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“The issue was not immigration, it was Mexicans…” – demography, fertility, “mongrelization” (Haney Lopez)

WBL p. 142ff

The racial animus behind Proposition 187 is painfully evident in the imagery and language used by the proponents of the measure. Consider the questions posed in rhetorical support of S.O.S. in the official state ballot pamphlet:

Should those ILLEGALLY here receive taxpayer subsidized education including college?

Should our children’s classrooms be over-crowded by those who are ILLEGALLY in our country?

Should our Senior Citizens be denied full service under Medi-Cal to subsidize the cost of ILLEGAL ALIENS?[56]

Even in the context of a ballot pamphlet, where one might expect carefully considered advocacy, the structure and language of these questions betrays the stark us-versus-them distinctions that mark racial divides, creating an unbridgeable gulf between “them,” the illegal aliens, and “us,” the taxpayers, parents, and senior citizens. Undocumented people, whether tourists who overstayed their visas or wage laborers who crossed the border for work, are cast as a single, homogenous, undeserving, uppercase [143] OTHER bent on victimizing the variegated but relatively defenseless and lowercase “we.”

Not surprisingly, the less-restrained public campaign for Proposition 187 echoed and amplified these overtones of racial bias. In the public campaign, the issue was not immigration, it was Mexicans. In television commercials linking his bid for reelection to support for S.O.S., California Governor Pete Wilson repeatedly ran prime-time images of people running in pandemonium through a Tijuana-San Diego border checkpoint, powerfully transforming the anti-immigrant initiative into an anti-Mexican campaign.[57] As Elizabeth Martínez writes, “Wilson has almost single-handedly made the word ‘immigrant’ mean Mexican or other Latino (and sometimes Asian). Who thinks of all the people coming from the former Soviet Union and other countries?”[58] Wilson is not alone in race-baiting through the language of immigration reform. Evidence of racial bias also abounds in the comments of others who support restrictionist immigration policies. One grass-roots organizer argues that with immigrants, “[i]t’s like animals. When there’s scarcity, they don’t breed. When there’s plenty, they breed.”[59] A founder of the prominent restrictionist lobby, the Federation for American Immigration Reform, asks: “Will the present majority peaceably hand over its political power to a group that is simply more fertile? . . . On the demographic point, perhaps this is the first instance in which those with their pants up are going to get caught by those with their pants down!”[60] A 1992 Republican presidential hopeful stated “that immigrants ‘mongrelize’ our culture and dilute our values.”[61] The divisive rhetoric of us and them, the repeated depictions of Mexicans rushing across the border, and the invective about breeding and mongrelization all slander the reality of immigration to this country in the hostile terms of racial inferiority. This language completely disregards the reality [144] Gerald López seeks to remind us of, that when it comes to immigration, “They are we.”[62]

In light of these xenophobic comments and the long history of nativism in the United States, it is difficult to conclude that anything but racism provides the primary force behind anti-immigrant measures such as Proposition 187. Nevertheless, it must be noted that the vast majority of those supporting such legislation insist that they are not driven by racism. Thus, the proponents of the S.O.S. initiative stress that race is irrelevant to their concerns, and that they are solely interested in curtailing the flow of undocumented migration. […]

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 141-143.
  1. [56]Illegal Aliens, Ineligibility for Public Services. Verification and Reporting. Initiative Statute, CALIFORNIA BALLOT PAMPHLET, GENERAL ELECTION, NOVEMBER 8, 1994, at 54.
  2. [57]Elizabeth Kadetsky, Bashing Illegals in California, THE NATION, Oct. 17, 1994, at 416, 421.
  3. [58]Elizabeth Martínez, Seeing More Than Black and White: Latinos, Racism, and Cultural Divides, Z MAGAZINE, May 1994, at 56, 58.
  4. [59]Amy Chance, Controls Defended as Economic, Not Racist, SACRAMENTO BEE, Jan. 24, 1993, at A10, quoted in Kevin Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U. L. REV. 1139, 1165 n.95.
  5. [60]Amy Chance, Illegal Aliens Increasingly Blamed for State’s Problems, SACRAMENTO BEE, Jan. 24, 1993, at A1 (quoting John Tanton), quoted in Johnson, supra, at 1165 n.95.
  6. [61]Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural Pluralism: Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multiracial Society, 81 CAL. L. REV. 863, 870 (1993) (quoting David Duke) (citation omitted).
  7. [62]Gerald López, Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy, 28 UCLA L. REV. 615, 713 (1981).

“to deny birthright citizenship … exemplifies current efforts to write facially neutral laws with racially discriminatory effects” (Haney Lopez)

Immigration laws targeting presumptively Latinx immigrants serve as Haney Lopez’s chief example of facially neutral laws that nevertheless have a racially disparate impact. / WBL 141ff

The proposed constitutional amendment to repeal the [142] Citizenship Clause of the Fourteenth Amendment in order to deny birthright citizenship to children born in the United States to undocumented persons exemplifies current efforts to write facially neutral laws with racially discriminatory effects.[54] So does California’s Proposition 187, the “Save Our State” (S.O.S.) initiative, which makes undocumented persons and their children ineligible for public social services ranging from primary education to non-emergency doctor’s visits and prenatal care.[55] Approved in 1994 by a two-to-one margin but currently blocked by a series of court challenges, S.O.S. is being hailed by some national leaders as a model for the entire country. Its success dramatically confirms the role of unconscious racism in the legal construction of race.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 141ff.


  1. [54]H.R.J. Res. 129, 103d Cong., 1st Sess. (1993). See chapter 2.
  2. [55]Proposition 187: Text of Proposed Law, CALIFORNIA BALLOT PAMPHLET, GENERAL ELECTION, NOVEMBER 8, 1994, at 91.

“this sociohistorical boundary crossing is normal to law” (Haney Lopez)

Evolution of ‘white’ from 1790s to 1890s – ‘sociohistorical boundary crossing’ of legal terms. / WBL 126-7.

In addition to legitimating race, legal rules operate as an idea-system to construct races in a second way. Though race as a social concept has some autonomy, it is always bounded in its meanings by the local setting. Laws help racial categories to transcend the sociohistorical contexts in which they develop. For example, the original prerequisite statute was written in 1790, when popular conceptions of race on the eastern seaboard of North America encompassed only Whites, Native Americans, and Blacks. As a legal restriction on naturalization, however, the “white person” prerequisite of 1790 was imposed on Bhagat Singh Thind on the West Coast of the United States in 1920. It is most unlikely that those who wrote the first prerequisite law intended either to include or to exclude South Asians, for that group almost certainly existed outside the realm of their world knowledge. […] Nevertheless, partially by its institutionalization in law, the category of ‘white persons’ transcended the local boundaries of time, place, and imagination in which it had one meaning, persisting and expanding into [127] remarkably different locales, where, though with a facade of continuity, it took on various new definitions.

This sociohistorical boundary crossing is normal to law.. One of the defining elements of law is its universal aspiration, its will to apply equally in all cases and across all situations. However, the pursuit of universality in law can make it a profoundly conservative force in racial construction. Here, the role of precedent is particularly important. Racial lines are prevented from shifting to the extent that past racial definitions control decisions about race in the present. “Reasoning by analogy to precedent cases creates a false historicity in that it perpetually reclaims the past for the present: in theory a dispute in 1989 can be resolved by reference to cases from 1889 or 1389.”[23] Of course, the dead hand of the past does not completely control the present; precedent is often manipulated, and such manipulation is central to legal change. Nevertheless, by giving great weight to superannuated racial definitions, precedent keeps alive restrictive notions of race.

Consider the Mashphee Indian case. [… difficulty of proving they were a “tribe” according to Supreme Court standards from 1901…] [128] In this way the use of precedent in law provides a conserving, stabilizing force in racial construction by preserving the relevance of past racial definitions, thereby allowing such categories to transcend their local settings.

Law frees racial categories from their local settings in another, quite distinct sense, as well: it occasionally provides new language with which to construct racial differences. Legal terms that do not refer explicitly to race may nevertheless come to serve as racial synonyms, thus expanding in often unpredictable ways the form and range of racial categorization. This possibility is evident in the prerequisite cases, though it is much more relevant to the legal construction of race today. The prerequisite laws spawned a new vocabulary by which to mark racial difference, the phrase “alien ineligible to citizenship.” Congress and a number of states used this phrase to avoid the Fourteenth Amendment’s bar against invidious race-based discrimination. In 1922 Congress proscribed the marriage of U.S. citizen women to non-White aliens by providing that “any woman citizen who marries an alien ineligible to [129] citizenship shall cease to be a citizen of the United States.[28] Two years later Congress relied on the same phrase to ban unwanted races from the country, mandating that “[n]o alien ineligible to citizenship shall be admitted to the United States” except under restrictive circumstances.[29] [… use in alien land laws, struck down eventually in Oyama …] Legal language can allow ideas of race to transcend their historical context through precedent, and also can contribute to the construction of race by providing a new vocabulary with which to take note of, stigmatize, and penalize putative racial differences. Law thus frees racial categories not only from contextual bounds, but also from the bounds society places on the use of race. […] As will be emphasized later, the law’s ability to provide seemingly neutral synonyms for race may be one [130] of the most important legal mechanisms in current processes of racial construction.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 126-130.


  1. [23]Carol Greenhouse, Just in Time: Temporality and the Cultural Legitimation of Law, 98 YALE L.J. 1631, 1640 (1989).
  2. [28]Act of Sept. 22, 1922, ch. 411, § 3, 42 Stat. 1021.
  3. [29]Act of May 26, 1924, ch. 190, § 13(c), 43 Stat. 153.

“some may suggest that legal rules patrol only the borders between races” — “construct races only at the margins” (Haney Lopez)

Irrespective of the use of violence, however, it may seem that at this coercive level laws construct races only at the margins. Granting that races are social constructions, some may suggest that legal rules patrol only the borders between races, resolving just those rare cases not already clearly defined within the underlying social systems of racial division. Arguably, only the person not clearly White or Black has her race determined in a prerequisite case or by her neighborhood. However, a focus on the coercive aspect of law seems to explain more than just the legal construction of race at the margins. Certainly the prerequisite cases legally established the legal identity of groups we now regard as firmly at the core of racial categories, for example the Japanese, and Jim Crow laws were indispensable in maintaining and even extending the social differentiation established through the slave codes and threatened during Reconstruction. Nevertheless, the explanatory power of this model should be questioned. How does law-as-coercion explain the continuing significance of race in a [123] postsegregation era? If races have been created through coercion, why hasn’t the end to the legal enforcement of racial differences been followed by a collapse in racial systems? Or, what can such a model tell us about the prevalent belief that races are legally fashioned? If races have been imposed, why is it that the vast majority of people embrace race so willingly? And why do these same people so vigorously deny that they have been coerced into a racial identity? Races are much more deeply embedded in our society than a theory of law-as-coercion would seem to explain. If law is a full participant in the construction of races, it must fashion races through some additional mechanism besides simple direct behavioral control.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 122ff.

“It is crucial to note that, in constructing race, legal rules operate through violence” (Haney Lopez)

It is crucial to note that, in constructing race, legal rules operate through violence. The legal system enforces rules occasionally through rewards but most often through the threat of application of harm. Such potential or actual harm is often difficult to see. For example, the prerequisite cases seem at first glance to be nothing more than dry exegetical readings of ambiguous legal texts in which it is impossible to find even obscure allusions to coercive force. Nevertheless, violence is there. “A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life,” Robert Cover correctly insists, adding, “[w]hen [judges] have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.”[11] In the prerequisite cases, we may assume violence, probably literally in the corporeal forms of immigration officers and border guards, certainly figuratively in the form of constrained lives and truncated hopes, and occasionally obviously in the form of suicide. [122] In the law of race more generally, violence is manifest in slavery, in Jim Crow segregation, in police brutality, in the discriminatory enforcement of criminal laws, in the dispossession of Native American land rights, in the internment of people of Japanese descent, in the failures of the law to provide equal justice or to protect against discrimination. In all of this violence, the law not only relied on but also constructed racial distinctions. To say that law constructs races is also to say that races are the product of, not just the excuse for, violence. James Baldwin remarks that “no one was white before he/she came to America. It took generations, and a vast amount of coercion, before this became a white country.”[12] Courts may have been the principal institutional forum for that vast coercion, and laws its principal form of civilized expression.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 121ff.


“The Secession Theory” (Madison Wisconsin Daily State Journal, November 17, 1860)

60. The Secession Theory

(Madison Wisconsin Daily State Journal [Lincoln], November 17, 1860)

The present ebullition of disunion feeling at the South is reviving the old discussions, so general during nullification times when General Jackson issued his famous proclamation against the nullifiers of South Carolina, respecting the limits of State and federal authority under the Constitution.

Such discussions can only result in good. They lead to a study both [180] of the fundamental law, and of the early history of the Republic, too much neglected by a people who are themselves the source of all political power, and who, under the Constitution, are “the rightful masters of both Congress and courts.”

Our whole system of Government is founded upon the supposition that the majority of the people are not only just and honest, but intelligent. Yet it must be conceded there are too many who exercise the right of suffrage without that knowledge of the government and its history essential to enable them to cast an intelligent vote.

Whatever tends therefore to turn the attention of the reading public in the direction of the Constitution and its history, must produce, in this respect at least, beneficial results.

The particular point which is now most discussed, is the right of a State to withdraw from the Union without the consent of the other States, and to set up an independent nation. It might in some cases be just and politic to permit such a secession. But this is not the question.–It is whether, upon some alleged grievance, or on account of some fancied good to be obtained, a State has the right to dissolve the bonds of the Union.

The great majority of the Northern press take ground against this right. Madison, who was better entitled, perhaps, to the name of the Constitution than any other man, denied it in the most explicit language. Such was Webster’s interpretation. Such is the view taken by President Jackson in his proclamation already alluded to. That document contains an admirable summary of the argument against the alleged right. It is yet more fully argued in Webster’s celebrated speech in reply to Hayne. The other side of the question is presented most fully and ably by the writings of John C. Calhoun.

The whole question depends for its solution upon the manner in which we understand the character of the Union. If it be a mere loose league of confederated sovereignties, the right to secede undoubtedly exists. If it be more than that, if it be a government, if the states are not complete sovereignties, the right to secede undoubtedly exists. If it be more than that, if it be a government, if the states are not complete sovereignties but have given up a portion of their sovereignty to a national government for the sake of mutual protection and benefit, then that right must be denied, although it would still remain a question of policy whether, in a particular case, force should be employed to restrain a state attempting to cut loose from the Union.

Some of the disadvantages which would result from the right of secession, if granted, will readily suggest themselves:

1. The people of the United States have bought and paid for Florida, Louisiana, and other states. Under the secession theory these may step [181] out of the Union to-morrow without any obligation to refund the money they have cost us.

2. Texas was an independent sovereignty. But she was overwhelmed with debt. She asked and was admitted into the Union. The Union has paid her debts; it has defended her territory at the sacrifice of both blood and treasure. Wisconsin contributed of her means and men; so did New York, Massachusetts, and every State in the Union. Having got rid of her debts, upon this theory of secession, Texas has the right, at any time, to cut loose and set up for herself again.

3. The Union may buy Cuba to-morrow, at a cost of $200,000,000, of the common treasure of the States. The next day she may assert her right of secession. Spain will have the $200,000,000. We shall have nothing but an illustration of the beautiful results of the Calhoun construction of the Constitution.

4. The Atlantic States may, under this doctrine, secede, and set up an independent confederacy, or confederacies, compelling the interior States to pay to them, for their sole benefit, a duty upon all their imports and exports, while Wisconsin, Illinois, Ohio, Pennsylvania, and the other interior States, now prone to suspect that they have some little interest in the Atlantic ports, must quietly submit.

5. If the Union is involved in war with some foreign power, and becomes plunged in debt by a heroic struggle for her existence–no matter how just her cause–any craven and selfish state, under the doctrine of the right of secession, may abandon the Union at the beginning and thus avoid the dangers which the others meet, or, at the close of the struggle, and thus avoid the payment of her proportion of the debt incurred.

These are but a few of the evil consequences which attend this theory. We believe it is alike without foundation in the Constitution or in common sense and we have no doubt but it will find in Abraham Lincoln as prompt and decided an opponent as it found in Andrew Jackson.

Howard Cecil Perkins, ed. Northern Editorials on Secession, Volume I (Gloucester, Mass.: Peter Smith, 1964), 179-181.

Law as coercion creates racial categories in three chief ways (Haney López)

According to Haney López, pp. 116-123, “Law as Coercion,” in its coercive aspect law serves to create racial categories in three chief ways:

  1. Legal rules have shaped physical appearances
  2. Positive law has created the racial meanings that attach to physical features
  3. Positive law establishes the material conditions which often code for race.

[WBL p. 119]

“In the name of racially regulating behavior, laws CREATED racial identities” — Tennessee use of “mulattoes, mestizos, and their descendants” (Haney Lopez)

Second, positive law has created the racial meanings that attach to physical features. In a sense, this is the heart of the prerequisite cases, which at root embody the efforts of the courts to inscribe on the bodies of individual applicants the term “White” or “non-White.” These cases established as legal precedent the racial identities of the various faces and nationalities entering the United States at the turn of the century. Again, however, the racial prerequisites to naturalization are not the only laws that explicitly defined racial identities. Almost every state with racially discriminatory legislation also established legal definitions of race. It is no accident that the first legal ban on interracial marriage, a 1705 Virginia act, also constituted the first statutory effort to define who was Black.[6] Regulating or criminalizing behavior in racial terms required legal definitions of race.[7] Thus, in the years leading up to Brown, most states that made racial distinctions in their laws provided statutory racial definitions, almost always focusing on the boundaries of Black identity. Alabama and Arkansas defined anyone with one drop of “Negro” blood as Black; Florida had a one-eighth rule; Georgia referred to “ascertainable” non-White blood; Indiana used a one-eighth rule; Kentucky relied on a combination of any “appreciable admixture” of Black ancestry and a one-sixteenth rule; Louisiana did not statutorily define Blackness but did adopt via its Supreme Court an “appreciable mixture of negro blood” standard; Maryland used a “person of negro descent to the third generation” test; Mississippi combined an “appreciable amount of Negro blood” and a one-eighth rule; Missouri used a one-eighth test, as did Nebraska, North Carolina, and North Dakota; Oklahoma referred to “all persons of African descent,” [119] adding that the “term ‘white race’ shall include all other persons”; Oregon promulgated a one-fourth rule; South Carolina had a one-eighth standard; Tennessee defined Blacks in terms of “mulattoes, mestizos, and their descendants, having any blood of the African race in their veins”; Texas used an “all persons of mixed blood descended from negro ancestry” standard; Utah law referred to mulattos, quadroons, or octoroons; and Virginia defined Blacks as those in whom there was “ascertainable any Negro blood” with not more than one-sixteenth Native American ancestry.[8]

The very practice of legally defining Black identity demonstrates the social, rather than the natural basis of race. Moreover, these competing definitions demonstrate that the many laws that discriminated on the basis of race more often than not defined, and thus helped to create, the categories they claimed only to elucidate. In defining Black and White, statutory and case law assisted in fashioning the racial significance that by themselves drops of blood, ascertainable amounts, and fractions never could have. In the name of racially regulating behavior, they created racial identities.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 118-119.
  1. [6]Finkelman, supra, at 2088. According to Finkelman, “This act also made the first stab at defining who was actually black. The law declared that anyone who was a child, grandchild, or great grandchild of a black was a mulatto under the statute. this meant that persons who were of one-eighth African ancestry were black for purposes of Virginia law.” See generally A. Leon Higginbotham, Jr., and Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L. J. 1967 (1989).
  2. [7]See Raymond T. Diamond and Robert J. Cottrol, Codifying Caste: Louisiana’s Racial Classification Scheme and the Fourteenth Amendment, 29 LOY. L. REV. 255, 265 (1983) They argue that “[s]tate supported or initiated discrimination required racial definitions. The law could not separate what it failed to categorize.”
  3. [8]Paul Finkelman, The Color of Law, 87 NW. U. L. REV. 937, 955 n. 96 (citing PAUL MURRAY, STATES’ LAWS ON RACE AND COLOR [1950]).

“Peaceable Secession an Absurdity” (New York Evening Post, November 12, 1860)

52. Peaceable Secession an Absurdity

(New York Evening Post [Lincoln], November 12, 1860)

In behalf of the treachery and imbecility of the Administration at Washington the new doctrine is invoked that each state has a right peacefully to secede–that nullification of any particular law of Congress is to be resisted and punished by the government, but that secession, i.e., the absolute nullification and defiance of all such laws, and of the Constitution and of the Union, is perfectly right and within the power, at all times, of each and every state. The faithless members of the cabinet seek thus to shelter themselves and their partisans in disunion from resistance by the general government, while the imbeciles aim in the same way to find an excuse from [sic] shrinking from their duty of affirmative and energetic action for which they lack courage if not principle.

A more monstrous and absurd doctrine than that of the right of any state at its pleasure to secede from the Union has never been put forth. the government in such case would indeed be a mere rope of sand. According to this dogma, Cuba, after we shall have paid $200,000,000 for her purchase, as a state may at once secede, and leave the United States Treasury to place that small item to the account of “profit and loss.” Texas, when she came into the Union after we had paid many millions to discharge her debts, and other millions to go into her coffers, was and is entirely at liberty to secede with the booty. Each and all the states carved out of the Louisiana purchase, for which we also paid such an immense sum, may do the like.

So, too, states in which the largest amounts of the public property may be situated may at any time secede with that property. When the Pacific Railroad shall be constructed, at an expense of countless millions, paid from the common treasure, the two or three states through which it will run may decamp with the plunder and plant a custom-house on the site of our storehouses. Vermont, New Hampshire, Indiana, Illinois, Ohio, Kentucky, Tennessee, and the other inland states, which will have contributed to these great disbursements, and in which states hardly a dollar of the public treasure is even [ever?] expended, are to look quietly and approvingly on the exodus of those which have been thus purchased and enriched at their expense, and to recognize the right of each of them to secede and take the property with them.

Again, if this right exists it exists at all times, until no two states remain united. What, then, would become of the national debt and the national credit? To whom would the creditors of the government look for payment? Should the government be, as it may at any time be, indebted on its stocks hundreds of millions of dollars, its creditors could look, in case of secession, only to the states which should remain united. Those which should have seceded and established independent governments could not be reached. The creditor could claim of them no percentage of liability. They would plead that they had never contracted, and that they had been only stockholders in a corporation in which there was no individual liability.

Nor could the continuing government of the United States compel the payment by the seceding state of a portion of the public debt. There would be no data from which a definite percentage could be assigned to it, nor would it have the ability to pay. If South Carolina finds it [161] necessary to repudiate at the outset by suspending specie payments, and (as already foreshadowed) by annulling even private debts due by its citizens to those of other states, it is plain that both ability and principle will be lacking for payment of her share (if it could be allotted) of the public debt. There is no court by which any fixed amount could be established as due from her on account of that debt, or which could issue execution for its payment. It results therefore that the seceding state could only be compelled to pay any share of the national debt (contracted on her account, as well as that of the other states) by war and reprisals by the general government. This puts an end to the idea of peaceable secession and the right of secession.

But can any of the democratic book-keepers tell us how (if payment could be compelled) they could make out the account current between the seceding state and the government, so as to strike a balance between the debit and the credit sides? Large amounts have been expended by the government on her account and within her borders. Forts for her harbors, light-houses, court-houses, coast-surveys, custom-houses, nonpaying postoffices and post routes, and salaries of the swarms of officers and leeches attendent upon all these, in addition to her undefinable share of the public debt, have all been paid. But then she has a credit side of the account also, which it will be impossible to adjust. How are we to ascertain the values and the proportions thereof to which she is entitled of the public arms and ammunitions of war, arsenals, ceded places, public edifices, ships of war, and of the public lands? Is there any court, or is there any form of action by which partition can be made of the territories? This last item is a very material one, for the only point of principle on which the secessionists take issue with the Republicans as to the platform of the latter (adopted at Chicago) is that of carrying slavery into the territories. What foothold or property in the territories will the seceders retain on leaving the Union? They will be foreign states, and we believe it has not yet been claimed, even by Judge Taney, that the laws of foreign states extend proprio vigore over the territories.

Another difficulty in making up the account with South Carolina would result from her claiming an almost incalculable credit for the disproportion of the public burdens which she fancies she has borne in the confederacy, by reason of what she considered the unequal operation of the various revenue laws.

Now, this right of secession, if it exist at all, is an absolute one, and a state has as much right to exercise it at one time as at another. If she may secede at will, she may do so in anticipation of war, or in time of [162] war. If she can secede when she chooses, she owes no allegiance to the government an hour after she decides to secede, but will then be just as independent of the government as she is of any other nation. In the midst of war, then, it will be the right of any state not only to desert our own government, but at the same time to ally herself with the enemy. The Hartford Convention complained that New England was heavily taxed, but not defended by the general government, and merely proposed to ask the consent of the government to expend in the defence of New England the taxes raised in New England. This was not claimed as a right, but the consent of the government was to be sought. This was hardly an approach to secession, but the democracy of that day did not tolerate even the proposition, and the Hartford Convention was execrated.

But the absurdity of this new doctrine of the right of secession is too palpable for serious argument. The government under such a principle could not have twenty-four hours of assured existence. Neither other nations, nor its own citizens, could have confidence in its permanence. It would lack the vital principle of existence, because it would wholly lack credit. Nobody would lend it a dollar, for nobody could be sure that it would hold together long enough to pay a six months’ loan, to say nothing of loans for long terms of years. The public faith, on which alone all who deal with governments can repose, would be utterly lacking. Business could have no security or stability, for men would not embark either their industry or their capital, unless under the shelter of laws and institutions not liable to change.

No–if a state secedes it is revolution, and the seceders are traitors. Those who are charged with the executive branch of the government are recreant to their oaths if they fail to use all lawful means to put down such rebellion. The people of no party base any confidence either in the fidelity or nerve of the Administration in Washington, but fear they will prove, some of them from inclination and others from timidity, practical allies of the revolutionists. They and their partisans have done all in their power to inflame and mislead the South, by charging upon the northern states the design of interfering with the rights of the people of the South, and the mercenaries here have co-operated in this false clamor and deception. The Administration, in relinquishing the government will endeavor to leave all possible embarrassments in the way of its successors, but we much mistake if those of its partisans here who have been foremost in the false work, will not be the first with whom the consequent mischief will come home to roost.

Howard Cecil Perkins, ed. Northern Editorials on Secession, Volume I (Gloucester, Mass.: Peter Smith, 1964), 158-162.

“The Practical Difficulties of Secession” (Philadelphia Press, December 21, 1860)

37. The Practical Difficulties of Secession

(Philadelphia Press [Douglas], December 21, 1860)

The members of the South Carolina Disunion Convention, as they approach the consideration of the practical questions involved in a faithful and thorough-going execution of their secession project, are beginning to realize some of the difficulties they will be compelled to encounter. It is a comparatively easy matter to burn down a house if no one attempts to arrest the flames, but it requires much laborious toil to erect a new one. Even if the efforts of the States which propose to secede should prove successful, they will not soon be able to erect a new Government which will be as useful and beneficent to them as the present Confederacy, notwithstanding their loud complaints against it.

If, by secession, they do not mean anything more than the adoption of empty resolves and pronunciamientos–the passage of ordinances repealing their ratification of the Federal Constitution, the resignation of leading Federal office-holders, and the virtual abolition of the Federal courts, they will certainly do much to alarm and agitate the American people, and to bring discredit upon the nation; but they will still virtually be in the Union. The convenience of the present Post Office system is acknowledged even now in South Carolina. They are not prepared to furnish a sufficient substitute for it. The best plan they have yet devised is to form some sort of an amicable arrangement with the powers that be at Washington, by which the postmasters of the Palmetto State will perform their duties as usual, while they refuse to recognize in any way the authority of the Federal Government, and consider their own local rulers the only ones they are obliged to respect and obey! If Mr. Buchanan adheres to the programme laid down in his message [123] and to the doctrines enunciated in the elaborate opinion prepared for him by the late Attorney General Black, he cannot well avoid collecting the Federal revenues at all Southern ports, even after the passage of secession ordinances; and if this duty is discharged, any State which assumes a rebellious attitude will still be obliged to contribute revenue to the support of the Federal Government or have her foreign commerce entirely destroyed. There will be no necessity for a collision unless some of the American forts are attacked, or the collection of duties meets with resolute and determined opposition. In either of these events, the National Government of this country will still have full power to vindicate its authority and to enforce compliance and respect, if those who rule its councils shall deem it expedient to avail themselves of the ample resources at its command.

All these obstacles must be entirely overcome, either by force, or by the connivance of the Federal Government, or by the consent of the States which remain in the present Confederacy, before any effort at secession can become completely successful, and before South Carolina or any of her discontented sisters can fully assume, among the Powers of the earth, a free and independent position. Many of the ablest men of our country have ridiculed the idea of “peaceable secession” as preposterous, and although it probably meets now with more favor than at any former period, it will be a singular event if we should fail to settle our existing quarrels within the Union, when we have common tribunals to appeal to, and yet preserve amicable relations during the progress of a dissolution of the Confederacy, and after so dire a calamity was consummated.

But, even supposing that a peaceable secession policy should prevail, and that the Gulf States should have but to declare their desire for independence to secure it, they could not rationally expect to form a new Government which would be more useful and advantageous to them than the present one has, up to this time, proved itself to be. No section of our country has derived greater benefits from the American Union heretofore than the very States in which the secession sentiment is most formidable–South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. The anxiety of the latter to enter our Confederacy was a striking evidence of her appreciation of the advantages it could confer upon her, and certainly her anticipations must have been more than realized when we consider that we not only assumed and finally disposed of her long-standing quarrel with Mexico, by defeating and humiliating the latter, but that we paid off all her heavy old debts, and that, in wealth and prosperity, she has constantly [124] been increasing, with wonderful rapidity, since her annexation. Louisiana and Florida were purchased outright from foreign Governments, and owe to the power of the American Union not only the freedom they enjoy, but nearly all their prosperity. It required all the energy, and much of the treasure, of the Federal Government to finally subdue in Florida, Georgia, Alabama, and Mississippi, the powerful Indian tribes which once inhabited them. The rich plantations, which now send forth their large annual products of cotton, would probably still be under the control of their aboriginal owners, if the forces of the United States had not driven them from their native haunts, and if the white settlers had not relied upon the support and protection of a great nation. South Carolina has always exercised in the councils of the nation quite as much, if not more, influence than any State of equal population, and has reaped her full proportion of all the benefits it has conferred. She complains that she has been onerously taxed, but she will find it utterly impossible, if her secession ordinance should really sever her connection with the Republic, to secure advantages equal to those she has heretofore enjoyed, without incurring a much larger expenditure than she has heretofore been subjected to. In what new Confederacy, or under what new system, can she be as well protected from foreign invasion and domestic insurrection, and have her rights at home and abroad as well secured, as under the one from which she appears so anxious to escape? The expense of our army and navy, of our diplomatic system, of our whole machinery of National Government, weighs but lightly on thirty-three States, but any new organization which approaches it in efficiency would be exceedingly burdensome to any small Confederacy.

Viewing the secession experiment in the most favorable light that its authors can possibly consider it, it is still full of embarrassments and perils; and while we trust that the Representatives of the North will be ready to do all in their power to remove every just cause of complaint, and to destroy every plausible pretext for a dissolution of the Union, we trust that when the prevailing excitement in the Cotton States subsides, their citizens will coolly and calmly consider this subject, in all its aspects, to ascertain whether it is not even better to bear the ills they have than to fly to others that they know not of.

Howard Cecil Perkins, ed. Northern Editorials on Secession, Volume I (Gloucester, Mass.: Peter Smith, 1964), 122-124.