Did the Confederates have a point, kind of? Here's a hint: not really

There’s no doubt that Australian law professor Peter Radan breaks new ground in his book “Creating a More Perfect Slaveholders’ Union.” The question, however, is what we are to make of it. I understood going in that Radan would argue that "on the basis of American constitutional law in 1860–1861, the unilateral secessions of the Confederate states were lawful," on the grounds that the United States was forged as a "slaveholders’ Union.” I was fully willing to accept that.

It's hardly a new argument. Legendary abolitionist William Lloyd Garrison famously denounced the Constitution as "a covenant with death, an agreement with hell." But it's also true that Frederick Douglass broke with Garrison, arguing that the Constitution made slavery illegitimate — and ironically enough, given today’s environment, made that argument on textualist and originalist grounds. I was eager to learn what Radan would make of the widely divergent views on this topic — and, alas, I was sorely disappointed.

As I see it, the basic problem with Radan's book is twofold. First there's what it is: a lawyer’s argument that Southern secession was constitutionally justified — and that therefore the Union’s war to stop it was not. Like all lawyerly arguments, this one is slanted, not least by how it chooses to frame its argument. First Radan advances the proposition that the Constitution is a compact — as Southerners like the notorious white supremacist John Calhoun argued — against what he nebulously calls the “nationalist” account of the Constitution, identified primarily with Abraham Lincoln’s arguments in his First Inaugural Address and his address to Congress of July 4, 1861. 

Lincoln’s speeches were of course political rhetoric shaped by pragmatic political concerns, a fundamental fact Radan ignores. They do not represent the most basic constitutional arguments against the compact theory, as found in Supreme Court Justice Joseph Story’s 1833 “Commentaries on the Constitution of the United States,” which Radan either evades or ignores.

A historically and intellectually honest argument along Radan's lines could well be valuable. No one has made it in such detail in recent times, largely because the Civil War itself seemingly put the issue to rest, with the Supreme Court sealing the issue with its 1869 Texas v. White decision, holding that “the ordinance of secession ... and all the [legislative] acts ... intended to give effect to that ordinance, were absolutely null.” At the same time, the Southern defense of secession shifted dramatically from legalism to the Lost Cause mythology, relegating arguments Radan like those develops to a secondary, if not tertiary place. But now that we’re 160 years on from the carnage of that terrible war, the time seems ripe to consider this perspective. 

To be clear, Radan disavows any support for slavery or for any moral argument defending it, arguing for a sharp distinction between those questions and the legal, constitutional argument he advances. But is that even plausible, much less true? Here's the book’s second problem. Consider something Radan himself notes in his introduction, when he Chief Justice John Marshall’s opinion in the 1825 Antelope decision as exemplifying this distinction. Marshall, he writes, denounced the immorality of slavery but

drew a distinction between morality and law when he said: “The court must not yield to feelings which might seduce it from the path of duty, and must obey the mandate of the law.” The constitutional entrenchment of slavery also allowed Marshall to buy and sell slaves. As Paul Finkleman points out, Marshall “actively participated in the business of human bondage … accumulating more than one hundred fifty [slaves] by 1830.” 

Radan seems nearly oblivious to the apparent contradiction: If Marshall believed slavery was immoral, what was he doing owning enslaved people? There is an explanation, of course. But it doesn’t so much resolve the contradiction as it elucidates the historical context in which Marshall wrote: The international slave trade was becoming illegal in more and more countries, while the domestic slave trade was thriving. It fell to men like Marshall to rationalize the irrational state of flux in which they found themselves. That they did so in ways that allowed them to keep owning other human beings may not surprise anyone familiar with human nature, but it doesn't give us much good reason to respect their opinions on moral or intellectual grounds.

Radan’s legalistic arguments on behalf of Confederate secession appear equally suspect. The relationship between legality and morality, after all, lies at the very heart of the historical arguments over slavery. Ignore that vexing relationship, and you’re missing the forest for the leaves. There is no hermetically sealed legal sphere that stands apart from the rest of existence; that's a dangerous fantasy that can — and does — justify unspeakable horrors.

Consider the global issues of climate justice that confronts us today, with the Global South suffering immeasurable loss and damage from the emissions of the largely white industrialized nations of the Northern Hemisphere. In moral terms, they are eerily similar to the issues of slavery in the 19th century. The better we can understand all sides of that terrible struggle, the better prepared we are to deal with climate justice in our own time.

Radan and the "compact theory"

Radan bases his argument on the theory that the U.S. Constitution was formed as a "compact" between 13 independent or at least autonomous states, from which any one of them could withdraw — in opposition to the “nationalist theory” which holds that the union is indivisible. The compact theory has one obvious flaw — I would say fatal flaw — that any proponent should feel obligated to address: There’s no provision in the Constitution for a state to withdraw. Surely, if the framers had meant to allow for that possibility, they would have prescribed a process, just as they provide a process for a new constitutional convention in Article V. The logic is simple enough: All normal contracts are either inviolable or else have explicit termination clauses. Why should the Constitution be any different? It’s a fundamental problem that Radan simply ignores. 

There are two other elements to Radan’s argument, each of which gets its own chapter. The first is fundamentally uncontroversial: There were slavery provisions included the Constitution, and without them the Southern states certainly would not have joined. The infamous "three-fifths clause" was clearly one of those, but the ones that matter most to Radan’s argument are more questionable: those regarding fugitive slaves and the admission of new states. The first lacked teeth until the Fugitive Slave Act of 1850, and the second left matters up to Congress, at least until the 1850s. The second element is that Lincoln’s election in 1860 brought matters to such a point that breaches in the compact justified secession — indeed, that was the proposition that Lincoln himself argued strenuously against, most notably in the First Inaugural Address. 

But the compact theory is foundational to all else in the book, and on that foundation it cannot stand. Because of that — and because it doesn’t involve the most obvious and inflammatory questions of racial politics and history, I will focus on it first and foremost. I'm not implying those more obvious questions aren't critical — of course they are. But there's less heat around theories of the Constitution than there is around the history of the Civil War, and the less heat there is, the more chance light can break through.

Against the "compact" theory

The strongest argument against the compact theory derives from legendary English jurist William Blackstone, whose “Commentaries on the Laws of England” were more cited than John Locke after 1776, during the long Constitution-making process. Blackstone’s crucial distinction between a voluntary compact and a mandatory law (described below) was directly applied to the U.S. Constitution by the above-mentioned Joseph Story. Radan mentions Story here and there, but never discusses Blackstone at all.

It should suffice to note three of Story's main points. First, he lays out the consequences of the compact theory, which “go to the extent of reducing the government to a mere confederacy during pleasure,” which “brings back, or at least may bring back, upon us all the evils of the old confederation, from which we were supposed to have had a safe deliverance.” So the compact theory, in his view, “has wholly failed to express the intentions of its framers.” 

Radan argues for a qualified version of the compact theory, requiring a violation of an essential element of the compact before any party may leave. But without some agreed-upon mechanism for determining whether such a violation has happened, there is effectively no difference between Radan’s version and the "mere confederacy during pleasure" Story describes. Any state at any time could simply claim such a violation and leave.  

Second and most crucially, Story draws from Blackstone’s most basic argument about the nature of law in general. He does this in such condensed form that the power may not be grasped by modern readers. “A constitution is in fact a fundamental law or basis of government, and falls strictly within the definition of law as given by Mr. Justice Blackstone,” Story writes. “Like the ordinary municipal laws, it may be founded upon our consent or that of our representatives; but it derives its ultimate obligatory force as a law, and not as a compact.” 

This imposes a logic contrary to that supposed by the compact theory. In Section 2 of Blackstone's "Commentaries," he first explains that law is “a rule of action ... which is prescribed by some superior, and which the inferior is bound to obey." The Constitution is clearly intended as law in this sense. The states created it initially, as the compact theory claims, but once they did so, by its own terms they agreed to as “the supreme law of the land,” they were bound to obey it. Blackstone is very clear that a law is quite different from a compact. Story quotes this passage:

It is also called a “rule”, to distinguish it from a “compact” or “agreement”; for a compact is a promise proceeding “from” us, law is a command directed “to” us. The language of a compact is, “I will, or will not, do this”; that of a law is, “thou shalt, or shalt not, do it." ... In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising any thing at all.

The power of this argument may be hard to grasp for those not steeped in Blackstone’s broader account of the basic logic and hierarchy of law — as virtually all the founders must have been, unlike the general population at the time. They may have spoken loosely of a compact, used ambiguous language and even worried among themselves that the whole enterprise wouldn't stick together. But as Max Farrand explains in his classic history “The Framing of the Constitution of the United States,” there was no discussion of secession at the Constitutional Convention itself. Farrand also argues that the Constitution was constructed pragmatically, to address specific problems that had arisen with the loose existing confederacy, not to embody some grand theory — which the compact theory would definitely have been, to stand in opposition to Blackstone. 

It’s worth noting that the Articles of Confederation were explicitly perpetual — no state could leave on its own. The document’s preamble twice describes itself as “articles of Confederation and perpetual Union,” phrasing that was first proposed by Benjamin Franklin, and the phrase “perpetual union” appears several more times in the text, as if to hammer that home.  

Lincoln and others later pointed to this as proof that the union established by the Constitution was meant to be perpetual — a logical argument, given that the clear goal of the Constitutional Convention was to make the United States stronger, not weaker. The Constitution dropped any mention of perpetuity — which Radan claims as supporting evidence for his view — but added no practical means for a state to leave, evidently because no one saw that as a problem to be solved. They probably also thought there was no need to keep harping on about the union being perpetual. That point had been settled.

Thirdly, Story discusses English history around the Glorious Revolution of 1688, in which the distinction between compact and constitution is richly illustrated, providing the historical legal grounding for his argument.  

Radan’s response

Radan could have challenged Story on any of these three points. He does not. His silence regarding Story’s argument from Blackstone is telling, because it's well known that Blackstone was held in high esteem at the time. Even to hint that Blackstone clearly opposed the compact theory threatens to consign Radan's whole argument to the trash heap. 

One example of how Radan does cite Story should help clarify his method. Rather than directly engaging views he opposes, Radan organizes his approach topically, drawing different figures into the discussion as he sees fit. This is common practice in legal briefs, but it’s ill-suited to honest historical argument. He devotes a few pages each to various parts of the Constitution, including the supremacy clause, the guarantee clause, the presidential oath clause and the Preamble’s “We the People” phrase. On the first, he writes: 

In his Commentaries on the Constitution, after citing the supremacy clause, Story posed the following rhetorical question: "If [the Constitution] is the Supreme law, how can the people of any state either by any form of its own constitution, or laws, or other proceeding repeal, or abrogate, or suspended it?” However, the problem with Story’s argument is that it does not make clear why the supremacy clause has anything to do with secession. [Emphasis added] 

The italicized claim is simply false. Radan hides it by heading off in pedantic misdirection,  first talking about what the clause does, and ending in an argument meant to justify secession. But Story’s argument is not about what clause does, but what it shows. Prior to the sentence Radan cites — just after the line I quoted above, that the Constitution “derives its ultimate obligatory force as a law, and not as a compact” — Story writes:

And it is in this light that the language of the Constitution of the United States manifestly contemplates it; for it declares (article 6th) that this Constitution and the laws, & c., and treaties made under the authority of the United States, “shall be the supreme Law of the land.” 

In short, the supremacy clause matters not because of any specific power to which it applies, but because it clearly affirms the fact that the Constitution is, as Blackstone explains, law, not compact. Story makes this argument clearly.

Furthermore, the passage Radan quotes from is part of a sequence of three paragraphs that seek to determine whether the constitution is a compact, adding another layer of connecting argument that Radan ignores. The first paragraph argues that there is no “clause intimating it to be a compact.” The second argues the terms appropriate to a compact “not have been found in it.” The third argues that “the very language of the Constitution itself" declares it to be "a supreme fundamental law, and to be of judicial obligation and recognition in the administration of justice,” a direct reference back to Blackstone’s argument.

In short, Radan ignores Story’s actual arguments, plucks out one sentence and then falsely claims that his argument isn’t clear. It’s only unclear because Radan has deliberately hidden it from us, and then set off on a wild goose chase in a different direction. This may be advocacy, but it’s not serious scholarship. 

Lincoln’s arguments

If we set Story’s arguments aside, a different possible story appears: one in which the founders might have kinda-sorta accepted the compact theory (although they didn’t act on it by adding a withdrawal mechanism) but in which subsequent historical experience altered the collective view. This is where Lincoln’s arguments properly come in. In his First Inaugural Address, Lincoln advanced two primary arguments: The Union was perpetual, and had in fact preceded the existence of the states. 

“Perpetuity is implied, if not expressed, in the fundamental law of all national governments," he said. "It is safe to assert that no government proper ever had a provision in its organic law for its own termination.” He then plays the textualist card: “Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.”

Second, Lincoln addressed the idea that the union is a form of contract, asking rhetorically, “One party to a contract may violate it — break it, so to speak — but does it not require all to lawfully rescind it?” From there, he argues:

Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the ”Constitution” was "to form a more perfect Union." 

The passage just quoted is an organic historical argument. He makes a similar argument in his July 4 message to Congress, while also arguing that “The nation purchased with money the countries out of which several of these States were formed. Is it just that they shall go off without leave and without refunding?” Radan picks out specific elements from both arguments, thereby fundamentally misrepresenting their nature. They are telling a story, not proving a theorem in geometry. 

Radan’s response to Lincoln

Radan doesn’t doesn’t directly engage Lincoln’s first argument. He ignores the textualist part entirely, and uses part of Lincoln’s historical argument from his July 4 speech to cloud the issue and reverse the claim, arguing that the lack of perpetuity language means the union can be destroyed. 

The argument Radan claims to address is “that the union created by the Articles of Confederation that the Union replaced was expressly perpetual, and this was ‘most conclusive’ that the Constitution’s Union was also perpetual.”  

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“Lincoln’s argument here is difficult to sustain,” Radan claims, arguing that if Lincoln and Story were right about perpetuity, “it is reasonable to assume that explicit words to that effect would have been included in the Constitution,” especially since they were included in the Articles of Confederation. I've already outlined why this is nonsensical. It simply uses bald assertion to dispute Lincoln’s first argument without confronting it directly, using the second argument to confuse and distract the reader. The second argument may perhaps be worth disputing — again, you can find my response above — but that should be done in the context that Lincoln presented it, as an organic element in a developmental process, not an isolated assertion.

Radan v. Radan: Argument v. Evidence

I’ve concentrated on the compact argument because it’s less heated than the arguments that directly deal with the question of slavery. But when we turn to those, a close reading of Radan shows him arguing against himself, in all but the narrowest sense.  As already stated, it’s not controversial that there were slavery provisions in the Constitution that were necessary to keep Southern states from defecting, but the ones most important to Radan's argument are dubious in different ways. 

The fugitive slave clause was certainly important, but didn’t give Southerners much protection as social conditions and public opinion changed. The original Fugitive Slave Act of 1793 was never really satisfactory to the slave-holding class, but it delivered what the Constitution required, and at first that seemed sufficient. But as abolitionist sentiment spread, the numbers of escaped slaves swelled dramatically, and the Fugitive Slave Act of 1850 was much tougher, violating states’ rights by forcing free state officials to help recover enslaved people who had escaped — if you embrace the compact theory, a serious violation of the original constitutional bargain!

The clause on admitting new states and territories cuts even more clearly against Radan’s argument. He admits that “it was left to Congress to pass legislation dealing with the question of slavery in the western territory and ultimately the admission of new states that were carved out of it,” and that it was only after the Louisiana Purchase of 1803 "that the issue of slavery in the territories emerged as a contested political issue.” So it clearly was not crucial to the constitutional bargain. But the issue was supposedly resolved with the Missouri Compromise, which admitted Maine as a free state and Missouri as a slave state.

But “the sectional bargain collapsed with the passage of the Kansas-Nebraska Act in 1854,” Radan writes, nullifying the Missouri Compromise for the territories of Kansas and Nebraska, leaving states that emerged there “free to form and regulate their domestic institutions in their own way.” The ensuing violent political struggle in “Bloody Kansas” dramatically polarized the nation and “brought into sharp focus" the meaning of the "admission of new states and territories clause.” Then he suggests that the issue “was resolved by the Supreme Court in 1857, in Dred Scott v Sanford,” a decision regularly cited as the worst Supreme Court decision ever, one whose “resolution” flies in the face of common sense.  

The decision held that the Constitution's territories clause was “confined, and was intended to be confined, to the territory which at the time [1787] belonged to, or was claimed by the United States ... and can have no influence upon a territory afterwise acquired” — a patently ludicrous claim, which Chief Justice Roger Taney then leveraged to allow slaveholding in any territory, ruling the Missouri Compromise unconstitutional. 

There was one big problem: James Madison and several others involved in drafting the Constitution were still alive and kicking in 1820, when the Missouri Compromise was debated and passed. None of them seem to have raised Taney’s argument at the time. It was the slaveholding and pro-slavery majority on the Supreme Court that, on the narrowest possible argument, gave slaveholders a retroactive claim that the constitutional bargain they had struck had been broken by the other side. But the truth was exactly the opposite: Dred Scott rewrote the contract in their favor, and did so based on false premises. 

We really could use a book that forcefully explains the slaveholders' constitutional argument while honestly and fairly explaining the other side as well, and the broader historical context in which both arguments unfolded. That would be an important book — but unfortunately, this isn't it.