” (qtd. in Gienapp 57). In his response on the following night, Alexander Stevens replied that, “the election of no man, constitutionally chosen to that high office, is sufficient cause for any State to separate” (qtd. on 59). The primary difference between these two arguments is that Toombs saw a situation where the North had opposed the Constitution in the past, whereas Stevens perceived no such previous violation, and instead wished to only secede if “Black Republican aggression” infringed the boundaries of the sacred document (qtd. on 60). Furthermore, as it would be absurd for Executive power to oppose the only source of its authority, Toombs’ conception of the Constitution seems to evoke an inviolable set of principles that transcended the text itself. Stevens’ claim thus fell on deaf ears because Southerners adopted Toombs’ point of view that the Constitution had in fact been violated and their interpretation of the unwritten Constitution, the sacrosanct “spirit” or “essence” of the document, consequently led them to secede.
Clear evidence of this abstract, tacit definition of the “Constitution” can be found in South Carolina’s justification for secession. In 1860, they declared that, “a sectional party has found within that article establishing the Executive Department, the means of subverting the Constitution itself” (qtd. on 61). In other words, by using the Constitution, they corrupt or undermine the Constitution. Such a statement can only be true under either of two non-mutually-exclusive conditions: a) the Constitution is a severely flawed outline for government; or b) the legal Constitution and the spirit of the Constitution are two distinct, but certainly overlapping, entities. As no intelligent politician would publicly concede a) as true in 1860 just as in modern times, it can be assumed that b) was in fact true for the Southern politicians like Toombs.
A primary element of this Southern understanding of the Constitution was the right to secede. Nowhere does the original document confer the right to detach from the Union, but Southerners still found the act “entirely legitimate under the terms of the federal Constitution” (Cook 114). Perhaps one could construe the tenth amendment to grant such a right, but Article six states that all government officials must support “this Constitution,” which runs contrary to secession (U.S. Const. 6.0.3 and Am. 10, from Gienapp 435-6). Alexander Stevens used this principle as a premise in his argument against secession (59). Yet, despite this Constitutional opposition, or at least ambivalence, to secession, South Carolina declared that it had such a right. In their aforementioned justification, they asserted that there were three overriding principles in American government. The first two, derived during the Revolutionary War, were “the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted” (qtd. on 60). Third, they claimed, was “the law of compact,” which essentially means that in a contract, if one party breaks the accord, all other parties are released from obligation (qtd. on 61). Neither of the latter two is formally embedded in the U.S. Constitution, but the States of the Deep South saw them as an essential part of an equally important tacit Constitution nonetheless.
Slavery also remained a vital aspect of the Southern interpretation. Although the Constitution appeared ambivalent about slavery, never referring to it directly by name and certainly not guaranteeing its existence in any part of the country, the ratification entrenched slavery as an American concept through its three-fifths and fugitive slave clauses, leading one scholar to state that “on balance the Constitution bolstered slavery by throwing the power of the federal government behind it” (Kolchin 80). The right to have slavery in a particular State would of course fall under the rubric of States’ Rights, but the South sought to take it one step further, securing the right to own slaves in U.S. territories. One of Jefferson Davis’ first hints at secession came while asserting that “under the Constitution slavery must follow the flag” as it moves westward (Cook 60). Such an opinion extends beyond the legal Constitutional “States rights” claim and veers into an implicit right for slavery to exist. Indeed, Chief Justice Roger Taney reinforced this view in his Dred Scott decision of 1857 when he wrote that Congress could not deny slavery in a federal territory and that “the right of property in a slave is distinctly and expressly affirmed in the Constitution” (qtd. in Gienapp 41-43). Despite the fact that slavery is not “distinctly and expressly” mentioned or guaranteed in the actual text, Taney, himself from a slave State, declared that it was, his (as well as the general Southern) conception trumping legal formalities.
Besides slavery and the right to withdraw, the notion of compromise and an equal share of government could also be considered part of the Southern vision of the Constitution. This aspect of the Southern interpretation of the Constitution and American government dated back to the Constitutional Convention of 1787, when the Framers had to compromise and consent to slaveholding interests in order to have the document properly ratified (Kolchin 80). Additionally, in a common law system such as the United States, the various political concessions within such agreements as the Missouri Compromise and the Compromise of 1850 created a feeling that such reciprocal action between North and South became a fundamental norm of American politics. The process whereby States were admitted in alternating fashion established an understood balance as well. Robert Toombs hinted at this ideal of governmental equilibrium within his febrile argument. “Hitherto,” he wrote, “the Constitution has had on its side the Federal Executive…The Executive has been faithful – the Federal judiciary have been faithful,” in which he implies that the Northern States and the Federal Congress remained disloyal (qtd. in Gienapp 57). Apropos the prospect of abolition in the territories, an editorial from Alabama spoke of the territories as a shared commodity that should be open to all ideologies, invoking the language of fairness and mutual respect (Gienapp 37-8). An appreciated, equal voice in political decision-making therefore stood as a pillar in the Southern interpretation of the Constitution.
With this broader perspective of what Southerners meant when they spoke of the Constitution, one can reevaluate Alexander Stevens’ failure to persuade his fellow statesmen. His argument rested on the premise that not only did Lincoln’s election not constitute a violation of the Constitution, but that no violation of the Constitution had before occurred (59-60). Both statements were viewed as utterly false by the politicians who chose to secede in large part because the Constitution as they interpreted it had been violated multiple times.
Concerning the issue of slavery, the South perceived several grievances and attacks against the institution, which, in their interpretation, became an attack against the Constitution itself. Most Southerners perceived actions like the Wilmot Proviso as hostile to slavery, that action in particular leading to a regrouping for Southern interests. The abolitionist politicians’ rhetoric and practice seemed to impinge on the South’s sense of decent behavior relating to slavery, as editorials in the Richmond Enquirer illustrate (Gienapp 40-1; 53-54). In an address to his colleagues justifying the Confederacy, Jefferson Davis gave an extensive laundry list of Northern offenses against the institution of slavery, again reiterating Taney’s fallacy that the Constitution explicitly protected slavery: “in no clause can there be found any delegation of power to the Congress authorizing it in any manner to legislate to the prejudice, detriment, or discouragement of the owners of [slaves] or excluding it from the protection of the Government” (qtd. on 73). Davis moreover accused the Northerners of violating the notion of compromise and an equal seat at the governmental table for Southern interests when the North went about “reducing those States which held slaves to a condition of inferiority” (qtd. on 73). The precept of a share or voice in government become further despoiled when the nation elected Lincoln without a single Southern electoral vote. In Toombs’ paradigm, the balance was gone, and the “enemy…will entrench himself behind a quintuple wall of defence (sic). Executive power, judiciary,…army, navy, and treasury” (qtd. on 58). Prominent Republican leaders also assured the Southern politicians that there would be no compromise or respect for their rights. William Seward, for example, pointed to “allegiance to ‘a higher law’ than the Constitution,” a statement which in and of itself violates the Southern ethos because it directly opposes allowing slavery regardless of Constitutional rights and occludes the possibility of compromise or mutual respect (qtd. in Cook 61).
Even if one refuses to believe in the abstract, uncodified Southern interpretation of the Constitution as presented herein and concede only that they believed in the right to secession (as Stevens did, too, meaning the right to secede should be taken as a given constant for purposes of this argument), many prominent politicians in the South rejected Stevens’ argument because they felt the North had violated the explicit legal language of the Constitution (Gienapp 59-60). In the eyes of secessionists, the Northern Republicans had “disobeyed the Constitution – by passing personal liberty laws, abetting fugitive slaves, and encouraging evildoers like John Brown” (Cook 116). The South Carolinians made a more coherent indictment: “We assert that fourteen of the States have deliberately refused for years past to fulfill their constitutional obligations [to return fugitive slaves]….in none of them has the State Government complied with the stipulation made in the Constitution” (qtd. in Gienapp 61). As those fourteen States did in fact pass anti-fugitive laws and emancipate some fugitive slaves, South Carolina was correct as the Northern States were technically in violation of the wording of the fugitive slave clause, as well as the fugitive slave law of 1850 (U.S. Const. 4.2, on Gienapp 424).
As he firmly shared the common belief in the right to secede should a Constitutional violation by the North take place, Alexander Stevens presented an argument based solely on the notion that the Republicans and Northern States had yet to break the so-called Constitutional Compact. He failed to persuade others in the Deep South not only because there was an expanded definition of the Constitution he seemed to ignore, an abstract, inferred doctrine that the North had repeatedly violated, but also because the North had committed minor violations against the explicit document itself. Likewise, a specter of fear surrounded the debates in Georgia that November. When Toombs’ dreaded March 4th would arrive, men like William Seward and Abraham Lincoln would hold unprecedented power and would likely strike at the last vestige of Southern faith that the Union might respect their interpretation of the Constitution by further eroding the principle of States’ Rights. In the words of John C. Calhoun, “[the South] has already surrendered so much that she has little left to surrender” (qtd. on 31). The very thought that the last morsel could be taken with hardly a say from the Southern States themselves would surely be a violation of their abstract conceptualization of the Constitution and of their understanding of the Founding Fathers’ wishes. Lincoln’s election was not – as Stevens implied – the one grand reason for action, but rather a coup de grace after years of subtle blows. To contemplate that a people who so earnestly believed that the spirit of the Constitution – their Constitution – had been so desecrated would heed a man like Stevens who told them no transgression had hitherto occurred and that they would not take their own self-legalized preemptive action and secede from those who threatened their interpretation of the document which they thought justified their cultural existence is patently absurd.