Walter Williams: Wrong on Secession

Last week, Walter Williams published a column called The Real Lincoln, in which he mostly quoted editorialists to support his claim that "virtually every political leader of the time and earlier believed that states had a right of secession."

If that were really true, of course, the Civil War would never have been fought. "Virtually every" political leader in Washington would have let the secessionist states go their own ways. But of course they didn't do that. Instead, they prosecuted a long, bloody war to prevent it. So that part of Williams' case simply fails.

The question remains as to the legality of secession: does the Constitution grant power to the Federal Government to prevent it? Oddly, Williams does not refer to the Constitution itself, to see whether it has something to say about the matter. Rather, Williams (quoting author Thomas DiLorenzo) only provides several quotations about the Constitution, and peoples' opinions about secession.

Article 1, Section 8 gives Congress the power To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Thus, the Constitution recognizes the possibility of rebellion (armed secession would seem to qualify), and gives Congress the power to suppress it.

The next question is: does secession represent a rebellion or insurrection? Webster's defines insurrection as "an act or instance of revolting against civil authority or an established government." So if secession is a revolt against the defined powers and authority of the Federal Government, as defined in the Constitution, then the Federal Government is granted the power to prevent it.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The secessionist states clearly violated almost every part of Section 10 -- especially that last clause -- and would by any standard be considered in a state of insurrection.

Article III, Section 3 states that Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The actions of the people in secessionist states fit this definition of treason, and it is within the powers of the Federal Government to deal with them.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Section VI clearly states that, since the Constitution is the "supreme Law of the Land," the interests of individual states are inferior to those of the United States -- even if their state Constitutions say otherwise. The individual states are bound to remain part of the United States, both by their ratification of the Constitution, and also by their Oath of Affirmation to support the Constitution.

A plain reading of the Constitution not only does not support DiLorenzo's (and thus Williams's) argument, it flat-out refutes it. The powers of the Federal Government do in fact include the power to prevent secession, and Lincoln was properly discharging his duties as President when he acted against the Confederacy.

DiLorenzo's argument thus reduces to whether or not Congress and Lincoln should have allowed the seceeding states to violate the supreme Law of the Land with impunity -- which puts DiLorenzo in the awkward position of having to argue against the rule of Law.

Finally, the pro-secession case simply ignores history: a war between North and South was inevitable. It had been brewing for decades. Even had the secession been allowed to proceed, war would undoubtedly have occurred anyway, following the pattern of Kansas in the 1850s.

Williams is a smart fellow, and he says a lot of good things. But he also says some dumb things -- his "Lincoln" column being exhibit A.

The Supremacy clause in the Constitution says that it is supreme over anything in the laws of any state. Nothing in state law may withstand it. Since an ordinance or declaration of secession is a "thing" in state law, it cannot stand against the Supremacy Clause.

And you'd be in the right if the Constitution had a provision disallowing secession, meaning the Supremacy Clause would have something to put its teeth into. But there isn't such a clause. Even a "one note pony", if the "one note" is an unequivocal truth, can finish the show.

One other point. I don't care what act you trot out, if it is patently unconstitutional, it is irrelevant no matter how many stacked courts claim otherwise. Read the document in question. If it allows something, or does not disallow something, then it can be done.

LTS

Nowhere in the Constitution is the power of secession explicity prohibited to the states. Thus, under Article X, that power is fully reserved to the states, or the people.

You meant to say Amendment X, of course.

However, insurrection, treason, and many other things that the Confederate states did, are among those things that are explicitly prohibited, and the Federal Government is granted the power to deal with such things.

Your argument seems to rest on the idea that Secession is not insurrection. This runs counter the language in Article VI, which explicitly makes the laws and constitutions of the several states inferior to the Constitution.

Not to mention the fact that the specifics of the actual secession cannot be viewed as anything other than an insurrection.

The Supremacy clause in the Constitution says that it is supreme over anything in the laws of any state. Nothing in state law may withstand it.

Only after the 14th Amendment. The supremacy clause was in a different context before that. Tell me, what kind of idiots would elect a government that had more power over them than then the founding states themselves?

Because the States created the Constitution you have to determine if a State has the right to not be bound by the Constitution.

The Constitution clearly states that the Constitution is the supreme law of the land, and superior to the laws and constitutions of the states.

The states, through their duly-elected goevnerments, are required by the Constitution to swear an oath to that effect.

In ratifying the Constitution, the states bound themselves to be governed by the Constitution.

Lets look at the balance sheet:

Lincoln instituted military tribunals; the confederacy held humans in bondage.

Lincoln instituted a federal tax; the confederacy held humans in bondage.

Lincoln expanded the power of the executive; the confederacy held humans in bondage.

Lincoln laid the groundwork for public education; the confederacy held humans in bondage.

America was supposed to be different from all the other BS nations that suffer from the abuses of paper money.

You are so right. The sign of our currency $ is the letters of our nation laid on top of each other. (There should be two lines through the S.)

Despotism is only one moral prerequisite. A tyrannical government that suppresses our right to self-determination is another. You're comparing apples and oranges.

If a State self-determines its way out of the Union, is that okay?

I see no apples, nor oranges, I merely refuted your single point rebuttal to my question. If despotism is a "moral" prerequisite, of which there are more than one, and the British Empire didn't qualify, that's still an unmet prerequisite.

LTS

Read the document in question. If it allows something, or does not disallow something, then it can be done.

Then you disagree with Robert E. Lee.

Walt

How could secession be against the principles our founding fathers put in the Constitution when our very first act as a nation was to SECEDE? (Please read the VERY first line of the DECLARATION OF INDEPENDENCE.)

Lincoln wanted to try many southern leaders on charges of treason for seceding from the Union but NOT ONE PERSON WAS EVER TRIED and all charges were eventually dropped! Why not? Because almost every constitutional scholar of the time advised him that the prosecution WOULD LOSE. It would no doubt have been appealed to the Supreme Court and there the Union would have lost, too. What would that mean? Basically what we Southerners have always held, Lincoln conducted a war of agression and conquest.

BTW, the definition of a "civil war" is a war fought for control of a country. The Confederacy wanted only to control itself and the Union could do whatever it wanted.

"The Congress has the power to provide for the general welfare and the common defense. If secession is inimical to that, Congress may act."

Who is to say that secession is inimical to that? How so? If Congress can justify any act as being against the "general welfare" just by saying so, then the 10th amendment has no meaning and has been written out of the Constitution. I believe that attemping to prevent secession by force of arms is and was much more inimical to the general welfare of the country than peaceful secession ever could be.

Your questioning of Dr. William's assertion is off-base. He is correct. It was losing the Civil War, not any legal argument, that established that the position of the Confederacy was wrong.

I'm just reading the Constitution. Please explain to us how the act of secession -- and the actions of the seceeding states -- do not qualify as insurrection?

I'm not saying the system is, or ever was, perfect. But it must always be administered by real people. That is what CSA apologists like you would deny.

The Supreme Court has the power, and they shot down all these secession arguments, at least implicitly, with their ruling in the Prize Cases. There is just no two ways about it.

Walt

You meant to say Amendment X, of course. However, insurrection, treason, and many other things that the Confederate states did, are among those things that are explicitly prohibited, and the Federal Government is granted the power to deal with such things. Your argument seems to rest on the idea that Secession is not insurrection. This runs counter the language in Article VI, which explicitly makes the laws and constitutions of the several states inferior to the Constitution.

You're right--I did mean Amendement (that's one of the hazards of typing while you work). Previous posts on this thread ( mine and others) have demonstrated that secession was no insurrection since it itself was an act by duly-elected civil authority (in fact, by the very bodies that had ratified the Constitution eighty years earlier).

the confederacy held humans in bondage

Are you saying, that because some people in the Confederacy owned slaved (what was it, 15% of them?), that nothing Lincoln did is inexcusable?

Slavery was both legal, and practiced in all of the United States. I'm not defending the institution, but its not like the North's hands weren't just as bloody as the South's on this matter.

However, I am trying to debunk the notion that the right to secession can be based upon the law of the government. If so, then there is nor "right" to self-government at all.

OTOH, if the sole basis for government is "consent," then the rule of law becomes meaningless.

So there is certainly no moral prerogative to secede today

I disagree completely. The colonists revolted over a level of excise taxation you and I would pay without batting an eye. They were free to purchase, without restriction, opium, tobacco, alcohol, and whatever arms they desired. There were no government schools, no subsidies to business, no welfare transfer payments, no forced participation in socialist Ponzi schemes. Colonial money was, literally, "as good as gold."

Our government purports to justify itself by assuming that a majority of the electorate can legitimately shift the burden of public largesse to the minority. This premise is false--our current government is morally bankrupt. As Dr. Williams says, "It's time to part company."

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