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.

I see you did me the service of enlarging what you think is your point. You failed, however, to point out the text which backs up your toluene induced claim that "the interests of the individual states are inferior to those of the United States". The interests of the individual states are what the United States was established to promote. Did the name of the nation change to "The Amalgamated Political Subdivisions of the District of Columbia" while I wasn't looking?

The much abused "supremecy clause" reads almost as you posted. You forgot, "and all Treaties made, or which shall be made, under the Authority of the United States,"

You read these words and somehow translated them in your mind to read that the states can do nothing contrary to the Constitution. That is wrong. The sum of the Articles is that the federal government established in the articles may do nothing not specifically allowed by the Constitution, and the 10th amendment establishes that the federal government has no power not specifically granted while the states reserve to themsleves every power not specifically delegated or surrendered.

Better minds than yours have groped for proof within the articles that the framers wished to assign to the states an inferior status to the federal government. The proof isn't there. There is no language anywhere in the articles or in the BoR which establishes federal supremeacy over the states outside a few narrowly defined areas. The elevation of the federal government to supremacy over the states didn't become part of the Constitution until after Lincoln's war.

You're sorely misinformed and self deluded on this subject. Here's another one for you to defend:

"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."

Obviously you don't know what secession means. The seceded states withdrew from the union formed by the Constitution and were no longer bound by the provisions they had agreed to while part of the union. As for where the states found the sovereign power to secede, read the 10th amendment, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Unless you can cite by Article, section and clause the text of the Constitution which prohibits secession or where the power of secession is surrendered or made conditional on the approval of the other states, then the provisions of Article I, section 10 can no more be said to be binding on a state which has withdrawn from the US than they would be upon Canada or any other foreign state.

Go ahead and defend this idea of yours. So far, you're just providing light entertainment here.

No. Those powers are not left with the states. The only real meaning of the 10th amendment is that it left police powers over internal state affairs with those states. Powers such as public health regulation, courts of laws and the rights to determine who practice there, law enforcement officers etc.

Since the constitution guarantees the states a republican government a state would not be ejected but its government changed to a republican one.

Actually the true essence of the Civil War was the establishment of true republican governments where there was a Slaveocracy, a tyranny established without the consent of 80-90% of the population. When the North forced the South to allow Blacks to vote it had to change the rules of sufferage in the North as well. Ironically, the war forced both sections against their wills and intentions to make the electorate more representative.

And the Peoples of the Southern States were sovereign over their destiny -- a fact which you will play hell denying. That is the nut of the whole argument. They were sovereign, but your side decided to deal with them as if they weren't.

The people of the States had sacrificed or agreed to hold in abeyance some sovereignty. To wit (emphasis added):

XIII.

Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State. (This is the part that subsequently led to the Constitution.)

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

In Witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight, and in the Third Year of the independence of America.

Agreed to by Congress 15 November 1777 In force after ratification by Maryland, 1 March 1781

The seceded states withdrew from the union formed by the Constitution...

The Constitution did not form the Union. The Union predates the Constitution. The Constitution was formed and agreed to by the States acting in union.

Please read my post 215 and 624 for my rationale, which you are of course free to attack.

...and were no longer bound by the provisions they had agreed to while part of the union.

What you are stating as true is what is in dispute.

Well, golly. I have several times in this thread cited Article, section, and clause. Apparently you missed those. So I'll give you the thumbnail sketch:

Article VI says that the Constitution is superior to any state laws or constitutions that might say something contrary to the Constitution. Acts of secession are by definition contrary to the Constitution, and hence they are disallowed by the Constitution.

Also, you'll note that Article VI requires the elected officials of each state to swear an oath to uphold the Constitution. Among other things, it means that they are bound not to pass laws or amendments that violate the Constitution. Seeing as how secession explicitly abrogates the Constitutional bound that was ratified by each state, acts of secession obviously do not uphold the Constitution. Thus, elected officials cannot constitutionally secessd.

Article and clause.

As for your silly little insults, please don't.

Since the Constitution gives Congress the sole authority to create a state, combine states, split states, or to adjust their borders in any way whatsoever, then it is clear that matters pertaining to the status of a state was a power reserved to the United States. That would include withdrawing from the Union.

Actually the Constitution does not grant Congress such authority. Article IV, Sec. 3 says:

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.

Thus, joint jurisdiction over states was given to the federal Congress and to the legislatures of the given states. (For that reason I think the State of West Virginia is still unconstitutional [no offense to WVers here], since the Virginia legislature never agreed to let it go... although, not being a studied up on the subject I'd like to hear other FReepers' take on that...)

Knowing something of the attitudes of people before the Civil War and especially at the founding, I'm nearly certain that the Constitution was not understood to prohibit sucession--until Lincoln "proved" it through force of arms...

Let's use Herr Alexander Stephen's own words, speaking of the confederate constitution:

Our new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution -- African slavery as it exists amongst us -- the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution.

Let's use the words of the Mississippi Declaration of the Causes of Secession:

In the momentous step which our State has taken of dissolving its connection with the government of which we so long formed a part, it is but just that we should declare the prominent reasons which have induced our course. Our position is thoroughly identified with the institution of slavery-- the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin.

How about the Texas Declaration of the Causes of Secession:

She was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery-- the servitude of the African to the white race within her limits-- a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time.

So you're right in a way. For the North it wasn't about ending slavery. But for the south it was all about defending it.

Ahh, but the USA never accepted Virginia's secession as legal...given that, the Constitution would demand that the Virginia legislature approve of the split off of West Virginia...

YOU can't have it both ways...!!

"The consent of the legislature of Virginia is constitutionally neccessary to the bill for the admission of West-Virginia becoming a law. A body claiming to be such Legislature has given it's consent. We can not well deny that it is such, unless we do upon outside knowledge that the body was chosen at elections, in which a majority of the qualified voters did not participate. But it is a universal practice in the popular elections in all these states, to give no legal consideration whatever to those who do not choose to vote, as against the effect of the voters who do choose to vote.

Hence, it is not the the qualified voters, but the qualified voters --who--choose--to--vote--, that constitute the political power of the state."

A. Lincoln, December, 1862

Walt

In addition, people seem to quickly forget that income tax is totally unconstitutional. ARTICLE 1 SECTION 9

Untrue. The 16th Amendment makes it constitutional: The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration..

(Passed by Congress July 2, 1909. Ratified February 3, 1913.)

Article 1, Section 9 states: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. I've underlined the part that is negated by the 16th Amendment.

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