The Bill of Rights in Early State Courts

In a recently posted article, The Bill of Rights in Early State Courts, Jason Mazzone discusses the numerous pre-Civil War cases in which state courts held that provisions of the Bill of Rights of the federal Constitution applied to state governments and limited their power. These courts so held although the United States Supreme Court ruled in Barron v. Baltimore (1833) that the Bill of Rights did not apply to the states.

I'm not sure that Professor Mazzone's essay works particularly well as a law review article. Given the formal constraints of the law review format, he must advance a thesis. He argues that the state court decisions are reconcilable with Barron because the Supreme Court held in that case only that federal courts could not impose the Bill of Rights on the states; the Supremes did not hold that state courts were barred from doing so.

This is true enough in a technical sense, I suppose. However, as Professor Mazzone himself points out, it is possible to so construe Barron only because of one-way nature of Section 25 of the original Judiciary Act of 1789, which provided in relevant part:

SEC. 25. And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, . . . where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, . . . , may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error . . ..

In other words, the original Act granted the Supremes jurisdiction where a state court had held that a state law did not violate the federal Constitution; it did not grant jurisdiction where a state court had held that a state law did violate the federal constitution.

As a result, there was no mechanism to review state court decisions that applied provisions of the Bill of Rights to the states -- and there is some evidence that at least some of the state courts understood this. In this sense, the Supreme Court could not, by definition, require state courts to follow its decision in Barron. On the other hand, I do not think that Professor Mazzone's analysis demonstrates that Barron held, in effect, "We're ruling that federal courts cannot impose the Bill of Rights on the states, but you guys in the states should go out and do whatever you like." So far as I can tell, the Supremes were opining was that the Bill of Rights, properly construed, did not apply to the states, period.

Nonetheless, as history the article is wonderful. Both Michael Kent Curtis and Akhil Amar have pointed out this tendency in pre-War state cases, and I have posted some entries looking at decisions of Justices Joseph Henry Lumpkin and Eugenius Aristides Nisbet of the Supreme Court of Georgia advancing the view that provisions of the Bill of Rights were at the very least "declaratory" of those fundamental principles that bound all governments, state as well as federal. Professor Mazzone shows that there were scores or hundreds of such decisions across the country. The Supreme Court of Georgia may have been the leading practitioner of this school of thought, but it was not alone.

By noting the widespread nature of the phenomenon, the article butresses Michael Kent Curtis's thesis that many Republicans debating Section 1 of the proposed Fourteenth Amendment simply assumed that the Bill of Rights already applied to the states. Rep. John A. Bingham seems to have been one of the few members of Congress who realized that Barron held to the contrary. The fact that so many shared this mistaken understanding makes the debates over Section 1 more comprehensible and helps explain the original understanding of the Privileges or Immunities Clause.

Finally, Professor Mazzone laments the present lack of diversity in current interpretation of the federal Constitution. Nowadays, the Supreme Court has jurisdiction to review state court decisions holding that state laws violate the federal Constitition. As a result, the Supremes can impose a uniform federal constitutional interpretation on state courts no matter how the latter rule.

But this lack of diversity in federal constitutional interpretation is offset, I suspect, by an increased application by state courts of state constitutional law. Shopping mall free speech cases are an obvious example. The recent case in which the Florida Supreme Court held that school vouchers violated a provision of the Florida Constitution is another famous (I would say infamous) example.

"So great was the nation's heart . . ."

On December 18, 218 B.C., Hannibal Barca, inflicted some 20,000 casualties on the Romans in the Battle of Trebia. Six months later, on June 24, 217 B.C., Hannibal ambushed and destroyed another Roman army at Lake Trasimene. Perhaps 30,000 Romans were killed.

The Romans reacted to these disasters by naming Quintus Fabius Maximus dictator. Maximus adopted "Fabian tactics," shadowing and harassing Hannibal, but refusing to engage him in pitched battle. These tactics proved unpopular, earning him the mocking epithets "Cunctator" (the Delayer) and "Hannibal's Nanny."

Prominent among Fabius's critics was a Plebian consular candidate, Gaius Terentius Varro, whose supporters argued that Patrician members of the Senate were intentionally dragging the war out in order to hang on to power when the war could and should be brought to a successful conclusion by launching a massive, all-out assault on Hannibal and his army.

Fabius's dictatorship lapsed at the end of 217 B.C. In 216 B.C., Varro was elected consul, together with Lucius Aemilius Paullus, a Patrician of the Fabian tactical school. The Romans assembled a massive army of perhaps 85,000 or more, headed by Varro and Paullus on alternate days. Before leading the troops out to locate and destroy Hannibal, Varro gave petulant and boastful speechs castigating the Patricians:

Before the troops left Rome, the consul Varro made a number of extremely arrogant speeches. The nobles, he complained, were directly responsible for the war on Italian soil, and it would continue to prey upon the country's vitals if there were any more commanders on the Fabian model. He himself, on the contrary, would bring it to an end on the day he first caught sight of the enemy.

After the Roman army took the field, Hannibal offered battle on a day on which Paullus was commanding the army. Paullus, in Fabian fashion, declined the challenge, leading to angry recriminations from Varro, who held up

Fabius as a specious example for commanders who wanted to conceal their own timidity and lack of spirit. Varro called gods and men to witness that it was no fault of his that Hannibal now owned Italy by right of possession -- his hands had been tied by his colleague; his angry men, spoiling for a fight, were being robbed of their swords.

The next day, August 2, 216 B.C., Varro, now in charge of the army, accepted Hannibal's challenge. In the resulting Battle of Cannae, Hannibal's smaller forces enveloped and destroyed the Roman army. Some 70,000 Romans and Roman allies were killed, and ten thousand more taken captive. Assuming a ten-hour battle, that amounts to a killing rate of 117 men per minute. Perhaps 8,000 escaped. In twenty months, Hannibal had destroyed three Roman armies and inflicted well over 120,000 casualties.

In one of those ironies of history, Paullus was killed in the battle, while Varro survived. In the days following the battle, Varro rallied some 4,000 of the survivors, brought them to a town called Canusium, and assembled them into something resembling an army that could at least defend itself behind the town walls. Eventually, he returned to Rome.

Plutarch and Livy tell the rest of the story. Here's Plutarch:

But perhaps what may impress us most of all today was the spirit of calm composure which the city displayed when Varro . . . returned [to Rome]. He arrived in a state of the deepest dejection and humiliation, as a man who had brought a most terrible and disgraceful calamity upon his country, to find himself met by the Senate and the whole people, who welcomed him at the gates. As soon as calm had been restored the magistrates and senior members of the Senate, of whom Fabius was one, praised him because even in the midst of such a disaster he had never abandoned hope for the city, but had presented himself to take up the duties of government and to invoke the aid of the laws and of his fellow-citizens, confident that their salvation lay in their own hands.

And here's Livy:

So great, in this grim time, was the nation's heart, that the consul, fresh from a defeat of which he had himself been the principal cause, was met on his return to Rome by men of all conditions, who came in crowds to participate in the thanks, publicly bestowed upon him, for not having "despaired of the commonwealth."

"Read the Sunspots"

In a recent article, "Read the Sunspots," R. Timothy Patterson, professor and director of the Ottawa-Carleton Geoscience Centre, Department of Earth Sciences, Carleton University, describes findings that that suggests a strong correlation between solar activity and variations in the Earth's temperature. Global cooling, not global warming, may be the greater concern in coming years:

Solar scientists predict that, by 2020, the sun will be starting into its weakest Schwabe solar cycle of the past two centuries, likely leading to unusually cool conditions on Earth. Beginning to plan for adaptation to such a cool period, one which may continue well beyond one 11-year cycle, as did the Little Ice Age, should be a priority for governments. It is global cooling, not warming, that is the major climate threat to the world, especially Canada. As a country at the northern limit to agriculture in the world, it would take very little cooling to destroy much of our food crops, while a warming would only require that we adopt farming techniques practiced to the south of us.

Cotton 'n' Corn

Since I'm a city boy, I don't know my bushels from my pecks, so I was interested to learn a few tidbits about corn and cotton.

Starting with cotton, it turns out that the quality of the soil made a huge difference in output. In prewar Georgia, after the first few years of cultivation "[t]he sandy soils of the piney uplands . . . yielded . . . only 100 pounds of lint cotton. . .. Consequently, it took plain folk four acres to produce a single 400-pound bale of ginned cotton." This was "at least twice as much land as needed" in the rich soil of the river plain. "Moreover, to get the highest cotton yield for their labor, and therefore the highest cash return," plain folk who chose to grow cotton -- and many grew a bale or two -- had to use "their most fertile" land for the crop.

Turning to corn, do you know what a bushel is? Shucks, I don't neither, but here's a hint. "On average, each Southerner consumed about 13 bushels of corn per year, corn bread, grits, hoecake, and hominy being common table fare." How does that figure compare to production? "Without fertilizer most farmers expected to raise about 10 bushels per acre on piney woods land, but the use of home fertilizers such as cow manure doubled the yield in a very good year." Again, the soil made a huge difference. "Farmers fortunate enough to own bottomland could make up to 50 bushels [of corn] per acre."

All quotes are from Mark Wetherington's marvelous Plain Folk's Fight: The Civil War & Reconstruction in Piney Woods Georgia (Chapel Hill: University of North Carolina Press 2005).

Plain Folk's Fight

After my last disappointment, I've started another book with which, so far, I'm delighted with: Mark V. Wetherington's Plain Folk's Fight: The Civil War & Reconstruction in Piney Woods Georgia (Chapel Hill: University of North Carolina Press 2005).

I bought the book based on the tacit recommendation of Chandra Manning, who cited it over and over in the footnotes to her wonderful What This Cruel War Was Over.

Mr. Wetherington won me over immediately. In the opening pages, he discussed and for the most part adopted Stephanie McCurry's definition of yeomen (or "plain folk," the term he prefers for reasons he explains) as including households with fewer than ten slaves (note to Mr. W: study up on the difference between "less" and "fewer").

Loyalty and Loss: But Why?

I've finished Margaret M. Storey's Loyalty and Loss: Alabama's Unionists in the Civil War and Reconstruction (Baton Rouge: Louisiana State University Press 2004), and you can color me disappointed.

In fairness to the good professor, it may just be that she was just not interested in the questions I was hoping she'd explore, or perhaps there are just no good answers to those questions. Putting aside the numbers issue (about which I griped about recently), there was little discussion of why some people, or families, or even areas, were unionist, while others were not. There was some scholarly patter about family and kinship and community ties, but that doesn't explain why this family, or that community was unionist, while the family or community next door was not.

She did a reasonably good job of conveying the tribulations of unionists, both during and after the War, but I found the narrative less compelling than, for example, that in Jonathan Dean Sarris's A Separate Civil War. In the latter book, I got a much better feel for the progression of resentment and violence over the years. Professor Storey writes perfectly well; her largely non-chronological treatment just didn't grab me.

On the plus side, Professor Storey related some surprising episodes of slaveholding unionists confiding in and working with their own slaves. She also did a good job treating the period of Presidential Reconstruction, capturing the bitter disappointment that unionists felt as they realized that the federal government was sacrificing them to placate and try to win over the rebels who had brutalized them and killed their kin during the War.

How Many White Alabamans Were Unconditional Unionists?

In her book, Loyalty and Loss: Alabama's Unionists in the Civil War and Reconstruction (Baton Rouge: Louisiana State University Press 2004), Margaret M. Storey raises the question how many white unconditional unionists there were in Alabama in 1860-61. Her answer is uncertain and not entirely consistent.

She begins by discussing "postwar estimates given by wartime unionists to the Joint Committee on Reconstruction in 1866." These suggest a figure of "from ten to fourteen thousand 'Union votes' out of a statewide voting strength of about eighty thousand -- or about 15 percent." (Actually, 10,000 would be 12.5% and 14,000 would be 17.5%.) However, as Professor Storey herself points out, "[a] tendency to exaggerate numbers was certainly in the interest of" the witnesses. Presumably this means that the estimates were probably high.

After a brief and confusing diversion into whether to include (white) women (me: that's fine, just make sure you compare apples to apples), Professor Storey leaps to the utterly trivial conclusion that "anecdotal evidence has long suggested and the SCC [Southern Claims Commission] claims confirm" that "with rare exception (notably Winston and Walker Counties) unconditional unionists did not represent majorities in their counties before, during or after the war."

Now Winston County is famous for its dissent and Walker County adjoins it, so I assume it's possible that those counties had majorities of unconditional unionists in 1860-61. Unfortunately, there's no footnote or citation for the proposition, so there's no way of knowing. Color me unpersuaded. Perhaps there's further discussion about those particular counties later in the book. As for the remainder of Alabama, should I be impressed by this stunning assertion?

Professor Storey then proceeds to her major conclusion:

With these caveats in mind, it seems safe to say that the number of unconditional unionists in 1861 never outstripped 15 percent of the total adult white population, and was likely closer to 10 percent.

I'm not sure what "caveats" she's referring to, but my bigger problem is that this guess doesn't seem entirely consistent with the earlier discussion. Having previously concluded, or at least strongly suggested, that figures of 12.5% and 17.5% were exaggerated, she now suggests that the figure might be as high as 15%. Even the "closer to 10%" guess sounds like the professor is barely inching below the 12.5% figure that she has labeled suspect, just so that she can say is maintaining consistency. Again, there is no footnote or citation of any kind, so the reader has no way of assessing the guess.

And it is a guess, as the professor, to her credit, immediately confirms:

Such estimates are, however, only informed guesswork, and the statistics used in this study do not come close to incorporating this number of people.

Rachel Carson Says, "Ouch!" Again

Glenn Reynolds notes an understated but devastating article on Rachel Carson by John Tierney, "Fateful Voice of a Generation Still Drowns Out Real Science:"

This “Fable for Tomorrow,” as she called it, set the tone for the hodgepodge of science and junk science in the rest of the book. Nature was good; traditional agriculture was all right; modern pesticides were an unprecedented evil. It was a Disneyfied version of Eden.

Ms. Carson used dubious statistics and anecdotes (like the improbable story of a woman who instantly developed cancer after spraying her basement with DDT) to warn of a cancer epidemic that never came to pass. She rightly noted threats to some birds, like eagles and other raptors, but she wildly imagined a mass “biocide.” She warned that one of the most common American birds, the robin, was “on the verge of extinction” — an especially odd claim given the large numbers of robins recorded in Audubon bird counts before her book.

* * *

The human costs have been horrific in the poor countries where malaria returned after DDT spraying was abandoned. Malariologists have made a little headway recently in restoring this weapon against the disease, but they’ve had to fight against Ms. Carson’s disciples who still divide the world into good and bad chemicals, with DDT in their fearsome “dirty dozen.”

Ms. Carson didn’t urge an outright ban on DDT, but she tried to downplay its effectiveness against malaria and refused to acknowledge what it had accomplished. As Dr. [I.L.] Baldwin [a professor of agricultural bacteriology at the University of Wisconsin] wrote [in a 1962 review of Silent Spring], “No estimates are made of the countless lives that have been saved because of the destruction of insect vectors of disease.” He predicted correctly that people in poor countries would suffer from hunger and disease if they were denied the pesticides that had enabled wealthy nations to increase food production and eliminate scourges.

Blogging the Koran

I've never read the Koran and doubt I ever will. But I will be following the "Blogging the Koran" series that Robert Spencer of Jihad Watch is starting at Hot Air.

John C. Calhoun Says, "Ouch!"

In March 1820, while the Missouri Compromise bill was awaiting his signature, President James Madison asked the members of his cabinet to provide their opinions on whether Congress could constitutionally prohibit slavery in a territory. The members of the cabinet unanimously opined that Congress had the right and power to do so. It is a delicious irony, in light of later arguments and events, that one of the cabinet members who so opined was none other than John Caldwell Calhoun, who responded as follows:

We are of opinion that Congress has a right under powers vested in it by the Constitution to make a regulation prohibiting slavery in a territory.

We are also of opinion that the eighth section of the act which passed both houses on the 3d instant [i.e., March 3, 1820] for the admission of Missouri into the Union is consistent with the Constitution, because we consider the prohibition as applying to territories only and not to states.

Wm. H. Crawford
J.C. Calhoun
Wm. Wirt, Attorney Genl. U.S.

Section Eight, to which the letter referred, provided in relevant part:

That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act [i.e., the state of Missouri], slavery and involuntary servitude, otherwise than in punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited . . ..

In the second paragraph of the letter, Calhoun was addressing the concern that the word "forever" might suggest that the act would prohibit slavery in states that might eventually be created out of the territory. He interpreted the language to ban slavery in the territory only so long as it remained a territory. Since it did not purport to ban slavery in states that might later be created from the territory, it was not necessary to address the question whether Congress might constitutionally do so.

A Singular Journey

I've posted before about William Shawcross, the author of Sideshow. Mr. Shawcross's recent column in the NYT, "Defeat's Killing Fields," co-written with his former critic Peter Rodman, confirms (in the words of Norman Podhoretz) the "singular journey" that Mr. Shawcross has taken over the years "to the view that the United States is the key positive force for good in the world."

In their column, Messrs. Shawcross and Rodman write:

Some opponents of the Iraq war are toying with the idea of American defeat. A number of them are simply predicting it, while others advocate measures that would make it more likely. Lending intellectual respectability to all this is an argument that takes a strange comfort from the outcome of the Vietnam War. The defeat of the American enterprise in Indochina, it is said, turned out not to be as bad as expected. The United States recovered, and no lasting price was paid.

We beg to differ. . ..

The 1975 Communist victory in Indochina led to horrors that engulfed the region. The victorious Khmer Rouge killed one to two million of their fellow Cambodians in a genocidal, ideological rampage. In Vietnam and Laos, cruel gulags and “re-education” camps enforced repression. Millions of people fled, mostly by boat, with thousands dying in the attempt.

The defeat had a lasting and significant strategic impact. Leonid Brezhnev trumpeted that the global “correlation of forces” had shifted in favor of “socialism,” and the Soviets went on a geopolitical offensive in the third world for a decade. Their invasion of Afghanistan was one result. Demoralized European leaders publicly lamented Soviet aggressiveness and American paralysis.

True, the consequences of defeat were mitigated by various factors. The Nixon-Kissinger breakthrough with China contributed to China’s role as a counterweight to Moscow’s and Hanoi’s new power in Southeast Asia. (Although China, a Khmer Rouge ally, was less scrupulous than the United States about who its partners were.)

And despite the defeat in 1975, America’s 10 years in Indochina had positive effects. Lee Kuan Yew, then prime minister of Singapore, has well articulated how the consequences would have been worse if the United States had not made the effort in Indochina. “Had there been no U.S. intervention,” he argues, the will of non-communist countries to resist communist revolution in the 1960s “would have melted and Southeast Asia would most likely have gone communist.” The domino theory would have proved correct.

Scott Johnson at Powerline provides more details about this remarkably honest and admirable man.

Al 'n Abe

In his latest book, Al Gore reportedly attributes the following quote to Abe Lincoln, apparently circa 1864:

"I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. As a result of the war, corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed."

The only problem is that the quote is apparently bogus. Andrew Ferguson reports in the Washington Post that "these words don't show up anywhere else in 'The Collected Works of Abraham Lincoln' (which, thanks to Gore's Internet, are now searchable at http://quod.lib.umich.edu/l/lincoln/)."

Sounds to me like the Goracle should have checked first with Brian Dirck.

The Secession of Georgia

The question why the deep south seceded in 1860-61 fascinates me. The decision to secede is one of the most significant events of our national history. At the same time, it is one of the most mysterious. Sure, tensions over slavery had been building for decades. But even so, why secede before Lincoln and his black Republican colleagues had even taken the oath of office? Why pursue a course so fraught with danger when there appeared to be no pressing need to do so?

National histories provide valuable background, context and analysis. I cannot begin to imagine that it is possible to understand secession without having read the works of historians such as David Potter, William Freehling and Michael Holt. Even so, I have become increasingly convinced that studies of individual states and even regions within states provide essential additional information. After all, it was not “the south” that seceded, but individual states. It may be that it has been so difficult to figure out why the south seceded precisely because the answer differs depending where one looks. Only by closely examining how each state seceded can one assemble a coherent and intelligible picture of what happened.

Starting with J. Mills Thorton’s Politics and Power in a Slave Society, we have been blessed over the last thirty years or so with a plethora of first-rate state and regional studies that have significantly advanced our ability to understand these issues. Books such as Lacy Ford’s Origins of Southern Radicalism, Stephanie McCurrie’s Masters of Small Worlds, William Barney’s The Secessionist Impulse, and Christopher Olsen’s Political Culture and Secession in Mississippi emphasize different themes and motives, but each is an essential piece to the overall puzzle.

My latest reading in the genre is actually one of the earliest entries: Michael P. Johnson’s Toward a Patriarchal Republic: The Secession of Georgia (Baton Rouge: Louisiana University State Press 1977). I discovered Professor Johnson’s book thanks to the recommendation of an anonymous commenter. It is, indeed, a worthy and thought-provoking addition that deserves a wider audience than I suspect it has received.

Professor Johnson (it appears he is now at Johns Hopkins) sets the stage by recounting an observation that ultimately led to the book. In a seminar, Professor David Potter noted that Georgia’s secession convention election contained at least two apparent anomalies: “Democratic counties which had voted for the States Rights candidate John C. Breckenridge in 1860 tended to oppose secession, while Whig counties which had voted for Unionist candidates John Bell and Stephen A. Douglas tended to favor immediate secession.” Intrigued by Potter’s suggestion that “the secession of Georgia might bear further investigation,” Johnson wrote his seminar paper on the subject, which, eleven years later, became the book.

Toward a Patriarchal Republic is short – 187 pages of text, plus a 36-page appendix – but dense. In one sense, the heart of the book is that appendix, which consists largely of statistical analyses of the January 2, 1861 vote for delegates to the Georgia constitutional convention that would vote on whether the state would secede. The analyses examine the statistical importance of a number of factors on the vote, including factors relating to (a) slavery and slaveholding, (b) long-term and short-term political affiliation, (c) town vs. rural, and (d) turnout.

Using these analyses, Professor Johnson draws some startling conclusions. Among other things, he documents a dramatic shift among voters in rural, poor, low-slavery, low staple-crop-producing, traditionally democratic counties, principally in the mountain north and pine barrens south of the state. Consistent with their traditional party allegiance, these counties had voted for Breckenridge in the 1860 presidential election. But in the election for delegates, thousands of these voters cast their ballots for cooperationist delegates.

The results in the delegate election were razor thin statewide, with secessionist candidates receiving perhaps 1,000 to 2,500 more votes than cooperationists out of 85,000 cast. Secessionists overcame the loss pro-Breckenridge voters in rural, low-slavery counties by, among other things, picking up thousands of votes in high-slavery, traditionally Whig, anti-Breckenridge counties. Most surprisingly, the shift toward secession was particularly pronounced in less rural “town counties,” where one might have expected business- and market-oriented Whigs to reject secession as harmful to commerce. “But why,” Professor Johnson asks, “did these conservatives embrace secession?”

A good deal of the book is devoted to documenting the proposed answer to this question. Professor Johnson argues that conservative, market-oriented men became persuaded that immediate secession would be less destabilizing than the continued uncertainty and political turmoil that would result from a decision to remain in the Union for the time being. By casting their lot with secession, these men would be able to influence and channel secession in a more conservative direction:

It appears that town conservatives chose to embrace secession . . . because secession presented an opportunity to achieve the political stability which the Union had formerly provided but which, under a Republican president, it threatened. Indeed, the actions of the state convention suggest that conservatives abandoned their commitment to the Union as it became clear that the social and economic status quo could be secured outside the Union in a way that was impossible within the Union – by changing the political status quo.

It was possible to “change[] the political status quo” because the convention’s second task, after voting on secession, was to draft a new state constitution. Conservative secessionists were able to use their influence to draw up a document that limited some of the perceived excesses of Jacksonian democracy. Professor Johnson summarizes some of the provisions by which conservative delegates were able to endow the state with the stabilizing virtues of “a patriarchal republic” “without changing the form of government or restricting the suffrage:”

They had reduced the size of the senate and increased the size of the senatorial districts, hoping thereby to filter into the senate men whose interests, outlook, and social standing inclined them to protect and maintain the status quo. They had denied the legislature the power to tamper with slavery or with other forms of property. They had entrusted the judiciary with the final word on the constitutionality of legislation and insulated the judges from shifting popular sentiments [by providing that judges, who were previously elected, would be appointed by the governor with the advice and consent of the senate]. And they had provided that any future constitutional changes would be made not by ordinary legislators but by convention delegates like themselves – men who stood above the hurly-burly, demagogic world of politics.

My description of the forces that shaped the vote for delegates, however, grossly simplifies Professor Johnson’s work. If anything, his study demonstrates just how complex and unpredictable were the conflicting currents created by the various factors he investigated. In addition, other imponderables may well have affected the outcome. The turnout for the convention vote was substantially lower than that for the presidential election two months earlier (except in those rural, low-slavery, traditionally Democratic, pro-Breckinridge counties, where the turnout was 98% of that for the presidential election). The statistical evidence indicates that, except in “town” counties, those who stayed away tended to be anti-secessionists: the greater the turnout, the lower the percentage of votes in favor of secession. While some potential voters may simply not have felt strongly enough to bother to cast their ballots, it is likely that pressure and intimidation, cooperationist disorganization, and the fact that South Carolina had already seceded, all played significant roles.

At the same time, Professor Johnson does not allow all of these currents and eddies to obscure the source of the secessionist impulse. In his view, the fire eating proponents of immediate secession were driven by the desire to protect the institution of slavery – and the fear that, if Georgia did not leave the Union before Lincoln’s election, nonslaveholders would join the Republicans. It was this fear of “the latent disloyalty of some southerners toward slavery” that made the issue so urgent:

Secession had to be immediate because as soon as Lincoln was in office he could use his patronage to build a Republican party in Georgia. This was the most compelling argument the secessionists had. All their other charges about . . . northern outrages . . . amounted to little more than alerting Georgians to Republican threats and harassment. Even if such external actions spelled the ultimate death of slavery, which was extremely questionable, they did not necessitate immediate secession, for little was likely to change in a few months or even in Lincoln’s four-year term in office. . . . [T]here was time to wait. Immediate secession was not necessary. But to escape the extraconstitutional consequences of a constitutional process – the creation of a southern Republican party by the use of the newly elected president’s patronage – immediate secession was necessary.

Ironically, Professor Johnson argues, it was this same fear about the trustworthiness of the people that made pro-secessionist Democrats amenable to a more conservative constitutional structure. Thus, conservative Whigs who had converted to immediate secession and fire eating Democrats were able to come together to agree on the democracy-limiting features of the new state constitution described above.

You should not let the book’s inclusion of statistics deter you. Professor Johnson intentionally segregated the statistics in a separate appendix precisely so that readers to do not have to deal with them unless they want to. In the text, which is well-written, he discusses the voting tendencies that the statistics revealed in lay terms. Nonetheless, I’d encourage you to work your way through the appendix, even if you are, like me, a mathematical illiterate.