Recently published: Creating a More Perfect Slaveholders' Union - Slavery, the Constitution, and Secession in Antebellum America (University Press of Kansas 2023), by Peter Radan (Macquarie University [Sydney, Australia]).
In Texas v. White (1869), the Supreme Court ruled that the unilateral secession of a state from the Union was unconstitutional because the Constitution created “an indestructible Union, composed of indestructible States.” The Court ruled “there was no place for reconsideration, or revocation, except through revolution, or through consent of the States.” In his iconoclastic work, Peter Radan demonstrates why the Court’s ruling was wrong and why, 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.”
Creating a More Perfect Slaveholders’ Union addresses two constitutional issues: first, whether the states in 1860 had a right to secede from the Union, and second, what significance slavery had in defining the constitutional Union. These two matters came together when the states seceded on the grounds that the system of government they had agreed to—namely, a system of human enslavement—had been violated by the incoming Republican administration. The legitimacy of this secession was anchored, as Radan demonstrates, in the compact theory of the Constitution, which held that because the Constitution was a compact between the member states of the Union, breaches of its fundamental provisions gave affected states the right to unilaterally secede from the Union. In so doing the Confederate states sought to preserve and protect their peculiar institution by forming a more perfect slaveholders’ Union.
Creating a More Perfect Slaveholders’ Union stands as the first and only systematic analysis of the legal arguments mounted for and against secession in 1860–1861 and reshapes how we understand the Civil War and, consequently, the history of the United States more generally.
(Via Legal History Blog.)
I haven't had a chance to read the book, although it's relevant to a project I'm undertaking so it's on my list. But I'm skeptical of its conclusion that "the unilateral secessions of the Confederate states were lawful on the grounds that the United States was forged as a 'slaveholders’ Union.'" I don't doubt that this was the Southerners' argument in the 1860s, but I think it's wrong as a matter of original meaning. The original Constitution didn't protect slavery as a national institution (or outlaw slavery as a constitutional matter either). It did place some limits on what Congress could do about slavery but in general it left the matter to the national political branches and the states. This was broadly understood in the early post-ratification period, including in the South, up through at least the Missouri Compromise in 1820; it wasn't until the South started losing the political battle that it turned centrally to constitutional claims.
For example, as to the matter of slavery in the territories, Article IV of the Constitution gave Congress broad power over the territories, and in 1789 no one had any doubt that this allowed Congress to confirm the Northwest Ordinance's prohibition of slavery in the Northwest territory. As late as 1820, nearly everyone still agreed that Congress had power to prohibit slavery in the territories — specifically, the northern part of the territory acquired in the Louisiana Purchase, as Congress did in the Missouri Compromise. (The fundamentally political nature of the matter, as seen at the time, is confirmed by the Compromise's focus on maintaining the balance of slave and free states in the Senate.) The idea that the Constitution protected slavery in the territories (and perhaps even in the northern states) was, in my assessment, principally a product of the 1840s and 1850s. But I'm interested to see what Professor Radan has to say about it.
Posted at 6:07 AM