Slavery and secession are for some reason, two concepts which it is difficult to divorce from each other in American political discourse. Some Americans simply cannot get past the fact that the states that attempted secession in the 19th century also happened to be states that used the admittedly unjust institution of slavery. Although it was only one part of a multifaceted conflict between Northern states and Southern states, it was indeed a situation where political entities with a large slave population attempted to secede from a political entity with a small slave population. It is curious, however, that — unlike the Southern independence movement- few people have a problem looking at the American War for Independence as something other than a war to preserve slavery. The American war for independence was also a conflict that involved political entities with high slave populations seceding from a political entity (Britain) with a small slave population. Indeed, the British promised freedom to any black slave who took up arms against the Americans. Many colonials admitted that preservation of the slave system was a factor in their support of the Revolution. Slavery would endure in the seceding American colonies for almost another century.
Does any of this invalidate the claims of the colonists for independence? It shouldn’t. Anti-secessionists like Harry Jaffa certainly don’t think so either. Yet, they refuse to even recognize that the secession movement of 1775-1783 has any philosophical connections to the secession movement of 1861-1865. Both were full-blown secession movements of states or colonies who felt that they were no longer having their interests represented in the established governmental system. Jaffa, in his book A New Birth of Freedom, claims to be defending the principles of the "founders," but he denies that the Southern secessionists had the right to employ the very same arguments and political tactics that the "founders" did.
Jaffa is obviously stuck on the slavery question, yet there is no evidence that black Americans were any better represented in civil government in 1776 than they were in 1865. In spite of the relative sameness in the condition of black Americans from 1776 to 1865, both in the North (where slavery was still legal in the late 18th century) and in the South, Jaffa magically finds some criteria for supporting secession in 1776, but denouncing it in 1861. Jaffa’s criteria are totally arbitrary and rests only on the fact that Jaffa likes the "idea" of the American War for Independence and simply dislikes the "idea" of Southern Independence.
Perhaps the difference is that Lincoln liked to talk about equality a lot, and Jaffa is legendary for his tendency to hold up equality as the highest American value. He has even gone so far as to suggest that American constitutional government depends not on a system of distributed sovereignty with checks and balances, but only on the recognition by government that all men are equal and have equal rights.1 It all sounds very nice, but it is unlikely that the "founders" of whom Jaffe purports to be the protector, would agree considering that everywhere from Jefferson to Adams, the "founders" had a clear preoccupation with issues of government structure and local sovereignty.
Jaffa manages to get past the slavery issue every now and then in order to discuss secession on its merits only, but the argument he forwards are inadequate indeed. In a recent article defending Lincoln from the heresies of Joseph Sobran, Jaffa invokes the idea of the contractual obligation of Southerners to remain in the Union and even compares the Southern States’ ratification of the constitution to marriage vows. Jaffa’s arguments fail in both analogies.
First, Jaffa claims that since the Southern states entered into a contract with the Constitution of 1787, they cannot unilaterally break their obligations to staying in the arrangement. Once again, Jaffa is obliging the Southerners to different standards than his beloved "founders." For example, all the 13 original colonies in North America were created through royal charters that required the inhabitants to be loyal to the King of England and obey the laws of the British Parliament. Nowhere did those colonial charters contain clauses that allowed for secession or for breaking ties with the British Empire in any way.
Using Jaffa’s arguments, the colonists acted indefensibly by unilaterally breaking their contractual obligations to the King of England as expressed through the colonial charters. Once again, there is no clear distinction between the behavior of the secessionists of 1776 or 1861. Jaffa concludes that since the US Constitution contains no provision specifically allowing state secession that they had no legal right to do so, and since they held slaves, they had no moral right to do it either. Why the slave holding colonials of 1776 did have a moral right to secede is never discussed. Also unconsidered is Jefferson’s and Thomas Paine’s arguments for generational approval of constitutional arrangements. Jaffa believes that the contract entered into by one generation of Southerners should be binding on Southerners three generations later.
Jaffa’s proposal that the South’s ratification was comparable to taking wedding vows fails to hold up as well. Jaffa disputes the right of a spouse to unilaterally end a marriage, but unilateral termination of marriages is quite acceptable when one spouse routinely violates the rights of the other spouse, and there is no doubt that the South saw itself in such a violated situation.
In spite of the arguments illustrating the necessity and moral right of secession, some may still just throw up their hands and proclaim that the ends justify the means and slavery was too large an evil to allow on American soil any more. No modern defender of secession in this news site or in any other I have read has ever suggested that slavery was a venerable institution worthy of preservation. It is an institution clearly incompatible with libertarian values of human liberty.
The fact that one society that seeks to sever its ties with another may allow slavery does in no way negate the fact that secession, as stated in the Declaration of Independence (a secessionist document often quoted out-of-context by Lincoln) is a basic right of societies. The refusal of Jaffa and others to admit that they can identify no non-arbitrary difference between the secession of the colonists in 1776 and that of the Southerners in 1861 (even after factoring in slavery) is an indicator of how far the myth of Lincoln has gone in distorting the discussion over constitutional government in America.