This essay was originally published in Southern Partisan Magazine, 1989.
As we conclude bicentennial celebration of the drafting and adoption of the Constitution of the United States, it may be hoped that we have finally arrived at the proper moment for looking back and appreciating the importance of those even more heated discussions of the document which occurred in the nation’s capital during what Henry Adams called the “great secession winter” of 1860-1861. Those exchanges took place in an atmosphere dramatically colored by contemporary disputes concerning the origins, true meaning and continuing authority of that fundamental law as do the equivalent conversations of our day. For the relation between current arguments and those of one hundred twenty-eight years ago is direct and unmistakable. The connection is one which reminds this generation of the special status of the Constitution as symbol and sovereign authority over us: as the structure/process/compact to which all Americans swear allegiance in place of king or people. For Southerners the moment for this retrospection is even more propitious in that many of our countrymen are now, as never before, prepared to penetrate the curtains of their own inherited mythology, and discover in the process how prescient our Southern forefathers were in predicting what would happen once they gave up on “the Union as it was, the Constitution as it is.” The paradox which I here explore—as significant now as it was when South Carolina seceded in December of 1860—is the one defined in March of that year by Senator Robert Toombs of Georgia when he asserted to his fellow senators that it would be “treason to the Constitution” to “maintain a political connection between the sections” once the predicate for that connection had been “annulled” or “overthrown.” What, we must ask, are the present implications of this position vis a vis the Constitution which the South, through the official statements of its emissaries to the United States Senate, assumed in the very act of separating itself from its sister commonwealths above the Old Surveyors’ Line? For, contrary to what we are taught by the most recent generation of radical historians, secession was about the Constitution, a positive commentary or reading. And. as Southerners took pains to specify, not a rejection of it.
We can read the major valedictory orations of the South’s spokesmen in the old Congressional Globe-. Toombs, on January 7, 1861; then several almost forgotten addresses from D. L. Yulee and Stephen R. Mallory of Florida, C. C. Clay, Jr., and Benjamin Fitzpatrick of Alabama; then later, at the end of the series on January 21, 1861, Senator Jefferson Davis of Mississippi. I will return to Davis’ summary performance in concluding these remarks. There were, of course, other speeches given in this series, some of them in the Senate and some elsewhere. Closely related to the Senate orations were a number of apologies for secession prepared by state secession conventions. Or given in the Southern legislatures. Or out of doors. But the January series from the United States Senate is a sufficient sample for our purposes. No more characteristic speech has survived for our examination from those times—no speech more definitive of the watershed Southerners crossed when they surrendered an identity which they believed had been stolen from them: no speech that embodied better the continuity of that crossing with their devotion to a federal conception of the fundamental law, and of the liberty of the citizen secured by it.
The farewell orations of January 1861 were, in several instances, majestic public performances—political “theater” of a high order. In most cases they were expected in advance and well attended, social events, with the Senate chamber crowded and uncomfortably close, men standing against the wall and ladies dressed to the nines seated everywhere, even (in crinoline skirts) in the aisles. Most were given from prepared texts and printed in “official” versions. They gave a lofty and deliberate formality to the process of secession, sounding a note of finality while at the same time fixing the event within the acknowledged traditions of American politics. Such usage guaranteed that appropriate attention would be given to these remarks and resulted in their being received with generosity and disinterestedness by spokesmen for moderate opinion in the North.
The speech by Senator Robert Toombs of Georgia, like its author, was more vituperative than those which followed it. Moreover, it is special in that it came before Georgia left the Union, and only foreshadowed that event. Toombs’ principal point was not slavery (which he agreed might someday be abolished) but self-government, the value of courtesy between the sections, and the sanctity of those liberties for members of the existing political community which the Constitution puts beyond the reach of legislative authority acting on its own. All of which considerations have required a choice for secession. His peroration is memorable:
Restore us these rights as we have had them, as your court adjudges them to be, just as all our people have said they are-, redress those flagrant wrongs, seen of all men, and it will restore fraternity and peace, and unity to all of us. Refuse them, and what then? We shall then ask you, “let us depart in peace.” Refuse that, and you present us war. We accept, and Inscribing upon our banners the glorious words, “liberty and equality,” we trust to the blood of the brave and the God of battles for security and tranquility.
Toombs, we remember, had been a most hesitant, conditional secessionist. With the choice for disunion coming from men of this disposition, mere talk of secession was at an end. It was concluded for specific reasons connected with the Southern understanding of the American Revolution, in behalf of the “liberty and equality” of the people of the South as a group, as opposed to any suggestion of anterior individual rights.
The farewells to Union delivered by other Southern senators coming after Toombs, men called home by the withdrawal of their states from the plural oneness invented by the Framers, are in every case reluctant performances. Not embarrassed or half-hearted, but, even so, reluctant! They suggest no gleeful separation, nor even any rancor at its necessity. Neither do they repent of the decades spent within the Union by the communities for which they speak. To the contrary, they remember those happy days gone by with affection and nostalgia compounded by their recollection of the preconditions of such cooperative, untroubled felicity. Indeed, they lament the abrogation of that fraternity.
Senator Yulee speaks of a “grateful memory” of past connection and a just Southern pride in the “continued development” of the nation left behind. To this his colleague from Florida, Stephen Mallory, added, “from the Union governed by the Constitution as our Fathers made it, there breathes not a secessionist on [Florida’s] soil [and that] we leave with profound regret, those whom we will cherish in our hearts, and whose names will be hallowed by our children [as] true friends of the Constitution.” C. C. Clay, Jr. of Alabama is less ingratiating. But Benjamin Fitzpatrick is quiet and pleasant in his departure. And Jefferson Davis insists that he carries with him “no hostile remembrance.” Yet no one is more emphatic than Davis about secession, or the link between that momentous decision and the South’s belated determination to “recur to the principles upon which our government was founded”: its observation of the original American bond of unity.
Another ingredient in these elaborate farewells is less conciliatory, but part of the same rhetoric of reasonable constitutionalism. What I refer to now is the regular iteration of Southern objections to gratuitous verbal abuse—slander which reaches outside the Constitution for its authority, appeals to a “higher law”; and to the relation of such vilification to the possibility of a constitutional morality which will preserve the Union. Judah P. Benjamin of Louisiana declared that it was not so much what the Republicans and Abolitionists had done or might do as “the things they said” that made them a “pestiferous breed”—a people who hold “that the earth belongs to the Saints of the Lord,” they themselves occupying that lofty station. Toombs had made the theme of rhetorical good manners (as opposed to righteous self-aggrandizement) his own for more than a decade. Vocal “hatred of the South” could not be a ground for confederation. Moreover, his friend Alexander Stephens, soon to be Vice President of the Southern Confederacy, had long identified vituperative excess as the primary stimulant to disunion. In his view, to “put the institutions of nearly one-half of the states under the ban of public opinion and condemnation” was, as a “general principle” of political behavior, “quite enough of itself to arouse a spirit not only of general indignation but a revolt on the part of the proscribed.”
In 1861 Stephens’ analysis of the inevitable consequences of Yankee distemper seemed especially cogent to most Southerners. All the high-flown outrage at Southern modes and orders expressed between 1819 and 1860 might legitimately have come into play during the deliberations which produced and approved our national Constitution, might have insisted on emancipation as a precondition of membership in the Union. Once disapproved and thus confronted, the South in 1787 might have gone its own way. But nothing of the kind occurred at that time. Passionate condemnation without regard to the commitments of honor which were objectified in the adoption of the Constitution inspired Jefferson Davis to tell an 1857 New York audience:
You have among you politicians of a philosophic turn who preach a high morality; a system of which they are the discoverers….They say, it is true that the Constitution dictates this, the Bible indicates that; but there is a higher law than those, and they call upon you to obey that higher law of which they are the inspired givers. Men who are traitors to the compact of the fathers—men who have perjured the oaths they have themselves taken— these are the moral law-givers who proclaim a higher law.
The compromises with respect to slavery written into the political fabric of the United States were put into their place with men from all sections standing on both sides of every disputed point. Yet sustained acrimony toward slaveholders per se, or condemnation of their practice, played almost no role in the Framers’ discussions, either in Philadelphia or in the ratifying conventions. As a matter of fact, as the great constitutional historian Max Farrand observes, “In 1787, slavery was not the important question, it might be said it was not the moral question that it later became.” To draw the South into the Union on one set of terms and then, on the basis of subsequent personal illumination, berate it for insisting on self-determination concerning its domestic institutions, even though this was the approach agreed to by that original Union, and in those original terms; to then insist on a right to interpret the bond of Union on the basis of a sectional moral superiority; and finally to invoke the “religious mysticism” of Union to prevent Southerners from acting according to human nature in withdrawing their “offensive presence” from those affronted by it—all of this dynamic in the conduct of Northern politicians seemed outrageous and intolerable to a generation of Southern leaders who could not believe in the advantage of preserving the Constitution within that kind of Union and who therefore attempted to do it the other way. As they specified in leaving Washington City.
Yulee of Florida grounds his apology for secession in Northern “indulgence of unregulated moments of moral duty.” Meaning, of course, that in a healthy political atmosphere such moments should be self-regulated for the sake of the common good. Given the animosity of recent disputes between the sections and the self-assurance of Northern spokesmen, Yulee wonders if the South could agree to a federal policy concerning any aspect of its conduct not covered by the original federal covenant and stop the process there, without facing the imposition of an unending series of such reformative innovations, inspired by ideological commitment or fanatical enthusiasm, requiring an ever growing central government. Could any community in the position of the South in January of 1861 run that risk?
Clement Clay of Alabama is more expansive than his colleague from Florida. He describes as a “declaration of war” the “libel” on Southern ways gathered in the rhetoric of the Republican platforms of 1856 and 1860. For, as Clay recognized, to label an adversary as a barbarian is in some measure to release yourself from the obligation to treat him in a civilized fashion: your obligation to respect his life and property, to say nothing of his opinions. Clay sees the Northern offense against constitutionalism as being primarily linguistic, not historical or interpretive: the exertion of “all the moral and physical agencies that human ingenuity can devise or diabolical malice can employ to heap odium and infamy upon us.” The implicit expectation in these attacks on the virtue (as opposed to the judgment) of the Southern people—exercises in what rhetoricians call the diaboli—is that the people of the South will be willing to live within the Union as “outlaws, branded with ignominy, consigned to execration and ultimate destruction.” To which effrontery, in the person of its Illinois champion, Clay responds, “Sir, are we looked upon as more or less than men?”
One precondition of constitutional morality is thus rhetorical civility, as much endangered by self-appointed censors of the press, pulpit and rostrum of today as they were when the departing senator from Alabama threw down his gauntlet in defiance of their excesses. For it is still true that those censors take for wrong whatever they identify as Southern. They care nothing for legal means, only for ends—purposes that reinforce the moral presuppositions of their world. Yet in a free society the law cannot be maintained or interpreted against the will of a whole people, by compulsion and abuse: what Lee meant when he spoke disparagingly of a Union held together by nothing but bayonets. And wherever we hear the language appropriate to that strategy alone we must call it into account. I so insist because it is an idiom suited primarily to evading the restrictions of constitutional law and the narrow meaning of elections: a strategy for going against the Constitution of the United States or distorting its purpose by enlarging the scope of national authority. For if you attack your countrymen as not merely mistaken but evil you are not proceeding politically or at law. Instead you represent an authority higher than statute or process and imply an intimacy with God’s plan thusward. This strategy is called rhetorically oraculum— speaking for the gods. It is incompatible with the stable rule of law. We must call it by its right name whenever it is brought against us. And concede nothing to its arrogance. Though in this century we must, for the sake of the common good, shout it down where it stands, and not withdraw quietly to a refuge peculiarly our own.
But more than goodwill is necessary for the maintenance of a contract between free men. Rigid observation of the terms agreed to is also required. And a clear awareness that one party to the connection cannot reserve the right to interpret it according to his views and still expect it to bind other parties offended by his construction. This is a simple proposition in logic and, I might also add, in ethics— since there has been so much talk of the morality which surrounded the decision for secession.
During the American Revolution spokesmen for the patriot cause reasoned that American obligations to the sovereign authority of King George III ended when he violated his constitutional role as protector and defender, under the British constitution, of the inherited rights of Englishmen in America. In a word, he abdicated. And with him his ministers and subjects in the mother country who agreed with Crown and Parliament to bind the colonies “in all cases whatsoever,” leaving the American residue of that constitutional identity in the keeping of a group of rebels who invoked 1688, the Glorious Revolution, and the sovereignty of law. As viewed according to this calculus, constitutions may be made and amended by regular process. But they cannot evolve or stretch into elastic sanctions for calculated manipulation, subject to transformation by the exegetical legerdemain of skeptical theology or solipsistic literary criticism—the two sources of post-structuralist technique which are the most aggressive of the now fashionable methods of reshaping the law to radical purposes. Jefferson Davis, in his majestic valedictory to years of service to the United States, refers directly to these analogues. The major subject of his discourse is not verbal abuse but a misunderstanding of the relation of the Constitution to the language concerning equality which appears at the beginning of the Declaration of Independence. Davis’ discussion of that language is the other important constitutional example left to us in these farewell speeches.
Davis speaks as readily as did his Senate colleague from Georgia of the continuity between what his South is doing in putting behind it a familiar and well established political identity and what the nation as a whole had done from 1774-1788. The region was now obliged (as the North American British colonies had been) to “assure a free and equal station among the peoples of the earth”; was thus compelled because its countrymen of the North misunderstood the American Revolution, the common enterprise of those earlier years. Once the federal power became not an “uncle” but merely an enemy, a government “which threatened] to be destructive of [their] rights,” Southerners were immediately prepared (as Davis put the matter in taking office in Montgomery a month later) to fight for “honor and right and liberty and equality.” Which was to “repeat the experiment instituted by our revolutionary fathers”—to “renew such sacrifices as our fathers made to the holy cause of constitutional [i.e. corporate] liberty.” The rhetoric here is of the self-determination of peoples, maintaining that one nation should be as free to govern itself according to its own chosen way as another. That such a decision was unpleasant and to be avoided if at all possible Davis concedes. Yet, as he maintained later (in becoming the regularly elected President of the Confederacy), those who made a Southern nation out of a broken Union had no alternative and “as a necessity, not a choice [have] resorted to the remedy of separation,” by that means having “labored to preserve the Government of our Fathers.” And he spoke this way consistently once in office, continuing to emphasize the same continuity, even in his second inaugural address of February 22, 1862:
Fellow citizens, after the struggle of ages had consecrated the right of the Englishmen to constitutional representative government, our colonial ancestors were forced to vindicate that birthright by an appeal to arms. Success crowned their efforts, and they provided for their posterity a peaceful remedy against future aggression.
To show ourselves worthy of the inheritance bequeathed to us by the patriots of the Revolution, we must emulate that heroic devotion which made reverse to them but [was] the crucible in which their patriotism [was] refined.
As we all know, there is in our time, even more than when Senator Davis made his farewell, a campaign set in motion by the highest authorities, leaders in the churches, courts, media and universities, to swallow up the Constitution in a simplistic reading of the Declaration, to conflate the two documents, confuse their distinctive purposes, and employ their combination to transform the meaning of Union into something instrumental in its promotion, through the agencies of government, of a wide variety of causes which seem, for the moment, worthy: the most cunning formula for political tyranny ever devised by the mind of man. Since the time when churches all across the North rang their bells to mourn the death of that murdering fanatic, John Brown of Pottawatomie, we have been a nation threatened with any and every measure brought forward in the name of a metaphysical equality among men. With the Union preserved (though changed) by war, we have departed further than in 1860 from the frame of government intended by members of the Great Convention and leaders of the early Republic—most of this change coming down upon us in the name of the Fourteenth Amendment, as now usually misunderstood. Since Appomattox, the way has been open to malice and effrontery performed in the name of human rights—and we have been unable to close it, no matter how savage the prospect coming without hindrance, toward our threatened gates. Whenever we speak reasonably and give the lie to partisan distortion of its text, whenever we rise to protect the Constitution in its original, essentially procedural character, whenever we confront the mad schemers of misconstruction who put in peril the liberties of all Americans, we do, for our time, as Jefferson Davis did for his, “take the hazard” against “destructive powers” and “tread the path of our Fathers,…putting our trust in God, and in our own firm hearts.”