Walter Williams: Wrong on Secession

vanity ^ | 4/3/02 | Self

[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.

[Non-Sequitur]

Regardless, it is still a change in status which results in a state no longer being a state. And approval of that needs congrssional approval, regardless of the ultimate disposition of people and territory.

[Rule of Law]

Jefferson was prone to make stupid statements like this.

Not so stupid. He knew that government tends to move toward tyranny.

[Maelstrom]

Look at the historical record prior to 1860. The War of Northern Aggression didn't magically happen one day when the South decided willy nilly to start arbitrarily shooting up useless outposts full of federal soldiers.

Honestly.

[edsheppa]

The Websters definition of rebellion and insurrection were provided two or three hundred posts ago.

Why then, let me post one too.

(from Cambridge International Dictionary of English)

rebel
noun [C]
a person who is opposed to the political system in their country and tries to change it using force, or a person who shows their disagreement with the ideas of people in authority or of society by behaving differently

rebellion
noun
Rebellion is violent action organized by a group of people who are trying to change the political system in their country.

[WhiskeyPapa]

This does not give Congress the authority to prohibit states from leaving the union.

Congress has power to prohibit secession based on Article 1, Section 8, which gives Congress the power to provide for the common defence and general welfare.

Don't buy that?

Jefferson Davis did.

"Conscription dramatized a fundamental paradox in the Confederate war effort: the need for Hamiltonian means to achieve Jeffersonian ends. Pure Jeffersonians could not accept this. The most outspoken of them, Joseph Brown of Georgia, denounced the draft as a "dangerous usurpation by Congress of the reserved rights of the states...at war with all the principles for which Georgia entered into the revolution." In reply Jefferson Davis donned the mantle of Hamilton. The Confederate Constitution, he pointed out to Brown, gave Congress the power "to raise and support armies" and to "provide for the common defense." It also contained another clause (likewise copied from the U.S. Constitution) empowering Congress to make all laws "necessary and proper for carrying into execution the foregoing powers." Brown had denied the constitutionality of conscription because the Constitution did not specifically authorize it. This was good Jeffersonian doctrine, sanctified by generations of southern strict constructionists. But in Hamiltonian language, Davis insisted that the "necessary and proper" clause legitimized conscription. No one could doubt the necessity "when our very existance is threatened by armies vastly superior in numbers." Therefore "the true and only test is to enquire whether the law is intended and calculated to carry out the object...if the answer be in the affirmative, the law is constitutional."

--Battle Cry of Freedom, James McPherson P.433

Walt

[Rule of Law]

A lot of the more successful politicians keep their ear pretty close to the ground.

Maybe some of us don't want to be slaves. That's what the secession movement is about today -- reminding Washington that we won't be socialist slaves.

[r9etb]

Look at the historical record prior to 1860. The War of Northern Aggression didn't magically happen one day when the South decided willy nilly to start arbitrarily shooting up useless outposts full of federal soldiers.

Indeed it did not. The roots of the war were sown by Southern insistence on spreading tyranny, in the form of slavery, into new states.

Missori Compromise? About slaves.

Compromise of 1850? About slaves.

Kansas-Nebraska Act? About slaves.

Secession? About slaves.

[edsheppa]

Regardless, it is still a change in status which results in a state no longer being a state.

Your reasoning is fallacious. The difference is far more consequential than the similarity. In any case, one must wonder why this very significant change in status is not addressed specifically.

[r9etb]

Not so stupid. He knew that government tends to move toward tyranny.

We here in the United States have the distinction of living in a very remarkable country -- marked especially by the fact that the revolution by which it came into being, did not devolve into bloody tyranny.

Such revolutions are very few and far between. Most of them end up like the French Revolution: bloody dictatorships.

Jefferson's comment was, and remains, stupid.

[Rule of Law]

Congress has power to prohibit secession based on Article 1, Section 8, which gives Congress the power to provide for the common defence and general welfare.

Don't buy that?

No. Don't buy it. Don't buy Jeff Davis's argument either.

Allowing the feds to say that something is Constitutional merely because they think it is necessary means that anything they do is Constitutional.

[r9etb]

In any case, one must wonder why this very significant change in status is not addressed specifically.

Probably because Article VI makes it a moot point. The states agreed to be bound by the Constitution, as the supreme law of the land, and their elected officials swore to uphold it. The act of secession violates Article VI.

If a pledge to uphold the Constitution has any meaning at all, then secession is not allowed.

[r9etb]

Allowing the feds to say that something is Constitutional merely because they think it is necessary means that anything they do is Constitutional.

What if the Constitution says it?

[Ditto]

"Look at the historical record prior to 1860. The War of Northern Aggression didn't magically happen one day when the South decided willy nilly to start arbitrarily shooting up useless outposts full of federal soldiers.",

I have looked very closly at the history my friend and it appears to me that the South had no complaint with anything the Federal government had done. I have read all of their secession documents that are available, and not one even charges that there were violations of the Constitution that justified revolution.

I asked a simple question above. Where did the Federal Government infring on States Rights in 1860?

[WhiskeyPapa]

Allowing the feds to say that something is Constitutional merely because they think it is necessary means that anything they do is Constitutional.

You sem to want some unattainable nirvana where human motivations and human nature don't exist.

People, real people, must administer the government. The beauty of the Constitution is that the framers knew that.

Walt

[edsheppa]

Probably because Article VI makes it a moot point.

I don't see anything there that says states cannot withdraw from the union. It says that states are bound, nothing about non-states.

Again, one has to wonder why such a basic question like withdrawal isn't specifically addressed while changes of far less moment are. I think one has to go beyond the written word to figure out the intention.

[RobbyS]

Except that you for ignoring the main point: which is the nature of the union. As written it prposed an entirely new form of government, neither a confederation nor a unitary state. If the Constitution is a treaty between sovereign states(confederation), then any state can abrogate that treaty at will. The Constitution claims to be an act of the People of the United States, but ratification was by states: not by a single electorate, and by electors within a state, who were sometimes legislators rather than voters. It establishes a government for the United States, but acknowledges the substantial powers of already existing governments within the 13 states and the rights of the citizens of the several states. The powers of the United States were essentially paper powers, whose reality was yet to be determined and which were NOT yet fully determined by 1861. the growth of national power during the first few years was substantial, but it may be said that, as new states came into the Union, those of the national governments tended to be diminished and those of the states increased. By 1861, the average American knew only one federal official, the postmaster.

[Rule of Law]

You sem to want some unattainable nirvana where human motivations and human nature don't exist.

People, real people, must administer the government. The beauty of the Constitution is that the framers knew that.

What I love about the "Conservative" movement is how little they understand what they are supposed to be seeking to "conserve".

If Congress can make a law Constitutional just by saying that it is constitutional, there is no limit to federal power. The words of the Constitution and the theory and history behind its formation provide limits on the federal government.

[Non-Sequitur]

One would assume that if this very drastic change in status were as easy as you assume it to be, then it would have been mentioned. Since it was not mentioned in either case then we need to look at implied powers. And since the Constitution forbids other changes in status without consent of Congress and since the Constitution forbids states from other unilateral acts or other arbitrary actions where the interests of other states could be impacted, then it makes more sense to assume that a unilateral act like arbitrary secession would not be allowed than to assume that it is the one, single act of this type that is allowed.

[WhiskeyPapa]

If Congress can make a law Constitutional just by saying that it is constitutional, there is no limit to federal power. The words of the Constitution and the theory and history behind its formation provide limits on the federal government.

The last tribunal is the Supreme Court. If we can't get 9 people to take the longer view and do the best for all, then we deserve neither safety nor security. But it still comes down to human frailty. It's not a perfect system, but it's the best one yet devised.

Walt

[WhiskeyPapa]

I don't see anything there that says states cannot withdraw from the union. It says that states are bound, nothing about non-states.

There is no way under U.S. law to become a non-state.

Walt