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In the Shadow of Our Founders - Page 3

© Brian Tubbs

Who was right? Are the individual states "sovereign"? And, if so, what does that mean? Was Jefferson Davis legally correct that the right of secession is justified on the basis of sovereignty? Or was Lincoln correct that the Union of the states was "perpetual" and permanent? Was he justified to use force to uphold his interpretation of "universal law" and the Constitution? Was it morally or legally appropriate to wage the American Civil War? Who was right, Jefferson Davis or Abraham Lincoln?

The question has already been answered on the battlefield, and that answer has defined the course of United States history since 1865. No state would dare attempt secession at this point in our history, and, in fact, the national economy and infrastructure has become so entangled and intertwined that any talk of secession would be purely theoretical and academic. For all practical purposes, as a result of the South's defeat in the Civil War, the United States of America is no longer "menaced" (to use a term from Lincoln's First Inaugural Address) by the threat of secession. In addition, virtually all observers would agree that the concept of state sovereignty has been diminished.

Nevertheless, the moral and legal dimensions to the basic question of secession's legality remain. Americans today may realize that secession, for the foreseeable future, is impractical and unachievable--not to mention undesirable. But were the southerners of 1860-61 justified in seeking that special "remedy"? Was the Confederacy an illegal and illegitimate insurrection against federal authority and the Constitution? Or was the Confederacy, as Jefferson Davis wrote in his post-war, two-volume defense of it, a necessary and legal exercise of the southern states' "reserved powers"? Were the soldiers of the Confederate army zealots, racists, and traitors? Or were they noble and sincere defenders of their states, communities, and culture?

To answer these questions, it is necessary to go back beyond the Civil War to the most important and significant period of American history, its founding. In order to ascertain the constitutionality of secession, it stands to reason that one must consult the Constitution. This may seem a simple exercise, but it is anything but.

Lawyers, judges, politicians, and ordinary citizens have passionately debated the meaning and scope of the Constitution since its inception. And we are not necessarily any closer to establishing a solid consensus in the public square today. In fact, the predominant view of constitutional jurisprudence today seems to be that the Constitution has no intrinsic or static meaning, that it is a "living document," subject to continuing judicial review and revision, generation after generation.

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