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.

Sorry old chap, not a word about secession anywhere in [Art. I, Section 10].

...many of the states that signed into the Constitution made their ratification conditional.

I'm not aware of any state reserving the authority to secede. Some may have internally stated such an intention, but such an agreement among lawmakers in a state would not be binding on the U.S.

Take your pick of reasons the Constitution has been invalidated. 1) The federalists lied and the Constitution was always intended to be involuntarily binding once joined...thus breaking the contract the Constitution represents. 2) Lincoln violated the Constitution by expanding federal powers beyond those enumerated, thus breaking the contract the Constitution represents. 3) The Constution was invalid due to a basic incompatibility with the existance of slavery. 4) Your view, which seems to be a combination of 1 and 3.

Lincoln was not even in office when most of the Confederates seceded and formed an unconstitutional confederation, so they could not rely on anything Lincoln did to constitutionally justify their contravention of the Constitution. They knew they were engaging in what was essentially a revolutionary act and they knew that they were inviting war. In fact, the Lower South used their unconstitutional attack on Fort Sumter to attract the Upper South states to their cause. The Confederates tried somewhat to negotiate a peaceful secession, but they never made any attempt to legally establish any claims about the unenforceability of the U.S. Constitution. You're way off in Confederate glorification fantasyland and show no signs of getting back to civilization.

I don't think you understand what an Enumerated Constitution means... It means that the federal government has *no say* in who may or may not have slaves because no such power was *enumerated* in the Constitution.

Nonsense. The Northwest Ordinance established a history of federal involvement in abolition even prior to the adoption of the Constitution. The Constitution also provided for amendment, and thus the 13th Amendment (thankfully) abolished slavery in a clearly constitutional manner. Apparently the abolition of slavery broke your faith in government by the slaveholders, for the slaveholders, but the Northwest Ordinance was clear warning to the slaveholders that total abolition was a real and constitutional possibility.

... the Constitution is no longer enumerated and controls absolutely *everything* pending the proper "interpretation" by a coercible Supreme Court and an irresponsible Congress led by the king for a day (or four years if you prefer).

The Constitution has always been a vague and ambiguous document and American citizens have always been subject to majoritarian tyranny. Until 1865, the most obvious form of tyranny was the toleration of slavery in some states. Since 1865, other forms of tyranny have become more prominent. Tocqueville warned all Americans about the specter of majoritarian tyranny way back in the 1830's, and rather than coming up with a better system, the Confederates made it very clear with theur constitution that they were all about instituting slavery. You seem to be imagining an Antebellum American Utopia that never existed.

That would only be true in the Unionist view, in which the Southern states never actually left the Union -- because they couldn't -- but only "rebelled". Hence the partisan locution popular at the time, "War of the Rebellion". But precisely because the secessionist states were no longer in the Union, they could no longer violate that Constitution to which they were no longer signatories.

Art. I, Sect. 10 says nothing about relieving seceding states from their duty not to form confederations and engage in war. Dissolving a union does not relieve you of your duties to your ex-partners. For example, partnership agreements generally prohibit partners who leave the firm from competing with the partnership.

Thus, the rebellious states would have had a much better constitutional argument had they declined to confederate and start a war. (Of course, the abject immorality of seceding to preserve slavery would still subject them to condemnation by any fair minded people.)

First, if I remember William's article, it was rife with quotes from major newspapers of the day (mostly Northern) that opined that the South should be allowed to leave - making compelling arguments supporting their position. Quoting those published opinions doesn't make Williams wrong - and lest we forget, the country was only approximately 100 years old - those people were closer to the creation of the Constitution than we are; and have a clearer viewpoint than we do after another 100 years of rationalizing, revisionist SCOTUS case law...but:

The bottom-line issue is whether the people of a State, which has voted to leave the Union, are engaged in an insurrection.

How one answers that question determines whether one respects individual rights. Nowhere in the Constitution will you find an explicit premption for a State to vote to leave the Union - only r9etb's quotation regarding insurrection seems to apply to the question of whether secession is a legal endeavor. Put another way, nowhere in the Constitution does one find that the people and/or the States have expressly surrendered their Right to opt out of the Union.

After one reads the Ninth and Tenth Amendments to the Constitution, it is clear that the People/State's reserved unto themselves the Right clearly spelled out in the Declaration of Independence to leave the Union. IMHO, it is ludicrous to believe that individuals who penned the Declaration of Independence; agreed with Hobbe's Leviathon opinion of government and fought a war against England for their Individual Rights would then create a government they couldn't legally opt out of when it inevitably became uncontrollable.

Call me crazy, but my time in law school and studying history in undergrad leads me to believe that there is a right to secede - if the people of a State vote to do so.

To me, an insurrection is an illegal attempt to overthrow a government - but seccession, i.e. a vote by the citizens of a state for their state to leave the union, is not an attempt to overthrow the US Government; it is merely an expression of the will of the citizens of that State that they wish to govern themselves in a manner different from that which the US Government is currently operating, and therefore legal under the Constitution and the Bill of Rights.

IMHO.

The the fact that the power is not explicitly denied the states can be offset by the fact that the power is implicitly reserved to the United States.

You are analyzing the absence of a provision for leaving the Union from the wrong perspective. The Constitution is a limited, explicit delegation of certain authority to a Federal Government by citizens through there States - it doesn't deny anything to the States, nor does it reserve anything to the Federal Government. Read the Ninth and Tenth Amendments. Powers not specifically delegated to the US Government are reserved to the people unless delegated to the States.

If the power to prevent a State from leaving the Union peacefully is not mentioned, it wasn't delegated. Such a power would never have been delegated since not one of the individuals framing the Constitution believed such power existed.

They just fought a war for their Right to govern themselves as they saw fit; believed that all governments eventually become corrupt; believed that just governments derive powers from the individual. These individuals would never create a document that did not allow for individuals to legally opt out if they believed the government was acting inappropriately.

Please pay close attention. As I've stated, there's nothing about secession anywhere in the Constitution. As I also specifically stated to you, however, there is a specific provision in Art. I. Sect. 10 which prohibits states from entering into any confederations with other states or engaging in war.

And, as has been stated before, once a state has seceded, those provision, nor any other portion of that document apply any longer.

I'm not aware of any state reserving the authority to secede.

There are quite a few states that did so among the original 13 as well as Texas later on.

Lincoln was not even in office when most of the Confederates seceded and formed an unconstitutional confederation

Lincoln was in office, he just wasn't in the Presidential office. Once a state has seceded, nothing that they do is unconstitutional, as per the definition of secession. This would include entering into a confederation or beginning a war...or...as in this case, defending themselves in a war.

In fact, the Lower South used their unconstitutional attack on Fort Sumter to attract the Upper South states to their cause.

1) GA wasn't a state. It had seceded.
2) The soldiers had moved from their location at Ft. Marcy to Ft. Sumpter that would have effectively blockaded Charleston with a very defensible fort once reinforcements arrived with appropriate artillery.
Therefore, the move revealed an act of war. A blockade, is an Act of War.
3) The only reason those soldiers were there in the first place was to ensure the continued taxation to ruination and seizure of goods exported as people attempted to freely trade.

Nonsense

Nonsense? Where in the Constitution is the power to initiate war granted to the President? Where in the Constitution is the power to deport dissenting Congressmen granted to the President? Where in the Constitution is the suppression of the Bill of Rights granted to the President? Where in the Constitution is the arrest and imprisonment of an entire state's Congress given to the President? Where in the Constitution is the call up of militias given to the President?

Where in the Constitution is the power to arbitrarily restrict Free Speech, gun ownership, and indeed since we're talking about the War of Northern Agression and at the time there *were* only 12 Amendments, Where, at that time, was the power to abolish slavery given solely to the President?
(Hint: NONE of those powers were given to the President.)

The Constitution has always been a vague and ambiguous document and American citizens have always been subject to majoritarian tyranny.

You have 2 choices, 1) The Constitution is invalid as it establishes a majoritarian tyranny. 2) The Constitution is invalid as it does not establish a majoritarian tyranny, but has been violated in such a manner.

BTW: The Constitution isn't vague or ambiguous. It's wording is quite clear and the spirit in which it was written is available to any who look. Vaguaries and Ambiguities in the Constitution are placed there by lawyers taking advantage of slight linguistic shifts in the population...and the 9th and 10th Amendments were as important as the 1st and 2nd Amendments.

Powers not specifically delegated to the US Government are reserved to the people unless delegated to the States.

But that's not what the 10th Amendment says. The word 'specific' isn't in there so there is no reason why implied powers should be excluded. Look at the document as a whole and look at powers already specifically assigned Congress and specifically denied to the states. Congressional action is required for everything affecting the status of a state. Everything from becoming a state in the first place to the most minute change in borders. Nowhere does the Constitution allow a state to act in an arbitrary manner where the interests of other states might be involved. Why would arbitrary secession be the one arbitrary act affecting the interests of other states that would not be allowed? It makes no sense.

The Constition must be looked at as a whole because the sum of its parts is more encompassing than the individual parts. If, as you say, the government is not allowed any powers not specifically mentioned in the Constitution then how can we have an Air Force? The Constitution allows for an Army and an Navy, nothing else. By your definition then only states could raise and maintain an Air Force. But because the Constituion calls for providing for the common defense then the power to maintain this particular branch of the military is implied. So to for arbitrary secession.

As for opting out of the Union, I have never maintained that the United States was meant to be permentant. I firmly believe that a state or states have the right to leave the Union so long as they do it within the framework of the Constitution. It was the arbitrary manner of the southern action. Had they left with the approval of the majority of Congess then I would have applauded their action, wished them well, and let them go on their merry way. But they didn't. Instead the started a Civil War. They fought a war of rebellion. They fought a war to maintain their peculiar institution and because they believed majority rule and states rights were fine, so long as they were the majority and that the states rights that were trampled on were someone elses. They were in the wrong and they paid the price for their actions.

And, as has been stated before, once a state has seceded, those provision, nor any other portion of that document apply any longer.

But if the way that they seceeded was not legal then they were still a state, regardless of whether they considered themselves one or not. Their actions then constituted rebellion.

There are quite a few states that did so among the original 13 as well as Texas later on.

There were, I believe, only three. But regardless of what they said in their ratification documents they also ratified the Constitution itself. And that included the part which said that the Constitution and laws made under it was the supreme law of the land, regardless of what any state law, state constitution, and, yes, ratification document may say. So unless the method in which they left the Union was allowed under the Constitution then their actions were illegal. And arbitrary secession is not allowed.

Lincoln was in office, he just wasn't in the Presidential office.

Please give me a break. He was president-elect without the power or authority to do anything. What other office did he hold?

In fact, the Lower South used their unconstitutional attack on Fort Sumter to attract the Upper South states to their cause.

Let's clear up a few misconceptions in your reply to this. Last time I looked at a map, Sumter was in Charleston and Charleston was in South Carolina, not Georgia. There is no Fort Marcy in Charleston, or anywhere else that I'm aware of. There was a Castle Pinkney and a Fort Moultrie where the soldiers were stationed before they moved to Sumter. Their actions did not constitute blockade since they made no threats and did not take any hostile action. Shipping flowed into and out of Charleston harbor the whole time the troops were there, with the exception of the federal supply ship that the south fired on in January 1861. Finally, you claim that the troops were there to collect ruinous taxes on exports is ludicrous since the Constitution forbids tariffs on exports, only allowing it on imports. Other than that I think you were pretty accurate.

Where in the Constitution is the power to initiate war granted to the President? Where in the Constitution is the power to deport dissenting Congressmen granted to the President? Where in the Constitution is the suppression of the Bill of Rights granted to the President? Where in the Constitution is the arrest and imprisonment of an entire state's Congress given to the President? Where in the Constitution is the call up of militias given to the President?

So many claims. Where to begin? First of all, Lincoln did not initiate a war. You conduct war with other nations, not rebellious sections of your own country. In any case, the south fired first, not the North, and it was the south which issued a declaration of war, not the North. Lincoln never deported a dissenting congressman, trampled over the Bill of Rights, or arrested an entire state legislature and I would be obliged if you would provide proof that he did any of this. The right to call up the militia for a limited time to supress rebellion or invasion was given the President by Congress by the Militia Act of 1792. To continue, Lincoln didn't arbitrarily restrict gun ownership and, again, I would ask for your evidence that he did. Finally Lincoln did not end slavery, he freed the slaves held in the south as a necessary measure to combat rebellion and in his capacity as Commander in Chief. Don't you read any of the documents you debate? I should also point out that just about action you mentioned, other than freeing the slaves of course, was also done by Jefferson Davis, from suspending habeas corpus to locking up political prisoners to seizing private property for the war effort. Would you direct some of your ire at him, too?

I'm glad that you agree that the Constituion is quite clear. Since we agree on that, if you can show me a single action affecting the status of a state which does not require congressional approval, or where the Constitution allows a state to act in an arbitrary manner where the interests of another state are involved then you might bring me around to your belief that arbitrary secession was legal. Until then, the actions of the southern states were acts of rebellion, they started the conflict, and they reaped the consequences of their actions.

Nowhere does the Constitution allow a state to act...
...Had they left with the approval of the majority of Congess...

First, the States, via the Constitution, allow the Federal Government to act.

Second, if a State requires consent of the other states to leave, the State has no right at all, as the other states will never deem their actions, which give rise to the first State's desire to leave, as offensive.

Third, there is NO PROVISION THAT REQUIRES A STATE TO GAIN THE CONSENT OF THE CONGRESS TO LEAVE THE UNION, THEREFORE THAT REQUIREMENT DOES NOT EXIST CONSTITUTIONALLY. PERIOD.

Fourth, while you deem the south's actions "arbitrary" the southern legislatures evidently did not - they voted to leave. Hence, you prove my second point to you. "Arbitrary" is evidently in the eyes of the beholder.

The legitimacy of Secession is a great litmus test on whether an idividual believes our rights emanate from our Creator or from the Government.

Try again. The Constituion is full of restriction on the states. The document makes it clear that states are pretty much free to run their own show, so long as the maintain a republican form of government and don't act in a manner which may harm the interest of another state. The other big restriction is that states may not take any action which alters their status unless Congress approves. They can't split up, join together, alter their borders a fraction of an inch without Congressional approval. And you want us to believe that the Constituion restricts every arbitrary action that affects the status of a state, except one?

Take your second statement, if a state requires the consent of other states it has no right at all. You can take that to cover any arbitrary action. Having ended slavery, if Pennsylvania does not have the right to allow a runaway slave to live safely within her borders then where is her soverignity? Why should she submit to the laws laid out by other states and be forced to allow marshals to come in and seize that slave? Why? Because the Constitution says so. If North Dakota does not have the right to protect her farmers from wheat grown in South Dakota by slapping a tariff on it when brought into the state then where is her freedom? The fact is that the individual states agreed to restrictions when they agreed to the Constitution. And one of the restriction is that they cannot take an act which affectes the interests of other states unless the majority agree to it.

If the fact that the provision is not clearly laid out means it is not allowed then let me ask you where the provision is to maintain an Air Force? The Constitution does not specifically allow it, we must disband it. Is that your position? If not, if the provision for an Air Force is implied in the 'provide for the common defense' clause then why are no other implied powers allowed? It is clear by implication that the power to allow the change of status in a state is one reserved to the United States.

Finally, it was an arbitrary act. They acted without consideration of the interests of the other states, and wityout consulting them. Approval of one side of the agreement without consultation or consent of the others do not constitute consent.

And that included the part which said that the Constitution and laws made under it was the supreme law of the land, regardless of what any state law, state constitution, and, yes, ratification document may say. So unless the method in which they left the Union was allowed under the Constitution then their actions were illegal. And arbitrary secession is not allowed.

Then the Constitution is invalid because the original framers lied. Contracts signed under false pretenses are invalid.

Their actions did not constitute blockade since they made no threats and did not take any hostile action.

Their actions did constitute an attempt to blockade. There was no other legitimate purpose for the move. They couldn't even defend themselves in Fort Sumpter until the expected reinforcements arrived. Fort Moultrie, pardon my bad, was a customs house ensuring continued collection of tariffs against a sovereign entity, South Carolina.

Lincoln did not initiate a war. You conduct war with other nations, not rebellious sections of your own country.

Lincoln invaded seceded sections of North America. It's quite quaint that because he successfully trampled the rights of those states that you can now claim that they had never seceded in the first place, but the simple fact remains, he did invade.

In any case, the south fired first, not the North, and it was the south which issued a declaration of war, not the North.

Firing first is a legitimate form of self-defense under many circumstances. Ft. Sumpter was one of them.

Lincoln never deported a dissenting congressman, trampled over the Bill of Rights, or arrested an entire state legislature and I would be obliged if you would provide proof that he did any of this.

"Lincoln used war to destroy the U.S. Constitution in order to establish a powerful central government," says Roberts. This is certainly a strong statement, but in fact Lincoln illegally suspended the writ of habeas corpus; launched a military invasion without consent of Congress; blockaded Southern ports without declaring war; imprisoned without warrant or trial some 13,000 Northern citizens who opposed his policies; arrested dozens of newspaper editors and owners and, in some cases, had federal soldiers destroy their printing presses; censored all telegraph communication; nationalized the railroads; created three new states (Kansas, Nevada, and West Virginia) without the formal consent of the citizens of those states, an act that Lincoln's own attorney general thought was unconstitutional; ordered Federal troops to interfere with Northern elections; deported a member of Congress from Ohio after he criticized Lincoln's unconstitutional behavior; confiscated private property; confiscated firearms in violation of the Second Amendment; and eviscerated the Ninth and Tenth Amendments.

-- Fighting Facts With Slander by Thomas J. DiLorenzo

He had the state legislature of Maryland arrested to prevent their secession. When it comes to actual acts, not the purported reasons behind them, history can be a stickler.

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