AHC: What change in the Constitution could have prevented the ACW?

Challenge: What change, if any, in the drafting of the Constitution *which could plausibly have been adopted and ratified in the late 1780's* could have averted the ACW? It is hard to think of any change directly related to slavery that would not have fatally alienated some southerners or northerners whose support was needed for ratification (e.g., an explicit prohibition of, or guarantee of, slavery in all federal territories, or a change in the way slaves were counted for purposes of legislative apportionment) so it probably has to be something with a more indirect effect. For example, the small states, worried about the power of large states choosing their electors on statewide tickets, insist on a requirement that electors be chosen by congresional district, which would have made it harder for the Republicans to win the presidency in 1860 or maybe even thereafter.

Of course such a change might have plenty of earlier consequences, so you may say the Republican Party as we know it might not have existed in 1860. The basic point is the same, though--it would be harder for any anti-slavery party to win the presidency if it lost a substantial number of electoral votes in the North.

A provision explicitly allowing any state that wishes to secede to do so by some pre-determined procedure. (2/3rd majority in the state legislature? Special convention to vote on it? Popular referendum?). That would prevent war... assuming, at least, that the North would not just wipe its ass with the Constitution.

The states that truly wanted to secede would do so. End of story.

(Hey, you asked for 'no ACW', and not for 'no secession'.)

Widukind said:

A provision explicitly allowing any state that wishes to secede to do so by some pre-determined procedure. (2/3rd majority in the state legislature? Special convention to vote on it? Popular referendum?). That would prevent war... assuming, at least, that the North would not just wipe its ass with the Constitution.

The states that truly wanted to secede would do so. End of story.

(Hey, you asked for 'no ACW', and not for 'no secession'.)

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The problem is that either explicitly allowing or explicitly forbidding secession is probably going to doom the new Constitution. The Federalists will object that allowing secession makes the new constitution a nullity-- "why, even the Articles of Confederation were officially 'Articles of Confederation and Perpetual Union' and provided that 'And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual.'" An explicit prohibition of secession would be seized on by Antifederalists as proof of the tyrannical nature of the new Constitution. In short, the failure of the Constitution to address the issue of secession *explicitly* was probably inevitable.

A Constitutional Amendment stating that the Federal Government would not interfere with Slavery, but no more slave states can be made after that.

An explicit statement that the federal government would not interfere with slavery. Without slavery, the South won't secede. The whole "state's rights/south being eclipsed by the North" thing might get a couple crazies in South Carolina to advocate secession (Nullification Crisis 2.0), but the rest of the South won't go along with it.

Rather than vesting advice-and-consent powers entirely to the Senate as a whole, provide a mechanism where federal appointees whose responsibilities lie within a state or small group of states must be approved by those states (either directly by the state governments or indirectly through those states' Senators).

One of the major fears in the South that lead to secession following Lincoln's election was that with a Republican President and a probable working majority in the Senate (Republicans + Know-Nothings + Antislavery Northern Democrats), the spoils system could be used to support the formation of an anti-slavery movement within the South. There was already a fledgling abolition movement in the border states (most notably Missouri and Delaware), and many in the South feared that support via federal patronage would spread and strengthen this movement into a politically viable force. The fear was not just that it might achieve political success in the border states, but that an organized movement agitating against slavery would provoke slave rebellions in the deep south.

CthulhuFhtagn said:

An explicit statement that the federal government would not interfere with slavery. Without slavery, the South won't secede. The whole "state's rights/south being eclipsed by the North" thing might get a couple crazies in South Carolina to advocate secession (Nullification Crisis 2.0), but the rest of the South won't go along with it.

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The problem with this is that almost everybody conceded in 1860 that the federal government had no authority to interfere with slavery in the states. Indeed, moderate Republicans like Lincoln were even willing to back an "unamendable amendment" (the Corwin Amendment) to make that explicit. Secessionists spurned this as entirely inadequate. They were not worried that Congress (which in any event was not even controlled by Republicans before the Deep South seceded) would pass a law outlawing slavery in the states. Rather, it was feared that the Republican administration would undermine slavery in more indirect ways--by denying the institution room to expand, by admitting more and more free states to undermine the political power of the South, by using federal patronage to build up an anti-slavery party in at least the Upper South, by refusing to stop the circulation of "incendiary" abolitionist publications in the mail, etc. Besides, as John Bell, hardly a firebrand, wrote, "The simple announcement to the public that a great party at the North, opposed to Slavery, has succeeded in electing its candidate for the Presidency, disguise it as we may, is well calculated to raise expectations among the slaves, and might lead to servile insurrections in the Southern States." http://www.civilwar-online.com/2010/12/december-12-1860-john-bell-speaks-out.html

However unjustified some of these fears may have been, they are not the sort of thing that a constitutional provision forbidding federal interference with slavery in the states could put to rest. The secessionists' rejection of the Corwin Amendment as an adequate remedy proves this.

I'm relatively new to this site, and am by no means a professional, but from what I can tell from history, the American Civil War was the culmination of a good 40+ years of increasing sectionalism within America, dividing North and South and West. Slavery was a facet of that, but that was largely tied into westward expansion (new states are slave or free), which was largely tied into representation in the Senate (both sides want an advantage, and any deal must balance their respective gains), which was largely tied into matters of economic policy (commercial markets in New York wanted a national bank, industry in New England wanted protective tariffs, the agrarian South wanted open markets for their exports, etc.)

In other words, I'm not sure there is a single or even a set of changes to the Constitutional Convention that could have averted the broader causes of conflict (though a string of incompetent Presidents and national political leadership certainly didn't help). But one way or the other, I think the key would be in re-framing the issue in terms of "how best to mitigate sectional divides or ensure that they simply aren't as important at the national/federal level.

Widukind said:

A provision explicitly allowing any state that wishes to secede to do so by some pre-determined procedure. (2/3rd majority in the state legislature? Special convention to vote on it? Popular referendum?). That would prevent war... assuming, at least, that the North would not just wipe its ass with the Constitution.

The states that truly wanted to secede would do so. End of story.

(Hey, you asked for 'no ACW', and not for 'no secession'.)

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Indeed. I suspect that this probably IS the only way to avoid the ACW.

Note, that "Perpetual" was a regular term in treaties at the time, as others have pointed out in other threads, and basically meant "no fixed ending date". Lots of "Perpetual" treaties lasted only as long as it was convenient for both sides to keep them.

Even if 'perpetual' were to mean indissoluble, that COULD mean that at least 2 states have to remain together - but any others could leave. Maybe.

If secession WERE allowed, somehow, it would probably take not only a massive vote by the individual state(s), but a majority or supermajority of either the total of all states or of Congress. Which wouldn't likely let the CSA secede, 'cause they'd never get enough northern votes.

OTOH, perhaps it would relieve some tensions?

While it is true that I talked about preventing the ACW rather than preventing secession, I think the focus by some people here on having a constitutional provision dealing specifically with secession is misguided. I don't think any such provision is likely to be included. (Note that even the Confederate constitution did not say anything explicitly about a right to secession!) Federalists would object to a provision allowing a state the right to secede; it would undermine their whole purpose of creating a stronger central government, especially considering the blackmail power it would give disaffected states. They were certainly not looking for a Union that was *easier* to dissolve than the Confederation! OTOH, any provision specifically denying the right to secede would just be pointed to by Antifederalists as proof of how tyrannical the new Constitution was.

And anyway, even if such a provision were included and all the states ratified it, it wouldn't necessarily prevent secession. Southern states would argue, " "Yes, the Constitution prohibits secession. But it also requires the rendition of fugitive slaves and--at least according to our interpretation and that of the Supreme Court--forbids federal interference with slavery in the territories. Since the North has either violated these provisions or is about to do so, we are not bound by the anti-secession provision. The contract has been so violated by one side that the other side may take it as a nullity." Or instead of relying on a right of secession, they would rely on a "natural" right of revolution. Some did in OTL, in fact, like Senator Alfred Iverson of Georgia:

"The President [Buchanan] may be right when he asserts the fact that no
State has a constitutional right to secede from the Union. I do not myself
place the right of a State to secede from the Union upon constitutional
grounds. I admit that the Constitution has not granted that power to a
State. It is exceedingly doubtful even whether the right has been
reserved. Certainly it has not been reserved in express terms. I therefore
do not place the expected action of any of the Southern States, in the
present contingency, upon the constitutional right of secession; and I am
not prepared to dispute therefore, the, position which the President has
taken upon that point.

"I rather agree with the President that the secession of a State is
an act of revolution taken through that particular means or by that
particular measure....But, sir, while a State has no power, under the
Constitution, conferred upon it to secede from the Federal Government or
from the Union, each State has the right of revolution, which all admit.
Whenever the burdens of the government under which it acts become so
onerous that it cannot bear them, or if anticipated evil shall be so great
that the State believes it would be better off--even risking the perils of
secession--out of the Union than in it, then that State, in my opinion,
like all people upon earth has the right to exercise the great fundamental
principle of self-preservation, and go out of the Union--though, of
course, at its own peril--and bear the risk of the consequences..."
http://www.gutenberg.org/files/15393/15393-h/15393-h.htm

Nofix said:

A Constitutional Amendment stating that the Federal Government would not interfere with Slavery, but no more slave states can be made after that.

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The South was offered better than that - the Crittenden Compromise guaranteed the permanent existence of slavery in all states where it was currently legal and extended the Missouri Compromise line west, which would allow more slave states.

CthulhuFhtagn said:

An explicit statement that the federal government would not interfere with slavery.

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"Apprehension seems to exist among the people of the Southern States that by the accession of a Republican administration their property and their peace and personal security are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that "I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so." Those who nominated and elected me did so with full knowledge that I had made this and many similar declarations, and had never recanted them. And, more than this, they placed in the platform for my acceptance, and as a law to themselves and to me, the clear and emphatic resolution which I now read: Resolved, That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend, and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter under what pretext, as among the gravest of crimes." - Abraham Lincoln, First Inaugural Address

"That the maintenance inviolate of the rights of the states, and especially the right of each state, to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depends, and we denounce the lawless invasion by armed force of the soil of any state or territory, no matter under what pretext, as among the gravest of crimes. " - 1860 Republican Party Platform

Fiver said:

The South was offered better than that - the Crittenden Compromise guaranteed the permanent existence of slavery in all states where it was currently legal and extended the Missouri Compromise line west, which would allow more slave states.

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When I first read the OP I assumed it was when the Constitution was being ratified. Would it work from the 1790-1800's onward?

Not to be cynical, but once the wealth

Not to be cynical, but once the wealth inherent in chattel slavery became manifest, the only way to avoid secession would have been to allow and encourage slavery - of all races, not just those identified as "negro" - across the entire continent.

Money drives politics, and the enslaved - as a liquid asset - were worth more than any other element of the economy save land itself for much of the history of the United States.

There's a reason the South went to war in 1861; it was not over tariffs.

Best,

Is there any chance that the Northwest Ordinance could have been written into the Constitution and made applicable to "any territory hereafter acquired"? After all, the South went along with the NWA itself, though it probably cost them the chance to get slave states in Illinois and Indiana.

If they swallow this, then Missouri could well be a free state, though I suspect those further south would adopt slavery after Statehood even if admitted without it. However, come the Mexican War, it means that something like the Wilmot Proviso is already in place, and of course the Kansas-Nebraska Act would be clearly unconstitutional.

There's a chance, but you'll note the NW Ordinance came

Mikestone8 said:

Is there any chance that the Northwest Ordinance could have been written into the Constitution and made applicable to "any territory hereafter acquired"? After all, the South went along with the NWA itself, though it probably cost them the chance to get slave states in Illinois and Indiana.

If they swallow this, then Missouri could well be a free state, though I suspect those further south would adopt slavery after Statehood even if admitted without it. However, come the Mexican War, it means that something like the Wilmot Proviso is already in place, and of course the Kansas-Nebraska Act would be clearly unconstitutional.

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There's a chance, but you'll note the NW Ordinance came (more or less) hand in hand with the annexations of the "Old" Southwest, the Lousiana Purchase (complete with acceptance of Franco-Spanish law regarding slavery), Florida, and (after a while) the Indian Removal Acts...

There was a lot of horse-trading, and add in the realities of slaveholder dominance of the executive branch in the antebellum period, and it looks pretty slender.

Again, there was a lot of money to be made...

Best,

Mikestone8 said:

Is there any chance that the Northwest Ordinance could have been written into the Constitution and made applicable to "any territory hereafter acquired"? After all, the South went along with the NWA itself, though it probably cost them the chance to get slave states in Illinois and Indiana.

If they swallow this, then Missouri could well be a free state, though I suspect those further south would adopt slavery after Statehood even if admitted without it. However, come the Mexican War, it means that something like the Wilmot Proviso is already in place, and of course the Kansas-Nebraska Act would be clearly unconstitutional.

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I think the best hope for this challenge is a clause which limits slavery but does not immediately threaten it, which wins support as a Jeffersonian measure to propagate the yeoman-farmer society he wanted. (I know, Jefferson was in France, but if he had been in America instead...).

An article like the Northwest Ordinance, barring slavery in the Territories, or an article restricting slavery in any state hereafter admitted.

There are some reasons to think this might get adopted.

First, it could be supported by Jefferson, as noted.

Second, as of 1788-1790, there was no expectation of a "cotton boom" spreading across the Gulf Plains.

Third, in Kentucky at least, ISTR there was sentiment for excluding slavery at statehood.

OTOH it's somewhat awkward to square this clause with the practice of slavery not only in the South but in PA, NJ, NY, CT, RI, and NH, all of which still had slaves in 1800.

It would also create grave difficulties for the acquisition of Louisiana, and possibly Florida.

Another possibility could be a more forceful "republican government" clause, which by implication prohibits secession - without being so obvious that it incites anti-Federalism.

Rich Rostrom said:

OTOH it's somewhat awkward to square this clause with the practice of slavery not only in the South but in PA, NJ, NY, CT, RI, and NH, all of which still had slaves in 1800..

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Yet this didn't stop the NWA itself from being adopted.

It would also create grave difficulties for the acquisition of Louisiana, and possibly Florida.

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Maybe but not for certain. Napoleon knew he was certain to lose LA as soon as war with Britain resumed. His only choice was whether to sell or to have either GB or the US seize it for nothing. I doubt if he'd let the interests of a handful of Creole slaveholders prevent the transaction. All that probably happens is that the purchase price goes up a bit to cover their compensation.

As for FL, it was basically taken by force so Spain has even less bargaining power.

Please note, though, that I don't seriously envisage places like LA or FL becoming free states in this period. Slaveholders would almost certainly find ways to evade the law, and slavery would be legalised there as soon as statehood was attained. There is, however, a fair chance for the antislavery men to win in Missouri, and there would be no question of slavery being introduced into the Mexican Cession. The Kansas-Nebraska Act would be clearly unconstitutional, so probably no Bleeding Kansas,and no Republican Party at least until a much later date.

If the Corwin Amendment had been approved by Congress early in 1860, rather than a year, would that have prevented Secession, and consequently the Civil War?

The proposed amendment read: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

Would enough state legislatures had been willing to pass it for it to have become law?

Cook said:

If the Corwin Amendment had been approved by Congress early in 1860, rather than a year, would that have prevented Secession, and consequently the Civil War?

The proposed amendment read: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

Would enough state legislatures had been willing to pass it for it to have become law?

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Secessionists--even those who were not unconditional secessionists and might have accepted, say, the so-called Crittenden Compromise--universally regarded the Corwin Amendment as inadequate. They were much more worried about Lincoln and the Republicans fatally weakening the institution of slavery *indirectly* than with Congress by a two-thirds vote passing and three-fourths of the states ratifying an amendment abolishing slavery (a very distant prospect after the 1860 election, which did not even give the Republicans a majority in either House until *after* the secessionists resigned their seats).

There's also a philosophical problem with the Corwin Amendment (see Peter Suber, *The Paradox of Self-Amendment: A Study of Law, Logic, Omnipotence, and Change* http://legacy.earlham.edu/~peters/writing/psa/ on this and related paradoxes): Can any constitutional amendment really prevent a future Congress (and state legislatures) from changing the Constitution by repealing the amendment itself? As Suber notes, "even under its stringent interpretation, the Corwin amendment did not (explicitly) bar its own repeal." http://legacy.earlham.edu/~peters/writing/psa/app1.htm#B