Most modern Americans, who think about the nature of the American Civil War, consider the war to have been justly initiated against the South, because, as they most likely believe, it was a war perpetrated to end slavery. Yet even if Lincoln perpetrated the war to end slavery, the Civil War was neither civil nor just.

The Just War Doctrine, which western society has acknowledged for many centuries and to which the United States implicitly subscribed at its inception, is the only non-anachronistic standard by which modern American society can judge a western nineteenth century war to determine if it was justly commenced. One of the criterion of the Just War Doctrine is that a war can only be just, for the aggressor nation, if every other means to achieve a peaceful resolution has been earnestly attempted. Both Lincoln’s own words and his actions prove that he did not resort to war as a last resort. Another criterion of the Just War Doctrine is that an aggressor nation must have a just cause for war. While the abolition of slavery, under certain circumstances, could have been a just cause for war, Lincoln’s own words refute that he initiated the war for that purpose. The historical record shows that Lincoln, and the Northern States, did not use war as a last resort and that he did not have a just cause to go to war against the seceded Southern States, which makes the American Civil War both morally and legally unjust.

First, the United States had a long standing tradition that in order to go to war a president would make the following case to Congress: that he has a just cause to go to war, has clear goals and aims in conducting a war, has a right intention for going to war, has a reasonable chance of success in war, declares war under the proper predetermined authority, and requests a declaration of war as the last resort. We see this criteria exemplified in Madison’s message to Congress on June 1, 1812. Yet, even James K. Polk addressed these topics, in his May 13, 1846 announcement of war with Mexico, as did every other President, who took our nation to war through the first hundred years of our nation’s history, except Lincoln. Lincoln, in any of his speeches or writings, did not even attempt to address these points.

Second, as explained in The South was Wrong!,[1] Lincoln was forewarned, by his entire cabinet, that sending a flotilla to Ft. Sumter would start a war, but he did it anyway. Additionally, his claim to Congress on July 4, 1861 that he sent the flotilla to Ft. Sumter because the soldiers in the fort were starving is a dubious one because he knew that the Southern forces were supplying them with fresh meats and vegetables daily. We know he knew this information because of reports he received that are part of the historical record called The War of Rebellion: A Compilation of the Official Records of the Union and Confederate Armies.[2]

Third, his correspondence to Captain Fox on May 1, 1861 where Lincoln wrote, “You and I both anticipated that the cause of the country would be advanced by making the attempt to provision Fort Sumter, even if it should fail; and it is no small consolation now to feel that our anticipation is justified by the result,”[3] (underlining mine) is damning evidence that he sent the flotilla with the express purpose of perpetrating a war and not actually to resupply the fort.

Fourth, some people make the argument that Lincoln politically could not officially acknowledge the Southern peace delegates at the Willard Hotel in February of 1861. Yet, Lincoln did not attempt to send his own emissaries of peace to the seceded States or try to get responsible third party diplomats, as mediators, to do it for him. One can attempt to make excuses as to why he did not, but his actions are clear that he did not attempt to find a peaceful resolution via either of these two very credible and vital methods before he resorted to war, which is another piece of evidence demonstrating that war was not his last resort.

It is also disingenuous to claim that because Lincoln knew that he would not get what he wanted from the South it was futile for him to negotiate. This claim is based on the assumption that what Lincoln wanted was Constitutional and right, which was what was being disputed at the time. Claiming that negotiation is futile makes it too convenient for aggressor nations to unjustly justify armed conquest. Additionally, Jefferson Davis, in his address to the Confederate Congress on April 29, 1861, claimed that Lincoln sent “assurances calculated to inspire hope of the success of their [peace] mission” to the Confederate peace delegation, when “the President of the United States had already determined to hold no intercourse with them whatever.” If Davis’ claim is accurate, then it is more evidence of the deceitful nature of President Lincoln in perpetrating a war of aggression against the South, which makes his war unjust.

Fifth, in light of Exodus 21:16, “Whoever steals a man and sells him, and anyone found in possession of him, shall be put to death,” every person who upholds Biblical moral principles should fundamentally disagree with the South’s position on slavery, but they should also sympathize with the South’s position that all the States joined the union, under the US Constitution, with full knowledge that it tacitly allowed for slavery to exist in the States and prohibited the national government from interfering with it. In other words, the framers of the Constitution agreed not to interfere with the institution of slavery in the States where it existed, but they also refused to use any form of the word “slave” in the Constitution, so the US Constitution does not overtly authorize slavery, but neither does it give authority to the national government to abolish it. If the North had a “change of heart” they should have seceded from the slave holding States, like William Lloyd Garrison demanded that they should.

Assuming the belief that Lincoln took our nation to war to end slavery is accurate, then there is a legal contradiction where the Constitution allows for that barbaric practice, yet the President of the United States, who is sworn to uphold the US Constitution, waged a war to end something he took an oath to defend. If that was the situation, Lincoln’s war was grossly unjust and the South has a viable legal case against his actions.

Just like Joshua, in Joshua 9, who honored the covenant that he made with the Gibeonites, even though the Gibeonites deceived him, so should the North have honored their agreement with the South, especially since the South did not perpetrate any deception in what they agreed to during the Constitutional Convention. Alternatively, the North could have decided not to be in union with States that were doing something so reprehensible, but they instead agreed to be in union with States that refused to abolish slavery.

If Lincoln decided to attack the South over the very issue that the framers of the Constitution resolved to compromise on in order to facilitate a union, it makes the North the aggressor in that war, because they were the ones who were breaching the agreement known as the US Constitution. One cannot have it both ways. The South was morally wrong about slavery, but, assuming the North went to war to end slavery, the North was both morally and legally wrong for militarily attacking the South over the issue that they had previously agreed to allow as a State issue, which makes the war unjust.

Sixth, Lincoln’s not taking the issue of secession to the Supreme Court is another piece of evidence that indicates that he did not attempt every means to find a peaceful resolution to disunion; i.e. war was again not his last resort. Merely because a President may believe that the Supreme Court will not give him the satisfaction he desires does not exonerate him from bypassing that legal means to find a peaceful resolution to a potentially inflammatory issue. His non-action, regarding the Supreme Court, flies in the face of the Just War Doctrine’s requirement that war must be a last resort. If a well-established method, such as an appeal to the Supreme Court, was not attempted before resorting to war, then war was not his last resort.

Seventh, many Civil War protagonists make the argument that Lincoln needed to attack the seceded Southern States, because they would have eventually attacked the North. While the Just War Doctrine allows for preemptive strikes, preemptive strikes cannot be based on rumors, speculation, or irrational fear, otherwise any nation could justify a “preemptive” strike whether an actual threat exists or not. There is no evidence to support the claim that the South was organizing to take over the national government or attack the Northern States in any way. To the contrary, the words of Jefferson Davis and the actions of all of the seceded States tell a different story, one in which the seven seceded States only wanted self-government, not national domination. Saying that the Civil War was justly commenced because Southern seceded States would be a future military threat is equivalent to justifying shooting and killing one’s neighbor because he might be a future threat to one’s household even though the neighbor demonstrated no malicious intent. Killing one’s neighbor under these circumstances is known as murder.

Contrary to modern popular belief, the overwhelming preponderance of evidence indicates that Lincoln did not go to war to free the slaves. Lincoln was clear and consistent about slavery and the equality of Africans with white people in his Lincoln/Douglas debates. He was also clear and consistent about his war aim in his first inaugural address, his request for seventy-five thousand troops on April 15, 1861, his address to Congress on July 4, 1861, and his letter to Horace Greeley on August 22, 1862. Lincoln never equivocated on his purpose for the war, in any of his speeches or writings, including his Emancipation Proclamation, in which he stated that the Emancipation Proclamation was only a war measure. Preserving the union remained his objective throughout the war. For this reason it should be clear to all who take Lincoln at his word that he took our nation to war to bring the seceded States back into the union, and not to abolish slavery.

To counter the claim that the war was perpetrated to prevent secession, not slavery, Union protagonists insist that secession was unconstitutional and they frequently point to the Supreme Court case of Texas v. White (1869) to support their argument. But the majority opinion in Texas v. White, which declared that secession is unconstitutional, has many fatal flaws.

One of the flaws with Texas v. White’s majority opinion is that it came at the end of a very bloody war where the victors got to re-write the rules. It is not the opinion that the court gave that should matter. It is the argument that they make or do not make that should matter. Relying on the opinion of the court is the logical fallacy of an appeal to authority. Very few people living today would uphold the majority opinion of the Supreme Court in Dred Scott v. Sanford (1857) and neither should they blindly uphold the majority opinion in Texas v. White.

Another flaw with Texas v. White’s majority opinion is how it attempted to redefine “State” as it appears in the US Constitution. Their attempt to redefine “State” ignores our nation’s history: the Federalist and the Anti-Federalist Papers, Calhoun’s A Disquisition on Government, and just about every pre-1860 legal essay including The Declaration of Independence.

Texas v. White’s majority opinion defined “State” in the following manner:

1. The word “State” describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country, or territorial region, inhabited by such a community; not unfrequently [sic], it is applied to the government under which the people live; at other times, it represents the combined idea of people, territory, and government.
2. In the Constitution, the term “State” most frequently expresses the combined idea, just noticed, of people, territory, and government. A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries and organised [sic] under a government sanctioned and limited by a written constitution, and established by the consent of the governed.
3. But the term is also used to express the idea of a people or political community, as distinguished from the government. In this sense, it is used in the clause which provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion.[4]

The majority opinion attempted to play down the unique nature of the Colonies that transformed themselves into States as the authors and signers of the Declaration of Independence defined “State”. The main point of departure comes in bullet two, of Texas v. White, where it claims that “A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries and organised [sic] under a government sanctioned and limited by a written constitution, and established by the consent of the governed.”

This definition is completely contrary to how the Declaration of Independence, along with nearly every other pre-1860 legal essay, defines it. The last paragraph of the Declaration of Independence defines State in the following way: “these United Colonies are, and of Right ought to be Free and Independent States … and that as Free and Independent States they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”

There is a monumental difference between “Free and Independent States” that “have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do” and “a political community of free citizens, occupying a territory of defined boundaries and organised [sic] under a government sanctioned and limited by a written constitution, and established by the consent of the governed.” The Declaration of Independence’s definition is one of an independent entity that holds the full powers of any other nation’s government whereas the Texas v. White’s majority opinion definition makes a “State” seem as if it is a political entity under an overarching national government, sanctioned and limited by the constitution that bounds it.

Without any further discussion, the Tenth Amendment refutes the majority opinion’s definition of State, because the Tenth Amendment affirms that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively…” In other words, States maintain their “Free and Independent” status as defined by the Declaration of Independence and confirmed by the Articles of Confederation, except where those powers are expressly delegated to the United States in the US Constitution or not prohibited by the same.  Texas v. White’s definition of “State” is incorrect according to the Tenth Amendment of the US Constitution.

We can be sure that the framers of the Constitution used the definition of “State” found in the Declaration of Independence, because the Article of Confederation further supports the Declaration of Independence’s definition. In Article II of the Articles of Confederation it states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” It is far more probable, and legally binding, that the US Constitution defined “State” as it was defined in the two founding documents that preceded it than in the way Texas v. White defined it. Evidence to support this claim is in that the first application of the Texas v. White definition is found in Texas v. White and no other document prior to it.

Additionally, the Declaration of Independence and the Articles of Confederation quotes should make it clear, to all who read them and comprehend them as they were written, that the States preceded the national government with all the rights and powers of independent nations, and not the other way around. In other words the national government did not create the States, the States pre-existed the national government as independent nations. Further evidence to support this claim comes from the treaty with King George III that ended the War for Independence. He made a treaty that listed each individual State that existed at the time of the treaty, in 1783, he did not make a treaty with an overarching national government.

The majority opinion’s definition of “State” in Texas v. White does not recognize this very important distinction in all preceding legal documents prior to 1860, and since the majority opinion is based on their faulty re-definition of “State” their argument, based on their re-definition of “State” may be sound, but their conclusion is false; i.e. untrue. Historically and substantively, “State” was not defined as they defined it.

Another flaw with Texas v. White is their argument that the Articles of Confederation claimed the “Union was solemnly declared to ‘be perpetual.’” Both Buchanan and Lincoln used this same argument, but again the argument overlooks the facts of history. The argument assumes that the US Constitution is a continuation of the Articles of Confederation and not a super-session of it.

The Articles of Confederation made each State sovereign and independent, giving the national legislature very little power. Under the Articles of Confederation the union was perpetual, because each State was autonomous with very few obligations to the Continental Congress other than providing delegates.

Under the US Constitution, the States forfeited very important powers that would be ruinous to them if they were abused, as they ultimately were. For this reason, the “perpetual” clause was not included in the Constitution and the Constitution made the Articles of Confederation null and void.  Therefore, anything in the Articles that were not included in the Constitution is no longer applicable.

Proof that the Constitution superseded the Articles of Confederation is found, among other places, in that the Articles of Confederation required unanimous consent of all States to amend it, whereas the Constitution only required nine States to ratify it. If any of the thirteen States did not ratify the Constitution, as two States in fact initially opted not to before Washington was inaugurated (North Carolina and Rhode Island), they were not compelled to join the union as one would expect if the union were in fact perpetual.

If one still wants to argue for the perpetuity of the union based on the Articles of Confederation, they are arguing for the union described in that document and not the one in the US Constitution.The perpetual union argument is a non sequitur. The majority opinion in Texas v. White once again does not stand up to the test of what was written in the documents they claim support their opinion.

Additionally, three States ratified the Constitution based on the understanding that they could later secede if it became necessary to do so. The States were:Virginia, New York, and Rhode Island.

On June 26, 1788, Virginia, in its ratification letter, stated, “in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

On July 26, 1788 New York wrote in its ratification letter, “That the powers of [the New York] government may be reassumed by the people whensoever it shall become necessary to their happiness.”

On May 29, 1790, Rhode Island, in it ratification letter, wrote, “That the powers of [the Rhode Island] government may be reassumed by the people whensoever it shall become necessary to their happiness.”

Since three States stipulated that they would only join the union under the US Constitution if they could later secede if they so choose, and since no objections to their demands were recorded, it stands to reason that seceding from the union was never prohibited by the US Constitution, neither implied nor overtly stated. The Tenth Amendment supports this argument.

Another flaw is Texas v. White’s argument concerning a more perfect union, which is speculative. Nowhere did the framers of the Constitution record exactly what they meant by “a more perfect union,” which leaves the phrase open to very large imaginations. It is more likely that the framers had the Articles of Confederation in mind when they included that phrase; i.e. that the purpose of the Constitution was to form a more perfect union than the Articles of Confederation had formed. Either way, one should not put stock in Texas v. White’s speculative argument, especially when so many lives were affected by the outcome. It is amazing that eminent legal scholars would make such a ridiculous argument, it is grasping at straws.

If one is still unconvinced about the constitutionality of secession, he should read The Case Against Secession,[5] in which the post logically refutes every argument that Buchanan and Lincoln made against secession. After reading it, one may still be unconvinced, but neither will he have a logical or legal leg to stand upon to support the unconstitutionality of secession.

Session is the crux of the dispute between Lincoln and the seceded States, because as Lincoln indicated in many ways, he was not going to allow them to leave the union. If Lincoln took our nation to war to bring the seceded States back into the union, as he frequently stated, then we again are talking about an unjust war.

Even, in the face of extremely strong evidence to the contrary, if one still holds to the idea that session is unconstitutional, it is questionable enough that whoever holds to such an idea should proceed with extreme caution instead of blindly assuming he is correct. The Just War Doctrine demands that a nation have a just cause to go to war, not a questionable cause for war and Lincoln’s stated purpose for going to war is, at a minimum, constitutionally questionable.

Ironically, session is a peaceful means for settling one’s differences. If a group of States imposes their political will upon other States by violating the national agreement, and the States that are adversely affected by the violation cannot resolve the issue politically, then walking away from the union is a peaceful means of settling the dispute. Conversely, forcefully preventing a State or States from peacefully and constitutionally leaving the union, which has the potential to kill even one person, is neither just nor right. Accordingly, the American Civil War was not just.

Concerning the Southern State’s aggressive posture towards the forts in their harbors, one must look at it from their perspective. If they were correct that secession is constitutional, as this paper has argued that they were, then the Federal government should have turned over the forts and peacefully departed the territorial waters of the seceded States.

Well known options for avoiding war, or at least attempting to resolve issues peacefully, that existed before and during Lincoln’s time include: sending emissaries of peace (foreign or domestic), and appealing to the Supreme Court. Lincoln did neither of these two options. Instead, less than a mere month and half after his taking his oath of office he sent an armed flotilla to Fort Sumter to achieve something he knew was not necessary (feeding the troops at the fort), which he had been told would start a war, and which he all but overtly admitted, in his May 1, 1861 note to Captain Fox, was his purpose for sending the flotilla.

Whether ones wants to argue that Lincoln called up troops in an effort to abolish slavery, or to force the seceded States back in the union, his actions and the war that resulted, in light of both of these reasons, were unjust. Slavery was protected by the Constitution as seen in Madison’s notes on the Constitutional Convention, and secession was at least questionable enough that Lincoln did not have a just cause for war if preserving the union was his purpose. All of which makes the American Civil War a morally and legally unjust war.

[1]Matt Shipley, “The South was Wrong!”, http://americanfoundingprinciples.com/the-south-was-wrong/, accessed April 14, 2019.

[2]The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Ser. 1, Vol. I (Washington: Government Printing Officer, 1880), 144-145, https://babel.hathitrust.org/cgi/pt?id=coo.31924077725913;view=1up;seq=161, accessed April 14, 2019.

[3]Official Records of the Union and Confederate Navies in the War of Rebellion, Ser. 1, Vol. IV (Washington: Government Printing Office, 1896), 251, https://babel.hathitrust.org/cgi/pt?id=coo.31924051350837;view=1up;seq=13, accessed April 14, 2019.

[4]Texas v. White 74 U.S. 700 (1869), https://www.law.cornell.edu/supremecourt/text/74/700, accessed April 14, 2019.

[5]Matt Shipley, “The Case Against Secession”, http://americanfoundingprinciples.com/the-case-against-secession/, accessed April 14, 2019.