Even to this day we hear from neoconfederates the patently absurd assertion that there is a right of a state to unilaterally secede from the Union. This is settled law. There is no such right. While the illegality of secession isn’t really a question most historians care much about, it’s something I’ve looked into. I think it ‘s more proper for constitutional scholars to explore than historians. After all, historians seek to understand what happened. Whether secession is legal or not does not affect that understanding. Constitutional scholars are more concerned with what is possible under the Constitution.
Entire books can be written to fully cover this issue, but here I’ll give a more bare-bones discussion.
I won’t get into the arguments specifically pertaining to secession that were thrown about by constitutional theorists and others. There are so many theorists around that one can find a theorist supporting virtually any facet of any position you’d like to find. So this is not intended as a look at both sides of the issue, merely as the official pronouncements of those with the authority to pronounce on the subject and have legal force behind what they say.
Let’s look at:
1. Official Government Statements
2. Case Law Before the War
3. Case Law During the War
4. Case Law After the War
1. Official Government Statements
Secession was only seriously considered in such a manner to bring out an official statement of some kind from the Federal Government twice–in the Nullification Crisis and in the 1860 crisis. Three sitting presidents and two attorneys-general have made official statements on secession [Former presidents had also made statements while they were not in office. Since they were not speaking as the sitting presidents, I’m not including them.] The attorneys-general agreed with the presidents, so I’ll just show what the presidents said:
a. Andrew Jackson:
The Constitution of the United States, then, forms a government, not a league, and whether it be formed by compact between the States, or in any other manner, its character is the same. It is a government in which all the people are represented, which operates directly on the people individually, not upon the States; they retained all the power they did not grant. But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union. To say that any State may at pleasure secede from the Union, is to say that the United States are not a nation because it would be a solecism to contend that any part of a nation might dissolve its connection with the other parts, to their injury or ruin, without committing any offense. Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right, is confounding the meaning of terms, and can only be done through gross error, or to deceive those who are willing to assert a right, but would pause before they made a revolution, or incur the penalties consequent upon a failure.
Because the Union was formed by compact, it is said the parties to that compact may, when they feel themselves aggrieved, depart from it; but it is precisely because it is a compact that they cannot. A compact is an agreement or binding obligation. It may by its terms have a sanction or penalty for its breach, or it may not. If it contains no sanction, it may be broken with no other consequence than moral guilt; if it have a sanction, then the breach incurs the designated or implied penalty. A league between independent nations, generally, has no sanction other than a moral one; or if it should contain a penalty, as there is no common superior, it cannot be enforced. A government, on the contrary, always has a sanction, express or implied; and, in our case, it is both necessarily implied and expressly given. An attempt by force of arms to destroy a government is an offense, by whatever means the constitutional compact may have been formed; and such government has the right, by the law of self-defense, to pass acts for punishing the offender, unless that right is modified, restrained, or resumed by the constitutional act. In our system, although it is modified in the case of treason, yet authority is expressly given to pass all laws necessary to carry its powers into effect, and under this grant provision has been made for punishing acts which obstruct the due administration of the laws.
It would seem superfluous to add anything to show the nature of that union which connects us; but as erroneous opinions on this subject are the foundation of doctrines the most destructive to our peace, I must give some further development to my views on this subject. No one, fellow-citizens, has a higher reverence for the reserved rights of the States than the magistrate who now addresses you. No one would make greater personal sacrifices, or official exertions, to defend them from violation; but equal care must be taken to prevent, on their part, an improper interference with, or resumption of, the rights they have vested in the nation.
The line has not been so distinctly drawn as to avoid doubts in some cases of the exercise of power. Men of the best intentions and soundest views may differ in their construction of some parts of the Constitution, but there are others on which dispassionate reflection can leave no doubt. Of this nature appears to be the assumed right of secession. It rests, as we have seen, on the alleged undivided sovereignty of the States, and on their having formed in this sovereign capacity a compact which is called the Constitution, from which, because they made it, they have the right to secede. Both of these positions are erroneous, and some of the arguments to prove them so have been anticipated.
The States severally have not retained their entire sovereignty. It has been shown that in becoming parts of a nation, not members of a league, they surrendered many of their essential parts of sovereignty. The right to make treaties, declare war, levy taxes, exercise exclusive judicial and legislative powers, were all functions of sovereign power. The States, then, for all these important purposes, were no longer sovereign. The allegiance of their citizens was transferred in the first instance to the government of the United States; they became American citizens, and owed obedience to the Constitution of the United States, and to laws made in conformity with the powers vested in Congress. This last position has not been, and cannot be, denied. How then, can that State be said to be sovereign and independent whose citizens owe obedience to laws not made by it, and whose magistrates are sworn to disregard those laws, when they come in conflict with those passed by another? What shows conclusively that the States cannot be said to have reserved an undivided sovereignty, is that they expressly ceded the right to punish treason-not treason against their separate power, but treason against the United States. Treason is an offense against sovereignty, and sovereignty must reside with the power to punish it. But the reserved rights of the States are not less sacred because they have for their common interest made the general government the depository of these powers. The unity of our political character (as has been shown for another purpose) commenced with its very existence. Under the royal government we had no separate character; our opposition to its oppression began as UNITED COLONIES. We were the UNITED STATES under the Confederation, and the name was perpetuated and the Union rendered more perfect by the federal Constitution. In none of these stages did we consider ourselves in any other light than as forming one nation. Treaties and alliances were made in the name of all. Troops were raised for the joint defense. How, then, with all these proofs, that under all changes of our position we had, for designated purposes and with defined powers, created national governments-how is it that the most perfect of these several modes of union should now be considered as a mere league that may be dissolved at pleasure ? It is from an abuse of terms. Compact is used as synonymous with league, although the true term is not employed, because it would at once show the fallacy of the reasoning. It would not do to say that our Constitution was only a league, but it is labored to prove it a compact (which, in one sense, it is), and then to argue that as a league is a compact, every compact between nations must, of course, be a league, and that from such an engagement every sovereign power has a right to recede. But it has been shown that in this sense the States are not sovereign, and that even if they were, and the national Constitution had been formed by compact, there would be no right in any one State to exonerate itself from the obligation.
So obvious are the reasons which forbid this secession, that it is necessary only to allude to them. The Union was formed for the benefit of all. It was produced by mutual sacrifice of interest and opinions. Can those sacrifices be recalled? Can the States, who magnanimously surrendered their title to the territories of the West, recall the grant? Will the inhabitants of the inland States agree to pay the duties that may be imposed without their assent by those on the Atlantic or the Gulf, for their own benefit? Shall there be a free port in one State, and enormous duties in another? No one believes that any right exists in a single State to involve all the others in these and countless other evils, contrary to engagements solemnly made. Everyone must see that the other States, in self-defense, must oppose it at all hazards.
[end quote] [Proclamation Regarding Nullification, 10 Dec 1832]
b. James Buchanan:
In order to justify secession as a constitutional remedy, it must be on the principle that the Federal Government is a mere voluntary association of States, to be dissolved at pleasure by any one of the contracting parties. If this be so, the confederacy is a rope of sand, to be penetrated and dissolved by the first adverse wave of public opinion in any of the States. In this manner our thirty-three States may resolve themselves into as many petty, jarring, and hostile republics, each one retiring from the Union without responsibility whenever any sudden excitement might impel them to such a course. By this process a Union might be entirely broken into fragments in a few weeks which cost our forefathers many years of toil, privation, and blood to establish.
Such a principle is wholly inconsistent with the history as well as the character of the Federal Constitution. After it was framed with the greatest deliberation and care it was submitted to conventions of the people of the several States for ratification. Its provisions were discussed at length in these bodies composed of the first men of the country. Its opponents contended that it conferred powers upon the Federal Government dangerous to the rights of the States, whilst its advocates maintained that under a fair construction of the instrument there was no foundation for such apprehensions. In that mighty struggle between the first intellects of this or any other country it never occurred to any individual, either among its opponents or advocates, to assert or even to intimate that their efforts were all vain labor, because the moment that any State felt herself aggrieved she might secede from the Union. What a crushing argument would this have proved against those who dreaded that the rights of the States would be endangered by the Constitution! The truth is that it was not until many years after the origin of the Federal Government that such a proposition was first advanced. It was then met and refuted by the conclusive arguments of General Jackson, who in his message of the 16th of January, 1833, transmitting the nullifying ordinance of South Carolina to Congress, employs the following language:
“The right of the people of a single State to absolve themselves at will and without the consent of the other States from their most solemn obligations, and hazard the liberties and happiness of the millions composing the Union, can not be acknowledged. Such authority is believed to be utterly repugnant troth to the principles upon which the General Government is constituted and to the objects which it is expressly formed to attain.” [end quote] [4th Annual Message to Congress, 3 Dec 1859]
c. Abraham Lincoln:
I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.
Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as acontract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it–break it, so to speak–but does it not require all to lawfully rescind it?
Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.”
But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.
It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.
I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part, and I shall perform it so far as practicable unless my rightful masters, the American people, shall withhold the requisite means or in some authoritative manner direct the contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend and maintain itself.
[end quote] [First Inaugural Address, 4 Mar 1861]
2. Case Law Before the War. While secession never came up in Court cases prior to the war, there were cases that dealt with the relations of states with each other and with the Federal government. If secession was a legal thing to do, it would be inconsistent with this body of case law.
In Fletcher v. Peck, the U.S. Supreme Court ruled, “But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution. She is a part of a large empire; she is a member of the American union; and that union has a constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several states, which none claim a right to pass.” [10 U.S. 87, 136]
In McCullough v. Maryland, Chief Justice John Marshall wrote: “In discusing [sic] this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion. *It would be difficult to sustain this proposition.* The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligations, or pretenses to it. It was reported to the then existing congress of the United States, with a request that it might ‘be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.’ this mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states–and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.
“From these conventions, the constitution derives its whole authority. The government proceeds directly from the people. . . . *The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties.*” [17 U.S. 316, 402-404]
Marshall further ruled, “The government of the Union, then, is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” [17 U.S. 316, 404-405]
And, “If any one proposition could command the universal assent of mankind, we might expect it would be this–that the government of the Union, though limited in its powers, is supreme within its sphere of action.” [17 U.S. 316, 405] The makeup of the Union, without doubt, is within the sphere of action of the Federal Government. We can see this from the fact that Congress admits new states into the Union, and the Federal law admitting those new states is signed by the President.
In Gibbons v. Ogden, the Court ruled, “When these allied sovereigns converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns, the whole character in which the States appear, underwent a change.” [22 U.S. 1, 187]
And in Cohens v. Virginia the Court ruled, “That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. . .. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared, that in the exercise of all the powers given for these objects, it is supreme. . . . The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire.” [19 U.S. 264, 413-414]
In that same ruling, the Court said “The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.” [19 US 264, 389]
3. Case Law During the War:
The prime example here is The Prize Cases:
“Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its accidents — the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.
“The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars.
“A civil war,” says Vattel,
breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.
“This being the case, it is very evident that the common laws of war — those maxims of humanity, moderation, and honor — ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c., & c.; the war will become cruel, horrible, and every day more destructive to the nation.
“As a civil war is never publicly proclaimed, eo nomine, against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know.
“The true test of its existence, as found in the writings of the sages of the common law, may be thus summarily stated:
“When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.” [67 US 635, 666-668]
“This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.
“It is not the less a civil war, with belligerent parties in hostile array, because it may be called an “insurrection” by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties.” [67 US 635, 668-669]
In upholding Lincoln’s actions against the rebels, calling the war a “civil war,” calling the rebellion an “insurrection,” and labeling the rebels as “rebels or traitors,” the Supreme Court was implicitly denying the legality of secession.
4. Case Law after the war:
The first chance the Supreme Court got to speak directly on the question of secession was Texas v. White.
“The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.
“Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.” [74 U.S. 700, 725-726]
Texas v. White was the first time the Court ruled specifically on secession but it wasn’t the last time. In White v. Hart the Court also ruled secession was unconstitutional.
“The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence. The late rebellion was without any element of right or sanction of law. The duration and magnitude of the war did not change its character. In some respects it was not unlike the insurrection of a county or other municipal subdivision of territory against the State to which it belongs. In such cases the State has inherently the right to use all the means necessary to put down the resistance to its authority, and restore peace, order, and obedience to law. If need be, it has the right also to call on the government of the Union for the requisite aid to that end. Whatever precautionary or penal measures the State may take when the insurrection is suppressed, the proposition would be a strange one to maintain, that while it lasted the county was not a part of the State, and hence was absolved from the duties, liabilities, and restrictions which would have been incumbent upon it if it had remained in its normal condition and relations. The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress. That body made the laws and the President executed them. The granted power carried with it not only the right to use the requisite means, but it reached further and carried with it also the authority to guard against the renewal of the conflict, and to remedy the evils arising from it in so far as that could be effected by appropriate legislation. At no time were the rebellious States out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected and remained the same.” [80 US 646, 650-651]
In Thorington v. Smith the Court said, “It cannot be questioned that the Confederate notes were issued in furtherance of an unlawful attempt to overthrow the government of the United States, by insurrectionary force.” [75 US 1, 7]
In Hickman v. Jones, the Court ruled, “The rebellion out of which the war grew was without any legal sanction. In the eye of the law, it had the same properties as if it had been the insurrection of a county or smaller municipal territory against the State to which it belonged. … The union of the States, for all the purposes of the Constitution, is as perfect and indissoluble as the union of the integral parts of the States themselves; and nothing but revolutionary violence can, in either case, destroy the ties which hold the parts together. … The rebellion was simply an armed resistance to the rightful authority of the sovereign.” [76 US 197, 200]
In Williams v. Bruffy, the Court ruled that the confederacy had no legal existence. It said, “The pleas aver that a confederation was formed by Virginia and other States, called the Confederate States of America, and that under a law of this confederation, enforced in Virginia, the debt due to the plaintiffs was sequestrated. Now, the Constitution of the United States prohibits any treaty, alliance, or confederation by one State with another. The organization whose enactment is pleaded cannot, therefore, be regarded in this court as having any legal existence.” [96 US 176, 182]
In Lamar v. Micou, the Court ruled, “The so-called Confederate government was in no sense a lawful government, but was a mere government of force, having its origin and foundation in rebellion against the United States.” [112 US 452. 476]
In the case of Keppel v. Petersburg Railroad Company, a case in the Federal Court for the District of Virginia, the Federal District Court ruling was that the confederacy was unlawful. [14 Fed Cas. 357, 371]
There is not a single case in which the doctrine of secession was upheld.
The matter of secession has been clarified and is settled law, and no serious legal scholar supports the idea that unilateral secession is a right any state possesses. At best, one could say it wasn’t a completely settled question until the Supreme Court ruled on it after the war; however, anyone familiar with case law prior to the war would know that the idea it was legal would be inconsistent with what the Court had already ruled. Today’s neoconfederates who make the claim that unilateral secession was a right the states possessed are merely showing their ignorance.