Could We have Avoided the Civil War?   7 comments

If you’re like me, you wonder why the states did not make use of the Article V state-application-for-convention process to avoid the Civil War? My high school history books (and I confirmed this in my daughter’s high school history book) informs us that Congress was hopelessly deadlocked because slavery had become the 19th century third-rail of politics. So why didn’t the states take action?

The simple answer is that some of them did try to make use of the system, but they tarried unduly, contributing to the tragedy that would follow.

Compromise to stave off war and preserve the union typically included one or more constitutional amendments. Senator John J. Crittenden of Kentucky was a highly respected moderate. To modern thinking, the Crittenden plan is unacceptable. It proposed to protect slavery where it existed, enforced the fugitive slave laws and admitted slavery into western territories south of the old Missouri Compromise line. It also reversed Dred Scott, which said slavery was forever legal in all the territories. It would have eventually ended slavery by isolating it in a region of diminishing relative economic and political importance. It would have preserved the union and saved 600,000 lives, 500,000 wounded and the domination of the South by the North for the next century. Crittenden’s plan received a good amount of public support, but Congress was never going to propose a constitutional amendment of this sort. They lacked the two-thirds majority to make it happen.

Advocates for maintaining the union considered the state-application-for-convention method when they realized Congress could not and would not act. At a cabinet meeting on November 9, 1860, President Buchanan supported an Article V convention to propose an “explanatory amendment” on the subject of slavery. In the ensuing months, several members of Congress – including Representatives Charles Larrabee of Wisconsin, John C. Burch of California, and Reuben Fenton of New York – all offered congressional resolutions encouraging the states to apply under Article V. George E. Pugh of Ohio and James W. Grimes of Iowa did the same in the Senate. On March 4, President Lincoln, now newly inaugurated, said that while he had no specific amendments to recommend, he had no objection to amendments generally, and that he preferred proposal by a convention to proposal by Congress. He probably knew Congress was not going to act.

Meanwhile, the Commonwealth of Virginia – which had not yet seceded – called for a less formal interstate convention. The Commonwealth commissioned former President John Tyler as its envoy to Washington. Congress took no action, but throughout most of February 1861, 133 commissioners from 21 of the 34 states met in what came to be known as the Washington Peace Conference. Tyler served as chairman. At the Peace Conference, Virginia recommended a settlement based on the Crittenden plan, and the ultimate recommendation of the conference was a variation of that proposal. Unlike an Article V convention, however, the Peace Conference had no constitutional standing to propose amendments directly to the states. Instead of promoting an Article V convention, the Peace Conference decided to submit its proposal to Congress, which was in political deadlock. The Senate rejected the recommendation of the Peace Conference, and the House refused even to consider it.

Doesn’t that sound familiar?

Several states decided to attempt to break the deadlock by filing Article V applications. We do not know how many valid applications there were because all do not appear in the congressional records. They may not have been transmitted or Congress, which had no established way of handling such documents, simply failed to record them. Illinois’ application does not appear in the congressional records, but those records do state that on February 28, 1861, New York Senator William Seward announced that Kentucky, New Jersey, and Illinois already had applied; two days later, Illinois Senator Lyman Trumbell said the same thing. Kentucky applied first (January 24, 1861), suggesting as a basis for settlement the compromise offered by that state’s favorite son, Senator Crittenden. The application’s operative wording was for a general convention rather than one limited by subject matter:

“Resolved … That application to Congress to call a convention for proposing amendments to the Constitution of the United States, pursuant to the fifth article, thereof, be, and the same is hereby now made.”

New Jersey applied the next day, stating in part:

4. And be it resolved, Th at the resolutions and propositions submitted to the Senate of the United States by Hon. JOHN J. CRITTENDEN, of Kentucky, for the compromise of the questions in dispute between the people of the northern and of the southern States, or any other constitutional method of settling the slave question permanently, will be acceptable to the people of the State of New Jersey, and the Senators and Representatives in Congress from New Jersey be requested, and earnestly urged, to support these resolutions and propositions. 5. And be it resolved, That as the Union of these States is in imminent danger unless the remedies before suggested be speedily
adopted, then, as a last resort, the State of New Jersey hereby makes application, according to the terms of the Constitution, of the Congress of the United States, to call a convention (of the States) to propose amendments to said Constitution.

The Illinois legislature adopted its application on February 12. Indiana sent their application to Congress on March 8, requesting Congress to call a convention of the States to take into consideration the propriety of amending the Constitution, so that its meaning may be definitely understood in all sections of the Union…. The Ohio legislature applied March 10, bringing the tally to five states. Unfortunately, the movement had not begun in time. When Ohio submitted its application, seven Southern states already had seceded, though there were three applications transmitted after the Civil War had begun. One was a reaffirmation from Kentucky, adopted in 1863. In March 1864, North Carolina, although still in rebellion, applied for an Article V convention to resolve the war, and in September 1864, Oregon submitted a single-subject-matter application for an amendment abolishing slavery:

Whereas, article five, section one of the Constitution of the United States provides for its own amendment … and whereas in the process of the rebellion, it has become apparent that African slavery has been the cause thereof, and that there can be no permanent peace with slavery as a political element in the government, or with any of the attendant laws in force in States thereof, and believing that the Constitution ought to be so amended as to forever prohibit involuntary servitude, except for crimes within the United States and the territories thereof, therefore,
Resolved That application is hereby made to the Congress of the United States for calling a convention for proposing amendments to the Constitution of the United States.

The lessons from the state application process during the Civil War and the years leading up to the war reinforce certain conclusions reached earlier. The Founding-era view was that an Article V convention was the creature of the state legislatures, and not of the people directly. During this period, the assembly was referred to repeatedly by the phase “convention of the states” and certain variants. This was true not only in the South, but in border states (i.e., slave states that had not seceded) and in the North. Others called it by its constitutional name – a “convention for proposing amendments.” It is notable that few, if any, mistook it for a constitutional convention.

Most state applications during this era asked for a general, rather than limited-subject, convention, because the crisis required a comprehensive solution. Yet Oregon’s application for an amendment abolishing slavery showed that the constitutional option of a limited-subject convention had not been forgotten.

Might a convention for proposing amendments averted Civil War? Certainly some of the most respected political leaders of the day – including Presidents Buchanan and Lincoln, and a number of U.S. senators – thought that it might. What if wasn’t, so we’ll never know certainly, but it certainly would have been a prudent step to take before Americans started shooting at Americans. I can’t see how a convention of state delegates to propose amendments to the Constitution could have been any more harmful to the Union than what actually happened.

7 responses to “Could We have Avoided the Civil War?

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  1. That’s certainly a good point, but I think many politicians forgot about the Convention when the attack at Fort Sumter occurred. We can definitely run counterfactuals and ask what would have happened, but I think your argument that Congress and the states would have taken action to resolve it would be stronger if compromises had actually been achieved between the states after the attack at Fort Sumter and before the beginning of the war. [Admittedly it wasn’t much time between the attack and South Carolina’s secession]. It would have been interesting to see if some of the other pro-slavery states had tried to reason with South Carolina under Article V.

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    • Well, what if wasn’t, which leaves us with what is.

      The Civil War happened, that’s a fact. We can indulge in speculative fiction from there. My thought was that they might have avoided it if they’d called an Article V convention.

      CONGRESS dallied in submitting amendments that might have avoided Ft. Sumter. CONGRESS was unwilling to touch the third-rail of 19th century politics. CONGRESS failed in its duties.

      State legislatures had in their power to call an amendments convention and resolve some workable compromise on the issue of slavery. Unfortunately, the states method takes longer than the Congressional method and they simply didn’t have enough time to reach the threshhold for convention, but it would have been nice to see them try. Once Americans started shooting at one another, the system went off the rails — and frankly, it’s been off the rails ever since because the Civil War forever made states timid to assert their constitutional authority as overseer of the federal government. Read the Federalist Papers if you want to argue about whether that was the intention. It was. We’re taught these days that it wasn’t, but even Alexander Hamilton, THE most federalist of federalists, asserted the states were meant to keep the federal government in check.

      What I really want people to think about is this. We’re on the verge of another multi-secession, primarily over the issues of ObamaCare and the overreach of the federal administrative state, egged on by Obama’s executive orders and imperial presidency. The elements are all in place. It’s just going to take a spark. With a looming $17 trillion dollar debt, it wouldn’t take much.

      So, do we just let it happen or do we — the people, through our state legislatures — demand an alternative — an Article V convention to address some of the issues that we face today?

      By the way, we’re two states away from an Article V convention on a balanced budget amendment. If your state isn’t one of the ones that has applied yet, consider contacting your legislators to make it happen.

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  2. Interesting and relevant analysis. I’m enjoying your posts.

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    • Thank you. I first got interested in the subject because of a news item on Mark Levin’s new book “Liberty Amendments”. I started out convinced (by my poli sci professors 30 years ago) that an Article V convention was a horrible idea that ALWAYS ended in a complete change of government — which I would agree is a bad idea. But as I dug into it, I learned that I’d been taught a lot of propaganda. Last night, I finally read Levin’s book. He has some interesting ideas for amendments that I might post at the end of this series.

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  3. Interesting observations. Coincidentally, I have been doing some Civil War related posts. If you have not read them, you may find the Lincoln-Douglas Debates relevant.

    As I see it, the problems posed by the Civil War and today’s power-grabbing politicians are similar in that both involve abuses of Constitutional powers. They differ in that the Civil War pitted the states against each other, whereas today’s power-grabbers pit the rich and the poor against tax payers. Therefore, we probably have a better chance of making an Article V convention work today than they Americans did before the Civil War. That said, if we go the route of an Article V convention, we will be doing so in desperation. Nothing else has worked. Unfortunately, we are at that point.

    That said, we must still fight our battles at the polls. Unless we replace some of our leaders with people who fear to violate their oath to the Constitution, we will waste our time. We will just send bad people to the Article V convention.

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    • I agree that we do need to keep voting and trying to get good people in DC who represent us, but it’s becoming manifestly clear that we the people are not who our elected representatives represent at this point. When poll after poll after poll showed that Americans HATED the ACA at levels around 60-70%, and the Senate (using an unconstitutional procedure) forced it through without even a vote in the House, and THEN, more than 80% of incumbents were reelected to the Senata — it’s obvious there is something seriously off the rails.

      Article V was meant to be used in just such a situation, when Congress had become corrupted so that it was no longer representing the people (the Founders thought the problem would be in the House, they never expected we’d be so stupid as to make the Senate into a popular-election body). The state legislatures would step in and act upon their constitutional authority to repair the situation.

      I don’t see this as a desperate move. I see it as a pre-authorized procedure for just such a time as this. However, if it fails, then we will be in a desperate time because we will be without options.

      Some of the more conspiratorial sites I’ve encountered suggest that Congress is trying to block the applications to prevent an Article V convention. I didn’t find any proof of that, but I wouldn’t be overly surprised if it were true.

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      • When Congress passes legislation We the People clearly oppose — without even reading the bill — and does so repeatedly, we have a desperate situation. When our president and most of our elected representatives routinely violate their sworn oath to uphold and defend the Constitution, we have a desperate situation.

        So would an Article V convention be a desperate move? Whether it is or not, we most certainly are desperate.

        What is seriously off the rails? Instead of electing honorable men and women, we have voted for thieves and liars. For the sake of our thirty pieces of silver — “other people’s money” — too many of us have sold bits and pieces of our soul. Eventually, if we continue to let them buy our votes, they will have purchased us, and they will tyrannize us. And as you have indicated in your posts, that day of reckoning is coming.

        Anyway, we are in basic agreement that an Article V convention should be sought. The problem is getting enough states to agree on a worthwhile proposal.

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