What Do You Think Now of Our Rights in the Territories?
Riding south along the Valley Pike after his defeat at 3rd Winchester in the Summer of 1864, Jubal Early began to cackle while slapping his thigh with glee over a private joke. Riding next to him was MG John Breckenridge.' Breckenridge had been Buchanan's Vice President. He had been one of the four candidates for president of the US in 1860.... Breckenridge may be best remembered as the Confederate commander at New Market where he said of his decision to commit the VMI cadet battalion to the center of the line, "Put the boys in, and may God forgive me."
Breckenridge peered through the rain at Early and asked what was so funny.' Early grinned at him and asked "What do you think now of our rights in the western territories?" Early had opposed secession.
I asked Arbogast for his views on the US Constitution and the Civil War.
"The Thirteenth Amendment to the Constitution abolishes slavery. It was proposed by the Thirty-Eighth Congress on January 31, 1865. It was ratified first on February 1st, 1865, by Illinois, which was not surprising, because the Amendment had been authored principally by Abraham Lincoln. The last state, of the states existing at that time, to ratify the Thirteenth Amendment was Mississippi in 1995.
Now, obviously, I could stop there. If Abraham Lincoln believed that the Constitution had to be amended to abolish slavery, then he must have believed that the Constitution without that amendment, at the very least, was sufficiently ambiguous on the subject as to require the amendment.
But the Constitution wasn't ambiguous. It acknowledged the existence of slavery in the United States and protected it in a variety of ways. Fugitive slaves were to be returned to their owners. Art. 4. Sec. 2:
"No person, held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due."
Slaves were to be counted as "three fifths" of a free person. Art. 1. Sec. 2:
"Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons."
And, finally, the slave trade was to be protected until 1808: Art. 1. Sec. 9:
"The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."
Now, the mechanism by which the Constitution could be amended was spelled out in exact detail in the Constitution. Both houses of Congress had to approve the amendment by a two-thirds majority and then three-fourths of the state legislatures must approve the amendment, all this within a period of seven years. That's how you amend the Constitution. And there is one provision in the Constitution that *cannot* be amended: the right of each state to be equally represented in the Senate, a provision that increases the power of less heavily populated states. Rhode Island and California each have two Senators. Article V: "...no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
So, you have a Constitution that protects slavery, envisions a nation based upon some measure of equality between the states, and which Abraham Lincoln believed had to be amended to abolish slavery.
Did the abolitionist William Lloyd Garrison call the Constitution "a covenant with death and an agreement with Hell"? Did Patrick Henry "smell a rat" and refuse to attend the Constitutional Convention because he foresaw it would endorse slavery? Yes, and yes. But that doesn't change the fact that in 1860, less than two generations after the War of Independence, the Constitution of the United States contemplated and protected slavery.
I know that there may be some who are dying to say, "But States were not allowed to secede under the Constitution." In the first place, that is not true. In the second place, I do not believe that the authors of the Constitution would have approved a war costing the lives of 600,000 young men on the subject of slavery. In the third place, the entire country was founded on the principle of secession. No, when the Civil War began, the Constitution was clearly on the side of the South. The Union had to appeal to a higher law to prosecute the war, a war which I reiterate should never have been fought.
IIRC, Lincoln in 1860 had no intention of amending the Constitution, or of abolishing slavery through any other means. Lincoln wanted to appoint Supreme Court justices who would reverse Dred Scott, wanted to make sure that slavery saw no further extensions to territories or new states, and wanted to let the Fugitive Slave Act of 1850 lapse into a dead letter. Then northern consciences could be confident that slavery was "on the course to ultimate extinction."
IIRC, the Constitution explicitly says how states ratify amendments that change the Constitution: "shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress..." The Constitution explicitly states how it itself is to be ratified: "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same..." The Constitution does not say how states would secede.