American Legal History
Jacob, I've installed below a version which keeps your footnotes, and which contains my comments. You may wish to mark this up further with your additional revisions.

The Coming of the American Civil War

by Jacob Schall Holberg


The American Civil War is traditionally categorized as a war about slavery. 1  The North's victory and the subsequent release of the slaves contributes to a glorification of the war in the modern consciousness as a war between "good" (the Northern States) and "evil" (the Southern States) where good prevailed, and thereby ensured freedom, cohesion and association for much of our time, so that President Lincoln's beliefs and opinions to some extent formed the model for President Barack Obama ahead of his inauguration as the 44th U.S. president in 2009.

The war, however, was the culmination of internal conflicts in the United States, not only rooted in a disagreement over access to the holding of slaves, but in general the (Southern) States' access to self-determination, including whether the federal law should override state law or not. 2 

Two things need to be said here. On the detail, you need to be clear that the supremacy of federal law was established by the Constitution itself, in Article VI. The question, whether federal law overrides state law, was at no time an open question. On the general level, it seems to me you're setting up a false dichotomy: that war was either "about slavery," or it was the culmination of conflicts over federalism. But the maintenance and extension of slavery was the aim of southern self-determination, and the plain fact about the issues of federalism was plainly put by Abraham Lincoln when he said that the Union could not survive "half slave and half free." So the proper approach would be to say that he war was the culmination of internal conflicts brought on by the insistence of the South on the maintenance and extension of slavery.

The American Civil War, which erupted in 1861, could presumably have broken out as early as 1820, when the inclusion of Missouri as a State in the Union made it inevitable that the balance of power between free states and slave states would be upset.

The union would have been broken without the Missouri Compromise, as it would have been broken by New England secessionism if the West's war with England had lasted past 1815. But the dissolution of the Union wouldn't necessarily have resulted in a war of reconquest. What most American and European observers expected, always, was foreign intervention and the partition of the United States.

However, it did not, but the war eventually did erupt as a consequence of the Southern States' declaration of their from the United States caused by the Southern States' dissatisfaction with their rights in the Federal Union. But the question is whether the federal legislator and/or the judicial power in fact did anything that could reasonably be interpreted as a threat to the self-determination of the Southern States, or whether, on the contrary, the Union at the federal level actually did recognize the Southern States' primary interests in a great degree of independence and self-determination within the Union.

I don't understand why this is "the question." Are we trying to decide whether secession was justified? Would that depend on whether the federal government had "in fact" done something before Abraham Lincoln was elected in 1860? What would the point of this judgment be?

Thus, this thesis will explore the following question: _Did the Union, at the federal level, by either legislation, other political measures or judicial judgments, recognize the Southern States' interests in the period from 1820 when the balance of power between free states and slave states was about to tip until the eruption of the American Civil War in 1861?_

The answer to this question is necessarily either yes or no. As phrased, surely the answer must be yes. Did the federal government recognize in any political or judicial fashion the interests of the South? Sectional rivalry was the central political dynamic of the antebellum republic. One can't discuss any issue of significance in the politics of the early republic without considering the way in which southern sectional interests were dealt with. So? What would be different if the answer were no?



An odd trade war between the U.S. and England ended in 1814, after which the U.S. won New Orleans from the English. Francis Scott Key wrote The Star Spangled Banner, which underlined the impression that the U.S. had emerged from the war as a unified nation:

[T]he preservation of their threatened independence gave Americans a greater feeling of national identity than ever before. As Gallatin observed: ”The war has renewed and reinstated the national feelings and character which the Revolution had given….The people now have more general objects of attachment….They are more Americans; They feel and act more as a nation.” 3 

However, the Missouri compromise in 1820 - only 6 years later – showed, on the contrary, the first sign that the Americans during this period probably had never been more internally divided.

This is an ahistorical way to use historical materials. Gallatin writes about the upsurge in national solidarity that accompanied the war, a phenomenon familiar to anyone who has seen the effects of national crises on contemporary democracies. You point out that six years later, the political climate had changed, which is surely not very surprising: that form of solidarity is always temporary. But in the process you've taken a single quotation out of context from one man's letter and inflated its scale to the size of a national consensus, so that two points—a comment in one public man's private correspondence, and a major legislative and constitutional adjustment half a decade later—allow a line of distinction to be drawn. This juxtaposition of incommensurables is an error that allows any historical "change" to be created at the whim of the writer.


The Missouri Compromise 1820

Before 1820, there were 11 slave states and 11 "free" states, but with the application for admission as a State in the Union in 1819, Missouri, which since the time of the French had been a slave state, would inevitably disturb the balance of power between slave states and free states. Disagreement arose specifically in relation to a proposal that Missouri should not be adding more slaves and that the children of slaves should be free when they turned 25 years. The proposal was rejected by the Senate, which went on to accept Missouri as a slave state, but with the compromise that any future Western States to the north of Missouri’s southern border would be free states. The compromise thus included this highly controversial provision:

SEC. 8. And be it further enacted. That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided always, That any person escaping into the same, from whom labour or service is lawfully claimed, in any state or territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labour or service as aforesaid. 4 

The slave states could thus face the fact that, at one time or another, they would probably be in the minority. Thus, the first skirmish in the conflict which was to culminate in the bloody civil war was a reality. However, in this context it is worth emphasizing that the Union accepted Missouri as a slave state in favour of the viewpoint of the slave states. However, the attached provision that future Western States to the north of Missouri’s southern border would be free states did of course make it likely that the balance would eventually tip in favour of the free states.

Taken literally, this account leaves two false impressions: (1) that the Missouri Compromise is the beginning of a process rather than its continuance; and (2) that the future of the "balance" between slavery and freedom was predictable in 1820 in any respect. The Compromise dealt with the sectional issues created by the Louisiana Purchase, which you don't mention. The issue posed was how to adapt the constitutional settlement of sectional concerns (which here, as always, ultimately meant the hostile relationship between "the slave power" and "free labor") from 1789 to the geopolitical realities created by the Louisiana Purchase. The burst of expansionism released by the Purchase could not be said to determine the "eventual" eclipse of the slave power in 1820. You do not even mention the crucial events determining the future of the slave power in the United States at that point, namely the Bolivarite revolutions that destroyed the Spanish Empire in the Western Hemisphere. The creation of a Mexican republic that outlawed slavery, and the power vacuum in Central America, opened a series of possibilities for expansion as well as contraction of the slave power. Twenty years after Bolivar, the US was therefore fighting an aggressive war against Mexico for the expansion of slavery, as twenty years after Jefferson's election it had been settling a boundary for slavery within the Louisiana Purchase. In turn, twenty years after slaveholders seceded from Mexico and drew the US into their war, the slave power seceded from a United States controlled by a new party of "free soil, free labor, and free men" and precipitated a war against the Union.

The reduction of tariff schedules 1833

The expectation of becoming a minority group of States sometime in the future was recognized by the Southern States, and there seems to be a basis for believing that the distinction between the slave states and the free states was, at this time, not only a matter of the right to continue to hold slaves, but rather a general fear that the Federal Union would interfere with the sovereignty of the Southern States – or more correctly: The Southern States feared for their degree of self-determination in the Union. The disagreement can thus be described as a disagreement about whether the federal laws should override the state law or not. Thus, in 1830, President Andrew Jackson proposed the famous toast in which he said Our Federal Union - it must and shall be preserved, which Vice President John Caldwell Calhoun, who was originally elected to the Senate from the slave state South Carolina, responded as follows: Our Union, next to our liberties most dear. 5 

You make it sound as though the rhetoric of dinner drinking is significant historical evidence. Such vignettes are important to narrative, which you are not writing, not to analysis, which you are. You are setting up an argument that will try to distinguish the tariff issue from the struggle over slavery, which is misleading. Protective tariffs were desired by industrialists of New England in order to subsidize their economic interests at the expense of agricultural producers for export, namely slaveholders. Low tariffs on manufactured imports are the macroeconomic policy of the slave power.

    South Carolina then took steps to repeal the recent federal tariff laws 6  by an Ordinance of Nullification in 1832, g 7 , taking the view that individual States had the right to repeal unconstitutional federal legislation. This step led eventually to the enactment by Congress of a "force bill” in 1833. 8  according to which the president was authorized to use force to enforce federal laws in South Carolina. This, of course, constituted a direct and unambiguous threat from the Federal Union against the Southern States, in concreto South Carolina. This threat – which did not concern slaves but tariffs - would probably have triggered a civil war already at this point in 1832, had it not been for the disagreement among the Southern States as to whether South Carolina did the right thing in threatening to from the Union if the Federal Government tried to enforce the tariff laws, in conjunction with Senator Henry Clay's negotiating skills in the conflict.

This completes the interpretation I warned about above. Nullification was simply secession under another name; as I pointed out, Article VI was explicit on this point, and what South Carolina was nullifying was the Constitution, not the so-called "Tariff of Abominations." Jackson responded by asserting, as Lincoln was to assert, the basic principle of American constitutional imperialism: preservation of the Union by overwhelming federal force. South Carolina blinked, as it had to, and Calhoun resigned.

Henry Clay was in 1820 the one who gained Congressional approval for the Missouri Compromise and now he managed to break a deal in Congress to lower the tariff gradually and thereby succeeded in both preserving the supremacy of the Federal Government over the States and avoiding South Carolina's secession from the Union. 9 

For Clay, read "the West." Kentucky, like Tennessee, from which Andrew Jackson rose to political power, constituted the northern marchland of the slave power, as well as the gateway to the "third section," whose gravity ultimately decided the fate of the empire. Clay's nationalism, unlike his dishonesty, his overwhelming ambition and his charm, was representative rather than personal.

It is not certain that the American Civil War had enjoyed the same attention in our time if it had in fact been triggered by a constitutional law issue about the tariff legislation, although it is not inconceivable that the slave issue had been involved in all circumstances. Notwithstanding this, it seems, however, that the fundamental conflict between the Northern and Southern States was not provoked solely by the controversy about the holding of slaves, but rather about the right to self-determination. 10 

This is a conclusion manufactured by your treatment of the evidence, not a conclusion reached analytically. To treat the nullification crisis itself as "not about slavery" is to ignore the crucial work of William Freehling, who showed in his Prelude to Civil War in 1966 the intimate relation between South Carolinians' "morbid sensitivity" to the rise of northern abolitionism and the distribution of political support for nullification within South Carolina. Freehling showed that political support for nullification came primarily from segments of South Carolina society that were little affected by post-1815 protective tariffs to start with, but which particularly feared northern interference with slavery as an institution. In two generations, no one has significantly revised Freehling's analysis.

The footnote is also a problem: you can't take an editorial comment from the author of a textbook and use it to support an argument.

South Carolina's lack of support from the other Southern States might very well have been the crucial factor in avoiding the eruption of the war in this period. South Carolina's wish to nullify the federal legislation as opposed to the Union's wish for supremacy of the Federal Government over the States seemed like a disagreement that could not be solved by ordinary means, thus the conflict was consequently followed by the Union's direct threat to use armed force.

Hence the crucial importance of the Mexican War. Ralph Waldo Emerson was right to say that the Union took Texas like a man taking poison. Colonel Ethan Allen Hitchcock, serving under General Taylor in Mexico in 1846, wrote that the acquisition of Texas made the dissolution of the Union inevitable. They could see clearly, as hundreds of thousands of their contemporaries could, what you're not mentioning.

However, it is interesting that the conflict did in fact not end with the Union standing up to any of the Southern States, but was solved by the lowering of the tariffs by Congress. This might probably have been the best time to “set an example” by the Union if the Union had wished to warn the Southern States, because the Southern States not were unified in a way so that they could resist an armed threat from the Union. In fact, it turned out that South Carolina did not even enjoy support from the rest of the Southern States. However, the Union refrained from setting such an example and did instead recognize South Carolina's interests by lowering the tariffs.

Supreme Court Case Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.)

243 (1833)

There is no doubt that, by its ruling in this case the following year – in 1833 – the Supreme Court of the United States reassured the Southern States that their right to self-determination would not be disturbed.

I don't understand what you mean by "no doubt." A sentence about a character called "the Supreme Court" "reassuring" something called "the Southern States" contains inherent doubt. Those are ideal entities, and "reassuring" is a metaphor. Who actually did what? Who actually thought or felt what? Why does the feeling matter in explaining what happened and why it happened? On all those points there is inherent doubt. On the specifics, a unanimous Supreme Court decision upholding a basic proposition of law no one thought unsettled isn't much of a reassurance, unless every Supreme Court case stating the obvious reassures us that the Supreme Court hasn't lost the habit of consulting settled law in the decision of individual cases.

Basing his claim on the Fifth Amendment's guarantee that government takings of private property for public use require just compensation, John Barron sued the mayor of Baltimore for damages claiming that the City had failed to keep the water free from sand and had thereby made the water too shallow for most vessels to enter John Barron's wharf in the harbor. Chief Justice held that:

The question thus presented is, we think, of great importance, but not of much difficulty.

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated.”. 11 


    These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.


It is of course interesting that Justice Marshall began by stating that the question was “not of much difficulty” for a unanimous Supreme Court, perhaps not as much because the trial court actually had awarded Barron damages, but more importantly because the Supreme Court later reaffirmed this ruling and eventually used the of the to apply most of the Bill of Rights to the States. 13 

I don't know what this is supposed to mean. As I pointed out in class, Marshall uses this rhetorical device frequently, mostly in order to make sure that other judges on the Court don't write separately. When an appellate court unanimously reverses a trial court, it seems pretty plain to any reader that the appellate court thinks the problem isn't very difficult.

Seen in the context of the expressed disagreement between Calhoun and Jackson just 3 years before and afterwards in a period of great insecurity about the supremacy of federal laws, the statement “not of much difficulty” from a unanimous Supreme Court might not be truly accurate at this time,

What has one thing got to do with the other? Supremacy, which you haven 't proved there was any doubt about, is not involved here. The issue isn't whether the Bill of Rights could have been applied against state government had Congress passed and the states ratified provisions so intended. The issue presented in Barron is whether the provisions of the Fifth Amendment are intended to be applied against state government, as the Chief Justice makes clear in language you just quoted, the answer to which is clearly that they are not.

but might be interpreted as a signal from the court to the Southern States “not to worry”: The federal judicial power would also refrain from any threat to the Southern States by saying that the freedoms guaranteed by the Bill of Rights did not restrict the state governments in any shape or form.

No. It's not clear why "the court" would have been sending "a signal" to "the Southern States," but it is quite clear that this case about silting in Baltimore harbor would not have been a competent way to do so. Upstairs in the new Senate Chamber, the old Senate, perfectly capable of sending signals to the Southern and Northern State Legislatures that appointed them, was doing a fine job of protecting slavery against abolitionism.

Clay's Resolution 1850 (The Wilmot Proviso 1846-47)

In connection with that, Congress was asked to dedicate funds to bribe the Mexican president in order to acquire California from the Mexicans. Congressman David Wilmot of Pennsylvania suggested that it should be an attached condition for the grant that:

[…]the acquisition of any territory from the Republic of Mexico by the United States, by virtue of any treaty which may be negotiated between them, and to the use by the Executive of the moneys herein appropriated, neither slavery nor involuntary servitude shall ever exist in any part of said territory, except for crime, whereof the party shall first be duly convicted. 14 

Umm, about the war....

The proposal was rejected by Congress. In this way, the legislative power at the federal level again refrained from disturbing the “peace” between the slave states and the free states just as the judicial power did in Barron v. Baltimore. 15 

No. Of course, it's not "just as" it was in Barron, for reasons I've already given. But more importantly, you've misunderstood your story. The failure of the Wilmot Proviso is the least part of the story. The mere offering of the provision meant that abolitionism had a voice in the House of Representatives, which had imposed a "gag rule" automatically tabling all antislavery petitions for a generation. Wilmot's motion had nothing to do with California, which everyone understood would never be a slave society. The importance of his motion was that it challenged the very aim of the war being fought against Mexico, which was the annexation (or, in the euphemisms the US was using to disguise its aggression, the defense of its previous "reannexation") of Texas for the political and economic expansion of the slave power. Houston's Texas Republic had seceded from Mexico because slavery was illegal in Mexico, and Wilmot was proposing what from the slave power's point of view was the conquest of Texas by Northern abolitionism. Success in defeating the motion was certain, but just as certain was that once begun, the pressure would never go away. The Wilmot Proviso was the proof of the forecasts I referred to above, that victory against Mexico would cause the undoing of the Union. You've missed the story, even though McPherson? 's summary first chapter tried to lay it out for you.

It is rather ironic that the threat to the Southern States' right to self-determination in the Union did not come from the Federal Union itself, but from a State in its attempt to “establish[…] a constitution for itself as Justice Marshall emphasized as the foundation of the reasoning why the amendments did not interfere with the State's right to self-determination in Barron v. Baltimore: When California in 1849 applied for admission as a state in the Union, the Wilmot proviso had actually found its way into the Constitution of California. Indeed, the Constitution of the State of California, 1849, in Article I, Declaration of Rights, Sec. 18 provides:

Neither slavery, nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this State. 16 

The Southern States were, of course, very upset about the Constitution of California. The figures from the crisis concerning customs legislation once again clashed, as John Caldwell Calhoun, who was a Senator again in 1848, had convened a Southern convention, which began talking about secession and the formation of an independent Confederate association 17 . Thus, Senator Henry Clay once again had to find a solution to the simmering conflict, which he did with the Compromise of 1850 which included Henry Clay's Resolution and the five statutes approved by Congress by January 29, 1850. It stated, inter alia:

It being desirable, for the peace, concord, and harmony of the Union of these States, to settle and adjust amicably all existing questions of controversy between them arising out of the institution of slavery upon a fair, equitable and just basis: therefore,


2. Resolved, That as slavery does not exist by law, and is not likely to be introduced into any of the territory acquired by the United States from the republic of Mexico, it is inexpedient for Congress to provide by law either for its introduction into, or exclusion from, any part of the said territory; and that appropriate territorial governments ought to be established by Congress in all of the said territory, not assigned as the boundaries of the proposed State of California, without the adoption of any restriction or condition on the subject of slavery.


5. Resolved, That it is inexpedient to abolish slavery in the District of Columbia whilst that institution continues to exist in the State of Maryland, without the consent of that State, without the consent of the people of the District, and without just compensation to the owners of slaves within the District.

6. But, resolved, That it is expedient to prohibit, within the District, the slave trade in slaves brought into it from States or places beyond the limits of the District, either to be sold therein as merchandise, or to be transported to other markets without the District of Columbia.

7. Resolved, That more effectual provision ought to be made by law, according to the requirement of the constitution, for the restitution and delivery of persons bound to service or labor in any State, who may escape into any other State or Territory in the Union. And,

8. Resolved, That Congress has no power to promote or obstruct the trade in slaves between the slaveholding States; but that the admission or exclusion of slaves brought from one into another of them, depends exclusively upon their own particular laws.” 18  [Emphasis added].

With this politically most carefully written resolution, Congress went a major step further than just refraining from “disturbing the peace”, realizing that it had to try actively and expressly to unify the various parties within the States because it was “desirable, for the peace, concord, and harmony of the Union”. Thus, the Fugitive Slave Act was passed by Congress on September 18, 1850, as part of the Compromise declaring that all runaway slaves be brought back to their masters. 19 

Supreme Court Case Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

The Supreme Court of the United States then showed that it was also ready not only to refrain from letting the Federal Constitution limit the power of the States as stated in Barron v. Baltimore, but was even ready to actively protect the interests of the Southern States. This seems to be to be the conclusion after the famous Dred Scott v. Sandford case in which the Supreme Court held the Missouri Compromise 1820 unconstitutional. The Slave States feared that, at one time or another, they would probably be in the minority because, by this one ruling by the Supreme Court, the Compromise was void as the Compromise and its provisions prohibiting slavery in the territory acquired from France, being northwest of Missouri, and north of thirty-six degrees thirty minutes north latitude, simply interfered with the right to own property of the . Chief Justice Taney held:

Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person [slave-owner] shall be deprived of life, liberty, and property [slaves], without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. 20 

Although the ruling this time was not given by a unanimous Supreme Court, there can be no doubt that it was a major victory for the Southern States. The right to self-determination was ensured by the Supreme Court of the United States. The Southern States could not only find great relief in Barron v. Baltimore as the Supreme Court unanimously ensured that the freedoms guaranteed by the Bill of Rights did not restrict the state governments in any shape or form. Now the Supreme Court also stated that the barred any law that would deprive a slaveholder of his property, such as his slaves, and that the territorial legislatures had no power to ban slavery. In other words: The Supreme Court signalled that the Southern States could rest assured that the federal legislator could do nothing that would contravene the primary interests of the Southern States in a great degree of independence and self-determination within the Union, and the Southern States could also rest assured that the Supreme Court would, if necessary, enforce this degree of liberty.

How could you undertake to explain Scott v. Sandford this way, without explaining the difference between the states' power to determine their own law of status (which is not at stake in Scott) and the question whether Congress could prohibit slavery in the Territories, where its power under the Constitution is supposed to be plenary?

It was clear that the Southern States in reality now would face no threat from the federal level. In fact, those who were really unhappy with the Federal Union after the judgment were not the Southern States, but the Northerners:

Many Northerners wondered if the Supreme Court and the president [James Buchanan] were not conspiring to extend slavery throughout the nation. 21 

Surely it would be reasonable in discussing northern response to Scott to mention at least the other aspect of the case, namely the ruling that slaves weren't citizens for the purpose of securing justice in the federal courts?

President Buchanan's endorsement of the Lecompton Constitution 1857

Chief Justice Taney wrote his opinion in Dred Scott v. Sandford in December 1856. When the convention met in Constitution Hall in the fall of 1857 in Lecompton, Kansas, and drafted the Lecompton Constitution 22  which would have admitted Kansas as a slave state, the convention could thus work peacefully knowing that the outcome might be met with disagreements but not with any legal obstacles from the federal level. It was the right time to respond to the anti- position of the 1855 Topeka Constitution approved by voters in Kansas on December 15, 1855, banning slavery in Kansas . 23 

After a voting process suffering from severe irregularities, both the Lecompton and the Topeka Constitution were sent to Washington for approval by Congress.

When it is stated that the Civil War was a war solely about slavery, it might very well, to a large extent, be based on this event. Congress had faced severe difficulties in reaching an agreement on the Missouri Compromise in 1820. This Compromise had now been rejected by the Supreme Court. Thus, the foundation of Henry Clay's carefully drafted Resolution from 1850 did in fact not exist anymore. When the Supreme Court had ruled that Congress had no power to ban slavery, it was clear that the anti-slavery side was very weak from a legal point of view (though, perhaps strong in numbers) when faced with the Kansas dilemma. On top of this, the “pro-slave” Lecompton Constitution was endorsed before Congress by the 15th President of the United States and slave-holder supporter, James Buchanan. The atmosphere in the room must have been extremely intense as the president only received the support of the Southern Democrats. On 4 January 1858, the Kansas voters overwhelmingly rejected the Lecompton proposal, and in Washington, the Lecompton constitution was defeated by the federal House of Representatives in 1858.

With all Republicans against slavery and the Democrats divided in northern and southern groups, the Republican Abraham Lincoln was elected as President in 1860, and Kansas was admitted to the Union as a free state in 1861.

"Against slavery" is wrong. As you say below, the Republican Party was not dedicated to abolition of slavery, nor was Abraham Lincoln. The party rejected the expansion of slavery into the territories, but did not propose to affect the status of enslaved persons in states controlled by the slave power, and it did not reject the Constitutional requirement to render fugitives back to "owners."

From being relieved by the judgments by the Supreme Court just shortly before, the Kansas dilemma had now also on the surface turned everything upside down leaving the seven ' declaration of their from the United States already before Lincoln's inauguration almost inevitable. This eventually led to the forming of the consisting of the eleven slave states on February 7, 1861, 24  and the Civil War, which was inevitable, because the Southern States were convinced that the election of Lincoln was equivalent to the freeing of all slaves in the near future, 25  but, in fact, all he wanted was to return to the Missouri Compromise from 1820. Lincoln did not deny the rights of the Southern States and did not intend to abolish slavery in these states, but only intended to limit it to these states and maybe eventually phase out the holding of slaves, but in exchange of full restitution to the slave-owners. 26 

Thus, Lincoln stated in his first Inaugural Address March 4, 1861:

It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that—

I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so. 27 

It is interesting that the threat to the Southern States' primary interests in a great degree of independence and self-determination within the Union therefore again did not come from the Union itself, but, as in the case of California, was caused by events in a single State.

This doesn't make sense.

On the contrary, the Supreme Court had actually made it clear the federal level had literally no power to contravene the rights of the slave states. Even the president was in line with this view when the Lecompton Constitution was endorsed before Congress by James Buchanan, and not even President-elect Abraham Lincoln intended a revolution against the slave states.

This doesn't make sense either. You haven't mentioned abolitionism, so you haven't explained the forces actually acting to challenge the position of the slave power. You haven't treated the slave power as a slave power, that is, a small number of human beings attempting by organized violence to rule an immense society of millions as absolute personal property, subject always to the possibility of revolt. You haven't considered the extraordinary form of instability involved in maintaining such control in one part only of a rapidly-developing empire ruled democratically, in which massive immigration is occurring, and in which publication and circulation of information is supposed to be free of censorship or government control. Add to that the development of a committed religiously-inspired movement for the abolition of slavery, which has become ideologically dominant in an entire region of the Empire and is constantly working to assist the liberation of slaves. Add to _that_—as the greatest part of Lincoln's First Inaugural, which you do not quote, points out—that the natural systems of trade and transport in North America make economic interdependence between the slave and free parts of the Empire absolutely unavoidable. Now you are beginning to set the conditions within which the political and social opinions of the slave power determined upon secession and an attempt to maintain slavery by defensive war. Only the belief that their economic importance to Britain would secure foreign intervention on their behalf made such a prospect credible to non-suicidal statesmen. Fortunately for the cause of human freedom, they were wrong.


It is a fact that the American Civil War erupted in 1861 as a consequence of the Southern States' declaration of their secession from the United States caused by the Southern States' dissatisfaction with their rights in the Federal Union.

No, that's not a fact. It's an interpretive statement.

[As the above constituted the from a community because of dissatisfaction with the conditions in the community, it would in principle be assumed that the community had acted in a manner that objectively contrasted with the interests of the resigning States. The analysis of the crucial period from 1820 up to the outbreak of the Civil War in 1861 demonstrates, however, that, overall, the Union had not established any obstacles or conditions contrary to the interests of the Southern States at the federal level, Rather, the analysis shows that the Union had largely respected the interests of the Southern States at both the legislative and judicial level to such an extent that it was actually the North which began to consider whether there was a conspiracy against them arranged by the incumbent President and the Supreme Court. Paradoxically, it was even a slave-owner-friendly president, who received the Southern States' declaration of secession from the Union.

Further, the analysis shows that the events which eventually led to the secession of the Southern States had been initiated by individual States and not by the Union at the federal level the events in Kansas as presumably the most crucial. Only Congress’ enactment of a the Force Bill in 1833 could be considered as a direct and unambiguous threat by the Federal Union against the Southern States, but this was averted by South Carolina's acceptance of the Compromise Tariff in 1833, which, remarkably enough, was also introduced by Congress precisely to prevent an escalation of a conflict.

Finally, it should be noted that the secession probably happened because of fears that the Southern States would be in the minority in relation to the policy following the election of Abraham Lincoln as president, but the South seems, in this context, not to have attributed any crucial importance to the fact that the policy which Lincoln had announced that he would pursue did, in fact, not seem to contrast with the interests of the South - instead Lincoln proclaimed directly that he did not believe that he had the legal right to interfere with the institution of slavery in the States where it existed.

In summary, it can be concluded that the American Civil War broke out quite paradoxically in view of the Southern States' secession from a Union comprising a president and a supreme court that supported them, a congress that tried to comply with their interests as much as possible and a future president who probably disagreed with them, but did not want to discourage them.

But it can only be so concluded as a result of the various errors and misunderstandings I have noted. To which I would add, given this statement of your conclusion, that "the Southern States" and "the Union" aren't independent parties in an analysis of antebellum politics, as this paragraph suggests.

Thus, the question of the thesis can be answered by yes, the Union did, at the federal level by both legislation, other political measures and judicial judgments, recognize the interests of the Southern States in the period from 1820 when the balance of power between free states and slave states was about to tip and until the eruption of the American Civil War in 1861.

And as I pointed out at the outset, the answer to this question needs to be yes, and it makes no difference to any other interpretive issue. So it's not really the question being asked.


Primary sources

Legislative material

· Transcript of Missouri Compromise, Approved March 6, 1820, retrieved from

· The Tariff of 1828, ch. 55, 4 Stat. 270, enacted on May 19, 1828, retrieved from

· South Carolina Ordinance of Nullification, November 24, 1832 retrieved from

· The Force Bill, 22nd Congress, 2nd Session Pub.L. 22, 4 Stat. 632, enacted March 2, 1833, retrieved from

· The Tariff of 1833 (the Compromise Tariff of 1833), ch. 55, 4 Stat. 629, enacted March 2 1833, retrieved from

· The Wilmot Proviso, extracted from[full_text]

· the Constitution of the State of California, 1849 in Article I, Declaration of Rights, Sec. 18 extracted from

· Transcript of The Compromise of 1850, retrieved from

· The Fugitive Slave Act, approved, September 18, 1850. Full text version on

· The Lecompton Constitution. Full text version on

· The Topeka Constitution. Full text version on


· Supreme Court Case Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)

· Supreme Court Case Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

Bibliography – secondary sources

· Bjøl, Erling, Gyldendals USA-historie, Gyldendal: Copenhagen, 2002

· Fletcher, George P. et al, American Law in a Global Context, Oxford University Press: New York, 2005

· McPherson? , James M.: Battle Cry of Freedom – The Civil War Era. Oxford University Press: New York, 1988


McPherson, James M., Battle Cry of Freedom – The Civil War Era 7 Oxford University Press, New York, 1988.


McPherson, James M, supra note 1, at p. 8 states: “The slavery issue would probably have caused an eventual showdown between North and South in any circumstances. But it was the country’s sprawling growth that made the issue so explosive”.

3. Blum, J.M., et al: A History of the United States 196 Wadsworth Publishing Company, 1993.


Transcript of Missouri Compromise, Approved March 6, 1820, retrieved from


Quotes from: Bjøl, Erling, Gyldendals USA-historie 134 Gyldendal, Copenhagen, 2002.


The Tariff of 1828, ch. 55, 4 Stat. 270, enacted on May 19, 1828, retrieved from


South Carolina Ordinance of Nullification, November 24, 1832 retrieved from


The Force Bill, 22nd Congress, 2nd Session Pub.L. 22, 4 Stat. 632, enacted March 2, 1833, retrieved from


The Tariff of 1833 (the Compromise Tariff of 1833), ch. 55, 4 Stat. 629, enacted March 2 1833, retrieved from


“[…] even though most Southerners rejected nullification, the fight over the tariff made them more conscious than ever before of their minority position”, Blum, J.M., et al, supra note 3, at p. 246.


Barron v. Baltimore, 32 U.S. 243, 247 1833.


Barron v. Baltimore, 32 U.S. 243, 250 1833.


Fletcher, George P. et al, American Law in a Global Context 260-261 and 272 Oxford University Press, New York, 2005.


Extract from ]. Even the background of this purely slavery proposal shows that the conflict between north and south rested upon much more than the question of slavery. Apparently Wilmot was (also) motivated by the fact that he was fed up with Southern domination of the Democratic Party, McPherson? , James M, supra note 1, at p. 53.


Of course this was however only possible as a consequence of the South’s greater power in the Senate, McPherson? , James M, supra note 1, at p. 54.



Bjøl, Erling, supra note 5, at p. 154.

18.Transcript of The Compromise of 1850, retrieved from


The Fugitive Slave Act, approved, September 18, 1850. Full text version on


Dred Scott v. Sandford 60 U.S. 393, 1856 WL 8721 (1857)


Blum, J.M., et al, supra note 3, at p. 341.


Transcript of the Lecompton Constitution, retrieved from

23. Transcript of the Topeka Constitution, retrieved from


There was 15 slave states at the time of the Civil War: , , , , , , , , , , , , , , and but Delaware, Kentucky, Maryland and Missouri did not leave the Union.


With only a third of the total white population in the country, the states of the future Confederacy saw that decisions concerning slavery could now be made without them.” Blum, J.M., et al, supra note 3, at p. 350.


Bjøl, Erling, supra note 5, at p. 211.


Transcript of s first Inaugural Address, March 4, 1861, retrieved from


Webs Webs

Attachments Attachments

  Attachment Action Size Date Who Comment
pdf Barron_v._Mayor_of_Baltimore.pdf props, move 30.2 K 22 Jan 2010 - 21:39 JacobHolberg Barron v. Mayor of Baltimore
pdf Compromise_1850_(p.1).pdf props, move 2026.1 K 22 Jan 2010 - 21:40 JacobHolberg Compromise 1850 (p.1)
pdf Compromise_1850_(p.2).pdf props, move 1848.8 K 22 Jan 2010 - 21:48 JacobHolberg Compromise 1850 (p.2)
pdf Dred_Scott_v._Sandford.pdf props, move 871.6 K 22 Jan 2010 - 21:41 JacobHolberg Dred Scott v. Sandford
pdf Missiouri_Compromise_(p.1).pdf props, move 1812.3 K 22 Jan 2010 - 21:36 JacobHolberg Missiouri Compromise (p.1)
pdf Missiouri_Compromise_(p.2).pdf props, move 1778.3 K 22 Jan 2010 - 21:42 JacobHolberg Missiouri Compromise (p.2)
r6 - 10 May 2010 - 21:51:32 - EbenMoglen
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM