Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

Secession Winter Revisited

By Jack M. Balkin

Most commentary indicates that the interval between the Lincoln election and Lincoln inauguration was a disaster for American politics. This consensus supports claims that the Constitution ought to be amended (or perhaps replaced entirely) to ensure a faster transition. I wonder whether the secession winter teaches that lesson, at least as clearly as some commentary suggests. Consider the following claim that Buchanan was not doing nothing or maintaining a failed policy that had been repudiated by the electorate. Instead, he may have been following a strategy that had been successful in the past.br /br /The events of 1860 were not completely unprecedented. Andrew Jackson, Buchanan's idol, had to deal with the nullification crisis. By most accounts, Jackson did a good job resolving this crisis His strategy, Richard Ellis argues in his terrific THE UNION AT RISK, was to isolate South Carolina. Jackson did so by appeasing on crucial issues the other states opposed to protecting tariffs who might be inclined to line up with South Carolina. The Force Act aside (other than that, Ms.Lincoln), Jackson's main thrust was to promote a revised tariff that would halt any additional southern support for nullification. Jackson's idea was simple. Nullification was not viable if South Carolina stood alone.br /br /Buchanan was faced with a similar problem in 1860, although admittedly a more difficult one. His strategy was not dilatory. Rather, he did pretty much what Jackson did successfully in 1832. He sought first to minimize the damage. The theory may have been pretty simple, although this is pure speculation on my part. Secession may have been viable in the long run only if Virginia, Tennessee, and other middle south states joined in. The longer Virginia stayed out, the more likely a Union preserving compromise. In short, any compromise that holds Virginia may in the long run have made the secession crisis goes away.br /br /Lincoln's strategy was quite different. His goal, as Kenneth Stampp details, was to initiate a Civil War in such a way as to keep Kentucky and Maryland in the Union. Essentially, and for all practical purposes, Lincoln from day one abandoned the "keep Virginia in" strategy. Notice, however, Lincoln could not possibly have claimed a mandate for preferring Civil War to a proslavery compromise. He repeatedly insisted on the campaign trail that secession would not take place after he was elected. Lincoln's policies appear more successful than Buchanan's only if we assume the Civil War was inevitable, that Virginia was inevitably going to leave the Union, so that the only reasonable strategies were aimed at keeping Kentucky in the Union. But other assumptions were reasonable in 1860 and Buchanan's strategy may have been reasonable in light of those assumptions.br /br /In short, secession winter did not witness the maintenance of a failed policy that had been repudiated by the electorate, but an inherited strategy for dealing with Union threatening controversies without violence. A good case can be made that violence was justified to free slaves, even if the success of the violence was uncertain. Still, given Lincoln insisted that violence would never take place, Buchanan can hardly be accused of ignoring the mandate of the 1860 election.

Full post as published by Balkinization on December 20, 2008 (boomark / email).