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Introduction
The United States emerged from the 2020 presidential campaign more profoundly divided than at any time since the Civil War. Donald Trump’s false claims of election fraud further inflamed those divisions. When Trump supporters stormed the United States Capitol Building to try to overturn the election results, it became undeniably clear that the nation had entered a dangerous new era of political violence. Since the election, experts on both ends of the political spectrum have warned of the possibility of a full-fledged democratic breakdown in the United States.
See Part II.
This article places America’s polarization in historical context by examining the only democratic breakdown in the nation’s history: the Civil War.
The Civil War continues to generate an extraordinary amount of outstanding legal scholarship. For recent examples, see Seth Barrett Tillman, Ex Parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481 (2016); Stephanie McCurry, Enemy Women and the Laws of War in the American Civil War, 35 Law & Hist. Rev.667 (2017); Laura F. Edwards, A Legal History of the Civil War and Reconstruction: A Nation of New Rights (2015); Cynthia Nicoletta, Secession on Trial: The Treason Prosecution of Jefferson Davis (2017).
Democratic breakdowns typically occur in one of two forms.
Ko Maeda, Two Modes of Democratic Breakdown: A Competing Risks Analysis of Democratic Durability 72 J. Pol. 1129, 1129 (2010) (“There are two distinctive modes by which democracies become nondemocracies, which have not yet been differentiated in the literature. One is when a democratic government is toppled by a force outside of the government, such as a military coup, and the other is when a democratically elected leader suspends the democratic process.”).
The first is when a country’s military or internal security forces topple an elected government.
Id. at 1129–30.
The Spanish military’s revolt against the democratically-elected government in Madrid in 1936—an event that set off the Spanish Civil War—is a preeminent example.
Stanley G. Payne, The Collapse of the Spanish Republic, 1933–1936, 308 (2006) (“The Spanish Military Conspiracy and revolt of 1936 may be the most widely written about, if not the most thoroughly investigated, in world history.”).
A second form of democratic breakdown occurs when the incumbent party uses the power of the state to suspend elections and dismantle democratic government.
The most notorious example is the Nazi Party’s destruction of the Weimar Republic in 1933.
Eric D. Weitz, Weimar Germany: Promise and Tragedy 358 (2018) (“The Nazi assumption of power was a counterrevolution in the sense that it overthrew the great achievements of the revolution of 1918–19. Universal and equal suffrage, political liberties, elections, popular participation in all sorts of institutions—all that was quickly destroyed by the Nazis, obliterating the republic and the constitution.”).
But the United States experienced a third form of democratic breakdown: a secession movement by disgruntled election losers. When Abraham Lincoln and the Republican Party won the 1860 presidential election, the slaveholding South refused to be bound by the election results. Instead of looking ahead to the next presidential election campaign, eleven southern states chose to secede. The conflict that ensued remains the bloodiest war in American history. The Civil War cost over half a million lives and left one-half of the United States in physical and economic ruin.
See Parts II and III.
More than 150 years later, the United States faces new threats of political violence from disgruntled election losers. Equally troubling, recent polling data finds a rising degree of support for secession among ordinary Americans, especially after their party loses a presidential election.
See Part II.
Accordingly, the intense polarization of the 2020s has made the lessons of the Civil War more relevant than ever.
In placing the current democratic crisis in historical context, this article focuses on three questions: First, why did the South reject the results of the 1860 election? Second, what legal and quasi-democratic processes did Confederate states use to assert that most white southerners supported secession? Third, and most important of all, how did American democracy survive the Civil War, the greatest crisis in the nation’s history?
Divided We Stand
The 2020 election raised fundamental questions about the future of American democracy. Although the Democratic presidential nominee Joseph Biden won a decisive victory in the Electoral College and the popular vote,
President Donald Trump refused to accept defeat. For weeks after the election, he falsely claimed that Democrats had stolen the election.
Peter Baker & Maggie Haberman, In Torrent of Falsehoods, Trump Claims Election Is Being Stolen, N.Y. Times (Nov. 5, 2020), https://www.nytimes.com/2020/11/05/us/politics/trump-presidency.html; Michael D. Shear, Trump, In Video From White House, Delivers A 46-Minute Diatribe On The ‘Rigged’ Election, N.Y. Times (Dec.2 2020), https://www.nytimes.com/2020/12/02/us/politics/trump-election-video.html.
During a press conference two days after the election, he declared, “If you count the legal votes, I easily win.”
Peter Baker & Maggie Haberman, In Torrent of Falsehoods, Trump Claims Election Is Being Stolen, N.Y. Times (Nov. 5, 2020), https://www.nytimes.com/2020/11/05/us/politics/trump-presidency.html.
With no evidence,
Nick Corasaniti, Reid J. Epstein & Jim Rutenberg, The Times Called Officials in Every State: No Evidence of Voter Fraud, N.Y. Times (Nov. 19, 2020), https://www.nytimes.com/2020/11/10/us/politics/voting-fraud.html.
he claimed that the Democrats “were trying to steal an election.”
In the two weeks after Biden’s victory, Trump tweeted false claims of election fraud over 300 times.
Linda Qiu, Trump Has Amplified Voting Falsehoods in Over 300 Tweets Since Election Night., N.Y. Times (November 16, 2020), https://www.nytimes.com/2020/11/16/technology/trump-has-amplified-voting-falsehoods-in-over-300-tweets-since-election-night.html.
Trump’s irresponsible rhetoric was not the first time he had made spurious claims of election fraud.
David Siders, ‘Rigged Election’ Goes from Trump Complaint to Campaign Strategy, Politico (July 31, 2020), https://www.politico.com/news/2020/07/31/trump-rigged-election-campaign-strategy-388884.
In 2016, three weeks before election day, he claimed the election was rigged against him.
US election 2016: Trump says election ‘rigged at polling places,’ BBC (Oct. 17, 2016), https://www.bbc.com/news/election-us-2016-37673797.
Even after Trump secured a majority in the Electoral College, he continued his baseless allegations, alleging that Democrats had manufactured three million illegal votes for Hillary Clinton.
Abby Phillip, Without evidence, Trump Tells Lawmakers 3 Million to 5 Million Illegal Ballots Cost Him the Popular Vote, Wash. Post (Jan. 23, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/01/23/at-white-house-trump-tells-congressional-leaders-3-5-million-illegal-ballots-cost-him-the-popular-vote/.
Trump’s false and cynical claims of fraud thus served as a central theme of both the 2016 and 2020 elections.
Morgan Chalfant, Trump: ‘The Only Way We’re Going to Lose this Election Is If the Election Is Rigged’, The Hill (Aug. 17, 2020), https://thehill.com/homenews/administration/512424-trump-the-only-way-we-are-going-to-lose-this-election-is-if-the.
But in 2020 Trump went to dangerous new lengths.
David E. Sanger, Trump’s Attempts to Overturn the Election Are Unparalleled in U.S. History, N.Y. Times (Nov. 19, 2020), https://www.nytimes.com/2020/11/19/us/politics/trump-election.html?searchResultPosition=2.
In an unprecedented step for a defeated incumbent president, he pressured Republican election officials and legislators to help him overturn the election results.
Rachael Bade, Josh Dawsey & Tom Hamburger, Trump Pressures Congressional Republicans to Help in His Fight to Overturn the Election, Wash. Post (Dec. 10, 2020), https://www.washingtonpost.com/politics/trump-republicans-biden-election/2020/12/09/abd596ea-3a4e-11eb-9276-ae0ca72729be_story.html; Richard Fausset, ‘It Has to Stop’: Georgia Election Official Lashes Trump, N.Y. Times (Dec. 1, 2020), https://www.nytimes.com/2020/12/01/us/politics/georgia-election-trump.html.
When that effort failed, Trump asked the Supreme Court to overturn Biden’s victory.
Ariane de Vogue & Paul LeBlanc, Trump Asks Supreme Court to Invalidate Millions of Votes In Battleground States, CNN (Dec. 10, 2020), https://www.cnn.com/2020/12/09/politics/trump-supreme-court/index.html.
At least 126 Republican members of Congress and 17 Republican state attorneys general joined in the effort.
Shane Goldmacher, Democrats, and Even Some Republicans, Cheer as Justices Spurn Trump, N.Y. Times (December 11, 2020), https://www.nytimes.com/2020/12/11/us/politics/trump-supreme-court-texas.html.
When the Supreme Court rejected Trump’s bid to overturn the 2020 election results, the president condemned the ruling, declaring: “This is a great and disgraceful miscarriage of justice. The people of the United States were cheated, and our Country disgraced. Never given our day in Court.”
Aaron Blake, Trump’s Spin on His Big Supreme Court Failure is as Bad as His Legal Case, Wash. Post (Dec. 12, 2020), https://www.washingtonpost.com/politics/2020/12/12/trumps-spin-his-big-supreme-court-failure-is-bad-his-legal-case/.
Although Trump failed to overturn the 2020 election results, his attacks undermined Republican confidence in the integrity of America’s democratic institutions.
Chris Kahn, Half of Republicans say Biden won because of a ‘rigged’ election: Reuters/Ipsos poll, Reuters (Nov. 18, 2020), https://www.yahoo.com/news/half-republicans-biden-won-because-110417008.html; Melissa Holzberg & Ben Kamisar, Poll: Most Americans Are Not Confident the 2020 Election Will be Conducted Fairly, NBC News (Aug. 11, 2020), https://www.nbcnews.com/politics/2020-election/poll-most-americans-are-not-confident-2020-election-will-be-n1236321; David E. Sanger, Trump’s Attempts to Overturn the Election Are Unparalleled in U.S. History, N.Y. Times (Nov. 19, 2020), https://www.nytimes.com/2020/11/19/us/politics/trump-election.html; Baker & Haberman, supranote 11; Edward Foley, Opinion, If the Losing Party Won’t Accept Defeat, Democracy is Dead, Wash. Post (Nov. 19, 2020), https://www.washingtonpost.com/opinions/2020/11/19/if-losing-party-wont-accept-defeat-democracy-is-dead/; Richard H. Pildes, Opinion, Why Trump Will Fail in Michigan, N.Y. Times (Nov. 20, 2020), https://www.nytimes.com/2020/11/20/opinion/trump-michigan-election.html?action=click&module=Opinion&pgtype=Homepage; Manu Raju & Rachel Janfaza, Senior GOP lawmakers grow anxious over Trump’s effort to overturn election results, CNN (Nov. 20, 2020), https://www.cnn.com/2020/11/20/politics/gop-lawmakers-call-on-trump-to-begin-transition/index.html.
A post-election Reuters poll found that 52% of Republicans believed Trump’s false claim that the election was rigged for Biden.
Chris Kahn, Half of Republicans say Biden won because of a ‘rigged’ election: Reuters/Ipsos poll, Reuters (Nov. 18, 2020), https://www.yahoo.com/news/half-republicans-biden-won-because-110417008.html.
By early January 2021, over 60% of Republicans rejected the legitimacy of Biden’s victory.
Congressional Republicans joined Trump in fanning partisan fury among Republican voters by continuing to spread the lie that the election was stolen.
Catie Edmondson and Luke Broadwater, Trump loyalists in Congress fanned flames before Capitol riot., N.Y. Times (Jan. 12, 2021), https://www.nytimes.com/2021/01/12/us/trump-loyalists-in-congress-fanned-flames-before-capitol-riot.html.
Trump’s attacks on American democracy culminated on January 6, 2021, when a pro-Trump mob invaded the United States Capitol Building to disrupt the Electoral Vote Count.
Peter Baker, A Mob and the Breach of Democracy: The Violent End of the Trump Era, N.Y. Times (Jan. 7, 2021), https://www.nytimes.com/2021/01/06/us/politics/trump-congress.html?searchResultPosition=9.
Before the riot, President Trump had pressured Vice President Pence to unconstitutionally reject Biden’s victory and declare Trump the winner.
Annie Karni, Pence rejects Trump’s pressure to block certification saying he ‘loves the Constitution’, N.Y. Times (Jan.6, 2021), nytimes.com/2021/01/06/us/politics/pence-rejects-trumps-pressure-to-block-certification-saying-he-loves-the-constitution.html.
Pence refused, explaining:
“As a student of history who loves the Constitution and reveres its Framers, I do not believe that the Founders of our country intended to invest the vice president with unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress, and no vice president in American history has ever asserted such authority.”
Id.
Outraged by Pence’s refusal to overturn the 2020 presidential election, hundreds of rioters swarmed the Senate and House floors and occupied congressional offices, rifling drawers, destroying property, and claiming souvenirs.
Zolan Kanno-Youngs, Sabrina Tavernise & Emily Cochrane, As House Was Breached, a Fear ‘We’d Have to Fight’ to Get Out, N.Y. Times (Jan. 9, 2021), https://www.nytimes.com/2021/01/06/us/politics/capitol-breach-trump-protests.html.
The rioters’ violence and lawlessness forced members of Congress to shelter in locked rooms, some even fearing for their lives.
Karoun Demirjian, Carol D. Leonnig, Paul Kane & Aaron C. Davis, Inside the Capitol siege: How barricaded lawmakers and aides sounded urgent pleas for help as police lost control, Wash. Post (Jan. 2021), https://www.washingtonpost.com/politics/inside-capitol-siege/2021/01/09/e3ad3274-5283-11eb-bda4-615aaefd0555_story.html; Yuliya Talmazan, AOC says she feared for her life during Capitol riot: ‘I thought I was going to die’, NBC News (Jan. 13, 2021), https://www.nbcnews.com/politics/congress/aoc-says-she-feared-her-life-during-capitol-riot-i-n1254042; Salvador Rizzo, Sen. Murray recounts harrowing tale of hiding in room as rioters stormed the Capitol, Wash. Post (Feb. 13, 2021), https://www.washingtonpost.com/politics/senator-murray-capitol-riot/2021/02/13/9c1f762e-6e1c-11eb-9ead-673168d5b874_story.html.
Blaming Pence for Trump’s defeat, the rioters chanted, “Hang Mike Pence.”
James Poniewozik, The Attack on the Capitol Was Even Worse Than It Looked, N.Y. Times (Jan. 11, 2021), https://www.nytimes.com/2021/01/11/arts/television/capitol-riot-graphic-videos.html.
Rioters attacked police officers, in one case beating a defenseless police officer on the ground with an American flag.
Katie Shepherd, Video shows Capitol mob dragging police officer down stairs. One rioter beat the officer with a pole flying the U.S. flag., Wash. Post (Jan. 11, 2021), https://www.washingtonpost.com/nation/2021/01/11/police-beating-capitol-mob/.
Prosecutors later revealed that some of the pro-Trump rioters intended to assassinate lawmakers and take others hostage.
Teo Armus, Rioters wanted to ‘capture and assassinate’ lawmakers, prosecutors say. A note left by the ‘QAnon Shaman’ is evidence., Wash. Post (Jan. 15, 2021), https://www.washingtonpost.com/nation/2021/01/15/qanon-shaman-trump-kill-pardon/.
At one point during the attack on the Capitol Building, rioters came within 100 feet of Pence.
Ashley Parker, Carol D. Leonnig, Paul Kane & Emma Brown, How the rioters who stormed the Capitol came dangerously close to Pence, Wash. Post (Jan. 15, 2021), https://www.washingtonpost.com/politics/pence-rioters-capitol-attack/2021/01/15/ab62e434-567c-11eb-a08b-f1381ef3d207_story.html.
As the Secret Service rushed Pence to safety, Trump condemned his vice president in a Tweet, declaring:
“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
Philip Bump, Timeline: How Trump picked the rioters over his vice president, Wash. Post (Feb. 11, 2021), https://www.washingtonpost.com/politics/2021/02/11/timeline-how-trump-picked-rioters-over-his-vice-president/.
The riot led to 5 deaths
Katie Benner & Adam Goldman, Two are charged in the assault of a Capitol Police officer who died after the Jan. 6 riot., N.Y. Times (March 15, 2021), https://www.nytimes.com/2021/03/15/us/politics/brian-sicknick-jan-6-capitol-police.html?searchResultPosition=1; Jack Healy, Who Are the 5 People Who Died in the Capitol Riot?, N.Y. Times (Jan. 11, 2021), https://www.nytimes.com/2021/01/11/us/who-died-in-capitol-building-attack.html?action=click&module=Spotlight&pgtype=Homepage; Zolan Kanno-Youngs & Tracey Tully, He Dreamed of Being a Police Officer, Then Was Killed by a Pro-Trump Mob, N.Y. Times (Jan. 11, 2021), https://www.nytimes.com/2021/01/08/us/politics/police-officer-killed-capitol.html.
and only ended hours later when the Washington National Guard cleared the building.
Mark Mazzetti, Helene Cooper, Jennifer Steinhauer, Zolan Kanno-Youngs & Luke Broadwater, Inside a Deadly Siege: How a String of Failures Led to a Dark Day at the Capitol, N.Y. Times, Jan. 11 2021.
The pro-Trump riot was one of the most serious threats to the Capitol’s safety since the British invaded Washington in 1814.
Zolan Kanno-Youngs, Sabrina Tavernise & Emily Cochrane, As House Was Breached, a Fear ‘We’d Have to Fight’ to Get Out, n.y. times, (Jan. 9, 2021), https://www.nytimes.com/2021/01/10/us/politics/capitol-siege-security.html.
President Trump played a key role in the violence.
Nicholas Fandos, House Lays Out Case Against Trump, Branding Him the ‘Inciter in Chief’, N.Y. Times (Feb. 11, 2021), https://www.nytimes.com/2021/02/10/us/politics/trump-senate-impeachment-trial.html?action=click&module=Spotlight&pgtype=Homepage.
During a speech he made shortly before the rioters attacked the Capitol, Trump egged on the crowd, calling on his supporters to “fight much harder” and “show strength” to prevent Congress from certifying Biden’s victory.
Charlie Savage, Incitement to Riot? What Trump Told Supporters Before Mob Stormed Capitol, N.Y. Times (Jan. 10, 2021), https://www.nytimes.com/2021/01/10/us/trump-speech-riot.html.
The purpose of the march, he emphasized, was to “stop the steal.”
Aaron Blake, What Trump said before his supporters stormed the Capitol, annotated, Wash. Post (Jan. 11, 2021), https://www.washingtonpost.com/politics/interactive/2021/annotated-trump-speech-jan-6-capitol/.
Falsely promising to march on the Capitol himself, Trump asserted that “all of us here today do not want to see our election victory stolen by bold and radical left Democrats.”
Id.
After warning the crowd that “you’ll never take back our country with weakness,” he urged them to “fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.”
Id.
In the weeks after the riot, Trump never expressed regret for his role in inciting the mob.
Robin Givhan, In an avalanche of words, there’s no sign of regret from Trump, Wash. Post (Feb. 9, 2021), https://www.washingtonpost.com/nation/2021/02/09/an-avalanche-words-theres-no-sign-regret-trump/.
In fact, according to Republican Congresswoman Jaime Herrera Beutler, Trump sided with the rioters during a phone call with House Minority Leader Kevin McCarthy as the mob stormed the Capitol.
Nicholas Fandos, Herrera Beutler Says McCarthy Told Her Trump Sided with Capitol Mob, N.Y. Times (Feb. 13, 2021), https://www.nytimes.com/2021/02/12/us/kevin-mccarthy-trump-herrera-beutler.html.
Many of the rioters interpreted Trump’s words as a call for violence.
Alan Feuer & Nicole Hong, ‘I Answered the Call of My President’: Rioters Say Trump Urged Them On, N.Y. Times (Jan. 17, 2021), https://www.nytimes.com/2021/01/17/nyregion/protesters-blaming-trump-pardon.html?referringSource=articleShare (“But one group of people has already come forward and directly implicated Mr. Trump in the riot at the Capitol: some of his own supporters who were arrested while taking part in it. In court papers and interviews, at least four pro-Trump rioters have said they joined the march that spiraled into violence in part because the president encouraged them to do so.”).
Leading Republicans did so as well. As Republican Congresswoman Liz Cheney emphasized, Trump “lit the flame” and “incited the mob.”
Justine Coleman, Liz Cheney blames Trump for riots: ‘He lit the flame’, The Hill (Jan. 6, 2021), https://thehill.com/homenews/house/533024-liz-cheney-blames-trump-for-riots-he-lit-the-flame.
Republican Senator Mitt Romney declared that “[w]hat happened here today was an insurrection, incited by the President of the United States.”
Colby Itkowitz & Paulina Firozi, Democrats, Republicans blame Trump for inciting ‘coup’ as mob storms Capitol, Wash. Post (Jan. 6, 2021), https://www.washingtonpost.com/politics/2021/01/06/democrats-republicans-reaction-trump/.
Similarly, Republican Senate Majority Leader Mitch McConnell asserted that the “mob was fed lies” and that “[t]hey were provoked by the President and other powerful people.”
Alex Rogers & Clare Foran, Mitch McConnell: Capitol Hill mob was ‘provoked’ by Trump, CNN (Jan. 19, 2021), https://www.cnn.com/2021/01/19/politics/mitch-mcconnell-rioters-provoked/index.html.
Indeed, as McConnell pointed out, Trump was not the only senior Republican who incited the mob to violence. Speaking at the same event as the president, Trump’s attorney, Rudolph Giuliani, told the crowd, “Let’s have trial by combat.”
Peter Baker, A Mob and the Breach of Democracy: The Violent End of the Trump Era, N.Y. Times (Jan. 7, 2021), https://www.nytimes.com/2021/01/06/us/politics/trump-congress.html?searchResultPosition=9.
Nevertheless, the violence at the Capitol did not diminish baseless attacks on the integrity of the 2020 election. Even after the riot, 139 House Republicans and 8 Senate Republicans voted to reject Biden’s victory despite the complete absence of evidence of fraud.
Karen Yourish, Larry Buchanan & Denise Lu, The 147 Republicans Who Voted to Overturn Election Results, N.Y. Times (Jan. 7, 2021), https://www.nytimes.com/interactive/2021/01/07/us/elections/electoral-college-biden-objectors.html.
Trump’s unprecedented attack on the legitimacy of America’s democratic institutions
David E. Sanger, Trump’s Attempts to Overturn the Election Are Unparalleled in U.S. History, N.Y. Times, (Nov. 20, 2020), https://www.nytimes.com/2020/11/19/us/politics/trump-election.html.
reflected more than the reckless irresponsibility of a sore loser. His embrace of inflammatory tactics and demagogic rhetoric served as the culmination of years of deepening polarization in the United States. Even before Trump’s presidency, rates of partisan polarization had soared to historic levels, extending even to marriage choices and neighborhood preferences.
Nate Cohn, Polarization Is Dividing American Society, Not Just Politics, N.Y. Times (Jun. 12, 2014), https://www.nytimes.com/2014/06/12/upshot/polarization-is-dividing-american-society-not-just-politics.html.
The 2016 election intensified the trend toward hyper-partisanship. A 2017 poll, for example, found that a majority of Democrats and Republicans viewed the opposing party as a threat to the country.
Philip Bump, More than half of partisans see the other party’s policies as a threat to the country, Wash. Post (Dec. 5, 2017), https://www.washingtonpost.com/news/politics/wp/2017/12/05/more-than-half-of-partisans-see-the-other-partys-policies-as-a-threat-to-the-country/; Aaron Blake, How many Americans truly hate the other political party? About 1 in 4., Wash. Post (June 19, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/06/19/how-many-americans-truly-hate-the-other-political-party-only-about-78-million/; David Lauter, Americans increasingly see opposing party as ‘threat’ to nation, L.A. Times (June 12, 2014), https://www.latimes.com/nation/politics/politicsnow/la-pn-partisan-polarization-20140611-story.html.
Not coincidentally, a 2020 survey found public confidence in American democracy at an all-time low.
Yascha Mounk & Roberto Stefan Foa, This Is How Democracy Dies, The Atlantic (Jan. 20, 2020), https://www.theatlantic.com/ideas/archive/2020/01/confidence-democracy-lowest-point-record/605686/ (“Public confidence in democracy is at the lowest point on record in the United States. . . . [T]he drop in satisfaction with democracy is both especially rapid and especially consequential in the United States. For much of its modern history, America has viewed itself as a model democracy that could serve as an example to countries that wished to emulate its success. Survey data show that there was a little substance to this hubris: as recently as 10 years ago, three out of every four Americans said that they were satisfied with the state of their democratic system. . . . For the first time on record, polls show that a majority of Americans (55 percent) are dissatisfied with their system of government.”).
The refusal of many Republicans to accept Trump’s defeat has led three of the nation’s top election law experts to warn of the dangers facing American democracy. In the weeks before the election, Richard Hasen revealed that he had “never been more worried about American democracy than I am right now.”
Richard L. Hasen, I’ve Never Been More Worried About American Democracy Than I Am Right Now, Slate (Sept. 23, 2020), https://slate.com/news-and-politics/2020/09/trump-plan-supreme-court-stop-election-vote-count.html. See also Pippa Norris, Can our democracy survive if most Republicans think the government is illegitimate?, Wash. Post (Dec. 11, 2020), https://www.washingtonpost.com/outlook/trump-democratic-legitimacy-election/2020/12/11/1adfe688-3b14-11eb-9276-ae0ca72729be_story.html (“[L]ong-term evidence indicates three reasons why this crisis may be different — and why it may worsen. If it does, it will threaten democratic governance in America. . . . the foundations of American civic culture have been gradually weakening for decades.”).
Similarly, Edward Foley stressed that “[i]f the losing party can’t accept defeat, the whole enterprise of electoral democracy is finished.”
Edward B. Foley, Opinion, If the losing party won’t accept defeat, democracy is dead, Wash. Post. (Nov. 19, 2020), https://www.washingtonpost.com/opinions/2020/11/19/if-losing-party-wont-accept-defeat-democracy-is-dead/.
Likewise, Richard Pildes observed that Trump’s effort to persuade Republican officials to overturn the election outcome “is toxic for the country’s politics.”
Richard H. Pildes, Opinion, Why Trump Will Fail in Michigan, N.Y. Times (Nov. 20, 2020), https://www.nytimes.com/2020/11/20/opinion/trump-michigan-election.html.
Baseless allegations of election fraud, he warned, raised the danger “that the country will become increasingly ungovernable.”
Id.
A retiring Republican member of Congress shared the scholars’ concerns. Congressman Paul Mitchell changed his party affiliation to independent in protest of Congressional Republicans’ support of Trump’s efforts to overturn the election.
Jake Tapper, Congressman cites Trump’s efforts to overturn election in announcing decision to quit GOP, CNN (Dec. 14, 2020), https://www.cnn.com/2020/12/14/politics/paul-mitchell-quits-gop/index.html.
Mitchell urged his former Republican colleagues “to stand up for democracy first, for our Constitution first, and not political considerations.”
Id.
The president’s conspiracy theories and spurious attacks on the election, he warned, threatened “long-term harm to our democracy.”
Id.
Signs of strain on the American Union can be found in increasingly disturbing polling data and secessionist threats. A 2014 Reuters poll, for example, found that 24% of Americans were open to their state seceding from the United States.
Scott Malone, Angry with Washington, 1 in 4 Americans open to secession, Reuters (Sep. 19, 2014), https://www.reuters.com/article/us-usa-secession-exclusive/exclusive-angry-with-washington-1-in-4-americans-open-to-secession-idUSKBN0HE19U20140919.
After Trump’s election in 2016, a Reuters poll found that 32% of Californians supported seceding from the Union.
Sharon Bernstein, More Californians dreaming of a country without Trump: poll, Reuters (Jan. 23, 2017), https://www.reuters.com/article/us-usa-trump-california-secession/more-californians-dreaming-of-a-country-without-trump-poll-idUSKBN1572KB.
In turn, Biden’s victory in 2020 gave rise to secessionist talk among Republicans. The chair of the Texas Republican Party called on his fellow conservatives to consider forming a new, smaller union of states.
Shane Goldmacher, Democrats, and Even Some Republicans, Cheer as Justices Spurn Trump, N.Y.Times (Dec. 11, 2020), https://www.nytimes.com/2020/12/11/us/politics/trump-supreme-court-texas.html.
He asserted that “perhaps law-abiding states should bond together and form a union of states that will abide by the Constitution.”
Id.
Most provocative of all, the prominent conservative radio talk show host Rush Limbaugh declared in December 2020 that “there cannot be peaceful coexistence” between liberals and conservatives.
Media Matters Staff, Rush Limbaugh: “There cannot be a peaceful coexistence” between liberals and conservatives, Media Matters (Dec. 9, 2020, 5:36 PM), https://www.mediamatters.org/rush-limbaugh/rush-limbaugh-there-cannot-be-peaceful-coexistence-between-liberals-and-conservatives.
Limbaugh announced that conservatives were “trending toward secession.”
Id.
Could a democratic breakdown occur in the United States in the 2020s? History suggests the answer is yes. The United States has experienced a democratic breakdown in its past. The 1860 election divided the nation so profoundly that it resulted in the Civil War.
See Part III.
The four-year-long war cost at least 620,000 Americans their lives, and recent research indicates that perhaps as many as 750,000 Americans died in the war.
Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War xi (2008). Recent demographic studies estimate that the actual Civil War death toll was 750,000, and perhaps even as high as one million. See J. David Hacker, A Census Based Count the Civil War Dead, 57 Civ. War Hist. 307 (2011); Guy Gugliotta, New Estimate Raises Civil War Death Toll, N.Y. Times (Apr. 2, 2012), https://www.nytimes.com/2012/04/03/science/civil-war-toll-up-by-20-percent-in-new-estimate.html. By way of comparison, the Second World War cost 405,000 American lives and Vietnam cost 58,000. Office of Public Affairs, America’s Wars, department of veterans affairs (2021), https://www.va.gov/opa/publications/factsheets/fs_americas_wars.pdf.
In addition to the massive loss of life, the war cost the federal government and northern state governments over $5.2 billion
Claudia D. Goldin & Frank D. Lewis, The Economic Cost of the American Civil War: Estimates and Implications, 35 J. Econ. Hist.299, 321 (1975).
and saw many southern cities and towns devastated.
William J. Cooper, jr. & Thomas E. Terrill, The American South: A History 385 (1990).
The conflict’s destruction left a legacy still felt in the twenty-first century. The shattered economy of the ex-Confederate states lagged behind the rest of the country for generations after the war.
See Richard F. Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877, 416–9 (1990); Roger L. Ransom, Conflict and Compromise: The Political Economy of Slavery, Emancipation, and the American Civil War (1989); William Cooper, jr. & Thomas E. Terrill, American south 383, 385 (2009).
As late as the 1940s, per capita income in most southern states was still one-third lower than the national average.
Sharon Nunn, The South’s Economy Is Falling Behind: ‘All of a Sudden the Money Stops Flowing’, Wall St. J. (Jun. 9, 2019), https://www.wsj.com/articles/the-souths-economy-is-falling-behind-all-of-a-sudden-the-money-stops-flowing-11560101610 (“In the 1940s, per capita income in the states historians and economists generally refer to as the South—Louisiana, Mississippi, Alabama, Georgia, the Carolinas, Virginia, West Virginia, Oklahoma, Arkansas, Tennessee and Kentucky—equaled 66.3% of the national average, according to historical data reconstructed by University of Kent economist Alex Klein and The Wall Street Journal. By 2009, that had climbed to 88.9%. That was the high-water mark. By 2017 it fell back to 85.9%.”).
Even in the early 21st century, the southern regional average remained 10 to 15% lower than the national average for per capita income.
Id.
But the war also had many beneficial legacies. It created conditions that led to the adoption of the 13th, 14th, and 15th amendments, which abolished slavery, enshrined the principle of equality in American law, and dramatically expanded the definition of American democracy. The war thus transformed the United States into a modern nation, one that would become increasingly diverse, cosmopolitan, and powerful in the decades after 1865.
Although Americans usually think of the Civil War as a military conflict, elections played a critical role in every phase of the war. The conflict’s triggering event was Abraham Lincoln’s victory in the 1860 presidential election.
James M. McPherson, The Battle Cry Of Freedom: The Civil War Era 229 (1988); Richard H. Sewell, A House Divided: Sectionalism and Civil War, 1848–1865, 76–8 (1988).
Seven southern states seceded in the months between Lincoln’s election in November 1860 and his inauguration in March 1861.
McPherson, supranote 78, at 235; Sewell, supranote 78, at 80.
Four more southern states seceded after the Confederate attack on the federal garrison at Fort Sumter, South Carolina.
From the conflict’s earliest days, Lincoln defined the war as a test of whether democracy was a viable form of government.
See Gettysburg Address, Yale Law School Avalon Project, https://avalon.law.yale.edu/19th_century/gettyb.asp.
Under his leadership, the North’s central war aim was to uphold the principle of majority rule.
James M. McPherson, Drawn With the Sword: Reflections on the American Civil War 209–10 (1996).
As Lincoln put it in the Gettysburg Address, the Union fought to ensure “that government of the people, by the people, for the people shall not perish from the earth.”
Ultimately, Lincoln’s reelection in 1864 sealed the Confederacy’s fate and ensured the American republic’s survival.
John Waugh, Reelecting Lincoln: The Battle For the 1864 Presidency 356 (1997); Alan T. Nolan, Lee Considered: General Robert E. Lee and Civil War History 117–18 (1991); Philip S. Paludan, The Presidency of Abraham Lincoln 290–91 (1994); William J. Cooper, Jr., & Thomas E. Terrill, The American South, 381–2 (1990).
The Civil War thus constituted the most severe test of American democracy. For Americans in the 2020s looking for lessons from the Civil War era, the first question is simple. Why did the 1860 election set off civil war in the first place?
Why the South Rejected the 1860 Election Results
Many leading experts have warned that gaps and contradictions in American election laws could provoke a democratic breakdown in the event of a controversial election.
Larry Diamond and Edward B. Foley, The Terrifying Inadequacy of American Election Law, The Atlantic (Sept. 8, 2020), https://www.theatlantic.com/ideas/archive/2020/09/terrifying-inadequacy-american-election-law/616072/; Richard L. Hasen, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown, 62 Was. & Lee L. Rev. 937 (2005); Edward B. Foley, Ballot Battles: The History of Disputed Elections in the United States 349 (2016), (“The main cause of serious vote-counting litigation is ambiguity, imprecision, or other forms of uncertainty in the content of the relevant rules and how they apply to particular situations”); Richard L. Hasen, The Voting Wars 4 (2012), (“We are just one more razor-thin presidential election away from chaos and an undermining of the rule of law”).
Edward Foley, for example, has pointed out that ambiguities in the Electoral Count Act could create a constitutional crisis if a decisive state in a presidential election sent competing slates of electors to Congress.
Edward B. Foley, Congress must fix this election law — before it’s too late, wash. post (Dec. 1, 2020), https://www.washingtonpost.com/opinions/2020/12/01/congress-must-fix-this-election-law-before-its-too-late/; Edward B. Foley, Ballot Battles: The History Of Disputed Elections in the United States, 279, 355 (2016) (calling on Congress to replace “the convoluted, essentially incomprehensible, and utterly inadequate procedures of the Electoral Count Act of 1887”). One of the act’s key sentences is 275 words long, a length virtually guaranteed to create controversy if tested. See Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541, 543 (2004).
The Constitution’s Twelfth Amendment also includes dangerous shortcomings.
See Nathan L. Colvin and Edward B. Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 U. Miami L. Rev. 475 (2010).
In light of the deficiencies in existing election law, Richard Hasen has urged the federal and state governments to avoid a future election meltdown by making “fundamental changes in the way we conduct our elections to bring our procedures more in line with international standards.”
Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, And The Threat To American Democracy 136 (2020).
Modernizing and clarifying America’s election laws is thus long overdue. Amid an intensely polarized electorate, a disputed election governed by ambiguous rules would be a disaster of historic proportions.
But the experience of the American Civil War shows that clarifying election rules may not be enough to prevent a democratic breakdown. A dispute over election rules did not cause the Civil War. Instead, the war resulted when the dominant political class in the South—slaveholders—rejected the principle of majority rule. American history thus demonstrates that even in the case of an election of unquestionable integrity, a polarized and extremist minority might still break the country apart.
In 1860, there was no reasonable doubt that Abraham Lincoln had won the presidential election.
Phillip S. Paludan, The Presidency of Abraham Lincoln 5 (1994), (“Lincoln was indisputably the constitutionally elected chief executive”).
As the Republican nominee, Lincoln carried 180 electoral votes, easily surpassing the 152 required to win an Electoral College majority.
James M. McPherson, The Battle Cry of Freedom 232 (1988).
Lincoln also received over 1.86 million votes, giving him 54 percent of the popular vote in the North and 40 percent nationally.
David Herbert Donald, Lincoln 256 (1995); McPherson, supranote 91, at 232; Timothy S. Huebner, Liberty & Union: The Civil War Era and American Constitutionalism 114 (2016) (Lincoln’s “margin of victory in fifteen of the seventeen states he won was large enough that even the combined votes of his opponents would not have defeated him.”).
The southern Democratic Party nominee John Breckinridge won over 849,000 votes and 72 electoral votes and the Constitutional Union Party nominee John Bell won nearly 590,000 votes and 39 electoral votes.
Id.
Lincoln’s decisive majority in the Electoral College thus made his victory incontrovertible.
Michael F. Holt, The Election of 1860: A Campaign Fraught with Consequences 172 (2017)(“The final results showed that Lincoln had swept all but three of the free states’ electoral votes for a winning total of 180, which was 28 more than the majority he needed.”).
As the historian Philip Paludan observed, “Lincoln was indisputably the constitutionally elected chief executive, chosen by one of the largest voter turnouts in American history.”
Ironically, the only candidate with grounds for complaint was Lincoln himself. Slaveholders’ threats of violence and intimidation prevented the Republican Party from fielding a ticket in 10 southern states.
James M. McPherson, The Battle Cry of Freedom 223 (1988)(“Republicans did not even have a ticket in ten southern states, where their speakers would have been greeted with a coat of tar and feathers—or worse—if they had dared to appear.”).
Before Lincoln was even inaugurated in March 1861, seven southern states seceded from the Union.
By May 1861, a total of 11 states had left the Union and formed the Confederate States of America.
Sewell, supranote 78, at 86; Donald, supra note 91, at 297.
None of the southern states seriously questioned the integrity of the 1860 election results. So why did they secede?
The answer is slavery. The South seceded because slaveowners—the most influential political force in the region—concluded that democracy no longer served their interests. As Confederate Vice President Alexander Stephens explained in a March 1861 speech, slavery and racial inequality served as the “foundations” and “cornerstone” of the new Confederate nation.
Emory M. Thomas, The Confederate Nation: 1861–1865, 10 (1979).
The 1860 election starkly demonstrated that the North’s rapidly growing population gave northern politicians a decisive majoritarian advantage over their southern counterparts.
the North received the lion’s share of population growth in the 1850s.
Id. at 6.
The population of the United States grew from 23.3 million in 1850 to 31.5 million in 1860, a 33 percent increase in just ten years.
Id.
Accordingly, political representation shifted northward. In the 1861 Congress, the 15 slave states’ share of the House membership fell to 83 out of 233 House seats.
Id.
That in turn meant that the central institution of antebellum southern society—human slavery—faced unprecedented resistance at the national level.
Id. at 7.
Slaveholders thus came to the sober realization that the principle of majority rule posed a growing threat to the South’s white supremacist political order.
Id. (“Threats of vetoes and legislative maneuvering by Southern legislators had held back these expansions of national power, but demographics, economic development needs, and antislavery hostility were building pressure to break the dam. Population figures were driving national politics.”).
To separate themselves from a national government they no longer controlled, slaveowners plunged the country into the most devastating war in American history.
The secession movement of 1860–61 resulted from decades of pent-up slaveholder fear and paranoia.
McPherson, supranote 98, at 212–3, 229; Steven A. Channing, Crisis of Fear: Secession in South Carolina 236–7 (1970); William L. Barney, The Road to Secession: A New Perspective on the Old South 168 (1972). The southern defense of secession’s constitutionality dated as far back as South Carolina Senator Robert Hayne’s famous 1830 debate with Massachusetts Senator Daniel Webster. See Timothy S. Huebner, Liberty & Union: The Civil War Era and American Constitutionalism 17 (2016).
By the mid-nineteenth century, global trends in favor of abolition had left southern slaveholders isolated.
In 1833, for example, the United Kingdom banned slavery within the British Empire.
Id.
By 1860, it was abundantly clear that slavery was a dying institution outside the United States.
Id.
With slavery on the retreat internationally, southern slaveowners feared that growing hostility to slavery in the North would result in abolitionist efforts to incite slave revolts in the South.
Such fears seemed to materialize in October 1859 when the northern abolitionist John Brown led an attack on the federal armory at Harper’s Ferry, Virginia.
Although Brown’s effort to spark a slave revolt in the South failed, southern politics after Harper’s Ferry became a tinderbox.
Id. at 212–3.
As the historian Roy Nichols observed, “It was a national calamity that in this frightening time there had to be fought a great electoral contest in which the stakes of power, never before so huge, were to be placed at hazard.”
Roy F. Nichols, The Stakes of Power, 1845–1877, 78 (1961).
Channing, supranote 109, at 236–7; McPherson, supranote 98, at 229; Barney, supranote 109, at 168.
The specter that the federal government itself would take up Brown’s cause inspired nightmarish visions in the South’s slaveholding class.
Channing, supranote 109, at 23; Barney, supranote 109, at 168–9, 238–9.
South Carolina Congressman James Orr spoke for slaveholders across the South when he alleged that the Republican Party would wage “open undisguised war upon our social institutions.”
With the South’s white supremacist social order seemingly under attack, Orr insisted that “secession is the only recourse.”
Id. at 239.
Ironically, slaveholders grossly exaggerated the threat. Although Lincoln opposed slavery’s expansion into the western territories and had repeatedly expressed the hope that slavery would eventually die of its own accord, the president-elect was by no means an abolitionist.
Donald, supranote 92, at 180–81, 187–9, 270; McPherson, supranote 98, at 127–9.
In fact, in the weeks after his election, he even expressed a willingness to strengthen slavery. In an effort to appease southern and border state slaveholders, Lincoln promised to increase enforcement of the Fugitive Slave Act, which required northern states to cooperate in the capture and return of runaway slaves.
Most important of all, the new president emphasized that he would take no action against slavery in the southern and border states.
Id.
As he explained in his inaugural address on March 4, 1861, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”
First Inaugural Address of Abraham Lincoln, Yale Law School Avalon Project, (Mar. 4, 1861), https://avalon.law.yale.edu/19th_century/lincoln1.asp.
But Lincoln’s assurances could not overcome southern conspiracy theories of Republican plots against the South.
McPherson, supranote 98, at 228–9; Barney, supranote 109, at 146 (“No issue so galvanized white fears or engendered such blind hatred of the North as did the rumors of slave uprisings that swept over the South in 1860.”).
The rumors began in Texas in August 1860 with false accusations that northern abolitionists had encouraged slaves to commit arson, rape, and murder.
Barney, supranote 109, at 146–8; McPherson, supranote 98, at 228–9.
The stories spread like wildfire throughout the Deep South in the fall of 1860.
Id.
Slaveholders fanned the flames of fear by claiming that the “Black Republican” party would set off a race war in the South.
George Rable, The Confederate Republic: A Revolution Against Politics 27 (1994); Barney, supranote 109, at 146–7.
Georgia Governor Joseph Brown asserted that Lincoln’s “Black Republican” party would “do all in their power to create in the South a state of things which must ultimately terminate in a war of extermination between the white and black races.”
After Lincoln’s victory, the Richmond Examiner warned that “a party founded on the single sentiment of hatred of African slavery, is now the controlling power” in the country.
The region’s unhinged reaction to Lincoln’s election victory created a toxic political atmosphere in the South. In the view of the powerful slaveholder class, partisan divisions no longer represented good faith differences of opinion.
Instead, slaveholders insisted, the 1.8 million northerners who voted for Republican candidates constituted a mortal and intolerable threat to southern society.
Id.
As one New Orleans editor put it, each vote Lincoln received was “a deliberate, cold-blooded insult and outrage” on the South.
Above all, southern slaveholders understood that Lincoln’s election ushered in a new era in which slaveholders and their northern allies no longer possessed a national majority.
David M. Potter, The Impending Crisis, 1848–1861, 439 (1976) (Lincoln’s election “came to the South as a much greater shock”).
Slaveholders had served as president for 50 of the nation’s first 72 years and no party hostile to slavery had ever secured a congressional majority.
Id. at 445.
But the 1860 election made it unmistakably clear that demographic changes had transformed the national balance of power.
Id. at 445, 475.
In 1800 the populations of North and South stood roughly equal, but by 1860 the population of the North had surged past the South.
Id. at 475 (“But by 1860, northerners outnumbered southerners in a ratio of 6:4 in total population and 7:3 in white population”).
Accordingly, Lincoln was able to win the presidency without receiving a single electoral vote in the South.
Id. at 442.
As Republican Congressman Charles Francis Adams of Massachusetts put it, Lincoln’s election meant that “[t]he country has once and for all thrown off the domination of the Slaveholders.”
The crucial point is that pro-secession southerners did not live under an illusion that their side had actually won the 1860 election. Quite the reverse. The secessionists viewed the election as conclusive proof that northern popular sentiment had irrevocably turned against southern slaveholders.
Michael Holt, The Election of 1860: “a Campaign Fraught with Consequences” 184 (2017) (“Republicans had minuscule support within the South itself and less than two-fifths of the nationwide vote. But they had won a majority of the North’s vote, and that majority, as secessionists saw it, was permanent. They agreed with those Republicans who boasted that a proslavery Democratic Party could never again win control of the national government”).
As the historian David Potter explained, Lincoln’s victory and the rise of the Republican Party made white southern slaveholders “acutely conscious of their minority status.”
Most crucial of all, the 1860 election thus brought home to southern slaveholders that they were a “permanent and dwindling minority” in the rapidly growing United States.
Id. at 476.
The population of the North had so surpassed that of the South that a candidate could win the presidency with no support in the South.
Holt, supranote 140, at 184–5 (“For secession’s proponents, control of the executive branch by an almost exclusively northern and overtly anti-southern party alone assured a humiliating southern enslavement to northern tyranny that no honorable southern white man could possibly abide.”); Potter, supranote 134, at 475–8.
Thus, as the historian Michael Holt explains, southern slaveholders concluded that “a proslavery Democratic Party could never again win control of the national government.”
Accordingly, Confederates did not leave the Union because they objected to the manner in which the 1860 election was conducted. Instead, southern secession constituted a direct attack on the principle of majority rule itself. White southerners knew they had been outvoted by white northerners in 1860. But rather than accept defeat, the key institution of power in the southern states—the slaveholder class—concluded that their interests would be better served by democratic breakdown and a catastrophic civil war. One of the grim lessons of the Civil War, therefore, is that reforming election rules will not necessarily protect the United States from democratic breakdown. After an election defeat, a disgruntled minority may choose war and chaos even if there is no doubt that the minority lost fairly and squarely at the ballot box.
The Legal and Quasi-Democratic Mechanisms of Southern Secession
Election rules nevertheless remain critically important. As the Civil War demonstrated, a disgruntled losing party may craft favorable election laws to provoke a democratic breakdown. In the weeks after the 1860 presidential election, southern state legislatures held secession conventions to determine whether to leave the Union. Although the convention delegates were selected by popular vote, the election rules adopted by southern states gave secessionists a decisive advantage.
Southern secession was not inevitable. Slaveholders constituted a shrinking minority not only in the United States but also in the South.
Bruce Levine, Half Slave and Half Free: The Roots of Civil War 37 (2005); Emory M. Thomas, The Confederate Nation 6 (1979) (“In 1860 only about 2,300 people owned as many as one hundred slaves and extensive acreage.”).
In 1830, for example, 36 percent of white southerners owned slaves.
Bruce C. Levine, Half Slave and Half Free 37 (2005).
By 1860 only 26 percent of white southerners owned slaves.
Id. at 37.
As the slaveholding population of the South declined, the region’s growing inequalities of wealth became starkly apparent.
Id. at 37.
On average, slaveholding families had 14 times the net wealth of non-slaveholding white families in the South.
Id. at 37.
Non-slaveholding small farmers and impoverished whites constituted a majority in every southern state.
Stephanie McCurry, Confederate Reckoning: Power and Politics in the Civil War South 41 (2010) (“Even in South Carolina it had to be sold to yeoman and poor white voters who were, after all, the majority of the electorate.”).
If secession was fundamentally about protecting slavery—as the leading Confederates themselves acknowledged—only a minority of white southerners stood to benefit financially from the creation of a Confederate republic.
With a growing sense of alarm, slaveholders recognized that their political influence in the South would diminish the longer their states remained in the Union. The growing class divide between slaveholders and the rest of southern society made slaveholders increasingly anxious about their future. While publicly hailing white solidarity, secessionists privately distrusted non-slaveholding white southerners.
In South Carolina, the slaveholding class even opposed universal white male suffrage, viewing it as a form of mobocracy.
Id. at 42.
Secession brought into acute focus the increasingly divergent interests of slaveholders and non-slaveholders. As South Carolina legislator A.P. Aldrich admitted, the “common people” did not understand secession and would not embrace it on their own without intense prodding by slaveholders.
Even before the 1860 election, a pervasive fear took hold among slaveholders that Republicans could exploit the South’s social and class divisions to undermine slavery. Georgia Governor Joseph Brown, for example, warned his fellow secessionists that Lincoln’s “Black Republican” government would eventually garner support from the South’s non-slaveholding majority.
Brown was not alone in predicting the rise of a southern branch of the Republican Party. Although slaveholder violence and intimidation prevented Republicans from campaigning in ten of the eleven southern states in 1860,
Accordingly, slaveholders employed violence as a political tool to intimidate fellow whites who questioned slavery. White mobs in North Carolina and Virginia, for example, attacked Irish canal workers suspected of encouraging slaves to rebel.
The South Carolina secessionist leader Robert Barnwell Rhett urged his fellow secessionists to leave no “time for re-action on the part of the people.”
Waiting, he warned, would create “increasing risks of internal domestic discontent” in South Carolina.
Id. at 249.
Likewise, Georgia secessionist leader Thomas Cobb stressed that if the legislature did not act quickly to leave the Union the “discordant voice” of the state’s “divided people” would stop in its tracks the momentum for secession.
McCurry, supranote 151, at 56; William B. McCash, Thomas Cobb and the Codification of Georgia Law, 62 Ga. Hist. Q. 9 (1978). Likewise, Georgia secessionist leader Howell Cobb—the outgoing Treasury Secretary—observed that the secessionists “were afraid that the blood of the people will cool down.” Channing, supranote 109, at 248.
Time was thus of the essence. As A.P. Aldrich explained, slaveholders would “make the move [for secession] and force them [the common people] to follow.”
Georgia secessionists, fearful that a popular majority of white men in the state opposed secession, urged the legislature to vote immediately to secede without waiting for popular consent.
Above all, the slaveholders feared that if they put the issue of immediate secession to a popular referendum, the non-slaveholding majorities in their states might vote against it.
Id. at 2, 41 (“Like their counterparts everywhere, fireeaters worried about what might happen when the people and especially the nonslaveholders were allowed to vote.”), 42 (“Worry about nonslaveholders’ loyalty to the planters’ regime was a steady theme in South Carolina politics since at least the 1830s”); David M. Potter, Lincoln and his Party in the Secession Crisis 208 (1942).
To achieve their goal of destroying the Union, therefore, slaveholders and their allies dictated special rules for the secession votes in their states.
McCurry, supranote 151, at 39, 41 (explaining that slaveholders “schemed” to “delimit the popular vote”); Potter, supranote 166, at 209.
After Lincoln’s election, state legislatures across the Deep South delegated the issue of secession to state conventions, the delegates of which would be elected by popular vote.
William J. Cooper, Jr., & Tom Terrill, The American South 340 (1990); McCurry, supranote 151, at 39, 41; Potter, supranote 166, at 209.
In only one state—Texas—was the decision to secede put before a popular referendum.
Cooper, Jr. & Terrill, supranote 168, at 340; Potter, supranote 166, at 209.
And even then, the Texas referendum occurred only after the state’s convention had already voted in favor of secession.
The use of conventions played a key role in enabling slaveholders in the Deep South to rush their states into secession.
Mario L. Chacon and Jeffrey L. Jensen, The Political and Economic Geography of Southern Secession, 80 J. Econ. hist. 386, 389 (2020) (“The decision to use conventions—and avoid statewide referendums—allowed secessionists to bypass this perceived opposition.”); Cooper, Jr. & Terrill, supranote 168, at 340 (“Ultimately the decision for secession was massively influenced by the tactics of the fire-eaters”).
To that end, southern state legislatures placed their secession conventions on an extraordinarily accelerated schedule. Lincoln was elected president on November 6, 1860.
Andrew Glass, Lincoln elected president, Nov. 6, 1860, Politico (Nov. 6, 2017), https://www.politico.com/story/2017/11/06/lincoln-elected-president-nov-6-1860-244576.
Four days later South Carolina’s legislature voted to hold an election of convention delegates in the first week of December.
Georgia, Florida, Mississippi, Texas, and Louisiana followed in rapid succession.
Potter, supranote 166, at 46. Alabama’s legislature had preemptively authorized its governor to call a secession convention before the presidential election was even held. See id.
By mid-December, seven southern states had committed themselves to secession conventions.
Id.
The speed with which the legislatures acted reflected the fact that leading slaveholders had begun plotting secession months before Lincoln’s victory. For example, in the weeks prior to the 1860 presidential election, the governors of South Carolina, Mississippi, Florida, Alabama, and Georgia secretly agreed to lead secession movements in their states.
McCurry, supranote 151, at 51 (“Operating without any mandate from ‘the people,’ Democratic governors thus colluded on secession to make it happen.”).
The governors had thus predetermined the outcome of their secession conventions before the voters in their states had a chance to express their views on the subject.
Id.
Louisiana’s governor even went so far as to order state troops to seize federal military garrisons in the state weeks before Louisiana’s secession convention.
Id. at 55.
The Deep South legislatures left voters with little time to hear arguments for and against secession. South Carolina elected convention delegates on December 6; Florida on December 18; Mississippi on December 20; Alabama on December 24; Georgia on January 2; Louisiana on January 7; and Texas on January 8.
The conventions themselves took place shortly thereafter. South Carolina held its secession convention on December 17; Florida on January 3; Mississippi and Alabama on January 7; Georgia on January 16; Louisiana on January 23; and Texas on January 28.
Id.
Thus, the most momentous decision any group of American voters has ever faced was made on a remarkably short timeframe.
The speed with which the states held delegate elections gave the secessionists a critical advantage. Opponents of secession—often described collectively as “cooperationists”
Cooper, Jr. & Terrill, supranote 168, at 340; Emory M. Thomas, The Confederate Nation 41–2 (1979).
—did not have time to galvanize around a coherent set of policy alternatives.
McPherson, supranote 98, at 237 (noting that secession’s opponents “did not fully agree among themselves”); Thomas, supranote 181, at 42.
Some advocated cooperating with other slaveholding states in taking a wait-and-see attitude.
Cooper, Jr. & Terrill, supranote 168, at 340–1; McCurry, supranote 151, at 20, 54–5; McPherson, supranote 98, at 237; Thomas, supranote 181, at 41–2.
Others supported remaining in the Union unconditionally.
William W. Freehling, The South vs. the South: How Anti-Confederate Southerners Shaped the Course of the Civil War (2001); Thomas, supranote 181, at 42 (“[S]till others assumed a cooperationist stance to conceal from themselves and/or others unionist sympathies in hopes that ‘cooperation’ would slow, then stall the secession bandwagon”).
Not surprisingly, opposition to secession ran strongest in southern counties with few or no slaveholders.
McPherson, supranote 98, at 242; Daniel W. Crofts, Reluctant Confederates: Upper South Unionists in the Secession Crisis xvi (1989) (“High-slaveowning areas across the South generally displayed more support for secession, and slaveowning was more concentrated in the lower than the upper South”); Cooper, Jr. & Terrill, supranote 168, at 340 (“People who questioned the wisdom of a pell-mell rush to immediate secession . . . lived chiefly in areas and counties with few slaves”).
But none of the opposition groups could match the organizational efficiency of the secessionists.
McCurry, supranote 151, at 48; Cooper, Jr. & Terrill, supranote 168, at 341 (“The most striking characteristic of the cooperationists in the crisis was confusion. They could not decide whether to campaign and could not agree on a political goal to articulate if they did.”).
The secessionists had a clear policy objective: immediate secession from the Union.
And the driving force behind secession—the slaveholder class—worked with relentless intensity to establish an independent slaveholding oligarchy in the South.
Channing, supranote 109, at 261 (explaining how South Carolina’s secessionists “were unrelenting in their efforts to establish an irresistible motion towards disunion”).
Recognizing that racism and fear were their most effective weapons of persuasion, secessionists stoked a crisis atmosphere throughout the region.
Id. at 251, 261–5.
A war to defend wealthy white southerners’ financial investment in slavery would not motivate the rest of the South to wage war, especially when the heaviest burden of fighting and dying would be borne by non-slaveholders.
McCurry, supranote 151, at 41 (“But to unite the planter class behind secession as a means to perpetuate slavery was not enough. Even in South Carolina it had to be sold to yeoman and poor white voters who were, after all, the majority of the electorate. . . . In South Carolina as elsewhere, one of the main tasks facing Southern nationalists was to manage the challenge issuing from nonslaveholding voters.”).
As North Carolina secessionists C.B. Harrison noted, the fact that non-slaveholding whites constituted a majority of the South’s population meant that “secession in favor of slavery alone won’t do.”
Id. at 43.
Accordingly, to win the support of non-slaveholding whites, secessionists relentlessly employed images of interracial murder and rape as a scare tactic.
Id. at 28–9 (“In all of the speeches and appeals, the truly inflammatory pair presented was white women and black men. The threat of violence Black Republicans posed was . . . by black and usually slave men incited to rape and pillage. The racial and gender threats were invariably a linked pair. And they were linked in pursuit of the nonslaveholders’ vote.”).
The secessionists claimed that the “Black Republicans” would not only abolish slavery and create social equality for African Americans but would also incite freed slaves to kill white men and rape white women across the region.
Id. at 28 (“politicians and propagandists pointedly insisted that political action was necessary to protect white women from imminent rape at the hands of Black Republicans and their (male) slave allies.”).
In South Carolina, for example, secessionist propaganda claimed that Lincoln’s presidency meant that “pillage, violence, murder, poison, and rape will fill the air” in the South as freed slaves, “urged to madness by the licentious teachings of our northern brethren,” would indiscriminately take their revenge on whites.
Id. at 29.
In tandem with their racist fear-mongering, secessionists recruited non-slaveholding whites to serve in paramilitary “freemen” organizations.
Id. at 46–7.
The ostensible purpose of such units was to protect the region against Republicans, abolitionists, and rebellious slaves.
Id. at 46–7.
But the real purpose was to suppress class divisions among white southern men by emphasizing racial solidarity and militant masculinity.
Id. at 47.
The tactic proved extremely effective.
Id. at 47.
In South Carolina, for example, militia units known as “Minute Men” helped slaveholders recruit non-slaveholding white men to the secessionist cause.
Id. at 48.
Wearing blue cockades, pro-secession paramilitary forces created a “climate of terror” in the days leading up to the 1860 delegate election in South Carolina.
Id. at 49 (“South Carolina voters went to the polls in a climate of political terror, surrounded by armed companies of men and hordes of citizens all wearing the blue cockade”).
By militarizing their campaign in favor of the state’s secession, slaveholders and their allies discouraged secession’s critics from fielding convention candidates.
Id. at 50.
The intimidation campaign worked. In the end, only candidates who favored secession appeared on the ballot in a majority of delegate races in South Carolina.
Id. at 51.
Opposition to secession was thus effectively silenced as a political option, leaving “no way for ordinary voters to register dissent.”
Id.
The rushed timing and crisis-like atmosphere of South Carolina’s secession convention was not its only extraordinary feature. The districting of delegate elections proved critical to the slaveholders’ success as well. In electing delegates to the secession conventions, the southern states used district lines heavily gerrymandered in favor of secessionist candidates.
Chacon & Jensen, The Political and Economic Geography of Southern Succession, 80 J. Econ. Hist., 388 (2020) (“Given the economic geography of slavery, a large share of counties had either a high or low share of slaves in the population, and thus tended to be non-competitive with large majorities either in favor or opposed to secession. This lack of local competitiveness was associated with a low number of effective votes, a high proportion of wasted votes, as well as low turnout, particularly in high slave-share counties that overwhelmingly supported secessionist candidates. As a result, the use of conventions reduced the share of the electorate whose support was necessary to achieve secession. In the Lower South states for which we have complete returns, we find that the effective number of votes from the counties electing secessionist candidates—which comprised more than 50 percent of the delegates to each convention—represented only 9 percent of the electorate of these states”).
South Carolina was the preeminent example. South Carolina apportioned its secession conventions on the same basis as it apportioned the state legislature. The use of state legislative district lines virtually guaranteed that secession would be approved by the state convention. To reduce the influence of non-slaveholding white voters, South Carolina included slaves in determining district population for purposes of state legislative apportionment.
Consequently, South Carolina’s low country districts which had the largest slave populations wielded disproportionately large influence in the state legislature.
Id.
South Carolina Senator James Henry Hammond, a fierce defender of slavery, freely admitted that the state’s apportionment “system of rotten boroughs and aristocratic incubi” made the state a bastion of pro-slavery conservatism.
Id.
By basing its convention delegate apportionment on the same system, the South Carolina legislature guaranteed an outcome favorable to secession.
The combination of intimidation and pro-secessionist district lines gave secessionists a resounding victory in South Carolina. On December 20, 1860, the state’s secession convention voted 117 to 0 to secede from the Union.
South Carolina was crucial. As the first state to crash out of the Union, South Carolina created crucial momentum for the secessionist cause in other states.
William W. Freehling, The Road to Disunion: Secessionists Triumphant, 1854–1861, 490 (2007) (“Lower South secession resembled a snowball rolling downhill. From east to west, one state and then another and another and another and another and another added to the irresistible momentum.”).
South Carolina’s slaveholder class understood that “the secessionist act of one state might influence the decision and force the hand of neighbor states.”
They were exactly right. The dynamics that secured secessionist victory in South Carolina in December 1860 played out in nearly identical fashion in six other Deep South states in January 1861. As in South Carolina, secessionists won lopsided victories in four states: Florida (with a convention vote of 62 to 7); Louisiana (113 to 17); Mississippi (84 to 15); and Texas (166 to 8).
McCurry, supranote 151, at 55; Thomas, supranote 181, at 48, 52, 55, 56.
However, in two Deep South states, secessionists only barely prevailed. In Georgia, the convention voted 166 to 130 in favor of secession.
McCurry, supranote 151, at 58. A motion to delay secession failed by a similar margin (164 against delay and 133 in favor of delay). See Thomas, supranote 181, at 54.
Later, a revote was taken to promote an image of unity. On the final vote 208 delegates supported secession, but 89 still voted against it.
Most striking of all, secessionists incurred resounding defeats in the Upper South and border states.
Potter, supranote 134, at 505; Daniel W. Crofts, Reluctant Confederates xvii (1993) (“But in the upper South—unlike the lower South—the first wave did not dislodge any state from the Union. Instead, the push for secession created an explicitly antisecession countermobilization”).
When Virginians went to the polls to elect their convention delegates on February 4, candidates supporting immediate secession only won 32 out of 152 seats.
Adding insult to injury for the slaveholder cause, the state’s electorate voted by a 2-1 margin to require the legislature to submit the issue of secession to a statewide popular vote.
North Carolina voters also rejected the call for a secession convention.
Potter, supranote 134, at 509; Crofts, supranote 217, at 149; Barton A. Myers, Rebels Against the Confederacy: North Carolina’s Unionists 38 (2014)(“[T]he February 1861 convention vote was a close race statewide with 47,338 opposed and 46,671 in favor of the convention. Interpreting these numbers is more complicated than it might seem on the surface, however, since some conditional and unconditional Unionists voted for a convention in the hopes that the Unionist delegates they nominated would help turn back a secessionist effort.”).
Even if the convention proposals had carried the day in Tennessee and North Carolina, the voters in those states had provisionally elected a super majority of delegates opposed to secession.
Potter, supranote 134, at 509; Crofts, supranote 217, at 149–52.
Arkansas completed the Upper South’s rejection of immediate secession. Although Arkansas voters approved a secession convention on February 18, Unionists won a majority of delegate elections.
Voters in the slaveholding border states rejected secession by even more decisive margins. In Missouri, Unionists won virtually every delegate to the state’s secession convention.
Id.
The state legislatures in Kentucky and Delaware voted against even holding secession conventions in the first place.
Id. at 510.
And in Maryland, the governor refused to call the state legislature into session, thus effectively stopping the state’s secession movement in its tracks.
Id.
Even in the Deep South, opposition to secession ran much deeper than the convention votes suggested. For example, in its January delegate elections, a majority of Georgia voters supported candidates opposed to immediate secession.
McCurry, supranote 151, at 58–9 (“Governor Brown claimed that at the convention election delegates pledged to immediate secession had taken a comfortable 57 percent lead at the polls. . . . But it turns out that Brown cooked the numbers. One careful recount now accepted as definitive confirms that Brown counted in the secession camp men who had been elected on cooperationist tickets. . . . [T]he most accurate estimate indicates that cooperationists had won just over 50 percent of the votes. The votes cast on January 2 suggest that the people had rejected the secessionist solution by a tiny majority. In Georgia, there was no mandate for secession.”). Michael P. Johnson, A New Look at the Popular Vote for Delegates to the Georgia Secession Convention, 56 Ga. Hist. Q. 259 (1972).
But at the state convention, secessionists mustered a majority of delegates.
The reason was because slaveholders exercised influence at the secession conventions that far surpassed slaveholder numbers. Indeed, a recent study by Mario L. Chacon and Jeffrey L. Jensen found that 9% of the electorate in the Deep South controlled over 50% of the delegates elected to the secession conventions.
Moreover, counties with the largest concentrations of slaveholders “were systematically over-represented” in the conventions.
Id.
Consequently, according to Chacon and Jensen, the use of conventions in lieu of a popular referendum “significantly lowered the share of the electorate whose support was necessary to achieve secession.”
Id. at 412.
In the end, the success of secessionists in the seven Deep South states doomed secession’s opponents in the four Upper South states. As the Richmond Examiner predicted, an “actual conflict of arms” between the Confederates and the federal government would force the reluctant Upper South to “take sides as one with their Southern brethren.”
That fateful day arrived on April 12, 1861, when Confederate artillery opened fired on the federal garrison at Fort Sumter in Charleston, South Carolina.
In response, President Lincoln announced that he would use force to retake the federal garrisons in the South.
Id. at 274.
The eruption of violence polarized the country along regional lines. The Staunton Vindicator reflected the views of many Virginians when it declared, “We must either identify ourselves with the North or the South.”
Id. at 277.
Slavery proved an irresistible bond for southern states. As North Carolina secessionists explained: “The division must be made on the line of slavery. The South must go with the South.”
Id.
Consequently, a second wave of state conventions in April and May 1861 resulted in secessionist victories in Virginia, North Carolina, Tennessee, and Arkansas.
Id. at 279–84.
Did a majority of white southerners support secession in the winter of 1860–61?
See Marc Egnal, Rethinking the Secession of the Lower South: The Clash of Two Groups, 50 Civi. War Hist. 261 (2004) (“At least 40 percent of voters, and in some cases half, opposed immediate secession in Georgia, Alabama, Mississippi, Louisiana, and Florida. In Texas more than 20 percent of the electorate rejected disunion, and even South Carolina had important pockets of resistance.”); Ralph A. Wooster, The Secession of the Lower South: An Examination of Changing Interpretations, 7 Civi. War Hist. 117, 126–7 (1961)(“Thus the aforementioned contentions that a minority group carried secession seem open to question. That there was opposition to immediate separation both within and without the conventions is true; that this opposition was equal to the secessionist strength is not. . . . Rightly or wrongly, the majority of people in the lower South were convinced that their hopes lay not within but without the Union.”); and William J. Donnelly, Conspiracy or Popular Movement: The Historiography of Southern Support for Secession, 42 N.C. Hist. Rev. 70, 84 (1965)(“Many historians yet feel required to pronounce on secession and the popular will, a supposed article of democratic faith. . . . But unaided by some criteria for sampling the whole of public opinion—such as opinion polls—historians should leave ‘the people’ out of their arguments.”).
Historians have long disagreed over the answer to that question. Some, such as James McPherson, have argued that white southerners disagreed “mainly over tactics and timing, not goals.”
See McPherson, supranote 98, at 235 (“Except in Texas, the conventions did not submit their ordinances to the voters for ratification. This led to charges that a disunion conspiracy acted against the will of the people. But in fact the main reason for non-submission was a desire to avoid delay. The voters had just elected delegates who had made their positions clear in public statements; another election seemed superfluous. The Constitution of 1787 had been ratified by state conventions, not by popular vote; withdrawal of that ratification by similar conventions satisfied a wish for legality and symmetry.”), 235–6 (“Divisions in the lower South occurred mainly over tactics and timing, not goals. A majority favored the domino tactics of individual state secession followed by a convention of independent states to form a new confederacy. But a significant minority, especially in Alabama, Georgia, and Louisiana, desired some sort of cooperative action preceding secession to ensure unity among at least the cotton South states.”).
Conversely, historians such as Stephen Kantrowitz have argued that secession amounted to a “coup d’etat against antisecession majorities.”
Stephen Kantrowitz, Ben Tillman and the Reconstruction of White Supremacy 34 (2000) (“Throughout the South, white-belt unionists demanded that secession follow democratic principles, and secessionist elites resorted to preemptive and often violent coercion. In many areas, secession amounted to a coup d’etat against antisecession majorities.”). See also David M. Potter, Lincoln and his Party in the Secession Crisis 208 (1942) (“At no time in the winter of 1860–61 was secession desired by a majority of the people of the slave states.”).
Similarly, William Freehling asserted that “[o]utnumbered secessionists impelled most of the South toward Armageddon by pressing the leverage of one state’s disunion on the next state’s decision.”
Still others, such as Stephanie McCurry, have argued that secession “was neither a popular democratic movement nor the accomplishment of a small slaveholding political elite.” Instead, McCurry contends, it was “a hybrid thing, evincing at once the character of an administrative coup and of an open-fisted democratic brawl.”
In any case, slaveholders’ manipulation of election rules clearly played a significant role in the outcome. As the historian Emory Thomas observed, “[s]ecession was a radical act, and the process of disunion was the product of radical men and tactics.”
Likewise, the historian David Potter concluded that the secessionists prevailed “because of the extreme skill with which they utilized an emergency psychology, the promptness with which they invoked unilateral action by individual states, and the firmness with which they refused to submit the question of secession to popular referenda.”
In the view of the secessionists, the safest course was to control the election rules to ensure the result they wanted.
But even after leaving the Union, slaveholders feared that the non-slaveholding majority might turn against secession. As the historian William Barney has observed, “Publicly, the secessionists reasoned that the people had already spoken in the election of [pro-secession] delegates, but privately many admitted that the masses could not be trusted.”
Almost immediately after approving secession and joining the Confederacy, southern legislatures took steps to suppress dissent. Georgia, for example, enacted a law that made opposition to secession a capital offense.
The North, however, took the opposite approach. Throughout the war, northern political leaders, newspaper editors, and ordinary people conducted a vigorous and passionate debate over the wisdom of Lincoln’s decision to use force against the secessionists. In the most momentous campaign in American history—the 1864 federal and state elections—northern voters expressed their verdict in unmistakably clear and decisive fashion.
Democracy Revitalized
The American Civil War is a story of democratic breakdown, racist demagoguery, and internecine violence on a massive scale. But it is also a story of democratic resilience, vitality, and renewal. By the time the war ended in the spring of 1865, the Confederates had utterly failed to establish an independent slaveholding oligarchy in North America. Instead, American democracy emerged from the Civil War stronger than ever before.
One of the most remarkable features of the Civil War was the North’s willingness to sustain staggering casualties to save the Union. Over 360,000 Union soldiers died in the Civil War, which is the demographic equivalent of 3.6 million American troops dying in battle today.
At least 260,000 Confederate soldiers died in the war, raising the total Civil War fatalities to 620,000. See Drew G. Faust, this Republic of Suffering xi (2008) (“The Civil War’s rate of death, its incidence in comparison with the size of the American population, was six times that of World War II. A similar rate, about 2 percent, in the United States today would mean six million fatalities.”).
Why was the North so willing to sacrifice to keep the South in the Union? One might argue that moral revulsion against southern slavery and racial inequality inspired the northern war effort. After all, the war’s greatest accomplishment was the destruction of slavery. Lincoln’s 1862 Emancipation Proclamation declared free all slaves behind Confederate lines, effective January 1, 1863.
But slavery’s destruction was a byproduct of the North’s war aims, not a motivating factor in and of itself. By any measure, the North was far from a racially enlightened region.
Id. at 506–7.
For example, Abraham Lincoln’s home state of Illinois barred African Americans from even living in the state.
Id. at 507.
In a popular referendum, the state’s voters reaffirmed that ban in 1862, the same year as the Emancipation Proclamation.
Id.
As Lincoln was keenly aware, therefore, the destruction of slavery on moral grounds alone would not have received sufficient support in the North to sustain the war effort.
Id. at 506 (“The emergence of slavery as the most salient war issue in 1862 threatened to turn a large element of the Democrats into an antiwar party. This was no small matter. The Democrats had received 44 percent of the popular votes in the free states in 1860. If the votes of the border states are added, Lincoln was a minority president of the United States.”).
Indeed, Republicans lost badly in the 1862 election, which most historians have concluded was a result of a northern backlash against the Emancipation Proclamation.
Id. at 561.
The fact was few northerners supported racial equality.
Paludan, supranote 90, at 240 (“Adding to the complexity was the problem that increasing rights for blacks alienated growing numbers of whites”).
White supremacy was deeply entrenched in the North.
Id. at 221 (“Most white people disliked blacks as a group”).
But northerners came to view Black soldiers, many of whom were runaway slaves, as invaluable to the Union cause.
Id. at 227 (“Blacks were proving to be good soldiers and were helping to win the war.”).
Thus, when a majority of northerners eventually embraced Lincoln’s emancipation policies, they did so because they viewed it as a military necessity for defeating the Confederacy.
If abolition was insufficient motivation, why then did the North wage war for four devastating years despite hundreds of thousands of northern casualties? The answer is because northerners viewed the war as a battle for the survival of democracy itself.
James M. McPherson, Drawn with the Sword 209–10 (1996) (“If the Confederate rebellion succeeded in its effort to sever the United States in twain, popular government would be swept into the dustbin of history.”).
If the Confederate states were allowed to reject the 1860 election results with impunity, it would have set a precedent that threatened political stability throughout the country.
Id. at 210 (“The next time a disaffected minority lost a presidential election, as Southern Rights Democrats had in 1860, that minority might invoke the Confederate precedent to proclaim secession. United States would be an oxymoron.”)(emphasis in original).
No democratically held election would ever have been binding if losers could simply break free and form their own government. Political and geographical divisions within northern states reinforced the North’s commitment to enforcing the 1860 election results. Like the southern states, many northern states spanned geographically diverse regions and large land areas. Ohio, for example, stretched from the Appalachian Mountains to Lake Erie and covered nearly 45,000 square miles. New York stretched from the Atlantic Ocean to Canada and spanned more than 54,000 square miles. If secession came to be viewed as a legitimate response to defeat at the ballot box, it was conceivable that even northern states might eventually break apart as well.
Accordingly, from his first day in office, Lincoln defined the Civil War as a test of whether the democratic form of government was viable. As the historian James McPherson has observed, “[t]he central vision that guided him [Lincoln] was preservation of the United States as a republic governed by popular suffrage, majority rule, and the Constitution.”
Id. at 209.
In Lincoln’s First Inaugural Address on March 4, 1861, Lincoln described secession as “the essence of anarchy.”
First Inaugural Address of Abraham Lincoln, Yale Law School Avalon Project, (Mar. 4, 1861), https://avalon.law.yale.edu/19th_century/lincoln1.asp.
He insisted that government by majority rule “is the only true sovereign of a free people.”
Id.
As long as the majority exercised its power within “constitutional checks and limitations,” the minority was obligated to accept election results.
Id.
But if disgruntled losers refused to honor the “majority principle,” they would inevitably plunge the country into “anarchy or despotism.”
Id.
A majority of northerners agreed with Lincoln.
McPherson, supranote 258, at 211 (“Most Northern people in 1861 shared Lincoln’s conviction that the fate of democratic government hung on the outcome of the Civil War. That passion sustained them through four years of the bloodiest war in the Western world between 1815 and 1914.”).
They saw secession as a direct assault on self-government and the binding nature of democratic elections.
Paludan, supranote 90, at 5–6 (“[S]ecession threatened the orderly operations of self-government. . . . The most promising experiment in self-government in the world would have failed.”).
Turnout in the 1860 election exceeded 80 percent, one of the highest turnouts in the nation’s history.
Id. at 13.
Although the people had spoken decisively in favor of Lincoln and the Republicans, the secessionists sought to overturn the 1860 election results by force. As the historian Philip Paludan has explained, the central idea of secession was that “votes peacefully registered could be trumped by men carrying guns who would not wait until the next election to have their way. They would demand it now, take it by force if necessary.”
Id. at 6.
Time and again Lincoln warned that secession meant anarchy and a spiraling cycle of political collapse.
McPherson, supranote 258, at 211; Paludan, supranote 90, at 54.
In an 1861 speech, the president explained: “We must settle this question now whether in a free government the minority have the right to break up the government whenever they choose. If we fail it will go far to prove the incapability of the people to govern themselves.”
The Confederacy quickly became a case in point. Early in the conflict, individual southern states began to fragment internally. Every Confederate state faced the intractable problem that many non-slaveholders, especially in the South’s mountainous regions, would never reconcile themselves to living in a Confederacy dominated by slaveholders.
Timothy S. Huebner, Liberty & Union 270 (2016) (“From the beginning, the border states and Upper South states possessed stronger ties to the North and demonstrated less enthusiasm for secession than did the Deep South. . . . But even after the secession of the Upper South, pro-Union sentiment continued to thrive in the mountainous areas of these states, where slavery hardly existed.”).
As the historian Timothy Huebner has explained, “Nearly all-white, nonslaveholding areas proved to be the least committed to the Confederate experiment, and both before and during the war, planter elites in the seceded states held onto lingering fears that nonslaveholders would upend elites’ political power and eventually fall under the spell of abolitionism.”
Id. at 270.
For example, strongly pro-Union East Tennessee mounted an insurgency to break free of the Confederacy, a goal achieved in 1863 with the victorious arrival of Union armies.
Id. at 271, 310.
Arkansas became the scene of civil war within a civil war as pro-Union guerillas battled pro-Confederate guerillas in the Ozark Mountains.
Id. at 310.
The mountains of Western North Carolina served as a haven for Confederate army deserters.
But the most successful example of anti-Confederate breakaway efforts was West Virginia, which “carried the logic of secession to the next step of seceding from seceders.”
Two years later the United States Congress admitted West Virginia into the Union as the nation’s 35th state.
Id. See Vasan Kesavan & Michael S. Paulsen, Is West Virginia Unconstitutional?, 90 Cal. L. Rev. 291, 397 (2002) (“The truly amazing thing is how little legal breakage there was in the American Civil War, how much constitutional propriety remained in the forefront, and how much that constitutional propriety was measured in formal, literal terms. We got through the Civil War precisely because Lincoln anchored his theory of the war in the Constitution. Similarly, West Virginia is legitimately a State of the Union because the loyalists followed the letter of the constitutional law.”).
The Confederacy responded by waging a brutal campaign of repression in Unionist regions across the South.
Northerners, in contrast, resolved their disputes at the ballot box. Throughout the four-year-long war, the northern and border states conducted free, fair, and competently administered federal and state elections. Democrats hotly contested the elections, condemning Lincoln’s war policies in bitter and inflammatory language.
It went forward as scheduled. Amid a calamitous civil war, the Lincoln Administration steadfastly adhered to fundamental principles of democracy, subjecting itself to democratic accountability and honoring the principle of majority rule.
The Confederates themselves understood that the North conducted free and fair elections. Throughout the war, a central goal of Confederate military strategy was to assist Democrats in defeating Lincoln and the Republicans at the ballot box. Confederate General Robert E. Lee invaded Maryland in 1862 for the express purpose of undermining Republicans in the 1862 elections.
In 1864, as huge Union armies approached Richmond and Atlanta, the outnumbered Confederate armies desperately tried to win last-ditch victories before the November presidential election.
Id. at 743.
As the tide of battle turned irreversibly against them, Confederates placed their hopes on the pro-slavery 1864 Democratic nominee, George McClellan, a Union general Lincoln had fired two years before.
Id. at 771, 855.
As a Georgia newspaper frankly admitted, the Confederacy’s only chance for survival depended on northern Democrats defeating “the tyrant” Lincoln at the ballot box in 1864.
Id. at 721.
Likewise, a Confederate War Department official observed that the South’s war policy was geared toward “giving an opportunity for the Democrats to elect a President.”
Id.
Yet, even as Confederate armies sought to influence northern elections, the Confederate leadership suppressed partisan politics in southern elections, convinced that “the absence of public agitation or even electoral competition would be a sure sign of political health.”
Confederate President Jefferson Davis went further still, insisting that patriotism and racial solidarity required white southerners to place Confederate unity above partisan interests.
Id. at 154.
Accordingly, Davis and Stephens won election without opposition in 1861, as did most members of the Confederate Congress.
James M. McPherson, Embattled Rebel: Jefferson Davis as Commander in Chief 64 (2014).
But the lack of party organizations and competitive elections did not prevent profound divisions from emerging within the Confederate leadership class.
Without parties, southern politics turned on personality conflicts.
William J. Cooper, Jr., & Tom Terrill, The American South 377 (1990).
Davis in particular became a lightning rod for critics of Confederate war policies.
Id. at 377–8.
With no party loyalists to defend him, and with no organized identifiable opposition to run against, Davis became increasingly isolated. As early as 1862, southern newspapers asserted that Davis had “lost the confidence of the country.”
With Union armies conquering huge swaths of the South and Confederate battlefield defeats mounting, Davis incurred withering public criticism from newspapers, politicians, Confederate generals, and even his own vice president.
McPherson, supranote 98, at 692–8; Cooper, Jr., and Terrill, The American South 377–78; McPherson, supranote 293, at 205, 225; Rable, supranote 128, at 166–7.
Vice President Stephens became one of Davis’s fiercest critics, scornfully describing the Confederate president as “my poor old blind and deaf dog.”
Class divides also widened in the South under the strain of war, as growing numbers of nonslaveholders viewed secession as a “rich man’s war and a poor man’s fight.”
Rable, supranote 128, at 244; McPherson, supranote 98, at 855.
As northern armies drove deeper into the South, heated arguments among southern politicians rendered the Confederate Congress “little more than a shouting hall.”
In sharp contrast, partisan politics aided the Lincoln Administration. The partisan divisions between Republicans and Democrats empowered Lincoln to enforce party discipline.
Time and again, when Lincoln needed support in Congress, Republicans closed ranks behind him.
Id.
Lincoln also used party patronage to reward his supporters and punish his opponents.
Id.
Most important of all, when northern voters went to the polls during the Civil War, the Republican-Democratic partisan divide gave them a clear choice.
Id.
In the end, voters rewarded Lincoln for his commitment to the democratic process. Republicans won sweeping victories in the 1864 presidential, congressional, and state elections.
Paludan, supranote 90, at 290; McPherson, supranote 98, at 805.
Lincoln won 55 percent of the popular vote and carried 212 electoral votes to only 12 for McClellan.
In a victory address on November 10, Lincoln explained the significance of the North’s decision to go forward with elections despite the crisis of civil war:
“[T]he present rebellion brought our republic to a severe test; and a presidential election occurring in regular course during the rebellion added not a little to the strain. . . . But the election was a necessity. We cannot have free government without elections; and if the rebellion could force us to forego, or postpone a national election it might fairly claim to have already conquered and ruined us. . . . But the election, along with its incidental, and undesirable strife, has done good too. It has demonstrated that a people’s government can sustain a national election, in the midst of a great civil war.”
Abraham Lincoln, In Response to a Serenade, Nat’l. Park Service (Nov. 10, 1864), https://www.nps.gov/liho/learn/historyculture/1864election.htm.
The Republican Party’s resounding victories confirmed that a strong majority of the northern people supported the war effort. As Frederick Douglass put it, Lincoln’s reelection served as the northern electorate’s “full and complete” endorsement of the administration’s policies.
Consequently, the 1864 election results crushed what little morale remained in the battered and collapsing Confederacy. Lincoln’s reelection rendered inevitable the Confederacy’s defeat because it meant the Union war effort would continue unabated.
Alan T. Nolan, Lee Reconsidered: General Robert E. Lee and Civil War History 118 (1991); Cooper & Terrill, supranote 295, at 381–2.
One month after Lincoln’s second inauguration, Lee surrendered his army at Appomattox.
In a very real sense, therefore, democratically held elections strengthened the Lincoln Administration during the Civil War.
Ironically, despite the war’s devastation, the United States government emerged stronger in 1865 than it had been in 1861. The Constitutional debate over secession—which had plagued the young nation since its founding—was resolved decisively in favor of the federal government.
See Daniel Farber, Lincoln’s Constitution 90–1 (2003) (“The basic flaw in the secession argument is its failure to recognize a key aspiration of the Constitution: to replace a regime of multilateral negotiation with the democratic rule of law. Rather than allowing states to use the threat of exit as a bargaining chip, the Constitution made federal legislation ‘the supreme law of the land.’”).
As the Supreme Court explained in an 1869 case, the Constitution formed an “indissoluble” and “perpetual Union.”
Texas v. White, 74 U.S. 700, 725 (1869).
In Texas v. White, the Court held that the states had no authority to secede under the United States Constitution.
Id. at 725–6.
Writing for the majority, Chief Justice Salmon Chase emphatically declared that “[t]he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”
Id.
The Court concluded, therefore, that the Confederate states’ secession ordinances “were absolutely null” and “utterly without operation in law.”
Id. at 726.
The Union’s victory vindicated democracy as a form of government. The Confederacy’s crushing defeat demonstrated that democracies could successfully navigate even the most extreme forms of civil disorder. Consequently, the North’s victory inspired democratic reforms overseas, especially in Europe.
When the war began in 1861, European conservatives interpreted Confederate secession “as evidence of democracy’s failure” and welcomed the Union’s collapse.
Id. at 225.
For example, Sir Edward Bulwer-Lytton, a conservative member of the British Parliament, admitted to an American acquaintance that “I had indulged the hope that your country might break up into two or perhaps more fragments. I regard the United States as a menace to the whole civilized world.”
Id.
The Union victory dashed Bulwer-Lytton’s hopes. In April 1865, he complained that the North’s victory represented a defeat for anti-democratic forces around the world.
Id.
The worst fears of British aristocrats materialized two years later. In 1867, Parliament voted to enfranchise one million working-class men, a measure that doubled the size of the British electorate.
Robert Saunders, Democracy and the Vote in British Politics, 1848–1867: The Making of the Second Reform Act 1 (2011) (“The second reform act enfranchised a million new voters, doubling the electorate and propelling the British state into the age of mass politics.”); McPherson, supranote 258, at 226.
As the historian Robert Saunders has observed, the 1867 reform act “created a mass, working class electorate, recasting the relationship between Parliament and people and calling into life the institutions and practices of democratic politics.”
Most important of all, the Civil War era gave rise to a dramatic expansion in the inclusiveness of American democracy. Southern slaveholders seceded in order to create a permanent, white supremacist, slaveholding oligarchy in North America. But their effort backfired spectacularly. As Stephanie McCurry has noted, secession “brought down the single most powerful slave regime in the Western world and propelled the emergence of a new American republic that redefined the very possibilities of democracy at home and abroad.”
Indeed, the enormous contributions made by 180,000 African American soldiers to the Union war effort created irresistible momentum for Constitutional change.
Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 69–70 (rev. ed. 2009).
In 1868—three years after General Robert E. Lee’s surrender at Appomattox—the United States adopted the 14th Amendment, establishing “equal protection of the laws” as a constitutional right for all Americans.
See Const. Amend. XIV.
Two years later, the United States adopted the 15th Amendment, prohibiting racial discrimination in voting.
Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, 445–7 (1988).
The war years also saw landmark innovations in voting practices. For example, to facilitate voting by Union soldiers, nineteen northern states adopted laws permitting absentee ballots.
Not all of the gains made during the Civil War era would last. The Confederacy’s ghosts would haunt southern politics for generations after Appomattox.
For the ways in which white southerners’ memory of the war shaped the region’s post-war development, see Gaines M. Foster, Ghosts of the Confederacy: Defeat, The Lost Cause, and the Emergence of the New South (1987).
For a full century after the Civil War, the defeated white South violently and viciously undermined the 14th and 15th amendments.
Ex-Confederates and their descendants used murder, torture, and terrorism to systematically disenfranchise African Americans across the South.
See, e.g., Stephen D. Kantrowitz, Ben Tillman and the Reconstruction of White Supremacy 306–7 (2000); Richard Zuczek, State of Rebellion: Reconstruction in South Carolina 207–9 (1996).
The campaign of white supremacist terror continued long after most Confederate veterans had died away. The Confederate flag thus came to symbolize not only the white South’s failed effort to secede but also the century-long effort of white southerners to preserve the region’s white supremacist social, economic, and political order.
For a history of the Confederate battle flag’s varied uses, see John M. Coski, The Confederate Battle Flag: America’s Most Embattled Emblem 134–5 (2005) (“events in the 1960s . . . intensified the flag’s association with segregation and racism. . . . Beginning with the Confederacy itself, whenever the racial order of the South has come under serious challenge, defenders of the status quo have found the Confederate battle flag a powerful symbol for their opposition to change.”). For a discussion of what states constitute the “South” in modern America, see John S. Reed, My Tears Spoiled my Aim and Other Reflections on Southern Culture 5–28 (1993).
Deep into the twentieth century, southern politicians proudly cloaked themselves in the Confederacy’s white supremacist legacy. For example, Alabama Governor George Wallace delivered his 1963 “Segregation Forever” Speech on the exact spot where Jefferson Davis was inaugurated as the first Confederate president in 1861. In his speech, Governor Wallace emphasized the connection between the Confederate war effort in the 1860s and the South’s segregationist policies in the 1960s:
“Today I have stood, where once Jefferson Davis stood, and took an oath to my people. It is very appropriate then that from this Cradle of the Confederacy, this very Heart of the Great Anglo-Saxon Southland, that today we sound the drum for freedom as have our generations of forebears before us done, time and time again through history. Let us rise to the call of freedom-loving blood that is in us and send our answer to the tyranny that clanks its chains upon the South. In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny . . . and I say . . . segregation today . . . segregation tomorrow . . . segregation forever.”
George Wallace, Inaugural address of Governor George Wallace, (Jan. 14, 1963), Ala. Dep’t Hist. Archives, https://digital.archives.alabama.gov/digital/collection/voices/id/2952.
Thus, as late as the 1960s, the South’s political elites saw their campaign of racial disenfranchisement as a continuation of the Confederate war effort.
But in the end, the latter-day Confederates lost the war for segregation just as their grandparents and great-grandparents had lost the war for slavery. In the final decades of the twentieth century, democratic forces ultimately prevailed even in the heart of the ex-Confederacy. In 1965 Congress enacted the Voting Rights Act, a law expressly designed to enforce—belatedly—the 15th Amendment.
The VRA transformed southern politics. In Mississippi, for example, African American registration rates increased six-fold.
Id. at 212.
In the South overall, Black registration rates soared to 62 percent after the VRA’s adoption.
Id. at 212.
When he signed the VRA into law, President Lyndon Johnson—a son of the segregated state of Texas—observed that “[t]he vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls that imprison men because they are different from other men.”
James T. Patterson, Grand Expectations: The United States: 1945–1974, 584 (1996).
The North’s victory in 1865 thus did more than save the Union. It changed the trajectory of American democracy. From the ashes of the Civil War emerged a deeply-flawed nation, but one with vastly more promise than the fragile country that had entered the conflict four years before.
Conclusion
The Civil War demonstrated that democratic stability is not a given, even in the United States. Donald Trump’s effort to overturn the 2020 election provided a sobering reminder of that point. Most troubling of all, the Trump supporters’ attack on the Capitol made it clear that some segments of the American electorate would prefer to replace democracy with authoritarianism.
But the most important lesson of the Civil War is that American democracy is extraordinarily resilient. The public’s overwhelmingly negative response to the Capitol violence provides a case in point. Indeed, polls show that a huge bipartisan majority of Americans opposed the attack on the Capitol
Scott Clement, Emily Guskin & Dan Balz, Post-ABC poll: Overwhelming opposition to Capitol attacks, majority support for preventing Trump from serving again, Wash. Post (Jan. 15, 2021), https://www.washingtonpost.com/politics/trump-poll-post-abc/2021/01/14/aeac7b96-5690-11eb-a817-e5e7f8a406d6_story.html.
and supported the criminal prosecution of the pro-Trump rioters.
Insurrection at the Capitol: Americans Divide About Removing Trump from Office, Most Say Capitol Hill Rioters Should be Prosecuted, Pbs Newshour/Marist Poll (Jan. 8, 2021), http://maristpoll.marist.edu/pbs-newshour-marist-poll-results-analysis-insurrection-at-the-capitol/#sthash.opi1PuU9.dbXbArOg.dpbs.
In addition, major institutions across American society have begun to confront the anti-democratic elements that Trump unleashed.
Marie Fazio, Notable Arrests After the Riot at the Capitol, N.Y. Times (Jan. 13, 2021), https://www.nytimes.com/2021/01/10/us/politics/capitol-arrests.html?action=click&module=Top%20Stories&pgtype=Homepage; Josh Dawsey, David A. Fahrenthold & Jonathan O’Connell, Backlash to riot at Capitol hobbles Trump’s business as banks, partners flee the brand, Wash. Post (Jan. 12, 2021), https://www.washingtonpost.com/politics/trump-company-backlash-riot/2021/01/12/40cb91fc-5514-11eb-a931-5b162d0d033d_story.html?utm_campaign=wp_politics_am&utm_medium=email&utm_source=newsletter&wpisrc=nl_politics.
The House of Representatives impeached Trump for seditiously inciting the attack on the Capitol and the Senate voted 57-43 to convict.
Mike DeBonis & Paul Kane, House hands Trump a second impeachment, this time with GOP support, Wash. Post (Jan. 13, 2021), https://www.washingtonpost.com/politics/house-impeachment-trump/2021/01/13/05fe731c-55c5-11eb-a931-5b162d0d033d_story.html; Nicholas Fandos, Trump Impeached for Inciting Insurrection, N.Y. Times (Jan. 13, 2021), https://www.nytimes.com/2021/01/13/us/politics/trump-impeached.html?campaign_id=2&emc=edit_th_20210114&instance_id=25936&nl=todaysheadlines®i_id=69180613&segment_id=49247&user_id=e7f8c3ebe81e6670085e810242e0ad70. Ten House Republicans joined the Democratic majority in voting to impeach Trump and 7 Senate Republicans joined 50 Democrats in voting to convict. John Eligon & Thomas Kaplan, These Are the Republicans Who Supported Impeaching Trump, N.Y. Times (Jan. 13, 2021), https://www.nytimes.com/article/republicans-impeaching-donald-trump.html?action=click&module=Spotlight&pgtype=Homepage; Amy Gardner, Mike DeBonis, Seung Min Kim & Karoun Demirjian, Trump acquitted on impeachment charge of inciting deadly attack on the Capitol, Wash. Post (Feb. 13, 2021), https://www.washingtonpost.com/politics/trump-acquitted-impeachment-riot/2021/02/13/dbf6b172-6e12-11eb-ba56-d7e2c8defa31_story.html. In addition, Republican Senate Majority Leader Mitch McConnell joined Democrats in condemning Trump for provoking the riot and for falsely claiming election fraud. Nicholas Fandos, Deepening Schism, McConnell Says Trump ‘Provoked’ Capitol Mob, N.Y. Times (Jan. 19, 2021), https://www.nytimes.com/2021/01/19/us/politics/mcconnell-trump-capitol-riot.html; Amber Phillips, Mitch McConnell’s forceful rejection of Trump’s election ‘conspiracy theories’, Wash. Post (Jan. 6, 2021), https://www.washingtonpost.com/politics/2021/01/06/mitch-mcconnells-forceful-rejection-trumps-election-conspiracy-theories/.
Although the Senate fell short of the Constitutional requirement of 67 votes to convict, the 57 votes nevertheless constituted the largest bipartisan majority in history to favor the conviction of an impeached president.
Philip Bump, An incomparable historic rebuke of a president by his own party, Wash. Post (Feb. 13, 2021), https://www.washingtonpost.com/politics/2021/02/13/an-incomparable-historic-rebuke-president-by-his-own-party/.
The business community also took historic action. Dozens of the largest companies in corporate America announced that they would no longer make campaign contributions to the Republicans who undermined the Electoral Vote Count.
Todd C. Frankel, Jeff Stein & Tony Romm, Campaign finance system rocked as firms pause or halt contributions after election results challenged, Wash. Post (Jan. 11, 2021), https://www.washingtonpost.com/business/2021/01/10/marriott-campaign-donations-congress/; Sergio Hernandez & Tal Yellin, Tracking Corporate America’s revolt against the Electoral College objectors, CNN (Jan. 26, 2021), https://www.cnn.com/interactive/2021/01/business/corporate-pac-suspensions/; Douglas MacMillan & Jena McGregor, Lawmakers who objected to election results have been cut off from 20 of their 30 biggest corporate PAC donors, Wash. Post (Jan. 19, 2021), https://www.washingtonpost.com/business/2021/01/19/gop-corporate-pac-funding/.; Alyssa Fowers, Chris Alcantara & Jena McGregor, Companies are halting PAC contributions after U.S. Capitol riots. Here’s where their money went., Wash. Post (Jan. 15, 2021), https://www.washingtonpost.com/graphics/2021/business/pac-donations-capitol-riots/; David Gelles, ‘We Need to Stabilize’: Big Business Breaks With Republicans, N.Y. Times (Jan. 15, 2021), https://www.nytimes.com/2021/01/15/business/republicans-business-trump.html?action=click&module=Spotlight&pgtype=Homepage; Kate Kelly, Emily Flitter & Shane Goldmacher, Companies Pull Back Political Giving Following Capitol Violence, N.Y. Times (Jan. 11, 2021), https://www.nytimes.com/2021/01/11/business/corporate-donations-politics.html.
Equally noteworthy, social media and technology companies took steps to purge their platforms of false allegations of election fraud.
Tony Romm, President Trump lashes out at social media companies following Twitter ban, Wash. Post (Jan. 12, 2021), https://www.washingtonpost.com/technology/2021/01/12/facebook-twitter-trump-capitol-riot/; Elizabeth Dwoskin & Craig Timberg, Misinformation dropped dramatically the week after Twitter banned Trump, Wash. Post (Jan. 16, 2021), https://www.washingtonpost.com/technology/2021/01/16/misinformation-trump-twitter/; Taylor Telford, Twitter bans MyPillow CEO and Trump ally Mike Lindell, Wash. Post (2021), https://www.washingtonpost.com/politics/2021/01/26/trump-impeachment-joe-biden-live-updates/#link-32ERTZOM7VG2JJQL4ONKRU5SPA; ; Tony Romm & Rachel Lerman, Amazon suspends Parler, taking pro-Trump site offline indefinitely, Wash. Post (Jan. 11, 2021), https://www.washingtonpost.com/technology/2021/01/09/amazon-parler-suspension/; Jordan Novet, Parler’s de-platforming shows the exceptional power of cloud providers like Amazon, CNBC (Jan. 16, 2021), https://www.cnbc.com/2021/01/16/how-parler-deplatforming-shows-power-of-cloud-providers.html; Tony Romm & Elizabeth Dwoskin, Twitter purged more than 70,000 accounts affiliated with QAnon following Capitol riot, Wash. Post (Jan. 11, 2021), https://www.washingtonpost.com/technology/2021/01/11/trump-twitter-ban/.
And a multi-billion dollar defamation suit brought against Fox News by voting machine companies prompted the network to fire its hosts and disinvite guests who promoted false claims of election fraud.
Elahe Izadi & Sarah Ellison, Fox News has dropped ‘Lou Dobbs Tonight,’ promoter of Trump’s false election fraud claims, Wash. Post (Feb. 5, 2021), https://www.washingtonpost.com/media/2021/02/05/lou-dobbs-canceled-fox/; Aaron Blake, Lou Dobbs, and the most problematic claims Trump allies made about voting machines, Wash. Post (Feb. 6, 2021); Jeremy Barr, Rudy Giuliani and Sidney Powell have disappeared from Fox airwaves, wash. post (Jan. 14, 2021), https://www.washingtonpost.com/politics/2021/02/05/most-legally-problematic-claims-trumps-allies-made-about-voting-machines/; Emma Brown, Dominion sues pro-Trump lawyer Sidney Powell, seeking more than $1.3 billion, Wash. Post (Jan. 8, 2021), https://www.washingtonpost.com/politics/dominion-sues-pro-trump-lawyer-sidney-powell-seeking-more-than-13-billion/2021/01/08/ebe5dbe0-5106-11eb-b96e-0e54447b23a1_story.html; Tonya Riley, Dominion lawsuit could be just start of legal action against Trump allies, Wash. Post (Jan. 11, 2021), https://www.washingtonpost.com/politics/2021/01/11/cybersecurity-202-dominion-lawsuit-could-be-just-start-legal-action-against-trump-allies/.
Indeed, when faced with a voting machine defamation suit of her own, pro-Trump lawyer Sidney Powell conceded that her voter fraud claims were obviously baseless and that “[r] easonable people would not accept such statements as fact.”
Tom McCarthy, Pro-Trump lawyer says ‘no reasonable person’ would believe her election lies, The Guardian (March 23, 2021), https://www.theguardian.com/us-news/2021/mar/23/sidney-powell-trump-election-fraud-claims.
Yet, clear warning signs exist that American democracy faces significant challenges ahead. An August 2021 survey found that 66% of Republicans continue to believe the falsehood that Democrats stole the 2020 election from Trump.
Caitlin Dickson, Poll: Two-thirds of Republicans still think the 2020 election was rigged, YAHOO NEWS (August 4, 2021), https://news.yahoo.com/poll-two-thirds-of-republicans-still-think-the-2020-election-was-rigged-165934695.html.
And despite promises to the contrary, several major companies eventually resumed donations to Republicans who undermined the January 6 electoral count.
Isaac Stanley-Becker, American Airlines, other companies resume donations to Republicans who objected to election results, WASH. POST (July 15, 2021), https://www.washingtonpost.com/politics/2021/07/15/american-airlines-overturn-election-january-6/.
Most troubling of all, a September 2021 CNN poll found that 93% of Americans believe that American democracy is in danger.
Jennifer Agiesta and Ariel Edwards-Levy, CNN Poll: Most Americans feel democracy is under attack in the US, CNN (Sep. 15, 2021), https://www.cnn.com/2021/09/15/politics/cnn-poll-most-americans-democracy-under-attack/index.html.
A federal republic on the continental scale of the United States can never take democratic stability or unity for granted. The American Civil War underscored that point in stark fashion. But it remains a striking fact that Washington has not faced a serious secession threat since 1865.
Jack Shaefer, How Secession Became America’s Favorite Idle Threat, Politico (Dec. 16, 2020), https://www.politico.com/news/magazine/2020/12/16/how-secession-became-americas-favorite-idle-threat-447083.
In the century and a half since the war ended, the United States has repeatedly experienced intense regional divides over public policy. In the 1950s and 1960s, for example, white southerners violently resisted the federal government’s effort to enforce the 14th and 15th amendments in the ex-Confederate states. But unlike the 1860s, white southern opposition to federal civil rights policies did not manifest itself in a secession movement. Indeed, although rhetorical threats of secession have become popular among ideologues, no state since the Civil War has embraced secession as a viable policy option.
Id.
As the Supreme Court Justice Antonin Scalia observed in 2010, “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.”
Debra C. Weiss, Scalia Opines on Right to Secede in Letter to Screenwriter, ABA J. (Feb. 17, 2010), https://www.abajournal.com/news/article/scalia_opines_on_right_to_secede_in_letter_to_bloggers_screenwriting_brothe.
In the end, the voters themselves provide the most compelling reason for cautious optimism about the future of American democracy. By any measure, the United States does not suffer from an apathetic electorate. Quite the reverse. Americans are more engaged in their national elections than ever before. Over 155 million Americans voted in the 2020 presidential election, a turnout rate of 66.2%, the highest level in 120 years.
Drew Desilver, Turnout soared in 2020 as nearly two-thirds of eligible U.S. voters cast ballots for president, Pew Research Center (Jan. 28, 2021), https://www.pewresearch.org/fact-tank/2021/01/28/turnout-soared-in-2020-as-nearly-two-thirds-of-eligible-u-s-voters-cast-ballots-for-president/; Kevin Schaul, Kate Rabinowitz & Ted Mellnik, 2020 turnout is the highest in over a century, Wash. Post (Dec. 28, 2020), https://www.washingtonpost.com/graphics/2020/elections/voter-turnout/.
Moreover, the share of eligible voters was far greater in 2020 than in 1900 and all the elections that preceded it. Prior to 1920, women—who account for half the population of the United States—lacked the right to vote in federal elections.
Kevin Schaul, Kate Rabinowitz & Ted Mellnik, 2020 turnout is the highest in over a century, Wash. Post (Dec. 28, 2020), https://www.washingtonpost.com/graphics/2020/elections/voter-turnout/.
Accordingly, the 2020 turnout numbers are arguably the most impressive in American political history. The participation of over 155 million voters in the 2020 federal elections
