Tweet Share Share Comment This week, Republican governors across the country escalated their conflict with the Biden administration over the southern border by invoking the same legal theory that slave states wielded to justify secession before the Civil War. Texas Gov. Greg Abbott, joined by 25 other GOP governors, now argues that the Biden administration has violated the federal government’s “compact” with the states—an abdication that justifies state usurpation of federal authority at the border. This language embraces the Confederacy’s conception of the Constitution as a mere compact that states may exit when they feel it has been broken. It’s dangerous rhetoric that transcends partisan grandstanding. And as before, it’s being used to legitimize both nullification and dehumanization.
Consider the very first line of a statement Abbott issued on Wednesday that was subsequently backed by the other Republicans, which states, “The federal government has broken the compact between the United States and the states.” That language is strikingly similar to the very first line of the secession ordinances passed by slave states when they purported to leave the union. Most of these ordinances began with a declaration that the state sought “to dissolve the union” that was “united under the compact” known as the Constitution. It was this “compact”—not national sovereignty, but a contract among states and the federal government—that constituted the United States of America. The secession ordinances asserted that the federal government, and the president especially, owed certain constitutional duties to the states under this contract. It had allegedly abdicated those duties by threatening to restrict slavery and disrespecting the rights of Southern states in other ways inextricably linked to the maintenance of white supremacy. Any state, these ordinances concluded, was therefore entitled to depart the union and become “free and independent” once more.
President Abraham Lincoln was staunchly opposed this so-called compact theory. As he explained in his first inaugural address, “The Union of these States is perpetual” under the Constitution. The United States do not form a compact, but are a “country” bound together by “national fabric.” This argument provided the entire justification for the war in its early years, which Lincoln initially framed as a battle against secession, not slavery. (“If I could save the Union without freeing any slave I would do it,” he wrote in 1862, “and if I could save it by freeing all the slaves I would do it.”) The union that Lincoln hoped to save was an agreement between the sovereign people of the United States, not the states themselves. And so, the president argued, the people of a particular state could not break away of their own volition.
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Here, Lincoln drew on an impressive historical pedigree: Sen. Daniel Webster’s rejection of the compact theory during the nullification crisis of 1833. That crisis, too, has uncanny parallels with Abbott’s misunderstanding of federal supremacy today: South Carolina insisted on its right to nullify a tariff enacted by Congress, much like the Texas governor seeks a right to nullify statutes that give Border Patrol authority over the southern border. “No State authority,” Webster proclaimed, “can dissolve the relations subsisting between the government of the United States and individuals.” That relationship was secured by the Constitution, and the states have no prerogative to undermine it, even in the name of supposed injustice or emergency.
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Read More Webster’s theory prevailed in 1833, and Lincoln’s carried the day in 1865 with the surrender of the Confederacy. Now, however, Abbott appears to disagree with both men. His letter faulted Biden for his “illegal refusal to protect the states” from migrants, failing to “perform his constitutional duties” by detaining every unauthorized migrant. By doing so, Biden purportedly broke the “compact” between the federal government and the states, freeing Texas to supplant federal authority at the border. Or, in Abbott’s words, to exercise its “constitutional authority to defend and protect itself.” (The statement by 25 other GOP governors says almost exactly the same thing.)
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For further support, these governors invoked the Constitution’s invasion clause. But this is, at best, a distraction. The invasion clause clarifies that states may not “engage in war” without Congress’ consent “unless actually invaded.” It was intended to let states defend themselves against foreign armies—hence the word war—until the federal government had a chance to respond. James Madison himself said that immigration does not constitute an “invasion,” as the term implied the “operation of war.” No matter how bellicose their rhetoric, Republican governors cannot seriously argue that they are at war with migrants under any constitutional definition of the term. The invasion clause simply does not give states license to usurp federal policy or interfere with federal law enforcement.
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So the “invasion” language, which Donald Trump repeated on Thursday, is probably best understood as window dressing for the primary legal theory underpinning Republican governors’ claims: that the United States constitutes a compact, and Biden’s violation of this compact triggers a state’s right to supplant federal authority, by force when necessary. It’s difficult to believe that the similarities between this theory and those of the Confederacy are mere coincidence. Either way, the resemblance speaks volumes about Abbott’s dangerous undertaking at the border. The governor vocally despises migrants, almost all of them nonwhite, who are seeking asylum in the United States. At every turn, he depicts them as less than human, violent criminals exploiting the country’s generosity to destroy it from within.
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What does it look like when secessionist theory is weaponized against a 21st-century president? We have already begun to find out. For months, the Texas National Guard was engaged in an armed standoff with federal law enforcement, as well as active duty service members, at the Rio Grande: Guardsmen used razor wire to fence off the border, preventing federal access to migrants, even those in severe medical distress. On Monday, by a 5–4 vote, the Supreme Court lifted an injunction that prevented federal officers from cutting through this razor wire. But Abbott says his state will “defend and protect itself” by continued use of force, raising the very real possibility of ongoing clashes between state and federal law enforcement. Whether these disputes turn violent is anyone’s guess. The belligerent governor, though, has conspicuously declined to rule out use of force against anyone who stands in his way.
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Vicious nativism is certainly not a perfect comparison to the totalitarian white supremacy that drove the slave states to Civil War, but it, too, springs from the diseased roots of bigotry, fear, and rage. It should be no surprise, then, that Abbott and his allies would adopt Confederate rhetoric in his quest to seize control over the border and subject migrants to anguish and death. By embracing the Confederate theory of the nation as a mere compact, he has freed himself to take even more aggressive measures against the federal government. We have been here before. It does not end well.
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GOP Governors Invoke the Confederate Theory of Secession to Justify Border Violations
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26.01.2024
Tweet Share Share Comment This week, Republican governors across the country escalated their conflict with the Biden administration over the southern border by invoking the same legal theory that slave states wielded to justify secession before the Civil War. Texas Gov. Greg Abbott, joined by 25 other GOP governors, now argues that the Biden administration has violated the federal government’s “compact” with the states—an abdication that justifies state usurpation of federal authority at the border. This language embraces the Confederacy’s conception of the Constitution as a mere compact that states may exit when they feel it has been broken. It’s dangerous rhetoric that transcends partisan grandstanding. And as before, it’s being used to legitimize both nullification and dehumanization.
Consider the very first line of a statement Abbott issued on Wednesday that was subsequently backed by the other Republicans, which states, “The federal government has broken the compact between the United States and the states.” That language is strikingly similar to the very first line of the secession ordinances passed by slave states when they purported to leave the union. Most of these ordinances began with a declaration that the state sought “to dissolve the union” that was “united under the compact” known as the Constitution. It was this “compact”—not national sovereignty, but a contract among states and the federal government—that constituted the United States of America. The secession ordinances asserted that the federal government, and the president especially, owed certain constitutional duties to the states under this contract. It had allegedly abdicated those duties by threatening to restrict slavery and disrespecting the rights of Southern states in other ways inextricably linked to the maintenance of white supremacy. Any state, these ordinances concluded, was therefore entitled to depart the union and become “free and independent” once more.
President Abraham Lincoln was staunchly opposed this so-called compact theory. As he explained in his first inaugural address, “The........
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