Creating a More Perfect Slaveholders’ Union: Slavery, the Constitution, and Secession in Antebellum America. By Peter Radan. Lawrence, Kansas: University Press of Kansas, 2023. Hardback, 389 pp. $44.95.

Reviewed by Kevin C. Donovan, Esq.

The Civil War did not resolve the question of whether states had the right under the Constitution to secede. Rather, the war simply established that the Confederate States did not have the military power to enforce their position against a rival combination of states (the Union) that insisted that no right to secession existed. Secession as a legal doctrine only was rejected in a post-war Supreme Court decision, Texas v. White, 74 U.S. 700 (1869), one that even in its own time was criticized for cursory, and arguably shoddy, analysis that seemed mainly an effort to “rubber-stamp” the verdict wrought by the war.[1]

Was Texas v. White incorrectly decided? Peter Radan believes so, and in his book, Creating a More Perfect Slaveholders’ Union: Slavery, the Constitution, and Secession in Antebellum America arms future litigants with an impressive array of arguments for the proposition that in 1860-61 the slave-holding states correctly asserted their right to secession.

Radan’s approach is methodical, (appropriately) legalistic and primary-source based. He does not simply chant the hoary phrase “states’ rights” as a talisman to justify the South. Instead, Radan deploys a three-part logical structure. First, Radan asserts that the text of the Constitution, the context of its adoption and statements of key drafters and their political progeny prove that the Constitution represented a “compact” of the states. This formulation matters because it was widely acknowledged (both then and now) that a compact is a contract, and a party to a contract has the right to withdraw from a contractual relationship if the other party breaches any key provision. Second, Radan argues that the pro-slavery provisions of the Constitution were key, as the Constitution was ordained to protect slavery and never would have been ratified absent those provisions. Third, Radan asserts that two key pro-slavery provisions, the new territories and fugitive slave clauses, were violated by the free states and the incoming Lincoln Administration. In Radan’s structure, the first point establishes the right to secession, while the last two justify the act of secession.

Radan marshals impressive historical support. For his compact argument Radan enlists, among others, James Madison, the very “Father of the Constitution,” because Madison at times referred to the Constitution as a compact. Radan also quotes that arch-defender of the Union, Daniel Webster, who in an 1851 speech thundered that it was “absurd” to expect “that when different parties enter into a compact for certain purposes, either can disregard any one provision, and nevertheless expect the other to observe the rest!,” warning that if the North refused to implement the Constitution’s fugitive slave clause, “the South would no longer be bound to observe the compact” (220-221). Radan further notes that three states, including Virginia, gave “conditional” ratification to the Constitution, each reserving the right to reassert sovereignty, positing that all states thus enjoyed the same right. Along the way, Radan confronts arguments that the Union formed by the Constitution was indissoluble, including the claim that: (1) the Articles of Confederation asserted that its Union was “perpetual”; and (2) the Constitution’s Preamble states that it was ordained to “form a more perfect Union” (emphasis supplied), thus inheriting the “perpetual” nature of its predecessor Confederation.

For his argument that the Constitution’s pro-slavery provisions were considered essential (key), Radan cites comments both by Convention delegates and the abolitionist movement, whose leaders indeed insisted that protection of slavery marked the Constitution (214-215).

Finally, Radan posits a breach of those pro-slavery provisions by free states’ resistance to the 1850 Fugitive Slave Act and the Lincoln Administration’s insistence that it would not permit slavery in the territories. Indeed, the seceding slave-holding states relied upon these actions in justifying secession.[2]

In sum, Radan concludes that there was a contractual relationship (the Union formed by the Constitution), and one party (free states) breached key terms of that contract (pro-slavery clauses), thus excusing continued adherence to the contract by the other party (slave states); hence, secession was legal.

Radan’s presentation, while unquestionably impressive, is arguably one-sided. For example, in a footnote Radan observes that Alexander Hamilton, in Federalist No. 11, urged ratification of the “thirteen states [into] a strict and indissoluble Union…” (emphasis supplied), but dismisses Hamilton’s characterization as only his mere “hope” (342, n. 507). Radan uses Madison’s statement in Federalist No. 43 that a compact can be dissolved, yet Madison was speaking there of the transient method by which the Articles of Confederation was formed, whereas the Constitution’s ratification process suggested that the resulting Union was to be effectively permanent.

Radan deems legitimate the slaveholders’ complaints that the free states resisted the Fugitive Slave Act although the Supreme Court, in Prigg v. Pennsylvania, 41 U.S. 539 (1842), had ruled that the Constitution’s fugitive slave clause permitted the states to refuse their support of slave rendition efforts. Nor does he address why the slave-holding states should not have taken the secession issue to the Supreme Court, rather than engaging in the more drastic “self-help” remedy of secession.

These (and other) counterarguments aside, Peter Radan has produced a work that is imposing in its depth of research, intensely thought-provoking, and worthy of serious consideration.

[1] Secession on Trial: The Treason Prosecution of Jefferson Davis, pp. 318-321 (Cambridge University Press, New York, NY 2017).

[2] In this regard, Radan refutes those–such as Jefferson Davis–who argued post-War that slavery was not the motivation for secession.

Kevin C. Donovan, Esq., a retired lawyer, now focuses on Civil War research and writing, including on law-related topics such as “How the Civil War Continues to Affect the Law,” published in Litigation, The Journal of the Section of Litigation, of the American Bar Association. His inaugural ECW blog publication, “A Tale of Two Tombstones,” appeared December 9, 2022 and was ECW’s most popular post of the year on social media.

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