There is No Right to Unilateral Secession

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:
[begin quote]
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:
[begin quote]
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:
[begin quote]
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.

17 comments

  1. Charles Persinger · · Reply

    A libertarian friend of mine keeps asking me,” why didn’t Lincoln just let them leave?” And I’m thinking, for one that would make him look like the weakest president in History! Not even the Founders agreed on Secession much less people in the 1860’s…..

    1. Thanks for commenting, Charles. In actuality, Lincoln didn’t have the authority to just let them leave. The President does not have the constitutional power to determine the makeup of the Union. That power belongs to the Congress. The President can’t admit a new state on his own, so he can’t allow a state to leave on his own. Had Lincoln tried to acquiesce in the attempted secession he would have been abdicating his constitutional duty to take care that the laws are executed, and he would have been usurping congressional authority. The Founders agreed that the Union was worth preserving. The Founders agreed that disunion would be the death knell of our freedom. It’s true there wasn’t 100% agreement among the Founders regarding secession, but the majority of the Founders did agree that unilateral secession was illegal. James Madison, the “Father of the Constitution,” was quite clear about this. George Washington, in his Farewll Address, warned against those who would weaken the ties of Union. Thomas Jefferson called advocating disunion an “error of opinion.”

      1. “The President does not have the constitutional power to determine the makeup of the Union. That power belongs to the Congress.”

        Which Congress did ironically by disqualifying the elected representatives of former confederate states. They also suspended constitutional rights in the South, which makes this “enforcement of the constitution” somewhat dubious.

        1. No. By the Constitution, Congress has the absolute authority to determine the qualifications of their members, and they have the right and authority to refuse to seat any representatives or senators they deem unqualified to hold office. That doesn’t mean those states are not in the Union. They are still in the Union. Congress did not suspend constitutional rights in the South.

        2. jason perez · · Reply

          Julius your comments are all in all quite dubious.

          “Which Congress did ironically by disqualifying the elected representatives of former confederate states”

          You do realize many didn’t need to be “disqualified” because they had given up their position willingly right? Thus shirking any opportunity to have a say in…well anything really.

          “They also suspended constitutional rights in the South”

          I can’t wait to hear that explanation.

  2. […] invasion and conquest of the Southern states. [He followed the US Supreme Court's rulings.  See here.] He refused to meet with Confederate peace commissioners before the war to work out a peaceful […]

  3. Charles, Lincoln couldn’t let the Southern states leave because, beyond the Constitutional questions, it was a matter of basic democracy.

    The South left the Union essentially because they lost an election. For Lincoln, if the Minority could ignore the results of a legally sanctioned election, just “take their ball and go home,” then there was no such thing as Majority Rule. If there’s no such thing as majority rule, then there’s no such thing as democracy; no democracy, then no popular sovereignty. In effect, the entire American experiment was in jeopardy.

    I think it’s always important to keep in mind that democracy was holy/sacred to Lincoln (and most other Americans) because only in a democracy could a lanky, uneducated kid from podunk-ville “better his condition” and become the leader of a great nation. We lose track of that idea today.

    All this is in Lincoln’s First Inaugural Address. It is (mostly) a very astute argument. Libertarians are too lazy to read anything but DiLorenzo and Hayek. And they don’t really read Hayek anyway (and god why would you?)

    1. I’ve found they mostly read what others claim Hayek wrote. Thomas Jefferson laid out the problem with the confederates’ secession in his famous “Reign of Witches” letter to John Taylor:

      “It is true that we are compleatly under the saddle of Massachusets & Connecticut, and that they ride us very hard, cruelly insulting our feelings as well as exhausting our strength and substance. Their natural friends, the three other eastern States, join them from a sort of family pride, and they have the art to divide certain other parts of the Union so as to make use of them to govern the whole. This is not new. It is the old practice of despots to use a part of the people to keep the rest in order, and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages. But our present situation is not a natural one. The body of our countrymen is substantially republican through every part of the Union. It was the irresistable influence & popularity of Gen^1 Washington, played off by the cunning of Hamilton, which turned the government over to anti-republican hands, or turned the republican members, chosen by the people, into anti- republicans. He delivered it over to his successor in this state, and very untoward events, since improved with great artifice, have produced on the public mind the impression we see; but still, repeat it, this is not the natural state. Time alone would bring round an order of things more correspondent to the sentiments of our constituents; but are there not events impending which will do it within a few months? The invasion of England, the public and authentic avowal of sentiments hostile to the leading principles of our Constitution, the prospect of a war in which we shall stand alone, land-tax, stamp-tax, increase of public debt, &c. Be this as it may, in every free & deliberating society there must, from the nature of man, be opposite parties & violent dissensions & discords; and one of these, for the most part, must prevail over the other for a longer or shorter time. Perhaps this party division is necessary to induce each to watch & delate to the people the proceedings of the other. But if on a temporary superiority of the one party, the other is to resort to a scission of the Union, no federal government can ever exist. If to rid ourselves of the present rule of Massachusets & Connecticut we break the Union, will the evil stop there? Suppose the N. England States alone cut off, will our natures be changed? are we not men still to the south of that, & with all the passions of men? Immediately we shall see a Pennsylvania & a Virginia party arise in the residuary confederacy, and the public mind will be distracted with the same party spirit. What a game, too, will the one party have in their hands by eternally threatening the other that unless they do so & so, they will join their Northern neighbors. If we reduce our Union to Virginia & N. Carolina, immediately the conflict will be established between the representatives of these two States, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry, seeing that we must have somebody to quarrel with, I had rather keep our New England associates for that purpose than to see our bickerings transferred to others. They are circumscribed within such narrow limits, & their population so full, that their numbers will ever be the minority, and they are marked, like the Jews, with such a peculiarity of character as to constitute from that circumstance the natural division of our parties. A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles.” [Jefferson to John Taylor, 1 June 1798]

  4. Very good read, its important to note that people like to discredit supreme court rulings by saying things like “well that was only after the war” but clearly it shows what they thought well before the war as well. One thing I have noticed is that a commonality between pro-secession/nullification people is that they always undermine the role of the supreme court.

    I’m curious what your thoughts are on what this guys says:
    http://www.etymonline.com/cw/secession.htm
    http://www.etymonline.com/cw/secession2.htm

    Its almost creepy in a way but its basically the opposite of your blog that it tries to cover different aspects of the civil war but from a confederate/southern defense point of view.

    I mean he even has a post that says “the cornerstone speech ‘in context'”. I didn’t even think that kind of defense was possible…but he tries to make it work.

    1. It’s typical of what we see from neoconfederate sources that only take a carefully sliced out portion of the historical record and ignore the parts that prove them absolutely wrong. In some cases this is inadvertent. In other cases we see it’s deliberate. I’m not sure about that particular website, but it’s clear that the person who wrote it has only used a small part of the record.

      1. He would argue that is actually what “we” do in order to discredit them. Take things out of context (yet his post on lincoln of course does exactly that). Thats basically his defense of the cornerstone speech you should check it out. Yes I agree, that being said he is very..how can I put it…persuasive. Even the other subjects he touches on the civil war are pretty convincing.

        Anyways the point of my first comment was, someday I hope to see a post from you that hits pro-secession/nullification people where it hurts. I feel like supreme court rulings are not good enough for them because they will always play the “well they are part of the federal govt” card. They dont respect the decision or role of the supreme court. Pro secession/nullification people seem to have an arsenal that focuses more on statements from federalist/anti federalist, statements from ratification conventions/debates, conclusions drawn from the immediate history surrounding the constitution and war of independence, etc and I feel that in order to really deal with them thats where the battle needs to take place.

        1. No matter how persuasive he may sound, the fact remains the Supreme Court of the United States and other Federal Courts have said unequivocally that unilateral secession is an unconstitutional act.

          People who claim unilateral secession is legal are like flat-earthers. They comb through all kinds of things and snip out the parts that bolster their opinion, leaving out the parts that prove them wrong, and amass what seems to be an overwhelming mountain of evidence that falls apart when it’s actually examined against the record.

          1. Thank you for your response. Yes of course that is how I view them as well. I was more trying to enrich myself that I can better defend the notion that its unconstitutional. Of course I have no issue with the supreme courts interpretation of the law…thats their job/role after all. My point was that I can’t use that against an originalist or against a pro secession/nullification/neo confederate. When I have to discuss this with someone this is where they will take the debate every single time. That is why I was saying I hope someday you will do a similar post to this that focuses more on that area of the argument. I can only tell them what the supreme court says so much.

            Consider the following from his page:

            Consider the following as an insight into how the Founders would have regarded Lincoln’s vision of a perpetual union of the American states, held together by the strong arm of the federal government.

            The scene is the ratification debate in New York state in the summer of 1788. Alexander Hamilton is defending, against anti-federalist objections, the power granted to the federal government, under the proposed system, to levy taxes directly on the citizens rather than making requisitions from the states. This is one of the Constitution’s specially enumerated powers. It is a defined path for the federal government to override state authority. Hamilton points out the obvious necessity for a government to be able to pay its bills: “if we have national objects to pursue, we must have national revenues.”

            Remember, this is the arch-Federalist speaking, the man whose name is associated more than any other in the Constitutional Convention with the authority of the federal government. He paints the picture of the country without this power, and of a state refusing a federal requisition:

            “It has been observed, to coerce the states is one of the maddest projects that was ever devised. A failure of compliance will never be confined to a single state. This being the case, can we suppose it wise to hazard a civil war?
            “Suppose Massachusetts, or any large state, should refuse, and Congress should attempt to compel them, would they not have influence to procure assistance, especially from those states which are in the same situation as themselves? What picture does this idea present to our view? A complying state at war with a non-complying state; Congress marching the troops of one state into the bosom of another; this state collecting auxiliaries, and forming, perhaps, a majority against the federal head.

            “Here is a nation at war with itself. Can any reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itself — a government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a government. But can we believe that one state will ever suffer itself to be used as an instrument of coercion? The thing is a dream; it is impossible.”[8]

            The Constitution enumerated the powers of the federal government, not those of the states or the people. It gave the federal government just such powers as, the Founders understood, would prevent this kind of conflict. The power to tax citizens directly was among them. It did not give the federal government broad, unspecified powers of coercion to do the very thing Hamilton abhorred here.

            Here is another:

            “The committee of five that wrote the ratification was Edmund Randolph, George Nicholas, James Madison, John Marshall, and Francis Corbin — all of them Federalists and Madison and Randolph, of course, members of the Constitutional Convention that had met in Philadelphia in 1787.
            But was this binding? Or was the Constitution merely a “take it as-is or leave it” proposition when put to the states?

            Five states (Connecticut, New Jersey, Pennsylvania, Delaware, and Georgia) ratified the Constitution without a word about a bill of rights. The rest, following Massachusetts, advocated for one, and it became a major subject of contention as the antifederalists adjusted their tactics.

            States went so far as to attach proposed bills of rights to their ratifications in some cases, and they urged their members in the new government to tirelessly advocate for them. Yet these were not “conditions” of their ratification. And it was made clear, in convention after convention, that a state’s “conditional” ratification of the Constitution would not be accepted by Congress.

            In New York’s convention, for instance, on July 24, 1788, Antifederalist John Lansing Jr. moved that a resolution be adopted giving New York the right to secede from the Union if certain amendments were not adopted within a certain number of years. Alexander Hamilton, who had anticipated such a proposal, had written to James Madison several days earlier and posed the question to him. Madison, in his capacity as a Congressman, had replied, indicating that Congress would not consider a conditional ratification to be valid. Hamilton read the letter to the convention, and Lansing’s motion was defeated on the 25th by a vote of 31 to 28.[6]

            So the right of secession claimed by Virginia and New York cannot be seen as “conditions” or amendments to the Constitutional proposal. If they were, those states’ ratifications would have been rejected, as per Madison’s letter. The other conditions listed as presumed in the preamble to the Virginia ratification — the inability of the federal government to interfere in free exercise of religion and the press — were agreed by all, federalists included, to be beyond the power of the federal government.

            The question was not whether such rights would exist under the new government, but whether the rights, specifically those of individuals, needed to be made explicit in a bill of rights.[7] Their being claimed in Virginia’s ratification presented no obstacle to Virginia being accepted by Congress as the 10th state in the new union, because the powers claimed were consistent with the Constitution, as understood by those who drew it up and those who recommended it to the states for ratification. The right to secede claimed in the Virginia ratification has to be regarded in the same light.”

            I apologize if that was too long no offense taken if you edit my post.

            While you might easily deflect statements like this, It would not be quite as easy for me. For my own personal enrichment I would like to see this area dealt with more. I guess that is what I was getting at.

          2. As to the Hamilton quote, it is an example of what I’ve been talking about–taking a quotation out of context to make it appear Hamilton was saying something he wasn’t saying. Take a look at Hamilton’s full statement in the New York Ratification Convention and you’ll see what I mean.

            I dealt with Virginia’s ratification in this post.

          3. Thanks, I did not know about that post I will check it out for sure.
            Oh I’m sure thats exactly what hes doing with Hamilton. I still think it would be a worthy post to only go over just those exact arguments for secession. Going over the hamilton and madison quotes that are cherry picked and used to support the claim etc…

            Thats of course up to you and seeing as how I subscribed I will know when you do!
            also..vTech? you must live near me…around here I see many people with a vTech sticker on their car.

  5. Al, I’m curious about your commentary, someone used the following case saying it is in disagreement with Marshall.

    “The federal government is composed of twenty-four sovereign and independent states;”

    WHEATON v. PETERS, 1834

    I looked into it and it seems he is taking this quote entirely out of context, out of the scope of its case. I know what he thinks its saying but after reading much more of the passage, as well as some commentary on it, this does not seem to have the ramifications he is saying it does…Am I wrong? Or?

    1. It seems clear to me Justice McLean is talking about common law, so for purposes of common law the states are separate, each having its own common law traditions. It’s quite obvious the states are not completely independent and sovereign from reading the Constitution, and Justice McLean was smart enough to understand the limitations imposed by the Constitution, including the Supremacy Clause, keep each state from being politically independent of the United States and completely sovereign. They are only sovereign for issues and law that remain within their borders.

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