B (2:18)

And as you mentioned, if a people come together and form a contract, you can't have one side of it unilaterally say, I'm out. It has to be a mutual agreement. If there's any dissolution, if that happens

A (2:31)

in a business arrangement or in a marriage, you have litigation or you have divorce proceedings in which these disputes are resolved. And when the country does it, that unfortunately means the way of resolving the dispute is with a war with blood. So that's what we're discussing. That's what Dr. Porteus discusses in lecture seven. Right. We understand that a single party cannot legitimately break a contract. We see that in business contracts, if one party tries to leave without the other's consent, there'll be litigation. We see that in divorce, if a husband or wife tries to leave without the other's consent, there's divorce proceedings. And those can get messy. Well, when this happens in a country, it's even messier because of the way of resolution, as we see in the Civil wars with bloodshed and fighting. We really appreciate you learning with us and wrestling with these important and sometimes uncomfortable ideas. That is how we understand ourselves as citizens and how we can learn to participate in our government and continue and how we can perpetuate our free institutions. The efforts of Hillsdale College do come at a cost to us, and we are supported by our generous friends who donate money. We don't get any from the federal government. We don't rely on them to tax you and take money away from you. We rely on you to give it to us. So if you're able to do that and willing, please go to Hillsdale. Edu Course and click the donate button to help us continue to make podcasts and courses and all the other things that we do to educate all who wish to learn to donate. That's Hillsdale. Edu Course. Hillsdale. Edu Course to make your tax deductible donation to Hillsdale College.

B (4:02)

And now let's turn to Constitution 101, Lecture 7, Secession and Civil War.

C (4:12)

Welcome back to our online series, Constitution 101. In this lecture, we're going to continue our discussion of the antebellum period, slavery and the lead up to the Civil War with a discussion of the secession controversy and the meaning of the Civil War itself. Slavery was the primary cause of the Civil War, which was nothing less than a struggle to save or to destroy Republican government and equal natural rights. A good place for us to begin is to remind ourselves of the political effects of slavery, the poison that slavery introduces into the body politic. And perhaps the clearest thinker on this subject was the abolitionist Frederick Douglass. Douglass understood and said repeatedly in his speeches that slavery requires nothing less than a total transformation of the entire society. He said that just and good ways of life easily repose in their own rectitude. On the other hand, the nature of tyranny is always expansion. That slavery, like any other form of tyranny, must attempt to grow and to take control of everything around it. It must do this in order to protect itself. And so, he says, all such as are false and unnatural are conscious of their own weakness and must seek strength from without. So in that vein, Douglass continues, he says that slavery must transform every aspect of the society in which it exists. A new society which supports slavery must be constructed in place of the old one, which was hostile to it all. Opposition to slavery is a threat to the way of life that slavery creates. Slavery requires that not only must liberty be obliterated for the slaves, but liberty must also be severely curtailed for free people as well. And so one notices that in the pro slavery south, as the Civil War approached, Southerners increasingly began constructing a police state in the very modern sense of the word, and were seeking to export that police state throughout the entire country. Free speech, free press, protection of mails, protection against unreasonable and warrantless searches of personal property, all of those came to be considered as a standing threat to slavery and had to be suppressed. It became impossible to utter anti slavery thoughts or to print antislavery works without taking your life in your hands. Southern postmasters routinely and illegally opened and inspected the mail in order to seize mail which contained what they considered to be abolitionist thoughts or arguments. If slave patrols showed up at your home and wanted to search your premises with or without a warrant, you were legally compelled to do so. And so Douglass's conclusion is that slavery is such a gigantic lie, he called it the most stupendous of all lies, that it had to reshape the entire society in order to protect itself. And so all free institutions were considered to be a standing threat to slavery. Abraham Lincoln, in his Cooper Union speech in 1860, continues and develops this argument further. He says, let's ask ourselves, we Republicans, what will satisfy the south, what will convince the Southerners that we mean them no harm, what will convince them that we do not intend to attack them, to take their slaves away from them, etc. Now, this speech is in 1860, prior to his election, prior to the outbreak of the Civil War, prior to secession, he says, we have avoided threatening activity. In other words, we haven't done anything to harm them. And he dismisses out of hand the idea that John Brown was anything other than a crank. He says no matter how much we may appreciate his motives, we cannot but condemn treason, violence and bloodshed. He says that these natural an apparently adequate means all failing. What will convince them we haven't threatened them, we promise not to threaten them and yet they still accuse us of threatening them. So what will satisfy them? He says this and this only cease to call slavery wrong and join them in calling it right. And he says this must be done in acts as well as in words. We must pass Stephen Douglas new sedition law which would make make it a crime to agitate against slavery. We must abolish our free state constitutions. We must return their fugitive slaves to them with quote, unquote greedy pleasure. That's what will satisfy them. We must abandon our moral conviction and adopt theirs. And Lincoln says the only justification for not doing so is our sincere belief that that slavery is wrong. And so he concludes with one of the most ringing statements in American rhetoric. He says, let us have faith that right makes might. And in that faith let us to the end dare to do our duty as we understand it. So both Lincoln and Douglass understood that slavery was not simply a peculiar institution. It was a poison that threatened to corrupt the the entire nation, the entire body politic, and transform us from a free nation that tolerated slavery out of necessity into a slave nation that was rapidly running out of tolerance for these unusual people in the free states who seem to think that universal liberty was a good thing. When the north in 1860 finally signaled that they were unwilling to be converted, to be corrupted in this way, and the signal that this was the case was the election of Lincoln in 1860 on an anti slavery platform. This was a unique thing. It had never happened in American history. There had been anti slavery presidents in the past. Washington, Jefferson, Madison, Van Buren, John Quincy Adams. But they had not run on an explicitly anti slavery platform. Lincoln did that and because of the nature of our electoral system, was able to get himself elected president by concentrating his vote in the free states. And so southerners recognized the north can elect a president without us. And they elected a president whose platform and stated beliefs represent a repudiation and an insult to us and our way of life. When that happened, Southern states began to secede. And very helpfully for us, they laid out their basic principles. They explained to us their understanding of the Constitution. And so we can look at that and say, okay, how did they understand secession? And when one looks at the various secession documents that southern states promulgated, during the 1860-1861 period, one notices that there are two basic theoretical principles that animated them in terms of their legal justification for slavery. The first one of these is the doctrine of undivided state sovereignty, the assertion that each state, even under the Constitution, is a fully independent nation. And so the Constitution is nothing more than a treaty between separate sovereign nations. For, as one of these documents puts it, mutual advantage and protection. It does not form a single government for a single nation in any way, shape, or form. Now, this is a problematic argument, and it's contradicted by the founders themselves, because what the southerners are really arguing here is that the Constitution does not represent a fundamental change in the relationship of states to federal government from the articles of Confederation. And if one goes back and looks, for instance, at James Madison and Alexander Hamilton in particular, one sees that Madison and Hamilton, and again, the founders in general, saw the Constitution as a significant change in the relationship between states and federal government. The way in which it's ratified is different. Madison and Hamilton condemn the articles of confederation because in practice, it really is just a treaty. It doesn't make us enough of one nation. They considered this a bad thing, and they attempted in the Constitution to rectify that. If one looks at the Constitution clearly, one sees that rather than being just like the Articles of confederation, the Constitution develops, and Madison and Hamilton articulate in the federalist Papers a theory of what is called dual sovereignty or divided sovereignty. That is to say that, yes, in some areas, the states retain their sovereignty, but the federal government is also sovereign within its sphere. Hamilton says, Madison says, it's an absolutely unique experiment. It's something totally different. Everybody has always said in the past that you can't have two sovereignties. Well, we're going to try. And the Constitution explicitly tries to do this. Yes, it reserves powers to the states, but it also says that within its sphere, the federal constitution is the supreme law of the land. And there are specific provisions in the Constitution where attributes of sovereignty are expressly taken away from the states. Powers like the war power and the treaty power are expressly withheld from the states. So the states cannot claim to be fully sovereign under any reasonable reading of the Constitution. Now, following from this doctrine of undivided state sovereignty is the doctrine of individual state secession. That is to say that each state may decide for itself has the treaty been violated. The treaty in this case being the Constitution. When one looks at the secession documents emanating from the southern states, after the statement of these basic two principles, they begin to articulate grievances and so, in a sense, these documents, these secession declarations and resolutions, in form at least, tend to mimic the thread of argument that one finds in the original declaration of Independence in 1776. A statement of principles, a list of grievances, and then a conclusion. Now, I think we'll see as we go forward that there are significant differences and that the southerners are not simply following in the mold of the original revolutionaries, but they sometimes thought of themselves in that way. So these secession documents then begin to look at grievances, particular grievances that the southern states had. Interestingly, the first grievance that one typically runs into is not a complaint over the question of slavery in the territories. And the reason this is so fascinating is that it's that slavery in the territories question that had dominated the slavery controversy going back for decades. It's the question of what to do about slavery in newly acquired lands. That's the basis of the controversy that results in the Missouri compromise. That's the basis of the controversy that results in the Compromise of 1850. And yet that's relegated to second billing. That raises an interesting question. What was the first thing that the southern states went to when they complained about northern behavior on the slavery question? It was the fugitive slave clause and the legislation that was passed in 1793 and again in 1850 to provide teeth for the fugitive slave clause. Now, the complaint was that northern states were engaged in organized resistance of the fugitive slave act of 1850 and the Fugitive slave clause upon which it was based. Now, I would suggest, though, that these complaints are greatly overblown. And in order to understand that, one only has to go back and look at what the northern states were doing. Southerners complained about something that were called personal liberty laws. But if one looks at the origin of these personal liberty laws, they are far less sinister than the southern states make them appear. In 1793, Congress passed the first Fugitive Slave Act. The problem with the first fugitive slave act was that it made it terribly easy for slave catchers to go into free states, kidnap the free black citizens of those states, and cart them back into the south as slaves. All a slave catcher had to do was take a putative slave before a federal magistrate and say, this is the slave that's described in this notice. And if the federal magistrate looked at it and said, yeah, I guess he matches the description, he would issue a certificate allowing that slave catcher to convey that person south. And there were instances where a free black person was conveyed south, and the slave owner looked at him and said that's not my slave. There were also many more instances where the slave owner simply said, well, good enough, and kept the person anyway. So northern states responded by passing laws which came to be known as personal liberty laws, but initially were known as anti kidnapping laws. And the point of those laws was to protect the free black citizens of the free states, so that if that free black person was hauled before a federal magistrate as a putative slave, that free person would at least enjoy the legal protections under the Constitution that any free person should enjoy. Things like the right to counsel, the right to confront witnesses, and the right to appeal. In other words, the basic protections of due process and the claim of the free states was that due process is due to anyone before he is deprived of his liberty. And so we are simply protecting our citizens. Now, these laws existed for decades without significant complaint. And then suddenly, after 1850, southern states decided they were intolerable. In point of fact, there was only one northern state that actively tried to resist the Fugitive Slave act of 1850. At the political level, the Wisconsin Supreme Court declared that the Fugitive slave Act of 1850 was unconstitutional, but they were immediately overruled by a unanimous U.S. supreme Court. And so that opposition was crushed. There was sporadic individual opposition, yet both sides tended to blow that individual opposition or that private opposition way out of proportion. In other words, to blow it up to a much greater scale for propaganda purposes one way or the other. So concern about the Fugitive Slave act was largely misplaced. The federal government went to great lengths to enforce it. Lincoln, in his first inaugural even declared his intention to enforce it, a position which infuriated abolitionists. This is what impelled Douglass. Frederick Douglass, in his response to Lincoln's first inaugural, to describe Lincoln as a truckling doe faced sellout coward. Douglass was incensed by Lincoln's declaration that he would enforce the Fugitive Slave act of 1850. Because Lincoln understood, yes, I don't like it, but it's the law and I'm the president now. There was also the complaint about slavery in the territories. But one must also recognize that any damage that could be done to slavery in the slave states via federal control over slavery in the territories was way in the distant future. The Southern claim was that the Republicans are going to outlaw slavery in the territories, and eventually they will get enough free states to outlaw slavery by constitutional amendment. But you're talking about decades down the road. So that the Southern complaint here is really about something that hasn't harmed them yet, but may in the distant future. This is a far cry from the original declaration of independence, which deals entirely with grievances over events that have already taken place or are currently taking place, not things that may happen at some indeterminate point in the distant future.

D (22:00)

Great books, great people, great ideas. Learning about these things is critical to being a well educated human being. And we can help with the Hillsdale Dialogues. Each week, Hillsdale College President Larry Arne joins radio veteran Hugh Hewitt to discuss topics of enduring relevance. And from time to time, they also talk about current events, but always with an eye toward more fundamental truths. And they want you to tune in to a conversation like no other. The Hillsdale Dialogues are posted every Monday on the Hillsdale College Podcast Network at podcast hillsdale.edu. that's podcast hillsdale edu or listen via Apple Podcasts, Spotify, YouTube or wherever you find your audio.

E (22:43)

Hey there, it's Scott Bertram, host of the Radio Free Hillsdale Hour. On this week's episode, we talk with Dr. Ronald J. Pastrito. He's dean of the Van Andel Graduate School of Statesmanship here at Hillsdale College, also chair in the American Constitution. He's written a new provocation. It's a short book. It's called Government by the How It Happened and How It Might Be Tamed. Or we go in depth with Dr. Pastrito this week and Daniel Darling, director of the Land center for Cultural Engagement at Southwestern Baptist Theological Seminary. He'll take us inside his new book, In Defense of Christian Patriotism and discuss the Christian obligation to patriotism. All that this week on the Radio Free Hillsdale Hour. Find it at podcast hillsdale.edu or wherever you get your audio.

C (23:37)

The straw that really broke the camel's back was the election of Lincoln itself. This was again a declaration in the Southern mind on the part of the north that slavery is wrong and that slaveholders are evil. Now we mentioned in our last talk that the slaveholders were very consciously building an aristocratic society. And an aristocratic society honor is everything. And this was viewed by Southern states and by Southern leaders as an affront to Southern honor. The Mississippi resolutions on secession even explicitly use the word dishonor, that Lincoln is a sign that the north wants to dishonor and overthrow the South. So it was really the election of Lincoln that drove them over the edge. They lived with all of this other stuff and now they've been formally repudiated and they won't tolerate it anymore. And so they declare secession. Now Lincoln is in a position where he has to respond to this argument that there is such a thing as secession and that it is perfectly constitutional. And so Lincoln says there are three ways to describe what the south is doing, and one of them is secession. But Lincoln argues in his first inaugural address in particular that there is no such thing as secession. He says there's no unilateral right for one party to withdraw from a contract. If all the states wanted to get together in a convention and abrogate the constitution, then perhaps they could do that. But no one state could walk away from the contract any more than you or I could walk away from our mortgage unilaterally or to alter the terms of it unilaterally. That, he says, is where the south crosses the line. Secession, moreover, is an appeal to the constitution. This is important. The southerners claim that they have a legal right within the constitution to withdraw from the union, and Lincoln says this is absurd. The only ways to change the system are constitutional amendment and revolution. If the founders had wanted to include secession as a mechanism for breaking up the country, they could have done that. They did already include one legal way to change the system from within the system, and that's the amendment process in Article 5. Now, what about the revolution question? The problem here is simply this, and we have to be clear here, because seceding southerners did tend to use that word and that language. The charleston mercury, in the aftermath of south Carolina's ordinance of secession, declared that the tea has been thrown overboard. The Revolution of 1860 has begun, and southerners tended to see themselves at various times as the heirs of Washington and Jefferson in defending their liberties in the way that the old revolutionaries did. But there's a problem here. Revolution, as it's understood in the American context, is an appeal to natural law. Only a long train of abuses, the declaration says, of the inalienable natural rights of the people will justify revolution. But one must ask, at the end of the day, what right is it that the southerners are seceding in order to protect? And it's simply this, the right to hold other human beings as chattel property. All other controversies have been susceptible of peaceful resolution, except this one. But the basic problem lies in under the theory of the American founding contained in the declaration of independence and in a mountain of other documents, there can be no natural right to hold another human being as chattel property. It is prima facie a violation of the natural rights of the person held as a slave. So it can't be revolution as America's founding fathers understood it. And so that, for Lincoln, means that what the south is up to can only be characterized as one way. Insurrection, armed rebellion, unlawful resistance to lawfully constituted authority. The south was perfectly happy to work within the constitutional system as long as they thought that they were getting their way. And now for practically the first time since the adoption of the Constitution, something doesn't go their way. And in fact, between the adoption of the Constitution and the outbreak of the Civil War, the South wins every battle over slavery, or at least doesn't lose every battle over slavery until 1858. In 1858, they lost a battle over a pro slavery constitution for Kansas. And then in 1860, they lost the election. Lincoln is elected president and that puts them over the edge. So that what's really going on here is that the south is saying people we disagree with won an election. And so therefore, even though we were perfectly happy with the system for decades before and insisted that everyone else live according to it, now, now that something didn't go our way, we are going to effectively take our ball and go home. They were perfectly content with the system until it produced a result they disliked. And so the practical import of what the south is doing in the Civil War is attempting to overturn a constitutional election by force. The south is looking at the north and saying, not my President, resist. We are going to resist. And they do with force. Now, Lincoln argues that the end result of this is either going to be anarchy or despotism. Either secession is a good principle for everyone so that any group can secede from any other group, or, and I think this is what Lincoln thinks the south really means to do, despotism, to impose minority rule on the country. Or we lost the election, but we are going to blow up the country unless you renounce the principles on which you were elected and submit yourselves to us once again. And Lincoln says we can't do that. If we do that, we are simply going to have to refight this battle at subsequent elections. What's really going on here? Lincoln says, and he says this in his special message to Congress. When he called Congress into session on July 4, 1861, he sent over a written message explaining what was going on in the country. And he says the south seems to think, and he had said this in an earlier speech prior to his inaugural address, the south seems to think that the social compact created by the Constitution is a kind of free love arrangement that you can come and go from as you please. He says no, absent a long train of abuses, it is a permanent arrangement. If you lose an election, the remedy is not rebellion, but to win the next one. And that's what the south is up to here at the end of the Day rebellion, insurrection. Lincoln described the doctrine of secession as sugar coated rebellion. In other words, it was an elaborate fiction that was created by the slave holding class to convince ordinary southerners that one could be patriotic and rebellious at the same time. To justify legally what is simply insurrection. He says, at a deeper level, what's really at stake here is the survival of popular self government. The south is an oligarchy. They want to be an aristocracy, but what they really are is an oligarchy, which is to say the rule of the few for their own good and not for the good of anybody else. An aristocracy is a society where the few rule, but they rule for the benefit of everyone. They're an explicit rejection of the founding where the people rule for the good of all. The south is trying to impose oligarchy on the nation. But when they failed, and the election of Lincoln is the symbol that they had failed in their minds, they are trying to destroy what they could not control and to establish permanently a separate oligarchic nation in the South. And so Lincoln says this is a people's contest. He looks at the Southern Declaration of Rights and the southern Constitution and says, where's the people? In the southern Constitution, we the people is replaced with we the delegates of the sovereign and independent states. Where are the people? Why are we pushing the people out of view? So Lincoln says, we are fighting. And this is a common theme among Republicans. We are fighting to vindicate republicanism, small r against oligarchy in the nation. And one can see these themes carried forward in Lincoln's famous wartime addresses. The Gettysburg Address, the second inaugural. In the Gettysburg Address, he's fourscore and seven years ago. So he places the founding of the United States four score and seven years ago. That's 1776 working backwards from the Gettysburg Address. America is founded in a moral order, the Declaration of Independence, not a legal charter of the Constitution. We were born in a moral truth. Our fathers, he says, brought forth on this continent a new nation. Our fathers are not our literal biological fathers. They are our moral fathers. They laid down our fundamental principle. At the end of the Gettysburg Address, he talks about a new birth of freedom. And what he means by that is that the American regime had compromised with slavery. The new birth will be purer, purged of the taint of slavery, but purity will still be measured by the same standards of old, the standards laid forth in the Declaration of Independence. At the end of the Gettysburg Address, he talks about the idea of government or of the people, by the people and for the people. The moral principle of the Declaration is the foundation of this struggle against Southern oligarchy. And what the Gettysburg Address tries to do is to re establish the relationship between the legal system of the Constitution and the moral principles contained in the Declaration of Independence. And remember from our last discussion, this is exactly what Calhoun denied. The truth and the guiding power of the principles contained in the Declaration of Independence. The Constitution was made, Lincoln says, for the Declaration of Independence, for that moral principle, the principle of liberty to all of inalienable natural rights. But the Gettysburg Address only solves half of the problem. It's irrelevant to go back to the laws of nature and nature's God if those laws are in fact false and can't be proven. And so Lincoln later on in the second Inaugural Address, in his way, sets out to establish that the laws of nature and nature's God are in fact real, guiding and governing for us. He says, look at the war. We didn't want this war. Nobody wanted this war. Nobody wanted the kind of war we got. Everybody prayed for something different. And then in the turning point of the speech, he says, the Almighty has his own purposes. Neither human intention nor human prayer dictated the course of events. The meaning of the war is not to be found in human terms. The war, in fact, is a kind of proof that God governs the universe and that we are subject to the rule of God. Now, at the end of the speech, the very famous statement he gives us is with malice toward none, with charity for all. And we all remember that. That's something we remember from being schoolchildren. But then immediately after that, he says something that we tend to forget with firmness in the right as God gives us to see the right. That is to say, God has enabled us to see a portion of his law. He's enabled us to see enough to know that slavery is wrong and that the evil of the slavery is the cause of the war. And even Lincoln says to understand the war as a kind of divine judgment on the nation as a whole, north and south, for the collective sin of slavery. Now, just because we're willing to say that slavery is wrong in the cause of the war and that both sides are punished, he's not being relativistic. We know that slavery is wrong and we know that slavery is constituted in the South. And he makes a powerful argument for slavery being unjust in the eyes of God. He says it may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces, which is a reference to God's judgment against Adam in chapter three of Genesis, so we can know that slavery is wrong. And if we know that slavery is wrong and we have an opportunity to get rid of it, we better do it with firmness in the right as God gives us to see the right. In other words, the Civil War shows us, among other things, that God rules the world and that we can know a portion of the law by which he rules that world, the portion that we call going all the way back to our founding, the laws of nature and nature's God. And this for Lincoln and for the Republicans during the Reconstruction period, was to be the basis of the re establishment of the country, the reconciliation of the country, the making it whole again, to bring us back to that original founding principle. And for a while he succeeded. We'll see in our next lecture that it wasn't long after the Civil War that a new group of people came in and like the Southerners in the pre Civil War period, repudiated the principles of the American founding. And so next time we're going to shift gears and take a look at the theory of American Progressivism. Thank you

B (38:39)

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