Book Review: Creating a More Perfect Slaveholders’ Union: Slavery, the Constitution, and Secession in Antebellum America
Creating a More Perfect Slaveholders’ Union: Slavery, the Constitution, and Secession in Antebellum America. By Peter Radan. Lawrence, Kansas: University Press of Kansas, 2023. Hardback, 389 pp. $44.95.
Reviewed by Kevin C. Donovan, Esq.
The Civil War did not resolve the question of whether states had the right under the Constitution to secede. Rather, the war simply established that the Confederate States did not have the military power to enforce their position against a rival combination of states (the Union) that insisted that no right to secession existed. Secession as a legal doctrine only was rejected in a post-war Supreme Court decision, Texas v. White, 74 U.S. 700 (1869), one that even in its own time was criticized for cursory, and arguably shoddy, analysis that seemed mainly an effort to “rubber-stamp” the verdict wrought by the war.[1]
Was Texas v. White incorrectly decided? Peter Radan believes so, and in his book, Creating a More Perfect Slaveholders’ Union: Slavery, the Constitution, and Secession in Antebellum America arms future litigants with an impressive array of arguments for the proposition that in 1860-61 the slave-holding states correctly asserted their right to secession.
Radan’s approach is methodical, (appropriately) legalistic and primary-source based. He does not simply chant the hoary phrase “states’ rights” as a talisman to justify the South. Instead, Radan deploys a three-part logical structure. First, Radan asserts that the text of the Constitution, the context of its adoption and statements of key drafters and their political progeny prove that the Constitution represented a “compact” of the states. This formulation matters because it was widely acknowledged (both then and now) that a compact is a contract, and a party to a contract has the right to withdraw from a contractual relationship if the other party breaches any key provision. Second, Radan argues that the pro-slavery provisions of the Constitution were key, as the Constitution was ordained to protect slavery and never would have been ratified absent those provisions. Third, Radan asserts that two key pro-slavery provisions, the new territories and fugitive slave clauses, were violated by the free states and the incoming Lincoln Administration. In Radan’s structure, the first point establishes the right to secession, while the last two justify the act of secession.
Radan marshals impressive historical support. For his compact argument Radan enlists, among others, James Madison, the very “Father of the Constitution,” because Madison at times referred to the Constitution as a compact. Radan also quotes that arch-defender of the Union, Daniel Webster, who in an 1851 speech thundered that it was “absurd” to expect “that when different parties enter into a compact for certain purposes, either can disregard any one provision, and nevertheless expect the other to observe the rest!,” warning that if the North refused to implement the Constitution’s fugitive slave clause, “the South would no longer be bound to observe the compact” (220-221). Radan further notes that three states, including Virginia, gave “conditional” ratification to the Constitution, each reserving the right to reassert sovereignty, positing that all states thus enjoyed the same right. Along the way, Radan confronts arguments that the Union formed by the Constitution was indissoluble, including the claim that: (1) the Articles of Confederation asserted that its Union was “perpetual”; and (2) the Constitution’s Preamble states that it was ordained to “form a more perfect Union” (emphasis supplied), thus inheriting the “perpetual” nature of its predecessor Confederation.
For his argument that the Constitution’s pro-slavery provisions were considered essential (key), Radan cites comments both by Convention delegates and the abolitionist movement, whose leaders indeed insisted that protection of slavery marked the Constitution (214-215).
Finally, Radan posits a breach of those pro-slavery provisions by free states’ resistance to the 1850 Fugitive Slave Act and the Lincoln Administration’s insistence that it would not permit slavery in the territories. Indeed, the seceding slave-holding states relied upon these actions in justifying secession.[2]
In sum, Radan concludes that there was a contractual relationship (the Union formed by the Constitution), and one party (free states) breached key terms of that contract (pro-slavery clauses), thus excusing continued adherence to the contract by the other party (slave states); hence, secession was legal.
Radan’s presentation, while unquestionably impressive, is arguably one-sided. For example, in a footnote Radan observes that Alexander Hamilton, in Federalist No. 11, urged ratification of the “thirteen states [into] a strict and indissoluble Union…” (emphasis supplied), but dismisses Hamilton’s characterization as only his mere “hope” (342, n. 507). Radan uses Madison’s statement in Federalist No. 43 that a compact can be dissolved, yet Madison was speaking there of the transient method by which the Articles of Confederation was formed, whereas the Constitution’s ratification process suggested that the resulting Union was to be effectively permanent.
Radan deems legitimate the slaveholders’ complaints that the free states resisted the Fugitive Slave Act although the Supreme Court, in Prigg v. Pennsylvania, 41 U.S. 539 (1842), had ruled that the Constitution’s fugitive slave clause permitted the states to refuse their support of slave rendition efforts. Nor does he address why the slave-holding states should not have taken the secession issue to the Supreme Court, rather than engaging in the more drastic “self-help” remedy of secession.
These (and other) counterarguments aside, Peter Radan has produced a work that is imposing in its depth of research, intensely thought-provoking, and worthy of serious consideration.
[1] Secession on Trial: The Treason Prosecution of Jefferson Davis, pp. 318-321 (Cambridge University Press, New York, NY 2017).
[2] In this regard, Radan refutes those–such as Jefferson Davis–who argued post-War that slavery was not the motivation for secession.
Kevin C. Donovan, Esq., a retired lawyer, now focuses on Civil War research and writing, including on law-related topics such as “How the Civil War Continues to Affect the Law,” published in Litigation, The Journal of the Section of Litigation, of the American Bar Association. His inaugural ECW blog publication, “A Tale of Two Tombstones,” appeared December 9, 2022 and was ECW’s most popular post of the year on social media.
To quote Margaret Thatcher, “you can’t negotiate sovereignty.” States cannot leave the Union because the United States government won the Civil War. Period. Texas v. White does not really matter. If a state or a portion of a state tried to secede, the government would deploy overwhelming resources to suppress it If, however, the federal government is weakened in the future and one or more states have the desire and power to secede, there will be secession. I don’t doubt that this book is well researched and reasoned, but it ultimately does not matter at this level. Legal reasoning only applies once sovereignty is established. The Declaration of Independence is a wonderful document, but it would have been less than worthless if the patriots had lost the American Revolution. The Constitution is a brilliant governing document for which we should be eternally grateful, but it means nothing if the United States government cannot maintain sovereignty. Secession died at Gettysburg and Atlanta, not in oral arguments before the Supreme Court.
I can fully appreciate your wholehearted conviction, but this negates a critical matter, as does citing Margaret Thatcher-
It was not absolutely crystal clear at the time it was attempted if secession was lawful/constitutional, or not.
Thereby, all arguments come back to validating what was/was not achieved towards this matter ‘after the fact’.
At the time, both sides could make a strong argument for their case: Neither’s was ‘watertight’.
And if you want to cite Margaret Thatcher’s statement about sovereignty, that begs the looking at of a very particular example: Ireland.
Negotiating sovereignty is exactly what the Irish and British sides did in the 1921 Anglo-Irish Treaty.
It was done as well in the 1763 Royal Proclamation. The ‘sovereignty’ of Aboriginal nations is NOT abolished/extinguished before and under Crown law in Canada; rather, to use Eamon De Valera’s phrase, under the RP, the Aboriginal nations freely chose to cede their ‘sovereignty in isolation’, and agreed to live under the Rule of the Crown as do other subjects/citizens.
In return, not only does the Crown both explicitly and implicitly recognise that the Aboriginal nations had once been as wholly sovereign as the nations of Europe, but their sovereignty continues to exist in modified form, both explicitly and implicitly, in at least key ways under Crown law.
Another example would/could be the USA and Great Britain co-administering the islands in the Strait of Juan De Fuca, near my home province of BC for several years.
If you’re saying you dislike such a system and are historically glad that this didn’t occur in what’s now the USA, especially considering 1860-65, that’s that. That’s your personal opinion and you’re 100% entitled to that.
But you can’t say it’s impossible to negotiate sovereignty. You’re absolutely entitled to be glad it didn’t historically occur (in the context you’re getting at), in America.
Much like Ukraine. Russia insists Ukraine is not a country and never has been. Not too different than arguments that the South had no right to secede.
Tom
I personally do not have the historical knowledge to put an opinion to your ‘Russia/Ukraine’ argument but I appreciate you putting it out there.
Maybe the secessionists of 1860 should have appealed to the Supreme Court, if their argument was so strong. Historically they appealed to the sword and lost. They weren’t shooting injunctions or writs at Fort Sumter.
These arguments are pointless. The secessionists weren’t Constitutional scholars exploring the limits of federalism, they were a slave owning elite determined to hang on to their human property, Any discussion of the “legality” or “constitutionality” of secession is a deflection from reality: secession was about the preservation, maintainence, and God willing, the expansion of slavery, the Constitution be damned. If the Constitution had a clause saying “secession is forbidden” printed ten feet high, it wouldn’t have slowed down the secessionists for five seconds.
Now…do you want to stop and consider what the logical other side of the coin to your argument there is?
That ‘other side of the coin’ is this: In 1860-61, the ‘preservationists’ also weren’t Constitutional scholars, either: They were determined to hold together a country that had not only enabled enabled slavery, but had given it national sanction and Constitutional status.
To keep that country together, they were willing to reconvene every right to that institution of human beings and barns/fields/whips/chains/bills of sale/bedrooms/etc, as those rights existed to these things at that time, and guarantee them for all time to come!
In seeking to keep this such country with such rights to slavery together, forever, it’s beyond debate that when war started, the Union is thus fighting for slavery, as it then existed!
Any argument that the Union changed its war aims to include emancipation (which is a valid argument), must just as explicitly cite that the Confederacy was willing to adopt emancipation, too.
No to mention, any discussion re. the expansion of slavery is bound by historical thoroughness and honesty to explicitly concede that that had been the main aim of the troops in blue beneath the Stars and Stripes in the 1846-48 Mexican American War; to expand American slavery by conquering new American lands to make new American slave states out of.
Trying to omit or diminish the above as an accurate historical statement is nothing more than the expressed urge and desire of of those who would do so, past/present/future, ‘power hunger, tempered by self-delusion’, in the words of George Orwell, and rely on part of John Stuart Mill’s identification in his work, ‘On Liberty’, of the tendency of people to ‘pretend were a lot stupider than in reality we are’ to capture prestige that is undeserved and dishonest in nature.
For a contrary view, Jackson sent his VP Van Buren to NY to draft a resolution in response to SC during nullification crisis. Van Buren formed a committee that reported to the NYS legislature, with his (and assumed) Jackson’s feelings on it. In the committee report, Van Buren goes beyond nullification to secession. Can be found online in book “State Papers on Nullification” by Mass General Court, 1834, beginning page 132.
Van Buren also condoned what Maine did and claimed the right of a Sovereign state to do, in the Aroostook War of 1837-38.
It begs the whole of the question/s: What WERE the rights of the Union under the Constitution, and to what exact and precise extent WERE the States sovereign?
Where, exactly, precisely and utterly beyond debate, did the jurisdictional powers of one start and the other’s cease? Was there a space of possible shared jurisdiction?
This matter was determined by actions and force, not legality, in an organic process over time, in which both camps of American federalism/constitutional interpretation and enactment began with clear roots, but obscure ends.
Thereby, to posit one as clearly, absolutely and wholly right in all ways is an impossible historical argument to make with credibility.
This is an interesting point: “Second, Radan argues that the pro-slavery provisions of the Constitution were key, as the Constitution was ordained to protect slavery and never would have been ratified absent those provisions.” Which “pro-slavery” provisions of the Constitution is the author referring to? The word “slavery” doesn’t appear in the document until the 13th amendment ….but, it really doesn’t matter … the United States resolved this issue by force of arms.
Now come on!
That’s not even a serious historical question or argument!
Even if the US Constitution never technically scribed the words ‘slave’ or ‘slavery’, it was clear as could possibly be that the 3/5 and Fugitive Slave tenets of it referred to the institution of slavery and enslaved Black Americans.
The experience of 1789-1865 renders that argument of ‘plausible deniability’ an exercise in wilful ignorance of rhetoric at best, and outright historical deceit more accurately put.
Or are you willing now to expressly and publicly concede that when in the historical literature, you find citations of the expression ‘the domestic institutions of the South’, this NEVER, EVER is referring to slavery, not even by implication, because it doesn’t cite the actual terms, ‘Slave’, ‘slaves’, ‘slavery’?
There was no plausible deniability for the Black Americans held in this system of barns, fields, whips, chains, bills of sale and bedrooms.
This argument, based on the actual wording of the USA and CSA Constitutions is a deceitful attempt to minimise the historical reality for ‘competitive prestige’, when there is absolutely no historical basis for claiming a moral high ground.
Actually it’s a serious question in the context of the book review … the author argues the slave states had the right to secede when the free states violated “key pro-slavery provisions, the new territories and fugitive slave clauses” … thus my question: what were those pro-slavery provisions?
The 3/5ths clause remained the law of the land throughout the antebellum period, the Federal government had sovereignty over the territorities, and both Fugitive Slave Acts were in force … and no where does the Constitution sanction slavery.
If you cite the information you have, then you have refuted your own stance.
A constitution can not even imply a proposition that is not lawful. Therefore, when a proposition is cited in a constitution, that said proposition gains constitutional status unless there is (1) Further writing in the constitution, at the time or later, that negates the proposition. (2) Legitimate litigation from a court of competent jurisdiction overturns the proposition. (3) Some kind of clear common law (non-scribed law), or another precedent negates the proposition, as may arise over time and development through demonstrable need. That is to say, the proposition is allowed to ‘lapse’. (4) The proposition is eliminated from the Constitution by means of legitimate political processes.
*NOTE: If anyone has anything to say, add, etc, to my points above, I’d be grateful to hear them.
If the 3/5 Clause was cited in the Constitution, this pertaining to enslaved Black Americans for any purpose, then what that means is that the Constitution recognises it is therefore a lawful right to hold Black Americans as slaves, subject ultimately to such conditions as may not contradict the said Constitution (which itself could be amended to accommodate new/different rights to slavery in new, Constitutionally valid ways).
With the Fugitive Slave tenet, the said rights receive even more Constitutional endorsement. Matter of fact, this specific tenet in the Constitution about slavery made a particular Constitutional obligation upon anyone who swore to uphold the US Constitution because of the position they held (such as Commissioned military officers, members of Congress, the President, etc), (Abraham Lincoln citing the last example prominently in his First Inaugural Address).
A Constitutional obligation to do what? All swore to do all within their power to restore fugitive slaves to their masters, regardless of personal sentiments.
The article “General Sherman & The Negro”, particularly outlines this well, citing Sherman’s approval of this duty in a letter outlining it to his brother from Florida in 1842 (when one considers his infamous statement, “I like n(words) well enough as n(words)”, I’ll say he even relished this duty).
So for you to attempt to say the Constitution did not sanction slavery is not only historically wrong, it’s disingenuous.
If the author wants to argue that the North thwarting these aspects of the Constitution gave the South the clear right to secede, that’s his argument to make. If you want to challenge him on that, that’s your argument to make.
But you endorsing the idea ‘let’s all pretend like it was unclear what the 3/5 and Fugitive Slave tenets in the US Constitution were referring to chattel slavery of Black Americans, and further, let’s pretend like we are unaware of what slavery was like and what happened as a result so we won’t have to accept diminished, competitive prestige as a result’, is historically dishonest.
That is quite correct. Your language suggests to me you are not a lawyer. I am. Absolutely, we infer much meaning and many “rights” from the Const. that are more implied than stated outright.
Tom
I have read the “Texas v White” decision a few times. It is hard to understand. As a decision saying secession was unlawful, it is weak. It suggests, but never states clearly that secession was unlawful. It points to the opening phrase of the Const. that “in order to form a more perfect union.” Then: “It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?” Folks who believe it finds secession to be unlawful point to that language. But, the problem with that language is it does not rest on any provision or phrase found in the Constitution itself – only to the opening paragraph.
The decision later uses this language: “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” Yet, the decision never explains which specific provisions.
Later, the decision notes that the state of Texas issued bonds, which were ultimately used to finance its” defence” in levying war against the U.S. government. Note the decision suggests a defensive war while also suggesting it was offensive in some respect.
The dissent addresses what the majority opinion avoided: if secession was unlawful, then Texas was not a state during the war or during Reconstruction. The dissent states flatly that Texas has not been a “state” as meant by the Constitution for the past 8 years. The decision was issued in 1869. The dissent ultimately presses something very different: whether Texas was and is a state is a question of fact. It cannot be decided by reviewing the Constitution or any other document. The judge is saying there needs to be a trial with witnesses and someone – a judge or jury – should decide the factual issue of whether Texas was and is a state.
So, in the end, the majority opinion says the state bonds were validly issued, even though they were issued during the war and were ultimately used to pay for war against the U.S. government.
You can look at the opinion here:
https://scholar.google.com/scholar_case?case=1134912565671891096&q=%22texas+v+white%22&hl=en&as_sdt=3,44
Tom
“Texas v White” is often cited for the proposition that secession violates the US Constitution. Some language in the decision does indeed suggest secession violates the Const. It points to the Articles of Confederation which was “solemnly declared to be ‘perpetual.'” Then the current Const. was adopted which has this language in the opening paragraph: “in order to form a more perfect union.”
The decision then has this language: “It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?” The problem with that, however, is opening paragraphs are generally not binding. They are more introduction. Too, the current Const. apparently specifically omitted any reference to a “perpetual” union. Suggesting the conscious decision was made that it *not* be perpetual, or at least the decision was made to not state specifically that it is perpetual.
The decision then states Texas entered into an “indissoluble” in relation to the U.S. Still later in the opinion, it states: “he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” But, the decision never explains which provisions suggest an indestructible Union. The only actual provision it cites is that opening language, “to form a more perfect union.” Nothing in that phrase suggests a perpetual union.
The dissent states flatly what the majority opinion seemed to avoid: Texas has not been a “state” for the past 8 years. The decision was issued in 1869. So, bonds issued by Texas may well not have been lawful. Particularly since some of the money derived from those bonds actually helped pay for Texas’ part of the war.
Note the majority decision speaks of Texas’ participation in the war as “defence,” but also states Texas levied war upon the U.S. The decision seems to view the rebellion as both defensive and offensive in nature.
The dissent believes the court cannot determine whether secession was lawful simply from the Constitution or from any document. The dissent believes the issue is a factual issue – meaning there should be a trial with witnesses.
In the end, the majority opinion is weak. It lacks reasoning or analysis for what folks often cite it: whether secession violated the US Constitution. Probably because the Const. never claims the union is actually permanent.
Tom
I’m not a lawyer. I have had some legal training, in short.
A right may well be inferred instead of explicitly stated in legislation, but that makes it no less valid.
If I may cite a quick historical and non-emotive example: In 1929, the Australian constitution was amended so, in quick sum, except for a very few exceptions, only the Australian federal government had the right to borrow moneys from overseas creditors for public works.
The specific wording was to the effect, ‘to the federal government alone will reside the power to make arrangements resulting from overseas financial transactions.’
During the Depression, the state of New South Wales, (very quickly), argued that this did not give the Australian federal government the right to put garnish the moneys of the state for overseas loans, because that wasn’t explicitly stated in the new, amended Constitution. The federal Australian government argued they did.
The High Court of Australia sided with the Australian federal government because of the logical connection, that was inferred/implicit. If the Australian federal government alone had the authority to ‘make arrangements’ of overseas financial transactions, it must logically then have the power to enforce those arrangements, once made, in Australia.
If I have the legal power to do something, do I have the legal power to do things logically and rationally connected with doing that original thing? Why or why not? These are the perennial legal questions to put w/o necessarily coming to a clear answer.
Thank you for giving your time to put your views to the matter as you have, as both a lawyer and historian. It would be fascinating to read/compare your assessment of such (as you appear to question the ‘Texas – White’ SCOTUS judgment to those of my good friend, Kevin Brown, who supports it. He, like yourself, is both a lawyer and historian of the war).
The only thing I’ll say, as I don’t want to get distracted from the Constitution- slavery’ points I was making earlier is that said Texas/White SCOTUS ruling obviously comes AFTER the war.
At the time in 1860-61 when secession was attempted, any legal points derived from above SCOTUS ruling were not present.
As Eisenhower said, up to 1865, secession of a state was still an open question.
Both sides, for and against it, could present strong arguments at the time, neither of which was watertight or above critique/flaw.
Good to meet you.