Posted on 04/03/2002 9:52:50 AM PST by r9etb
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.
One can see why: the Constitution itself does not support his case.
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.
The rights and restrictions on the States are defined in Section 10:
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.
Article VI says, in part:
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.
Whether the states have a right to secede depends on who you talk to. It sure seems like the states would have that right, according to the Constitution, if it saw that the rest of the states were basically trashing the constitution. What if the required number of the states wanted to Constitutionally throw out some of the amendments?
I had also heard that the North was going to allow the South to secede until the South attacked Sumter because they didn't want a foreign fort on their border. So the North took that as an act of war, and conquered the South... much like Israel did in Palestine numerous times this century. (NOT comparing Palestinians to Southerners, but the mechanics of war were similar, if the South attacked first story is true).
Where do you get the idea that Congress can unmake a state? Or for that matter, make one?
Congress does not make a state. People make a state. Congress decides when the state may join the Union. That power is given to Congress in the Constitution. Article IV section 3 says:
"New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."
This does not give Congress the authority to prohibit states from leaving the union. Since that authority is not given to the Congress by the Constitution, the 10th Amendment reaffirms that the authority to do so is reserved to the states.
Let's take an example.
The people of Alabama love their state. They love their homes. They love their state government and their state constitution. They love the Constitution of the United States. But they have determined that the federal government no longer intends to be bound by the limitations imposed by that document. They believe this is a danger to their liberties.
They decide to secede from the Union.
An anti-secessionist argues that they do not have the right to do so. This in tantamount to saying that they belong to the United States -- they are the property of the US.
The secessionist takes the contrary position. The government belongs to the people and derives its power from the consent of the governed. And when those people no longer consent, they have the right to draft a document that starts something like this:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
You see, that's what secession is all about. The values enshrined in the Declaration of Independence. When the constitution was adopted, the people didn't abrogate the Declaration of Independence.
To say that the people of Alabama do not have the right to secede is the same as saying that the 13 original colonies did not have the right to secede from Great Britian.
If the government does not meet the needs of the people, the people have the right to change their government. I'll go further, and say that they have the duty to change their government. That includes the right to secede. We are not property of the United States. We are not slaves of the government.
Why? The United States already existed when they adopted the Constitution. That being the case, why not start with the establishment of the United States?
That's like saying the laws of California apply to someone living in Georgia.
You mean the laws of one state aren't applicable in another? Does that mean that forty years ago when people went to Reno for a "quickie" divorce to get around the waiting periods of their home state that the divorce wasn't recognized when they moved back? If so, a lot of people are in trouble. (All right, so that's a nit in the overall picture. But you'd have done better to use Brazil and Georgia as examples.)
Does the Constitution prohibit the states for seceding?
In accordance with the underlying principles of the Declaration of Independence, probably not. But does that mean the other States have no right to insist a State attempting secession be held to the agreement to unite in a perpetual union? Again, probably not. (A lot would depend on the circumstances.) It boils down to a conflict of rights and obligations. In the absence of applicable law, (and there is a lot of conflict here about the applicability of the law) it further boils down to resolution by peaceable means or by what some used to call "judicial combat."
Therefore, the Constitution clearly implies that states may secede.
If that were true this thread wouldn't be over 500 posts long.
The states are sovereign entities. which voluntarily entered into a Perpetual Union with each other, which union was established prior to and irregardless of the Constitution.
The states and the people who live in them may decide that they no longer want to be part of the United States.
You or your spouse can decide that you no longer want to be part of the "till death do us part" perpetual union you established, but that decision alone does not mean much.
So the 10th Amendment reaffirms that the authority to hold any secessionist state to the agreement to form a perpetual union is reserved to the states which are not seceding. And those states would act through their agent, the governement, whatever the constitutional form of the government might be.
By Jove! The wrinkles need to be ironed out, but maybe you've got it.
Because the poster wanted to argue that secession is unconstitutional. If we go back to the Articles of Confederation, it becomes even plainer. A Confederation is a voluntary alliance or league of soveriegn nations or states. An alliance can easily be canceled.
You mean the laws of one state aren't applicable in another? Does that mean that forty years ago when people went to Reno for a "quickie" divorce to get around the waiting periods of their home state that the divorce wasn't recognized when they moved back? If so, a lot of people are in trouble. (All right, so that's a nit in the overall picture. But you'd have done better to use Brazil and Georgia as examples.)
The laws aren't directly applicable, but the Constitution requires: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Notice that it does not say that the laws of California are applicable in Georgia. California cannot arrest someone in Georgia for violation of California's draconian gun laws.
I almost used an example like you suggested. Only I was going to do Panama. But the fact that we invaded that country and arrested its head of state for violation of American law made me change my mind.
In accordance with the underlying principles of the Declaration of Independence, probably not. But does that mean the other States have no right to insist a State attempting secession be held to the agreement to unite in a perpetual union? Again, probably not. (A lot would depend on the circumstances.) It boils down to a conflict of rights and obligations. In the absence of applicable law, (and there is a lot of conflict here about the applicability of the law) it further boils down to resolution by peaceable means or by what some used to call "judicial combat."
I don't know where you get the "perpetual union" stuff. Alabama joined the Union -- it didn't marry it. See my later post on applicability of the Declaration if Independence.
If that were true this thread wouldn't be over 500 posts long.
We live in a country that is woefully ignorant of the Constitution. Most Americans think that the Constitution gives the federal government the general police power. In fact, most Americans think that the Bill of Rights is what gives them the right to freedom of speech and religion. They also think that states derive their power from the federal Constitution.
The states are sovereign entities. which voluntarily entered into a Perpetual Union with each other, which union was established prior to and irregardless of the Constitution.
Here is the perpetual union stuff again. The record shows that before the Constitution was adopted, the question of secession came up. Every time it came up, everybody agreed that states could secede. Up until Fort Sumter, there was general agreement on that issue.
If you think about the Declaration of Independence, you'll see that secession is nothing more than an outgrowth of the ideas espoused therein.
I love the way you keep saying "perpetual union". But the states didn't agree to that. Just the opposite in fact. But keep reading. You're about to come to our discussion of the Declaration of Independence.
Why did you not say they love the United States? The Constituiton of the United States and the United States are not one and the same. The Federal Governement and the United States are not one and the same.
An anti-secessionist argues that they do not have the right to do so. This in tantamount to saying that they belong to the United States -- they are the property of the US.
Not quite right. The concept of property has nothing to do with it. It's more like if two members of a ten person softball team quit after the first game when they agreed to play out the season and the whole team has invested time and money and arranged their schedules for the common good--and you can't play softball with less than ten. Do the rest of the team members have a right to object? Could they sue for breach of promise? Or you could use the marriage example as I did in another post to you.
The government belongs...
The government is not at issue. The United States in Perpetual Union could have constitutionally established a Federation or a Monarchy as the form of government and the issue would still be whether or not the other States have a right to prevent a State from seceding from the Perpetual Union "stiled" as the United States, if they can. (Isn't that the real issue? Whether or not the Northern States had a right to prevent the Southern States from seceding? This threads so long and it's so late I kinda forget at this point.)
If the government does not meet the needs of the people, the people have the right to change their government.
This confuses the issue. The government and the United States are not one and the same. The government of the United States can be changed without dissolving the United States. It's been done.
Certainly the states have greater authority over their own destiny since those states existed prior to the formation of a central government that in its making, was to adhere to the 4th Amendment, but which it now ignores.
States Rights, my friend.
You are right that it is there in Article IV, Section 3.
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
It's clear that congressional approval is needed in any matter affecting the status of a state. If two states join or split apart then the old state no longer exists. Congressional approval is needed to unmake a state in that circumstance. Why should secession be any different?
well and good, They have that right. The founding fathers never meant for secession to be impossible but they never meant for it to be arbitrary, either. If you look through the entire Constitution there is not a arbitrary single action permitted to the states where the interests of the other states are involved. Why should secession be any different.
While the Constitution is silent on the specifics of withdrawing from the Union, it is clear from Article IV that it should at least take the consent of Congress and at most require only a majority vote of Congress. Had the southern states taken that course there is little doubt in my mind that you and I would be living in different countries today. Whether that would have been a good thing, well, that's another question. But it could have happened and it could have happened peacefully. But instead the south acted arbitrarily and quickly turned to war in order to back up their action. What happened to them afterwards was their own fault.
They didn't have that right, and they knew it. That's why they called their actions a revolution and not secession. They did not pretend that their actions were legal under British law and did not act surprised whe Britain resisted their actions by sending in the troops. Comparing youselves with the founding fathers and then complaining because the North didn't go along with your illegal actions is ridiculous.
Nowhere in the document do the States surrender their right to leave, therefore it was not surrendered, nor is the authority to forcefully prevent them from leaving delegated to the Federal Government.
Look friend, you are the one who is absolutely ridiculous. Read the Declaration of Independence sometimes. It might teach you a few lessons about the values this country was founded upon.
Since you probably won't bother to follow the link, I have posted a paragraph here. Read this and then tell me that the Founding Fathers didn't have the right to break from Great Britian.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security -- Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. -- The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let facts be submitted to a candid world.
I have underlined particularly pertinant parts.
It always astounds and saddens me that so many people have absolutely no idea what this country stands for.
Where do you read this bit about having to ask "Mother may I?" Did the Continental Congress ask Parliment for permission to leave?
And what makes you think that the South acted arbitrarily? The issue was debated. Many states had special conventions to discuss and vote on the issue. It was not arbitrary. Secession was based on an analysis of the situation only taken after thorough debate.
The Congress does not create states. People create states. That is the basic tenet of our form of government. You know, the "consent of the governed" thing.
Congress decides whether or not to allow states to enter the Union. The United States is like a club. A state has to ask permission to join. But once a state joins, it's not a life sentence on Devil's Island -- A state can quit the club at any time.
The Continental Congress did not pretend their actions were legal. They did not try to portray their acts as anything but rebellion, and did not cry and moan when the King sent troops to try and stop them. Comparing yourselved to the founding fathers is an insult to the founding fathers.
Looking at the Constitution, Congressional approval is required for any action affecting the creation or alteration in the status of a state. That is laid out in Article IV. Article I Section 10 of the Constitution also lists action after action that states are forbidden to do or which need congressional approval and one thing all these actions have in common is that they can have a negative impact on the interests of other states. Given that it is beyond me how people can claim that congressional approval would be needed for every change in the status of a state - except for arbitrary secession. Or how Congress can prevent every arbitrary action of a state which impacts the interests of another state - except for arbitrary secession. The southern actions were arbitrary because they were actions taken which affected the interests of other states, and those states were not given a chance to approve or disapprove.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.