1860, John C. Breckinridge’s Understanding Of The Constitution – Guest Essayist: Professor Joerg Knipprath

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Election of 1860

John C. Breckinridge of Kentucky entered the year 1860 as Vice President, having been elected to that office in 1856 as a Democrat from the Stephen Douglas wing of the party. Taking the oath of office when barely 36 years old, one year above the constitutional minimum, he remains the youngest man elected to that office. When the Whig party collapsed because its intrinsic identity as a national party was ground up between the sectional millstones over slavery, the Republican Party emerged as, initially, a staunch anti-slavery movement. Buoyed by its success in the 1858 congressional elections, the party expanded its political agenda. It strongly supported the Union, and moderated, but did not abandon, its official opposition on slavery. By 1860, it was the party of the North, which former Northern Whigs joined enthusiastically.

For most remnants of Southern Whiggery, however, their support of slavery and loyalties to their states made joining the Republicans problematic. Their course was to join the Democrats or found a new party. They did both.

The Democrats met in Charleston, South Carolina—truly a symbolic venue. In this home of the late John C. Calhoun and the heartland of the “Nullifiers” of the 1830s, the party undertook the difficult task of papering over the sectionalism that had destroyed the Whigs. It proved unable to do so. The 2/3 rule for nominating a candidate, adopted in 1832, dead-locked the convention.

Southerners believed that the vote leader, Stephen Douglas, the “Little Giant,” had cheated them. They had backed Douglas’s “popular sovereignty” approach to slavery in the territories in the debates on the Kansas-Nebraska Act in 1854. For their troubles, they had expected to open Kansas for slavery but had been thwarted when the settlers elected an anti-slavery legislature. Worse, Douglas had insisted that, consistent with “squatter sovereignty,” the people of Kansas be given an opportunity to vote on the status of slavery in the territory’s application for statehood. This doomed Douglas in the South.

Southern leaders at the convention, among them Jefferson Davis of Mississippi and William Yancey of Alabama, insisted on platform planks that Congress would apply a “black code” to all territories and declare that slavery was right. When the convention refused, eight “cotton states” delegations withdrew. Both factions then re-convened in Baltimore. The “Bolters” were replaced by men loyal to Douglas, and he was finally nominated as the official Democratic candidate. The Southern Democrats at their convention nominated John C. Breckinridge for president and Senator Joseph Lane of Oregon as vice-president, and adopted the Southern platform rejected in Charleston.

It would be easy to assume that Breckinridge was intricately involved in formulating what has been characterized as the “Southern” perspective regarding slave ownership as a right, expansion of slavery into the territories, and secession. But, while he was the “Southern” candidate, the political and constitutional aspects of the Southern platform are more readily ascribed to others, such as Jefferson Davis.

Davis forsook the politically safest position to protect the South’s “peculiar institution,” which was to have a unified Democratic Party win the presidency. Instead, according to the historian Samuel Eliot Morison, Davis wanted to prevent a majority vote in the Electoral College by having multiple candidates. That would throw the election into the House of Representatives, where there would be a deadlock because the state delegations were so closely divided. In the Senate, the Democrats had the majority. There, Davis expected Joseph Lane, Breckinridge’s running mate and—though from Oregon—a reliably pro-slavery politician, to be elected vice president. With the House unable to agree, Lane would become president. Risky, devious, constitutional, but, ultimately, too clever by half.

On the constitutional side, the Southern position was distilled from assumptions about the Union as a compact among states traceable to the Antifederalists of the 1780s, and proceeding through Jefferson’s and Madison’s Virginia and Kentucky Resolutions in 1798, New England states’ arguments against the Embargo Act of 1807 and in the Hartford Convention in 1814, South Carolina’s actions to nullify federal tariffs of 1828 and 1832, and abolitionists’ efforts to prevent enforcement of the Fugitive Slave Act of 1850. Those historical examples were not identical and did not provide a blueprint for secession to be applied mechanically in 1860. Rather, they show an evolution of arguments adapted to the peculiar challenges of their times.

Jefferson in the first Kentucky Resolutions broadly hinted at a state’s power to nullify unconstitutional actions of the general government, but express language in that direction in a draft was excluded from the final version, as was language supporting a power to secede. Madison in the Virginia Resolutions expressly supported interposition of the states to the enforcement of unconstitutional federal laws, but the text suggested that this be done by collective action of the states. There was also language that at least implied a power to nullify unconstitutional federal laws. Later, during the Nullification Crisis of the 1830s, Madison claimed that his position had always been for only collective action.

John C. Calhoun refined these positions. First, in the Exposition of 1828, secretly authored by him while vice-president and published (though not formally adopted) by the South Carolina legislature, he argued that interposition and nullification could be done by individual states, not only collectively. He also clearly raised the possibility of secession as a last resort. Yet Calhoun did not entirely reject the collective basis of nullification. A state’s nullification of a federal law was, in effect, only a suspensory veto over the law. The state must then call a convention of states to consider the nullified law. If three-quarters of the states agreed, the statute was nullified. If they did not, the instigating state could reconsider its nullification or it could secede.

Second, Calhoun rejected the original Jefferson-Madison reliance on state legislatures to act. Because these contests involved fundamental constitutional decisions arising out of the nature of the Union, only state conventions representing more broadly the people and reflecting more authentically the principle of “consent of the governed,” could nullify laws or authorize secession. Accordingly, the South Carolina convention in 1832 nullified federal tariffs of 1828 and 1832. Once the crisis was resolved politically, the South Carolina convention met again and repealed its earlier nullification—and nullified the Force Act that Congress had passed to authorize Andrew Jackson to use military force against the state.

Further, through his Disquisition on Government, published posthumously in 1851, Calhoun laid out his theory of “concurrent majorities.” Like the constitutional devices of the presidential veto, judicial review of legislation, and the structure of the Senate, Calhoun proposed this theory as a means to guard “liberty” and the rights of the political minority (in this instance, Southern slaveholders) against run-away majoritarian power. Calhoun posited that, at least for matters of fundamental constitutional significance that fell hard on a particular state or region, a majority in Congress was not enough. There must also be support by a concurrent majority in the legislatures of the burdened states.

All of Calhoun’s doctrine rested on two premises. There was, of course, the long-argued “compact” theory of the Union. Connected to it was the issue of sovereignty. Federalist theory had, in the later words of Justice Anthony Kennedy “split the atom of sovereignty” between the general government and the states. Calhoun argued for the classic constitutional theory of Roman law and post-medieval Europe that sovereignty was unitary and indivisible. Echoing Madison’s anti-Federalist critics, Calhoun acknowledged that sovereignty lay with the people in a republic, but the people identified with and through their states.

As the country slid towards disunion, Jefferson Davis assumed Calhoun’s role. Though he accepted Calhoun’s fundamental assumptions about the Union, Davis departed from Calhoun on a significant point. Calhoun’s nullification still sought to preserve the Union. Secession was a last-step “nuclear option” to be used as an in terrorem political bargaining chip. Actual secession would be a monument to political failure.

For Davis, nullification was an unjustifiable challenge to the binding obligation owed to the constitutional order to which the people in that state still professed allegiance and whose benefit they still enjoyed. He agreed with Calhoun’s critics that nullification by a single state was hypocritical, in that the state arrogated to itself the freedom to disobey the laws of the Union while still claiming the benefits of membership. Secession, though, was proper under principles of self-determination and was an unrestricted right. However, if exercised, the state also must forego any benefits of union. Thus, the brake on secession would be its concrete costs.

Breckinridge’s views on the constitutional dimension of these matters are unclear. He was an ardent supporter of “popular sovereignty.” While in the House of Representatives, he had worked with his friend Senator Stephen Douglas to pass the Kansas-Nebraska Act of 1854. During his time in Congress, he also supported the Whig theory of the constitutionality of federal support for internal improvements, which depended on maintaining the Union. His cousin Mary Todd married Abraham Lincoln, and Breckinridge and the future president became friends. He was no militant. Yet, during the election, he clearly supported Southern rights and interests.

The election proved to be a national disaster in the short term. Lincoln won all states in the North, earning an overwhelming electoral vote victory of 180 votes. However, he received less than 40% of the popular vote. Douglas received about 30% of the popular vote, but won only 12 electoral votes. Breckinridge won the South and two border states for 72 electoral votes and 18% of the popular vote. Finally, John Bell of Tennessee carried Virginia, Kentucky, and Tennessee for 39 electoral votes and about 12% of the popular vote. Bell was the candidate of the Constitutional Union Party, representing mainly the traditional Whig constituency. Bell’s attempt to win the election by appeals to Union, Constitution, and patriotism, while sweeping the slavery issue under the rug, proved woefully anachronistic.

After he lost the election, Breckinridge supported last ditch efforts to avoid secession, such as the Crittenden Compromise. He, like Jefferson Davis, unsuccessfully labored to douse the secessionist fires that both had fanned before and during the election. Their efforts to contain forces they had helped unleash proved as unavailing as Bell’s effort to ignore those forces altogether.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

1 reply
  1. Miles Fowler
    Miles Fowler says:

    Nice excursion through some of the tall grass of Constitutional history. I could have used a little explanation of some of the peripheral issues. I suspect other readers could have used even more. I liked learning how the Article V convention of states process was sort of or almost triggered by Calhoun, but he did not think that the legislatures should necessarily be involved.

    The issues of federalism and sovereignty were raw in 1860, reviving the anti-federalist arguments of more than seventy years earlier. It has always seemed to me that these questions have been “settled” more by force than by legal philosophy and logic, which necessarily means that aspects of these questions – if not the whole of these issues – will perennially come back to haunt us.


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