Did the Civil War truly settle the secession question?

C-Pol: Constitutionalist, Conservative Politics ^ | February 17, 2010 | Tim T.

[Constitutionalist Conservative]

Prior to the American Civil War, it was popularly assumed that states which had freely chosen to enter the Union could just as freely withdraw from said union at their own discretion.  Indeed, from time to time individual states or groups of states had threatened to do just that, but until 1860 no state had actually followed through on the threat.

Since then, it has been considered axiomatic that the War “settled the question” of whether or not states had the right to secede.  The central government, backed by force of arms, says the answer is No.  As long as no state or group of states tests the central government’s resolve, we can consider the question to be “settled” from a practical viewpoint.

This assertion has long troubled me from a philosophical and moral viewpoint.  We are supposedly a nation of laws, and the central government is supposedly subservient to the laws that established and empower it.

In a nation of laws, when someone asks, “Do states have a right to secede from the Union?”, a proper answer would have one of two forms:

• “Yes, because x.”

• “No, because x.”

Here, x would be an explanation of the laws that supported the Yes or No answer. 

With the secession issue, though, we are given the following as a complete and sufficient answer:

“No, because if any state tries to secede, the central government will use force of arms to keep it from succeeding.”

There is no appeal to law in this answer – just brute force.

Based on this premise, the central government can amass to itself whatever right or power it chooses, simply by asserting it.  After all, who has the power to say otherwise?

Come to think of it, that’s exactly how the central government has behaved more often than not since the Civil War.

---

This issue came to mind today because of an item posted today on a trial lawyer’s blog (found via Politico).  The lawyer’s brother had written to each of the Supreme Court justices, asking for their input on a screenplay he was writing.  In the screenplay, Maine decides to secede from the US and join Canada.  The writer asked for comments regarding how such an issue would play out if it ever reached the Supreme Court.

Justice Antonin Scalia actually replied to the screenwriter’s query.  I have a lot of respect for Scalia regarding constitutional issues, but his answer here is beyond absurd.

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.")

He actually said that a constitutional issue was settled by military action.  Oh, and by including the word “indivisible” in the Pledge of Allegiance, the issue became even more settled.

What if the president were to send out the troops to prevent the news media from publishing or broadcasting anything critical of his administration?  This is clearly an unconstitutional action, but by Scalia’s logic, if the president succeeds, we must then say that the military action “settled the question” of free speech.

If these scenarios are not comparable, I’d like to hear why.

[Bigun]

How about this?

"The federal government, then, appears to be the organ through which the united republics communicate with foreign nations, and with each other. Their submission to its operation is voluntary: its councils, its sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent.

"But until the time shall arive when the occasion requires a resumption of the rights of sovereignty by the several states (and far be that period removed when it should happen) the exercise of the rights of sovereignty by the states, individually, is wholly suspended, or discontinued, in the cases before mentioned: nor can that suspension ever be removed, so long as the present constitution remains unchanged, but by the dissolution of the bonds of union. An event which no good citizen can wish, and which no good, or wise administration will ever hazard."

St. George Tucker

[Bigun]

If the Constitution says it isn't allowed, then it isn't allowed. Regardless of what the ratification document said.

OK then. Just show me where the Constitution says (none of this implied crap) that secession is not allowed and game over! You win!

[manc]

you know no matter how one looks at this question then those who say no are syaing that it is alright to kill others because they do not want to live in a place which they feel oppressed.

maybe the better questions are.
1. do you(not you) feel that DC should order troops and kill anyone, wage war on those who do not want to be in a place where they feel oppressed?
2. If some of us southern states joined together again knowing we have the infrastructure and energy then will you come down here and kill us to keep the rest who survive?

The latter question is for those who feel that lets say the south has gone it alone.

After all the north today would not get very far without the south seeing as we have the major ports, land, energy especially and agriculture,

[manc]

Lincoln knew damn well that if if chose to enter or resupply the fort it would cause war as he was warned about it.

One thing about Lincoln and that he was a great politician.
He forced the first shots and used slavery to keep the UK and France out of it plus using it as a moral justification seeing as those up north were getting pissed off with the war and calling for the south to go it alone

it amazes me that some still do not see this

[Lancelot Jones]

"That amounts to tidily squat!"

The Constitution amounts to much. The Constitution IS the nation, and the Nation IS its Constitution.

Whether or not they knew what States would ratify, they all ratified "We the people", and called it "the supreme law of the land".

A contract can be disolved by mutual agreement, or violated by one of the parties. It cannot be disolved by one of the members, or by part of the members acting alone. Such violations of contracts result in litigation.

In the case of the violation of the contract of Union known as the Constitution, violent litigation ensued.

Requiem æternam dona eis, Domine; In memoria æterna erit justus, ab auditione mala non timebit.

[Bigun]

The power to admit a state and to approve any changes in its status once admitted is a power reserved to the United States. Try again.

BS! Show me that language in the Constitution and you win! Simple as that!

Try again!

[Bigun]

Great post!

[Little Ray]

Yes, it did.

If your State or group (Federation, Confederacy, whatever) of States doesn’t have the combat power to stand up the Federal government, they can’t secede.

Any questions?

[lentulusgracchus]

Slavers and their enablers were tossed, but they started the conflict. They fired the first shots.

As a matter of fact and logic, "started the conflict" and "fired the first shots" are two separate concepts, two separate realities, and both statements are incorrect.

The Civil War was a war of Northern aggression, from the propaganda war and hate-campaign of the 1830's and 1840's to Bleeding Kansas to Harper's Ferry to Appomattox, until 1866 when Congress declared the war over.

It was a war of Northern merchant interests against their unwilling chumps and ratepayers. Hamilton's Downtown Boys against the rest of the country.

[lentulusgracchus]

The power to admit a state and to approve any changes in its status once admitted is a power reserved to the United States. Try again.

Weasel words. Try again. And quote the document, word-weasel.

[x]

and that applies how?

Follow the thread. You said "Thank God our founders had no such difficulty with the legality and moral obligation for seceding from a tyrannical government. Or we would still be slaves of Great Britain."

Leaving aside for a minute that that was the right of revolution against a government that didn't represent us and not secession from a government that had won the votes of the majority of voters, there are some times when we definitely wouldn't say "Thank God" for the right of a state to secede from the rest of the country.

During wartime, would it be a good thing for one state to simply walk away from the country? Would we praise the Lord for a few states walking out on the debts that we'd accumulated together and on our troops in the field?

If you aren't willing to tolerate state secession on demand during wartime when the country itself is threatened is secession at will a right? If you are willing to accept secession when the nation is fighting to defend itself, then what becomes of the country?

[afnamvet]

Thomas Jefferson in his First Inaugural Address said, “If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it.” Fifteen years later, after the New England Federalists attempted to secede, Jefferson said, “If any state in the Union will declare that it prefers separation ... to a continuance in the union .... I have no hesitation in saying, ‘Let us separate.’”

[Bigun]

Yeah but what did old Tom know about it? ;>)

[x]

Two things wrong with that sentence, and you know what they are. First, there was no law against a state withdrawing. They could and they did.

That's sophistry, and you probably don't know it.

If the Constitution and the laws in accordance with it are the law of the land, then acting as though one were exempt from the Constitution and laws results in acts that are against the law.

Thinking up a three syllable word for it and calling it a right doesn't change anything.

Second, it was the people declaring their independence.

None of that was of critical importance until Union troops started taking lives.

First of all, the question of whether a state or some body claiming to represent a state could secede without the consent of the union as a whole wasn't answered before the war.

Secondly, the way the process happened was highly questionable. A lot of Americans questioned whether it really was the "will of the people" or something forced on them by a determined minority.

Third, unilateral declarations of independence usually do result in war or close calls with war. The secessionists of the 1860s were more than willing to go to war. If you respect them, recognize that and don't treat them like victims.

[RJS1950]

Yes, it did. The response to the current Nazi Socialist democrat party should be every possible effort to preserve and defend the union, the Constitution and the Republic which they are attempting to destroy. It was the democrat party that tried secession before and it did not work for them then; it won’t work for anyone this time either.

[x]

It was a war of Northern merchant interests against their unwilling chumps and ratepayers. Hamilton's Downtown Boys against the rest of the country.

Golly, I really don't want to hash this out yet again.

But Davis and Rhett and Wigfall and Toombs and Benjamin and Lee weren't a bunch of good ol' boys who sat around in a garage drinking beer and cleaning their guns when the ATF came after them.

They were as much of an oligarchy as any other government on these shores -- probably more than other governments we've had.

[RJS1950]

No suprise there from Jefferson. He is considered to be one of the founders of the democrat party which tried this in 1860 and is attempting to subvert the union and constitution today. Secession would make their power grab much easier. Secession in lieu of preserving the union and the Constitution is cowardice and those who promote the idea don’t care about the Constitution and are traitors. Is that clear enough?

[afnamvet]

Read....The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War by Thomas J. DiLorenzo. Copyright © 2002 by Thomas J. DiLorenzo.

[Bubba Ho-Tep]

I find it interesting that Lincoln did say succession was lawful back in 1848

Lincoln never said that secession was lawful.

What he said was:

The extent of our teritory in that region depended, not on any treaty-fixed boundary (for no treaty had attempted it) but on revolution Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable,-- most sacred right--a right, which we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of the teritory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority, intermingled with, or near about them, who may oppose their movement. Such minority, was precisely the case, of the tories of our own revolution. It is a quality of revolutions not to go by old lines, or old laws; but to break up both, and make new ones. As to the country now in question, we bought it of France in 18O3, and sold it to Spain in 1819, according to the President's statements. After this, all Mexico, including Texas, revolutionized against Spain; and still later, Texas revolutionized against Mexico. In my view, just so far as she carried her revolution, by obtaining the actual, willing or unwilling, submission of the people, so far, the country was hers, and no farther. Now sir, for the purpose of obtaining the very best evidence, as to whether Texas had actually carried her revolution, to the place where the hostilities of the present war commenced, let the President answer the interrogatories, I proposed, as before mentioned, or some other similar ones

You have a right of Revolution. If you succeed in "obtaining the actual, willing or unwilling, submission of the people," then you, too, can not "go by old lines, or old laws; but to break up both, and make new ones."

Tell me, did Nat Turner's slaves have the Constitutional right to rise up against their masters?

[Let's Roll]

Agreed.

States can decide to leave just as they did prior to the Civil War and the fed govt can use force to try to stop them just as they did then too.

[afnamvet]

see post 118.

[PeaRidge]

The secession produced no negative circumstances until Lincoln’s call for troops and the ensuing invasion.

Your point about ‘nothing allowing...’ is moot.

[CodeToad]

Exactly, your opinion. It is not a legal reference of any kind.

The South had votes within their respective States to leave the unions.They followed the best course of formal process they could. They voted to leave the union they earlier voted to join. It is their decision, their destiny, their desire, their votes, their States, their property. The union of the united States had the benefit of their joining and had a loss once they left and didnt like it. The North needed the South’s money and developed resources and refused to allow them to leave. It was about money, as it always is.

[PeaRidge]

I do not think you would recognize sophistry unless you reread a few times.

Your point is not founded either in fact or law, therefore your contention about applicable law is false on its face.

And with regard to your contention that unilateral approval was “not answered before the war” is laughable. The country was governed by law, not popular approval.

And next, of course, you know that every seceded state took the issue to their people, but you would still try to misrepresent the issue.

And finally you attempt to roll out multiple red herrings about secession, war, and respect. Why bother?

[x]

Why bother?

Why bother indeed.

Go on believing whatever you want and being wrong.

[lentulusgracchus]

[PeaRidge] The Republic was governed by law, not the masses. There was no admonition against secession, nor consequence of enforcement ever vested in the central government.

[You] Nothing allowing it either.

Doesn't work like that, Bub -- and you know it. We've been over this, and you are now responsible for knowing it.

Powers not delegated are reserved. See Federalist 49 and 84.

It is evident, therefore, that, according to their primitive signification, [bills of rights] have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.
-- Hamilton, Federalist 84

[lentulusgracchus]

Tell me, did Nat Turner's slaves have the Constitutional right to rise up against their masters?

Insurrection is not secession. Secession is neither insurrection nor rebellion.

Get with it.

You guys just want what you want -- to burn the South (or the West, or whatever) and take what you want. You just want it all your way, no arguments.

Your idea of a national motto is,

WE don' need no steenkin' bazzhes!!

You're all so charming. Why would anyone want to secede from you?

</sarc>

[Non-Sequitur]

BS! Show me that language in the Constitution and you win! Simple as that!

OK.

The power to admit a state: Article IV, Section 3 "New States may be admitted by the Congress into this Union..."

The power to approve states combining or splitting up: Article IV, Section 3: "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."

The power to approve any change in the border of a state: Article I, Section 10 "No State shall, without the Consent of Congress,...enter into any Agreement or Compact with another State, or with a foreign Power" prevents Texas, for example, from working out a border change with Mexico since that would be a treaty as well as preventing Texas from working out a border change with Oklahoma.

All other changes in status require Congressional approval, by implication leaving does as well.

BTW, you figured out if the Air Force or NASA are Constitutional yet?

[Non-Sequitur]

Weasel words. Try again. And quote the document, word-weasel.

My aren't we in a pleasant mood today? Talk about kicking things off on the right note!

Reply 128.

[Non-Sequitur]

The secession produced no negative circumstances until Lincoln’s call for troops and the ensuing invasion.

Nah, just wholesale theft of federal property and repudiation of responsibility for debt and national obligations, not mentioning the ability to cut off the central part of the country from access to the sea via the Mississippi any time the Davis regime felt like it. Nope, no negative impact in that at all, is there? </sarcasm>

And if the war had a negative impact on the South, well then the confederacy shouldn't have started it, should they?

[Non-Sequitur]

Exactly, your opinion. It is not a legal reference of any kind.

And what legal reference do you back your opinion up with?

The South had votes within their respective States to leave the unions.

In some. In other states it was an appointed convention that took them out. In two instances, North Carolina and Arkansas, the people voted down secession and the legislature took them out anyway. And that's not including the pseudo-confederate states like Missouri and Kentucky.

They voted to leave the union they earlier voted to join. It is their decision, their destiny, their desire, their votes, their States, their property.

There share of the debt they repudiated...their share of the obligations they walked away from...and it was U.S. property they stole which is to say it belonged to all the states and not just the ones stealing it.

. The North needed the South’s money and developed resources and refused to allow them to leave. It was about money, as it always is.

Absolute nonsense.

[Non-Sequitur]

Powers not delegated are reserved.

Powers not delegated or prohibited are reserved. The power to admit a state and to approve any change in status once it's been allowed to join is a power reserved to the United States.

But we've been through this time and again haven't we? I haven't convinced you and you haven't sold me on your lame claims. Why go down that rabbit hole once more? Especially since you started with the name calling two or three posts in?

[Bigun]

All other changes in status require Congressional approval, by implication leaving does as well.

But there is not one word in the document that says that now is there?

BTW, you figured out if the Air Force or NASA are Constitutional yet?

Yes I have but as I have already stated, you can tear down your own straw men!

[Non-Sequitur]

But there is not one word in the document that says that now is there?

There is not one word that allows for NASA or an Air Force now is there?

Yes I have but as I have already stated, you can tear down your own straw men!

If you could you would share it with us...unless it makes you out to be a hypocrite. The old "there are no implied powers, except sometimes...when I say there are" argument?

[CodeToad]

“And what legal reference do you back your opinion up with?”

None. I actually know the Constitution says nothing about leaving the union, and I do not need to infer what it might say. I also have not said it is a matter of a legal issue as you have. I understand rights and the difference between right and wrong. I understand the implications of Might is Right.

See, you take the approach that the federal government somehow owns the States and that they are not sovereign States as they are. I have read the founding father’s comments and know they never intended ownership by the federal government.

It is like a divorce, the beaten women need not ask her abusive husband for a divorce. He won’t grant it anyway. She simply leaves him.

[Bigun]

If you could you would share it with us...unless it makes you out to be a hypocrite. The old "there are no implied powers, except sometimes...when I say there are" argument?

Not hardly! There are no implied powers period end of story!

[Non-Sequitur]

None. I actually know the Constitution says nothing about leaving the union, and I do not need to infer what it might say.

If states may leave the Union without the consent of the other states then can the other states expel a single state against it's will?

See, you take the approach that the federal government somehow owns the States and that they are not sovereign States as they are. I have read the founding father’s comments and know they never intended ownership by the federal government.

No, I'm saying that all the states are equal and that those leaving are not more equal than those staying, and that the Constitution protects all the states and not just the ones leaving. I have no idea how you managed to conclude the opposite.

It is like a divorce, the beaten women need not ask her abusive husband for a divorce. He won’t grant it anyway. She simply leaves him.

That's not called 'divorce'. The legal term is 'abandonment'. And if the woman runs up the credit cards before leaving, takes all the community property she can get her hands on, and takes a shotgun and fires a few rounds at her spouse on her way out the door then there are other legal terms that can be applied as well.

And in any case, how you can somehow stumble to the conclusion that it was the South who was the abused spouse in the analogy is beyond me.

[Non-Sequitur]

Not hardly! There are no implied powers period end of story!

So then NASA and the Air Force are only two of the hundreds or thousands of illegal federal departments and agencies, right?

[Bigun]

So then NASA and the Air Force are only two of the hundreds or thousands of illegal federal departments and agencies, right?

Your words not mine!

Figure it out for yourself Mr. Implied Powers.

[Non-Sequitur]

Figure it out for yourself Mr. Implied Powers.

I can. You can't.

[Bigun]

Oh! BTW! There are no penumbras with things written in them either!

[Bigun]

I can. You can't.

So you assume but I happen to think it is just the opposite.

[Non-Sequitur]

So you assume but I happen to think it is just the opposite.

I'm betting if you could without showing where it's implied then you would do so. But since you can't...

[Gaffer]

The 1st Civil War, through force, temporarily settled the question adequately for a Century plus.....The next Civil War will settle it again - with a different outcome, hopefully. Collectively, this country can’t survive with half [or more and growing] its population being net ‘users/takers’ of the GDP.

[smug]

I reckon that would depend on what you mean by “the right” to secede. As a natural right, or the rights given by GOD to man. Yes. Just as in the Declaration of Independence it is not only the right, but the duty of the people to throw off the reigns of tyranny. Now if your talking about the legal right, that's a different animal. Who knows what is “legal”, for laws are transient and always debatable. Were they not lawyers would not have an income.

[lentulusgracchus]

They were as much of an oligarchy as any other government on these shores -- probably more than other governments we've had.

Oligarchy? Robert E. Lee and James Longstreet were in Army service, in Texas and New Mexico respectively. Toombs was out of office. Wigfall I don't know about, but Rhett was a newspaper editor. Some "garchy".

No, the real oligarchs were the tidewater and Delta planters with their big white houses and battalions of slaves -- and they had created, and voted for, the Constitutional Union ticket behind Bell, who was Breckinridge's only real competition in the South, but was beaten decisively.

The oligarchs were for Union, as were the old Jacksonians up in the mountain hollows.

[Regulator]

The Constitution IS the nation

Actually the nation is the people. The country is the land they live on, bounded by their borders; and the Constitution is the compact made among them....by consent.

And if you read the little human rights document known as "The Declaration of Independence", you'll see that sometimes, "when in the course of human events", such bonds are unilaterally broken.

It asserted in that document that this is a right of free peoples, whenever a government crosses the line into tyranny.

Killing 1/4 of the White males in the South, virtually all of them descendants of the original American colonists, in pursuit of an abstract claim about violating a contract, pretty much qualifies as violent Tyranny, much more than imposing a lousy 3% tea tax or whatever it was.

[Bubba Ho-Tep]

Did Nat Turner and his followers have a natural right to rise up against their masters?

You guys just want what you want -- to burn the South (or the West, or whatever) and take what you want.

Yeah, lets get out the violins and play a sad rendition of "Dixie." Poor, poor you.

You just want it all your way, no arguments.

All you do is argue. You don't rebel and you certainly don't gain any kind of political traction. Arguing seems to be the only thing you do.

[Regulator]

Collectively, this country can’t survive with half [or more and growing] its population being net ‘users/takers’ of the GDP

Not to mention that a significant portion of those takers are actually not part of the nation, but are in fact foreigners here without leave of the actual citizenry.

Sort of a recipe for fiscal disaster.

Oh wait, that already happened.

Next up: CWII!

[ought-six]

“Lincoln was talking about rebellion, not secession. There is a difference between the two.”

I guess that’s why Southerners were called Rebels. Funny, in practically every piece of writing of the period the Confederacy was referred to as a rebellion. Even your sainted Lincoln called it rebellion.