Confederate "Heritage" Month 2017, April 4: Thomas Jefferson vs. secession

Thomas Jefferson was alive and engaged with public issues during several of the most important disputes involving secession of states from the Union in some way. In "Thomas Jefferson, Coercion, and the Limits of Harmonious Union" (Journal of Southern History 4:2008), Brian Steele looks at Jefferson's position on those issue throughout his career, concluding that Jefferson was consistent in recognizing that the Union can and should resort to coercion, including military coercion, in the case of a state trying to succeed or blatantly defying federal authority.

Jefferson, Steele argues, "was willing to enforce federal law in the face of opposition by state and local authorities, that he believed the Union was empowered to coerce a seceding state, and that he claimed executive prerogative in cases of national self-preservation or even of national interest."

Southern secessionists and later segregationist advocates of "states rights" and interposition (nullification) pointed to the Virginia and Kentucky Resolutions of 1798 and 1799. James Madison was heavily involved in drafting the former, Jefferson the latter.

The text of Resolutions Adopted by the Kentucky General Assembly can be found at Princeton's Papers of Thomas Jefferson website, The Kentucky Resolutions of 1798, which also has a discussion of the somewhat uncertain nature of Jefferson's contribution to their drafting. Monticello.org (Thomas Jefferson Foundation) also has a discussion of the Kentucky and Virginia Resolutions. The causes to which the Kentucky Resolutions, largely written by Jefferson and excerpted below, were the Alien and Sedition Acts passed and being enforced by the John Adams Administration. They were directed against immigrants, described in the excerpt as "the friendly strangers ... to whom the mild spirit of our Country and its laws had pledged hospitality and protection." They also authorized broad powers of repression to the federal government against the free press and free speech.

VIII. Resolved, that the preceding Resolutions be transmitted to the Senators and Representatives in Congress from this Commonwealth, who are hereby enjoined to present the same to their respective Houses, and to use their best endeavours to procure at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts. ...

IX. Resolved lastly, that the Governor of this Commonwealth be, and is hereby authorised and requested to communicate the preceding Resolutions to the Legislatures of the several States, to assure them that this Commonwealth considers Union for specified National purposes, and particularly for those specified in their late Federal Compact, to be friendly to the peace, happiness, and prosperity of all the states: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the states all the powers of self government, and transfer them to a general and consolidated Government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness, or prosperity of these states ...

Let him say what the Government is if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted over the friendly strangers, to whom the mild spirit of our Country and its laws had pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms & substance of law and justice. In questions of power then let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this Commonwealth does therefore call on its Co-states for an expression of their sentiments on the acts concerning Aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorised by the Federal Compact? And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited Government, whether general or particular, and that the rights and liberties of their Co-states will be exposed to no dangers by remaining embarked on a common bottom with their own: That they will concur with this Commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration, that the Compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these states of all powers whatsoever: That they will view this as seizing the rights of the states and consolidating them in the hands of the General Government with a power assumed to bind the states (not merely in cases made federal) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: That this would be to surrender the form of Government we have chosen, and to live under one deriving its powers from its own will, and not from our authority; and that the Co-states recurring to their natural right in cases not made federal, will concur in declaring these acts void and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress [my emphasis]

In hindsight, it's easy to see how secessionists and segregationists could have used such language as "declaring these acts void and of no force" to be precedent for the claims of secession, Calhoun-style nullifiction or George Wallace-style "interposition."

But these resolutions, including those of Virginia primarily written by Madison, did not call for or threaten secession. Nor did they declare that the states would offer forceful resistance to federal officials enforcing federal law. As seen above, the action the Kentucky legislature was requesting from other states was to join them in protesting the unconstitutionality of the Alien and Sedition Acts and "in requesting their repeal at the next session of Congress." Steele observes:

To be sure, Jefferson's Kentucky Resolutions have been understood as giving sanction to later secession movements, and it is not always a simple matter to reconcile Jefferson's views on coercion with his stance in the 1790s. Nevertheless, the Virginia and Kentucky Resolutions did not advocate - or even broach - secession, and there were substantial qualitative differences between them and the later claims made by some New England Federalists and South Carolina nullifiers, despite the claims to Jefferson's legacy made by the latter group in particular. Much of the way we have thought about and understood the 1790s has been distorted by our viewing that period through the lens of later events, particularly those of the 1830s and, especially, 1860-1861.

It requires some imagination to picture it now, but in the 1790s, the principle of judicial review on Constitutional issues had not yet been established. It was really after the Civil War that it was firmly. When the Constitution was being written, Jefferson had preferred to see it include judicial review explicitly, but it wasn't included. Ironically, the famous case in which the Supreme Court first asserted its power of judicial review of Constitutional questions, Marbury v. Madison (1803) was a decision against Jefferson's Presidential Administration. So the Virginia and Kentucky Resolutions were protests stating that, in the opinion of those state legislature, the Alien and Sedition Acts were unconstitutional.

The discussion of "states rights" has been greatly complicated by the history of secession and nullification/interposition. But disputes between the states and the federal government over laws and policies continues today, notably on the enforcement of federal immigration laws. States no longer attempt to secede or nullify laws in these disputes. That ship has long since sailed. But they do go to court over them. And they also lobby for changing federal laws they don't like - which is what the Virginia and Kentucky Resolutions were demanding.

Rachel Maddow the other night did report there was some kind of Russian plot to promote California secession. If that is so, it has managed to keep itself remarkably concealed from actual Californians.

There are several reference in the above excerpt from the Kentucky Resolutions to what is know as the contract theory of the Union, to which Jefferson adhered. At the time of the Civil War, secessionists were fond of citing this compact theory, while leaders like Lincoln rejected it. Here, it's important to note that the compact theory was not just secession propaganda. It was a serious political theory. But, as Steele reminds us, the compact theory did not inherently involve the right of a state to secede from the Union: "The compact theory of the Union governed by the law of nations could lead to different kinds of conclusions about the nature of that union."

As we'll see in tomorrow's post, Jefferson understood the compact theory to mean that the federal government indeed had the legitimate right to compel individual states to comply with the "compact," including the use of military force. Steele describes Jefferson's application of the contract theory in the Kentucky Resolutions this way:

In the Kentucky Resolutions of 1798, Jefferson called the national government a "creature of the compact" - not an original party to it. There is a tendency on the part of historians to associate this compact theory of the Constitution, which Jefferson articulated, with a kind of "take it or leave it" view of the Union. Partly because Lincoln rejected the compact theory and many self-identified advocates of states' rights seemed to hold such a view, thereby tainting commitment to "states' rights" with the stain of disunion, the tendency is not altogether misplaced. But, as Jefferson told William Eustis in 1809, the Union - "the spirit of concord with her sister States" - had "placed us under that national government, which constitutes the safety of every part, by uniting for its protection the powers of the whole." The national government, in other words, might have been the "creature of the compact," but it was an umbrella of protection for that very compact, emerging out of the Union and remaining an indispensable part of it, rather than a separate entity to be ignored or discarded at pleasure. Jefferson noted, in fact, that the national government is the instrument through which the states act in their relations with each other. [my emphasis]

Confederate "Heritage" Month, April 2: Nullification and secession, the War of 1812 experience

John Dos Passos had among his later works two popular histories, Mr. Wilson's War (1962), about the First World War, and The Shackles of Power: Three Jeffersonian Decades (1966). Written in an attractively accessible style, both forgo the burden of footnotes. Which can be frustrating if you like to read the footnotes. Or want to follow up on the source for a quote or claim.

While it makes for smooth reading, important nuance can suffer.

In Shackles of Power, Dos Passos writes about one of the important milestones in the development of states' rights and federal power. It has to do with the Federalists who sympathized with Britain in the War of 1812. They promoted their own version of secessionism in the process. Here is the description given by the 1960 edition of The Beards' New Basic History of the United States by Charles, Mary and William Beard:

To make matters worse for [President James] Madison, the war was decidedly unpopular in the Northeast where, presumably, a war proclaimed in behalf of free commerce would have been welcomed. In the House of Representatives, Daniel Webster, of Massachusetts, denounced the draft of men as unconstitutional. Federalists decried the conflict as merely "Mr. Madison's war." The govemor of Connecticut refused to obey the President's call for troops and the Connecticut assembly declared the state to be "free, sovereign and independent." A convention of delegates from various parts of New England, assembled in Hartford in October 1814, adopted resolutions akin in spirit, if not in letter, to those put forth by Kentucky and Virginia in 1798.

Thomas Jefferson (1743-1826)

Dos Passos echoes the comparison to the Virginia and Kentucky Resolutions:

Jefferson never forgave the Essex Junto [of pro-British secessionist advocates], any more than he forgave Aaron Burr, for their efforts to break up the Union. He wrote of the mortification of the New England clergy, whom both he and Madison blamed for the Federalist excesses, exulting bitterly in "the disgrace with which they have loaded themselves in their political ravings, and of their mortification at the ridiculous issue of their Hartford convention. no event more than this has shown the placid nature of our constitution. under any other their treasons would have been punished by the halter. we let them live as laughing stocks for the world, and punish them by the torment of eternal contempt."

In the course of the war the Republicans had switched politics with the Federalists. The Federalists were now defending nullification and states' rights as Jefferson and Madison had defended them at the time of the Kentucky Resolutions. The Republicans were now the party of central government, a standing army, and a navy capable of meeting force with force in relations with foreign nations. To that they were about to add a tariff for the protection of manufactures. (p. 286}

Given how the Confederates and their later apologists use historical precedents to justify the secession of 1860-61.

The neo-Confederate version is pseudohistory. Or Fake History, in more topical phrasing.

So part of what I try to do in these Confederate "Heritage" Month posts is to promote real history. In the case of the positions Jefferson and Madison took at the time of the Virginia and Kentucky Resolutions, the Britannica Online article on them rightly notes, "The Virginia and Kentucky Resolutions were primarily protests against the limitations on civil liberties contained in the Alien and Sedition Acts rather than expressions of full-blown constitutional theory. Later references to the resolutions as authority for the theories of nullification and secession were inconsistent with the limited goals sought by Jefferson and Madison in drafting their protests." (internal links omitted)

The US Constitution, like all constitutions and legal systems, evolves as new problems arise. The Constitution of 1789 didn't explicitly address the question of whether or not a state in the Union could secede by its own choice. Of course, a Constitutional Amendment could always allow for a state to leave the Union. But that would require much more than the single state's own choice.

It's worth noting that the present-day Brexit may wind up raising some similar issues. The 2004 EU Constitution does provide for an exit process. But as the two-year period of negotiation that Britain just initiated proceed, we could see the remaining EU nations contesting the terms and the timing of the actual Brexit event. Here is the BBC News summary of that aspect of the EU Constitution (What the EU constitution says 06/18/2004):

In fact, the EU under Angela Merkel's leadership is already making such threats. Nikos Chrysoloras and Patrick Donahue report in EU Puts the Squeeze on U.K. as Brexit Negotiation Clock Ticks Bloomberg 03/31/2017:

The European Union told U.K. Prime Minister Theresa May she will have to wait almost two months for Brexit negotiations to begin and that talks on a trade deal can come in the fall, but only if she first agrees to pay an exit bill.

The EU moved quickly to exercise its control over the Brexit countdown clock now that May has triggered the two-year negotiation period. Substantive talks can’t begin until May 22, when EU governments are set to approve the final negotiating directives for the bloc’s Brexit point person, Michel Barnier.

In the United States, the question of whether a state can leave the Union on its own accord was settled decisively at Appomattox.

Confederate "Heritage" Month, April 1: What's it about?

I've been doing Confederate "Heritage" Month posts on the blog since 2004. And I'm doing it this year, too. It's a counter-observation of the event, which also know as Confederate History Month. It's ably explained (in its variation) in a new article by Ashton Pittman in the Jackson [MS] Free Press, What ‘Confederate History Month’ Really Is 03/29/2017:

In April, five states will officially celebrate Confederate History Month (or Confederate Heritage Month): Alabama, Florida, Louisiana, Mississippi and Texas. In Georgia, which stopped the celebrations after a neo-Confederate killed nine black churchgoers in neighboring South Carolina in 2015, a lawmaker is pushing to bring it back, citing Trump's election and the end of the era of "political correctness."

#To be clear, Confederate History Month isn't about remembering our past and taking lessons from it. Key proponents of the month's continued existence are the Sons of Confederate Veterans, whose revisionist history of the Confederacy and the Civil War minimizes and even denies the role of slavery in southern secession. On April 9, 1865, Confederate General Robert E. Lee surrendered in Virginia. Yet 152 years later, many in our region are still fighting the lost war. Some of us do it by flying Confederate flags, complete with lofty slogans like, "The South Will Rise Again!" and "Heritage, Not Hate!" Some of us do it in more insidious ways. For no good reason, we work overtime to make sure those "Yankees" don't come in and wreck our perfectly dead-last economies. We definitely don't want those federal Yanks telling us how to run our education system. And despite the fact that we are the region that most needs health-care options that the Affordable Care Act offers, we did everything we could to thwart any effort from the Obama administration to help improve our miserable condition.

In the 03/28/2017 version at the Deep South Daily Pittman edits, the headline is Call ‘Confederate History Month’ What It Really IS: 'White Supremacy Month'.

Last year, civil rights activists in Mississippi had the following reaction to Republican Gov. Phil Bryant's official proclamation of Confederate Heritage Month (Critics assail Mississippi governor for declaring April ‘Confederate Heritage Month’ Raw Story/Guardian 04/03/2016):

National Association for the Advancement of Colored People (NAACP) leaders in Mississippi reacted by proposing a civil war remembrance of their own: Union Army Heritage Month.

“These white and black Mississippi patriots fought for the continuation of the United States of America as one nation, under God, indivisible with liberty and justice for all,” Derrick Johnson, president of Mississippi’s NAACP, wrote to the Clarion-Ledger.

“Should not these soldiers be honored, too?”

Scores rallied on the steps of the capitol, in Jackson. They were diverse. Kathleen Chambers personified a shift in the state’s mentality: she is young and white, and instead of a southern drawl she spoke with the universal up-talk of young people.

“Any white people I know? They’re not OK with this,” she said to the local television station WAPT.

Of Bryant, she said: “He’s trying to turn a Confederate heritage into a good thing, when it’s not. It shouldn’t be celebrated. Especially we shouldn’t celebrate owning people in the past.”

While we are marching through Georgia - Tennessee Ernie Ford: