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Home > Journals > Michigan Law Review > MLR > Volume 102 > Issue 6 (2004)

 

Abstract

The year is 1860. After failing to obtain, as he had expected, the Democratic Party nomination for President at its Charleston convention, Stephen Douglas abandons his candidacy. In the ensuing election, Democrat John C. Breckinridge of Kentucky edges Republican Abraham Lincoln. The official platform of the Democratic Party includes endorsement of the Dred Scott decision, slavery's expansion in the federal territories, rigorous enforcement of the Fugitive Slave Act, and elimination of the tariff. Abolitionists in New England are inconsolable. For several years, Henry Lloyd Garrison had advocated Northern secession, denouncing the Constitution as a "union with slaveholders," and "a covenant with death and an agreement with Hell." Funded by industrialists who see no advantage in remaining a tariff-free Union, Garrison rallies abolitionists in Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, Connecticut, and New York, and the seven states formally secede from the Union. President Breckinridge convenes a Special Session of Congress on July 4, 1861, and proclaims: "The States have their status in the Union, and they have no other legal status. If they break from us, they can only do so against law and by revolution." Before receiving authorization from Congress, Breckinridge calls up 75,000 troops and promises an invasion of New England. Also without congressional approval, Breckinridge suspends habeas corpus in "border states" like Pennsylvania and Delaware, summarily dispatching hundreds of citizens to prison. In this hypothetical world, who would we say is in the right - the seceding states or the President? Would preserving the Union justify the slaughter of over 600,000 men, an assault on civil liberties, the devastation of the national economy, and the subjugation of one region of America to rule by the other for over a decade? If President Breckinridge had, on a blood-soaked battlefield, touted the war as a struggle to ensure "that the government of the people, by the people, for the people shall not perish from the earth," would we be persuaded, or would we construe in such words a poetic inversion of the truth?

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