I keep hearing the claim that the legitimacy of secession from the U.S. was “settled at Appomattox,” and I wanted to say a few words about why I think that makes little sense.
To begin with, let me stress that I think that modern talk of secession is both foolish and pretty obviously empty posturing, whether it’s some liberals talking that way during the Bush Administration or some conservatives talking that way during the Obama Administration. America has profited tremendously from American union, both in terms of wealth and in terms of liberty from threats both foreign and domestic. It has profited tremendously in terms of national greatness, for those who care about such things, as I sense many conservatives and some liberals do. And its unity has greatly helped the world, especially but not only during World War II and the Cold War.
I doubt that even a fraction of those who on occasion talk in favor of secession are really willing to abandon the benefits of union. I’m confident that they should not, under current circumstances or circumstances remotely like our current ones. In principle, I agree that some sufficiently grave threats to liberty or security may justify secession — if we’re talking about historical locales, think Philadelphia 1776 or Yorktown 1781 — but we’re extremely far from that, especially reckoning the liberty, security, wealth, and greatness costs of disunion. Today, secession is politically a total nonstarter, and for very good reasons.
But at the same time, surely this must be a judgment based on how we see the world today, not based on what happened 144 years ago. A matter is “settled” by political decision only so long as the political decision commands the adherence of the polity. If in 2065 Alaska, California, Hawaii, or Texas (just to consider some examples) assert a right to secede, the argument that “in 1865, the victorious Union government concluded that no state has a right to secede in opposition to the wishes of the Union, so therefore you lack such a right” will have precisely the weight that the Americans of 2065 will choose to give it — which should be very little.
And beyond that, even if there is some precedent of some sort properly set by the Civil War (and I continue to disagree that there is), any such precedent can’t tell us much about consensual secession. The talk I occasionally hear of secession (again, talk that I think is not really serious) is not about departure in the face of military opposition — it’s about creating a political sentiment in some place in favor of seceding, and a political sentiment in the rest of the country in favor of allowing the secession. The results of a bloody civil war tell us nothing about the propriety of a Velvet Divorce.
Appomattox might well have a continuing effect (as does Philadephia) on the psyche of today’s Americans, and of future Americans. Its immediate effect also deeply influenced the economic structure of the nation, and the political structure of the nation’s political institutions; I suspect this also makes future secession less likely.
But that’s not a “settlement” of the secession question for the centuries. And there can be and should be no such settlement. “The past is a foreign country: they do things differently there.” So the present is different from the past, and the future from the present. Poetic allusions to a peace treaty resolving one particular conflict can’t tell us what is right to do in our country today.
Johnny Longtorso says:
You cannot settle a legal question at gunpoint, which is how the Union ‘solved’ the secession question. If I put a gun to your head and demand you sign your car’s title over to me, I believe that’s legally void. Johnny Longtorso(Quote)
dearieme says:
Do people who argue that “the legitimacy of secession from the U.S. was “settled at Appomattox”” tend to believe that the question of Texas was settled at the Alamo? dearieme(Quote)
Steve Lubet says:
In the sense that Eugene appears to be using it, nothing is ever settled: circumstances can change over long periods of time and people may make dramatically different decisions at some point in the future.
But to the extent that political questions are ever settled, Appomattox did answer the question: There could be no secession without the consent of the federal government.
Also, Eugene conflates secession with revolution when he says, “In principle, I agree that some sufficiently grave threats to liberty or security may justify secession — if we’re talking about historical locales, think Philadelphia 1776 or Yorktown 1781.” Steve Lubet(Quote)
Mark Field says:
I’ll agree with this if we hear no more about originalism when it comes to interpreting the Constitution. I’m perfectly fine with running everything according to current wishes, but if the past holds any precedent at all then the issue of secession surely is one of them. Mark Field(Quote)
CDU says:
The American War of Independence is a classic example of secession. If anything, it’s calling it the “Revolutionary War” that’s the misnomer. The colonists did not march on London and overthrow George III, they broke away from his government and went their own way. CDU(Quote)
yankee says:
There are lots of cases of secession movements that today are viewed as legitimate. Some of the British colonies seceded violently (ahem) and others were allowed to secede peacefully. Who today would argue that it was illegitimate for India to demand independence from Britain?
It would also be eminently legitimate for Quebec to secede from Canada by majority vote; we’ve also said the same of Puerto Rico here in the U.S. (though the vote in that case was rigged). I don’t see why U.S. states should be any different.
On the other hand, a secession movement motivated by a the local majority’s desire to oppress a minority group would be completely illegitimate and should not be permitted. The American South’s attempt at independence falls into this category. But I see nothing wrong with a peaceful secession movement aimed at creating a liberal democracy that preserves the rights of its citizens, provided that a majority votes for secession.
Whether the Constitution legally permits secession is another question, but why should it matter? The creation of a new nation is an extralegal act that obliterates the legal system that came before it. yankee(Quote)
Eugene Volokh says:
Steve: What does it mean to “conflate[] secession with revolution” in this context? It seems that both the Revolutionary War and the Civil War involved parts of a country revolting against the power of the central government, and separating themselves from the central government, no?
As to your statement that “But to the extent that political questions are ever settled, Appomattox did answer the question: There could be no secession without the consent of the federal government,” one of my points it that this political question never can be settled for the centuries. Every new generation has to decide it for itself anew. And there’s nothing stopping a future generation from accepting the arguments for the moral and political right to secede, and from refusing to suppress secession not because of “consent” (in any sense other than “failure to start a war”) but simply because they conclude that the seceders are entitled to leave, or that fighting to keep them in will do more harm than good.
Finally, I take it that we agree on my other point, which is that Appomattox doesn’t remotely “settle” the question of secession with consent of the federal government — the question that I take it is contemplated by the occasional hyperbole about secession. Yes? Eugene Volokh(Quote)
bpbatista says:
dearieme: The question of Texas was settled at San Jacinto and and/or Mexico City (the Mexican War), not the Alamo. bpbatista(Quote)
CDU says:
If precedent rules, why isn’t the controlling precedent the American War of Independence, rather than the Civil War? CDU(Quote)
bpbatista says:
Johnny L: It was the South that tried to settle the question of secession at gun point by firing first on Fort Sumter. Maybe they should have thought twice about that. bpbatista(Quote)
DjDiverDan says:
“When, in the course of human events, it becomes necessary . . . ”
That is precisely when and how any question of secession must be answered — in light of the course of human events at the time. Secession was the right answer in Philadelphia in 1776, and the wrong answer for the South in 1860. It’s also the wrong answer today (despite my own strong frustration with Washington, the propensity of a strong Federal Government to constantly seek to assert more and more power over our every-day lives, and the willingness of our Supreme Court, over the last Century, to abandon any fealty to the notion of “limited enumerated powers”). Whether it will be right or wrong at some time in the future remains to be seen. DjDiverDan(Quote)
bpbatista says:
Lincoln forcefully and conclusively dealt with the secession question in his First Inaugural Address:
bpbatista(Quote)
Eugene Volokh says:
Mark Field: Courts apply the law. They apply laws (such as the Constitution) enacted in 1787 even though it’s 223 years later. The theory is that for various reasons (including the value of stability in the law), the legal system should consider those old laws binding, until they are changed — either through the process set forth by the law, or by some other replacement of the law (such as by the 1787 Constitution’s replacement of the pre-1787 constitutional system). Original meaning is a plausible way of assigning meaning to those legal rules.
But this tells us nothing about the way the nation should behave in deciding whether to radically change the legal system. If the question on the table is whether to adopt a whole new Constitution, much as the 1787 Constitution was adopted, the original meaning of the old Constitution is beside the point. Likewise if the question on the table is whether to break up the nation, a question that is clearly not one of law to be settled by judges (even the judges would agree with that). The original meaning of words enacted in 1787 shouldn’t matter. Neither should the military and political outcome of 1861–65. Eugene Volokh(Quote)
Eugene Volokh says:
Bpbatista: Lincoln can’t conclusively deal with the question of what we should do today, or what Americans in 2065 should do in 2065. He may well have been right about the original meaning of the Constitution, but as I mentioned in my 1:35 pm comment, that question can’t affect the propriety of the political decision of whether to secede from the Constitutional union — or whether to allow such secession — any more than the acts of Parliament could affect the propriety of the political decision of whether to renounce the power of King and Parliament. Eugene Volokh(Quote)
arbitraryaardvark says:
Delaware and West Virgina are examples of states that succeeded in seceeding from other states. I don’t know the history of Maine or Oregon, but I think there are other examples. I think that there was one county in West Virginia that was it own country during the civil war, and joined WV afterwards. Dean Kamen’s island might be an example or a counterexample depending how one views it. Seccession by, say, Alaska, is highly unlikely but the rights of secession in places like Somalialand and Timor are important live issues, so clear thinking on this topic would be useful. arbitraryaardvark(Quote)
yankee says:
I think they also apply the Constitution enacted in 1787 even though it’s 223 years later. [Sorry, fixed, thanks! –EV] yankee(Quote)
Johnny Longtorso says:
They fired at foreign troops blockading one of their harbors. You really think the North would have let the South leave w/o violence w/o Ft Sumter? Really? Johnny Longtorso(Quote)
Recovering Law Grad says:
Prof. Volokh —
I think that those arguing that secession is “settled” are saying that, under our current constitution, a state may not, on its own, decide to secede and then simply leave without the consent of the rest of the union. Currently, there are those (like Rick Perry and Glenn Beck) who seem to be suggesting otherwise, intimating that states can voluntarily leave. I think it’s fair and proper to point out that they’re wrong and that there is no debate about it.
Were a real secession movement to build, of course the rest of the country and the federal government could reach a political decision to allow the secession. (That decision would, of course, manifest itself in legislation and/or a constitutional amendment.) But that’s changing the hypo — in the absence of such political consent, a state cannot secede. Recovering Law Grad(Quote)
CDU says:
The Federal troops in Fort Sumter weren’t blockading anything. They made no attempt to interfere with traffic in or out of Charleston harbor. The only blockade involved was South Carolina’s effort to prevent the resupply of the fort. CDU(Quote)
SuperSkeptic says:
Eh, sometimes... SuperSkeptic(Quote)
Andrew says:
bpbatista correctly points out that Civil War politicians argued secession is unconstitutional, not merely that secession is politically unwise.
What we often call the “Articles of Confederation” was actually titled, “Articles of Confederation and Perpetual Union.” Perpetual as in forever. I doubt that adoption of the Constitution abrogated that principle.
Note that SCOTUS held in 1870 that West Virginia could secede from Virginia (see Virginia v. West Virginia, 78 U.S. 39). In Texas v. White, 74 U.S. 700 (1869), SCOTUS suggested that the Constitution requires “perpetuity and indissolubility of the Union” absent “revolution, or through consent of the States.”
Given that Congress can regulate interstate and international commerce, perhaps that gives Congress power to forbid secession? Andrew(Quote)
Steve says:
You cannot settle a legal question at gunpoint, which is how the Union ‘solved’ the secession question.
Political disputes are settled by force of arms all the time. Do you maintain that Britain still has the right to exercise sovereignty over the thirteen colonies, because we illegitimately settled the question of independence at gunpoint? Steve(Quote)
Dilan Esper says:
I am not sure that it was “settled at Appomattox”, but what I would say is that the evidence is pretty clear that the original deal was that a lot of concessions were made to the slave states in exchange for them binding themselves in the union, and no CONSTITUTIONAL process provided for their withdrawal.
And that’s important because there were a lot of LEGALISTIC arguments made on behalf of the desire of whites in the pre-civil war South to maintain slavery, not only with respect to secession but also with respect to such things as nullification and the congressional gag rules.
What I think is clear now (and was always clear) is that secession (absent consent from the rest of the nation) is illegal, a form of treason. That doesn’t mean it can’t succeed, either through persuasion or war, and it doesn’t mean that if it does succeed the results won’t be legitimate. Had the South won the Civil War, the Confederate States of America would have become a legitimate, recognized nation, whatever I think of the concept of a nation founded on the defense of slavery.
I think the concept that people are trying to get out when they say it was “settled at Appomattox” was that the South was engaged in a form of treason that the Union had every right to smash using military force. I don’t personally think that was settled at Appomattox– that was always settled. Dilan Esper(Quote)
Soronel Haetir says:
I find every post of this nature, whichever position the piece advocates, a bit silly. Victory is its own legitimacy. Repeat it three times and draw big bold lines under it.
If the Islamists somehow achieve their ultimate triumph they will have been perfectly justified in their war on the West. The only thing wrong with Southern secession was their failure to win the war. So long as you win everything else can (and will be) forgiven. Soronel Haetir(Quote)
Steve Lubet says:
It means that there is always a natural right to revolution, but there is no political right to secession from the United States. Steve Lubet(Quote)
Martinned says:
Easily the best discussion of this question, from all points of view, is the oft-cited ruling of the Supreme Court of Canada In Re Secession of Quebec. The situation they were faced with wasn’t (and isn’t) some hypothetical: there is a very real chance that Quebec may one day secede.
In my native area of the law, European law, this issue has also been debated a lot, though similarly hypothetically. (Realistically, no one really believes that a country would be stopped if it wanted to leave the Union.) The only precedent is the 1984 secession of Greenland, which was done by treaty. Under the Lisbon treaty, the right to secede unilaterally has been written down for the first time, in art. 50(1)TEU, although art. 50(2) does still require a treaty of secession in order to sort out the details. Martinned(Quote)
Steve says:
I would note that this post raises a gigantic red herring by suggesting the possibility of consensual secession, which is to say, a state leaves and everyone is fine with it leaving. I’ve never heard anyone argue that the issue of consensual secession was “settled at Appomattox.” Steve(Quote)
SuperSkeptic says:
Although the theoretical implications of secession internationally are interesting, the only important question of secession is in the American context — otherwise, America will tell you who your legitimate governments are. SuperSkeptic(Quote)
Martinned says:
So what is America saying about Taiwan? Martinned(Quote)
bpbatista says:
Prof Volokh:
Your argument really boils down to this: No political argument is ever conclusively settled.
Which is a tautology if you think about it. bpbatista(Quote)
gab says:
“It has profited tremendously in terms of national greatness, for those who care about such things, as I sense many conservatives and some liberals do.”
I’d be interested in hearing EV’s definition of “national greatness.” Or anybody else’s for that matter. gab(Quote)
byomtov says:
EV,
It seems that both the Revolutionary War and the Civil War involved parts of a country revolting against the power of the central government, and separating themselves from the central government, no?
Parts of a country? I don’t think colonies are a part of the ruling country. They lack the ability to participate in the central government, which seems pretty important. So no, the cases are not the same. byomtov(Quote)
bpbatista says:
Prof Volokh:
Lincoln, transcendent genius that he was, also dealt with your point in his First Inaugural:
bpbatista(Quote)
epluribus says:
CDU:
Then why didn’t George Washington, Benjamin Franklin, James Madison, Alexander Hamilton and their comrades call it that? Conversely, why didn’t Jefferson Davis, Robert E. Lee, Alexander Stephens, and their comrades call the dust-up of 1861–65 a revolution? They understood the distinction between revolution and secession, as did Lincoln. Similarly, secession is not synonymous with civil war. It is unhistoric to equate these different concepts. In 1861, the Confederate states argued that they had a constitutional right to unilateral secession from the Union, without the necessity of obtaining the agreement of other states, or of the federal government. The Supreme Court in Texas v. White addressed the constitutional issue and decided otherwise. On a practical level, of course, one army can always challenge another, and the strongest army will prevail. The Supreme Court did not decide whether Grant or Lee had the most powerful army. The men and officers of the opposing armies decided that. On a legal and constitutional level, there is no right for a state to unilaterally abrogate its constitutional responsibilities to other states in the American Union, absent a constitutional amendment. Yes, any state or group of states can separate from the union (1) if the Constitution is amended to permit them to do so, (2) if they can establish the moral right to resist a tyrannical government, as the signers of 1776 did in the Declaration of Independence, or (3) if they can win their independence through superior military force. Only (1) above could properly be termed “secession.” If a state tries to separate from the Union so it can oppress a portion of its own population (think of white slaveholders and the perpetuation of black chattel slavery) the likelihood of its success in any one of the foregoing ways will be significantly diminished. If the argument can be framed legally, constitutionally, or militarily, it can also be framed on a moral basis. The Confederate States of American lost legally, constitutionally, militarily, and morally. epluribus(Quote)
SuperSkeptic says:
We want China to be their government. :) SuperSkeptic(Quote)
bpbatista says:
Johnny L:
Here’s what Lincoln had to say about using force:
Really, almost every point being debated here was fully considered and persuasively — if not conclusively — addressed n Lincoln’s First Inaugural. bpbatista(Quote)
Ken Braithwaite says:
One argument I never hear is the republican government clause. D
Can the remainder of the country guarantee citizens of a seceded state will have a republican form of govt. I submit they cannot. So then would secession be a violation of the right to a republican form of govt. I think it is at least a plausible claim. In which case secession, as a violation of that right, is not allowed, except as an amendment. Ken Braithwaite(Quote)
pct says:
I’ll have to come down on Prof. Volokh’s side with regards to “settled at Appomattox” as a practical matter. Lincoln and the Union were prepared to sustain mass casualties amounting to a substantial fraction of the population to prevent succession. I suggest that, for better or worse, the US polity no longer has the stomach for that. pct(Quote)
epluribus says:
False. West Virginia was “formed or erected within the jurisdiction” of another state (Virginia) as provided in Article IV, Section 3. It did not “secede” from Virginia. Oregon was admitted to the Union as part of a federal territory, as were dozens of other states. It did not “secede” from anything. Maine was formed out of the jurisdiction of Massachusetts as provided in the Constitution. It did not “secede.” Delaware was one of the original 13 states, not formed by secession or drected out of the jurisdiction of any other state. epluribus(Quote)
Grant Colvin says:
Fascinating thread. “Secession,” of course, implies that a state (or states) wants to leave, either with or without the consent of the other states. Lately I’ve been wondering about a related scenario: could a state (or states) be ejected from the Union, without its consent, let us say, for example, because of some sort of gross state misconduct? (Naturally, I have a few states in mind.) Grant Colvin(Quote)
Martinned says:
Actually, there are several other ways to argue that secession is unconstitutional. The question posed here, though, is whether that matters.
Except that nobody asked the legislature of Virginia for permission, as required by the Constitution. Martinned(Quote)
epluribus says:
pct:
It’s not just a matter of misspelling. You have confused two entirely different words (succession and secession) and, in the process, revealed that you don’t know much about the history of the American Civil War. You probably should check a few historical facts before your next post. epluribus(Quote)
Martinned says:
Short of a constitutional amendment, I don’t see how that could be done. Look at the “Nebraska exception” to the health plan: nobody even knows if that is constitutional. If Congress can’t make UK-style separate laws for separate parts of the country, I don’t see how they could force a state out of the union, or do anything that comes close to that. Martinned(Quote)
epluribus says:
Martinned:
Please, Martinned. This is factual nonsense. I don’t propose to give you a history lesson on the formation of West Virginia. It’s basic stuff that is available in all sorts of books. Yes, the elected and loyal legislature of Virginia, then meeting in Wheeling, consented. epluribus(Quote)
Mark says:
To me, the key question here is whether secession is legitimate if the nation does not approve of the region’s decision to secede. Lincoln’s entire legal and political point in the Civil War was to emphasize and vindicate — through the force of arms — that, in a representative democracy, secession is treason. By refusing to continue to participate in democracy, the secessionist is actually subverting democracy. (“I lost the vote, so I’m going to pull out.”) To Lincoln, the key difference between the Revolution and the Civil War was that, in the Revolution, Americans did not have representation in Parliament, whereas in the Civil War, the secessionists had full representation (in fact, over-representation) in Congress. As long as self-government is our fundamental objective (and I believe that it should be our first objective), the Revolution was legitimate and the Civil War was illegitimate. Lincoln did not come up with this perspective on his own; at the time of the Articles and the Constitution, there was a real question whether representative democracy could exist over time in a large, heterogeneous nation. Lincoln (and Congress and the Union troops) showed that it could, and our continued existence as a representative democracy proves, constantly, that it can.
If, in 2065, some region wants to leave the nation, the key question will be: is this because they lost, or will lose, a vote? If the answer is yes, then I hope that the nation will take the same position as Lincoln did: secession over a failed political vote is treason, and it must be defeated by force of arms.
I agree that talk of secession is usually extreme (bordering on the irrational) or frivolous, but, as with all legal hypotheticals, it’s worth contemplating in order to re-establish and re-emphasize what’s fundamentally important. The principle of self-government is fundamentally important. We’re so used to it that its importance is easy to forget. Let’s not take it for granted. As President’s Day approaches, let’s keep in mind that Washington and Lincoln did not take self-government for granted. They fought and made great personal sacrifices (in Lincoln’s case, the ultimate sacrifice) that we may enjoy the benefits of self-government.
Mark Mark(Quote)
Bruce Hayden says:
Here is my problem with the idea that states cannot secede:
This is a country founded on the theory that government is by the consent of the governed.
Let me also suggest though that we are a long way from the place, I think, where our forefathers would have condoned throwing off the yoke of our current oppression. My question then though is, if we agree that government is by consent of the governed, then where is the line for secession?
I am not here advocating secession, or that we have reached that point where it is justifiable. I just do not see the moral basis for denying the possibility of such. Bruce Hayden(Quote)
Brett Bellmore says:
I’m just puzzled why anybody would describe Appomattox as a “political” decision. It was a battle in a war. J.L. is right: You might settle an argument by shooting people, but you don’t change minds. The argument only stays settled as long as people continue to believe you’ll shoot them if they disagree with you. Brett Bellmore(Quote)
Martinned says:
It’s a bit tangential to the subject of this thread, but the whole story of the Wheeling Convention sounds eerily familiar given the history of the cold war, particularly: if you don’t like the government of a particular country, for example because it is communist/capitalist, have a different one “elected”, one that is, of course, properly capitalist/communist, since the real will of the people would hardly have it any other way. If that real government has to be a government in (pseudo) exile, so be it. That doesn’t mean they can’t have a seat in the Security Council (for instance). Martinned(Quote)
Ken Braithwaite says:
Well to be honest I think EV is perhaps guilty of over literalism here. “settled at Appomattox” is short for “the civil war and the post war amendments”. (This is like when he din’t get the point of people wanting a 0 rather than a 9 added to the end of their salary.) And I think it is quite clear that the understanding at the time was that secession was verboten. So perhaps an ‘originalist’ interpreataion of 13 and 14 implies that. Ken Braithwaite(Quote)
Ak Mike says:
The question of secession came before the Alaska Supreme Court in 2006, Kohlhaas v. State, 147 P.3d 714 (Alaska 2006). The court struck down a proposed initiative to direct the state to work towards secession. The opinion cited a post-Civil War US Supreme Court decision, Texas v. White, 74 U.S. 700 (1868), which held that the union was “perpetual” and “indestructible.” The Kohlhaas court held that since secession was necessarily illegal, it could not allow an initiative requiring the state to pursue it.
In my view the Alaska court erred in failing to note, however, that Texas v. White does allow that a state can secede with the permission of the other states. Thus secession is not necessarily illegal — only unilateral secession. The initiative should not have been struck down since the state could have proceeded to attempt to secede legally by persuading the other states to let Alaska go. Ak Mike(Quote)
DerHahn says:
If, in 2065, some region wants to leave the nation, the key question will be: is this because they lost, or will lose, a vote? If the answer is yes, then I hope that the nation will take the same position as Lincoln did: secession over a failed political vote is treason, and it must be defeated by force of arms.
You really mean this?
So if in 2065 former General Wesley Clark II is elected president after the election where he, Jeb Bush III, and Chelsey Erica Clinton were candidates is thrown into the House of Represenatatives, and implements his promise to bring ‘law and order’ to a country racked by riots and protests over waves of illegal immigration by suspending Posse Comitatus and taking Federal control of state police forces, nobody has a right to do anything about it because they ‘lost a vote’? DerHahn(Quote)
Recovering Law Grad says:
Bruce —
The moral basis for denying the possiblity of secession, without consent from the remaining actors in the union, is very simple: if each state can simply pull out when it loses an argument, then democracy fails. The entire premise of secession (without consent) leads to a downward spiral where Georgia secedes from the U.S., Atlanta then secedes from Georgia, North Atlanta then secedes from Atlanta, etc. If the principle is that a community can withdraw from a large community each time it doesn’t “consent” to the larger community’s rules, there’s no end to it.
(Also, the analogy to the Declaration of Independence is off base. We were not withdrawing from a democratic institution.) Recovering Law Grad(Quote)
Ilec says:
Perhaps my recollection is incorrect and if so I will happily concede the point but didn’t many Confederates in fact refer to the Civil War as the “Second American Revolution”? Ilec(Quote)
epluribus says:
Martinned, it is absurd to compare the American Civil War to the Cold War. The state of Virginia purported to “secede” from the American Union because they believed that their right to maintain slavery was imperiled. They announced to the rest of the country that they were no longer a state of the American Union and fielded an army to back up their announcement. . But it happened there were a substantial number of Virginians who did not want their state to “secede” and who believed that slavery should be abolished. They elected a legislature which met in Wheeling and consented to the formation of West Virginia as a new state, all in accord with the constitutional requirements. So these people helped to defeat slavery, to perpetuate the American Union, and to defeat the Confederacy, and West Virginia was an almost unintended by-product. BTW, West Virginia abolished slavery during the war. Virginia waited until Robert E. Lee surrendered his army to Grant. This was a legal, constitutional, military, and moral victory all rolled into one. epluribus(Quote)
Martinned says:
Well, arguably you guys were withdrawing from the greatest of all democratic institutions. (Parliament, that is, not the British colonial empire.) The fact that not everybody had the vote is irrelevant, the same went for the US after its independence, and the same goes for the US now. Martinned(Quote)
JeremyKidd says:
It seems that whether the issue of secession was ever “settled” depends entirely on the the definitions assigned to the various terms. You can always tweak the definition ever so slightly in order to “disprove” your opponent’s arguments (such as what, precisely constitutes a secession, as opposed to a revolution).
Therefore, trying to use as many general concepts as possible, here’s a thought:
The Declaration of Independence seems to stand, among other things, for the proposition that it is always a natural right to remove yourself from unjust governance, including the right of a locality, state, etc. to declare itself no longer governed by a now-foreign political system. That natural right cannot be abrogated by past generations’ decision (well meaning though it may have been) to agree to a form of government that allows for no political means by which to remove yourself. However, the political system under which a locality operates initially can set the terms for proper political action.
An action not expressly authorized by the political system can still be legitimate as an exercise of natural rights possessed the the individuals involved. Taking the prohibited action may or may not subject you to legal or military retaliation. That is why the exercise of natural rights must often be accompanied by an ability and willingness to do more than speak. Hence, in 1776, the Declaration of Independence was met with violence, and the colonists were required to vindicate their natural rights with a violent response.
Nothing required the British to agree to the colonies’ independence, but nothing required them to object, either. In their estimation, the colonies had no legitimate objections to British rule, so they reacted with violence.
Nothing required the Union to agree to the South’s secession (I see nothing in the Constitution expressly allowing voluntary removal from the Union), but nothing required the Union to object, either. In the Union’s estimation, the South’s reasons for secession were illigitimate, so they reacted with violence.
In the end, both scenarios required the use of military force to vindicate what an attempted expression of natural right. In the case of the Revolutionary War, the colonies won, and their expression was vindicated. In the case of the Civil War, the Union won, and the South’s expression was not. Neither result, taken alone, says anything about the validity of the expression — that is for the observer to determine. JeremyKidd(Quote)
Martinned says:
So the people of West-Virginia objected to the (allegedly) unlawful secession of Virginia from the union and in response they unlawfully seceded from Virginia? Did I get that right? Whether Virginia’s secession was lawful or not is irrelevant for the purposes of deciding what the lawful government of the state is. I see no reason why that should be any other than the lawfully (under the laws of Virginia) constituted government in Richmond. Martinned(Quote)
matth says:
I find Johnny L’s first comment incredibly amusing. Of course you can settle a legal question at gunpoint. In fact, that’s how its usually done. Marshals and deputies at courthouses across the nation have guns on their belts. matth(Quote)
epluribus says:
Ilec:
Yes, they did, but it was an informal catch-phrase, designed to excite pro-secessionist passions, but it had no legal significance. The governments of the sueceding states never “declared independence,” as the revolutionaries of 1776 did. They called the conflict “the war between the States,” and argued that a State could leave the Union at any time and for any reason, at its option. That is how the Confederates of 1861 attempted to justify “secession.” It is a different matter to rise up in rebellion against a tyrannical government. When the French stormed the Bastille, they did not claim they were “seceding” from France. When the Bolsheviks rose up in 1917, they did not claim they were “seceding” from Russia. They were overturning what they regarded as a corrupt and oppressive regime. No such claim was made in 1861. How was the federal government “oppressive” the Southern states. They all had elected representatives in Washington who participated in national decisions. Southerners all voted in the presidential election of 1860, and their votes were counted on the same basis as those in the North. They just happened to be out-voted. The claim then was that the Constitution gave states the constitutional right to withdraw from the union as and when they pleased. epluribus(Quote)
RPT says:
The secession comments are one of the sillier aspects of the $ea party movement. Maddow and others have done a pretty good listing of the R’s, e.g., Rick Perry and Sarah Palin, whose position is that secession is good so long as they get to keep all of their federal aid, contracts, military bases, etc. “Keep the government out of my stimulus”. RPT(Quote)
Relic says:
JeremyKidd:
The 10th amendment could be seen as giving the states the right to secede. Dissolution of the Union is not a power forbidden to the states, nor granted to the Federal Government, and, as such that power is granted to the states or the people thereof. Relic(Quote)
epluribus says:
No, you didn’t. But I suspect you didn’t really try. The people of West Virginia did not secede from Virginia. The legally elected government of Virginia (not West Virginia) consented to the formation of West Virginia out of the jurisdiction of Virginia. After secession, Virginians loyal to the Union elected a new Virginia state government, because the old government had unilaterally seceded from the Union, proclaimed it was no longer subject to the United States Constitution, and sent an army into the field to fight against the United States. It boldly proclaimed that it was no longer a government of one of the United States. By its own declaration, it had as much authjority in the United States as, say, Belgium or Mexico. West Virginia was not formed illegally, but as provided in the Constitution. epluribus(Quote)
pmk says:
fake equivalence alert. rick perry and sarah palin are “some conservatives”? pmk(Quote)
JeremyKidd says:
Relic:
I agree that is probably the best place to look for it. I have not heard a full explanation that I agree with, yet, but the ones that have come closest have been based on the Tenth Amendment. Can you elaborate on your view? JeremyKidd(Quote)
Martinned says:
This is a fun game! Remind me why the habeas corpus clause speaks of “Cases of Rebellion or Invasion”, implying that the Federal government has the right to resist either? Or explain to me how Federal law can be “the supreme law of the land” if part of that land has seceded? (There are more reasons still to believe that the Federal government can constitutionally resist secession, if you think that matters.) Martinned(Quote)
Relic says:
Martinned:
Rebellion can occur without secession and secession does not mean that the affected parties must wage war. Therefore, secession can happen without rebellion.
The “the law of the land” does not dictate the size of the land. If a part of the land secedes, then the law of the land is still the law of the land. The land is just smaller. Since the Constitution does not set parameters for the reasons that war can be waged, waging war to resist secession would be legitimate. That doesn’t mean that secession is unconstitutional. Relic(Quote)
B.D. says:
Debating the legal right to secede is a pointless exercise. It’s not like a judge could have compelled the CSA to rejoin the union in 1861.
When it comes to a fundamental, extra-constitutional issue like secession, there are two choices: either the US accepts secession, or it settles the issue on the battlefield. B.D.(Quote)
Johnny Longtorso says:
“...except that we, in Washington DC, will continue to collect taxes from you as if you were still part of this nation, like we’re doing at Sumpter. Granted, if the British tried that, we’d start shooting at them, but that’s an entirely different subject....”
Talk is cheap. The Union was going to continue to collect taxes on a group of states that considered themselves a separate country. Someone was going to start shooting because of that. It was successful political maneuvering, but nothing more.
As a practical matter, nobody was hurt at Sumpter. Do nations like the Union normally fight a war to the death over something like that, or was it clearly just an excuse? Johnny Longtorso(Quote)
Dilan Esper says:
I think the Taiwan issue actually brings up a much needed point, which is there is a huge difference between whether the nation that is being seceded from is going to view the secession as legal and legitimate, and how the rest of the world may feel about it.
We support Taiwan, to the extent that we do (i.e., with feints towards ultimate Chinese sovereignty), because we think the Taiwanese are better off self-governing through a democratic government than they would be ruled by the butchers of Beijing. But it’s completely understandable that, from the Chinese standpoint and under Chinese law, Taiwan is a breakaway province which was created by treasonous secessionists. That’s exactly how you would expect China to view the issue.
What eventually has to happen, from an international perspective, is a dose of realism, a settlement of claims. This is how most secession-type issues are ultimately handled, whether in East Timor, Northern Ireland, the Balkans, etc. It’s sometimes a very rocky road to get there.
But it’s a very different claim to say that “the Confederate States of America, had they been more successful both in the Civil War and in their efforts to garner international support, could have forced the US government to eventually settle with them and recognize their independence”, which is true, rather than “the Confederate States of America had a legal and constitutional right to secede”, which is the claim that is actually often made, and which is false as a matter of US law. Dilan Esper(Quote)
Geoff says:
The Declaration of Independence ‘confers’ (perhaps ‘acknowledges’ is a better word) a right to secede, to the extent that the ‘union’ being seceded from is destructive of the ends of Life, Liberty, and Happiness. Geoff(Quote)
JeremyKidd says:
Geoff:
The Declaration acknowledges a natural right, so if secession is a natural right, rather than a political one, you might be correct. It seems to me, however, that secession is more likely a political right. JeremyKidd(Quote)
SuperSkeptic says:
False. SuperSkeptic(Quote)
Dilan Esper says:
The Declaration of Independence ‘confers’ (perhaps ‘acknowledges’ is a better word) a right to secede, to the extent that the ‘union’ being seceded from is destructive of the ends of Life, Liberty, and Happiness.
The Declaration of Independence is not a legal text. It’s the equivalent of an extremely rousing political speech calling a people to arms.
In any event, does anyone seriously doubt that as a matter of BRITISH law, the revolt of the colonists was illegal and treasonous? Dilan Esper(Quote)
Mark Field says:
A number of others have already made the points I would have made, but I’ll respond here to direct comments.
Because, as Steve Lubet already pointed out, the Revolution was a revolution. Secession is different. In brief, secession involved a claim that states had a legal right, under the Constitution, to leave the Union. Revolution is an extra-legal claim which is not based on the Constitution, but on a pre-existing natural right which can never be surrendered.
I’ll leave aside the issue of originalism for the moment and just respond to this. If what you’re talking about is a negotiated departure with the consent of everyone involved, then I agree. But secession was, as bpbatista noted in quoting Lincoln, a claim that states could leave the Union (a) as a matter of Constitutional law; and (b) regardless of consent by anyone else. These issues, particularly (a), were settled at Appomattox.
Do you mean Vermont rather than Delaware? As for WV, it was created pursuant to Constitutional provision (Art. IV, Sec. 3). Mark Field(Quote)
Johnny Longtorso says:
Can I take that exact same stance as an individual and move to, say, Canada, if I lose a vote, or is that equally treasonous because I’m refusing to accept the result of a vote I lost?
What if Microsoft (hypothetically) wanted to move from Seattle to Vancouver over a change to a tax law? Is that treason? Is losing MS a bigger or smaller economic hit than losing Rhode Island? Johnny Longtorso(Quote)
Allan Walstad says:
Profited in terms of wealth? The North, perhaps, at the expense of the South via the high-tariff hegemony whose threat was an important reason for the South’s secession, one studiously and determinedly ignored or ridiculed by the Lincoln worshippers. Eventually, the South did prosper of course, but the only advantage of union for that purpose is to maintain free trade, precisely what Lincoln and the industrial North sought to deny the South.
Liberty from threats both foreign and domestic? What threats, exactly, and particularly of the domestic sort? American “greatness” in World War I was what enabled the Treaty of Versailles, which led to Hitler, whose defeat led directly to Soviet domination of Eastern Europe and its global threat. If the US were two or three or four separate countries, each with a population comparable to Britain or Germany, would we be weak and vulnerable? To whom or what?
“National greatness”? Gimme a freaking break from such juvenility. Allan Walstad(Quote)
A. Dawson says:
The right of secession is what makes us strong. If a state cannot secede from the union it is vulnerable to the tyranny of a majority. This is true of lower populated states.
The individual equivalent would be that a person wouldn’t be able to leave the US and denounce their citizenship. Obviously, something no one would support. A. Dawson(Quote)
RPT says:
I agree in that I don’t recall anyone arguing that any state should secede during the Bush years. Individuals making such threats/promises (Alec Baldwin?) don’t count.
EV or anyone: Do you have any examples of state officials during 2001–2008 asserting that their states should secede from the union? RPT(Quote)
Bruce Hayden says:
I don’t really see that much difference. A democracy can theoretically be just as authoritarian as, for example, a benevolent monarchy (not that the monarchy that we rebelled against would be considered benevolent under today’s standards).
Another problem with your argument is that we really aren’t a democracy. Rather, we are a quasi-democratic republic. Part of that distinction may be playing out right now with Health Care “Reform”. A notable and increasing majority of the populace has come to oppose the proposals in Congress as they learn more and more about them, yet, there is evidence that these continue to proceed despite that. Partly that is a result of gerrymandered safe districts. Partly that is a result of the republican form of government. Indeed, I would suggest that the reason that more and more people talk of secession is that our government seems to many to becoming more and more unresponsive to them and their needs and wants.
These people see our government taking money out of their pockets, and giving it to those who are in tight with the government. 8,000 or so earmarks in the last appropriations bill, raises for government workers while everyone else is suffering during this recession, blatant tax evaders running the department over the IRS and chairing the committee that writes the tax laws. The list can, and does, go on. The situation is not helped by the billions of dollars that go into lobbying, which to these people means that moneyed interests are buying off Congress in order to belly up to the feeding trough of government contracts, all paid for by taxpayers.
I would also suggest that your reductio ad absurdum likely will fail in real life. There are major benefits from belonging to a decently large union, and, in particular, this one. This may be why Quebec has not left the rest of Canada — they have more power as a province in Canada than they would likely have on their own, esp. with the (English speaking) U.S. sitting just south of them. The U.S. would likely bully an independent Quebec, and they would likely lose significant advantages in trade, both within Canada, and with the U.S.
Back to Atlanta, etc. Who would protect them if they seceded? It’s something like when people depend on a fire company, but don’t directly pay for them. When there are conflicting calls for the fire company’s service, they must give priority to those paying their bills. Bruce Hayden(Quote)
Bruce Hayden says:
I disagree to some extent. I would consider it also a philosophical document justifying our form of government, as well as our revolt from GB.
And as such, I think that it has more, not less, moral power. Bruce Hayden(Quote)
Federal Farmer says:
I’m glad you brought this up because I was going to do so. Excellent points.
In theory, secession is “legal” given our commitment to ‘consent of the governed’, but in practice it is not so easy. Federal Farmer(Quote)
Dilan Esper says:
I disagree to some extent. I would consider it also a philosophical document justifying our form of government, as well as our revolt from GB. And as such, I think that it has more, not less, moral power.
It may have some moral power. That’s a matter of taste. It certainly had some moral power to the colonists in 1776.
But it has no legal force whatsoever. It is the equivalent of a nonbinding proclamation of the Congress for purposes of legal analysis.
As I said, I don’t doubt the moral arguments for secession in certain circumstances. I further do not doubt that if secession is either consented to or upheld through force, it can stick and that a seceded nation can be completely legitimate.
The problem is, the South’s defenders want to say that there was some special LEGAL right under United States law to commit treason if you didn’t like an election result or were afraid of anti-slavery legislation. And there was no such LEGAL right.
Nor was there a LEGAL right to revolt against the British. Moral right, sure. Political right– well, we won the revolutionary war and got recognized, so yes. But was the revolution legal under British law? No way. It was treason. And so was the CSA under American law. Dilan Esper(Quote)
epluribus says:
Really? Have you searched the text for the words “secede,” seceding,” secession,” or “secessionist”? You won’t find them anywhere in that document. Seems strange that if the framers wanted to establish a right to secde they couldn’t think of the right word to describe it. epluribus(Quote)
Bruce Hayden says:
I think that it is a moral right, and that is really the discussion we are having here. The DoI states a moral right to secession that is tied closely into the justification for our government and our own rebellion or secession. Without the justification that “governments are instituted among men, deriving their just powers from the consent of the governed”, our Constitution is merely a document signed by a bunch of guys who have been dead for roughly 200 years. But the next sentence that says that if the government then ceases to provide for those inalienable rights, the people have an absolute right to replace it. This is the natural corollary of a government deriving its powers from the consent of the governed — when the governed revoke their consent, the government ceases its legitimacy. Bruce Hayden(Quote)
wooga says:
Rick Perry is talking about Texas, which has the argument (I have not looked at the validity of it, I assume it’s standard ‘crank’ theory like the ‘Ohio is not a real state’ nonsense) that Texas joined the Union with an exception not allowed any other state — that Texas could rightfully and unilaterally break up into sub-states. So Texas arguments don’t really apply to other secessionist nonsense, and vice versa.
Sarah Palin has not supported secessionist theories that I know of. That’s the hobby horse of her husband.
As a practical matter, however, all the secessionist talk would go away if Congress stopped trying to impose ‘one size fits all’ solutions on the country, without the consent of any states. It’s not like the civil war, where you had some states complaining about other states using the feds to impose their will, but rather we now have the federal government, as a self-interested entity, acting adversely to all 50 states. wooga(Quote)
SuperSkeptic says:
I would suggest it was more (b) that was settled at Appomattox. SuperSkeptic(Quote)
Federal Farmer says:
By the way, we did have a peaceful revolution of sorts with that creation and adoption of the Constitution in 1787. The authors were only empowered to amend the Articles of Confederation.
Also, the Articles did not have a clause allowing such and were “perpetual” as someone pointed out.
However, that revolution was adopted by Congress and that was a good thing. Federal Farmer(Quote)
Bruce Hayden says:
“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 to 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.”
Arguably, this merely justifies rebellion and revolution, and not succession. But to a great extent, they are closely related. I would consider succession the lesser of these three things. Bruce Hayden(Quote)
CJColucci says:
If you take a metaphor literally, it’s easy enough — indeed, it’s trivial — to show that it can’t mean what it literally says. CJColucci(Quote)
SuperSkeptic says:
Right. And then Might makes Right (or legitimate). SuperSkeptic(Quote)
midasear says:
Actually, in 1861 the Secessionists appealed primarily to the natural right of revolution. You only have to read the various Articles of Secession passed by the various legislatures to verify this.
The argument that Confederates were fighting to vindicate an abstract legal right of secession under the constitution was advanced by apologists _after_ the war. Admitting that secession was primarily preemptive effort to stop the Union from “tyrannically interfering” with the “peculiar institution” was a bit too embarrassing when writing a memoir of one’s days serving the Lost Cause, especially from a vantage points a couple decades after Appomattox. midasear(Quote)
Bruce Hayden says:
Which really is part of the problem. The 13 colonies violently seceeded from the British Empire. They succeeded, and so it was legitimate. But the southerners lost their war, and so their secession was not.
But would our revolt have been any less morally justified if the British and the French had not been fighting at the time, and thus the British couldn’t bring much of their military might against the Colonies, while the French could play spoiler by helping the colonists? Bruce Hayden(Quote)
SuperSkeptic says:
This is an interesting point considering the structural decomposition of the states’ influence in the federal government since the founding. SuperSkeptic(Quote)
epluribus says:
Dilan Esper:
Really? It was adopted by the Continental Congress, the governing body of the United States in 1776. It is printed in the United States Code, by order of the United States Congress (the governing body of the United States today), alongside the United States Constitution, the Bill of Rights, and the United States Code, all of which are by common agreement legal texts. The reckoning of the independence of the United States dates from the adoption of the Declaration. The independence of the United States is generally deemed to be legal. True, the Declaration doesn’t forbid or compel any acts. It doesn’t impose taxes. But in other ways it has a lot of legal significance, and by our lights it is certainly regarded as “legal.” Or maybe you mean it’s not legal in England. I don’t know. I have a sense that the English acknowledge our legal independence now, even if they didn’t in 1776. epluribus(Quote)
Dilan Esper says:
But would our revolt have been any less morally justified if the British and the French had not been fighting at the time, and thus the British couldn’t bring much of their military might against the Colonies, while the French could play spoiler by helping the colonists?
The moral justification for our revolt has little to do with whether it was going to be practically successful in creating a new nation. (It isn’t completely unrelated, as you can argue that it is immoral to start a revolution you can’t finish and kill thousands of people. But it is mostly unrelated.)
But one of the reasons that defenders of the South move this issue over to the legal arena is because, shall we say, the moral case for Southern secession is less than persuasive given what they wanted to do in their new nation. Dilan Esper(Quote)
Federal Farmer says:
I also feel that the DoI is the most compelling legal document we have. We should look to it as a source of our ‘National Identity’.
As an aside, I’ve lived in 3 states now and if my current state, Illinois, chose to secede I’d pull up stakes and head to freer country. Federal Farmer(Quote)
S says:
You’re not an originalist, are you? S(Quote)
Geoff says:
The solution for the current administration is simple. Issue a press release to the effect that if the Admin gets wind of any seceding, they will have a big Chicago law firm sue your A$$. Case closed. Geoff(Quote)
JeremyKidd says:
BruceHayden:
Don’t get me wrong, as I posted earlier, I believe there is a moral right to remove yourself from oppressive government, and I think the Declaration describes it very well. I just don’t know whether whether “secession” most accurately describes what we’re talking about, or whether the term “secession” describes a political right. A lot of confusion can arise when the precise definitions of the terms of debate are not clear. JeremyKidd(Quote)
epluribus says:
Bruce Hayden:
OK, you consider “succession” the lesser of these three things. But, where does “secession” fit into your order of things? Believe me, I’m not reading these posts to correct misspelling, but to try to understand the thinking beyind them. And your thinking truly perplexes me. epluribus(Quote)
epluribus says:
Please, have you read the “ordinances” (not “articles”) of secession? You really ought to before you post any more nonsense like this.
http://www.civil-war.net/pages/ordinances_secession.asp epluribus(Quote)
ShelbyC says:
Succession is probably illegal and unconstitutional, but since succession constitutes a wholesale abandonment of the Constitution and the laws created under it, I’m not sure that really matters. But given the fact that folks have a moral right to self government, if a large enough supermajority of folks want to succeed (for reasons other than to enslave their countrymen) they probably have a moral right to do so. And in most circumstances it would be immoral for the rest of the country to stop them. ShelbyC(Quote)
epluribus says:
What is the problem with the word “secession”? Some people here seem to think this is a discussion about “succession.” I thought this was an adult site. epluribus(Quote)
Dilan Esper says:
Really? It was adopted by the Continental Congress, the governing body of the United States in 1776. It is printed in the United States Code, by order of the United States Congress (the governing body of the United States today), alongside the United States Constitution, the Bill of Rights, and the United States Code, all of which are by common agreement legal texts. The reckoning of the independence of the United States dates from the adoption of the Declaration. The independence of the United States is generally deemed to be legal. True, the Declaration doesn’t forbid or compel any acts. It doesn’t impose taxes. But in other ways it has a lot of legal significance, and by our lights it is certainly regarded as “legal.” Or maybe you mean it’s not legal in England. I don’t know. I have a sense that the English acknowledge our legal independence now, even if they didn’t in 1776.
Non-binding congressional resolutions can be published in legal texts as well.
The Declaration of Independence is not enforceable, it imposes no legal obligations, and cannot be cited as law before any tribunal (it can only be cited as persuasive authority, historical context, etc.). It is legally meaningless.
Sorry if you would like to believe otherwise, but the Declaration of Independence might as well not exist as far as determining what the law is. Dilan Esper(Quote)
A. Criminal says:
(1) Why is “perpetuity” used as an objection to losing a state, but apparently not to gaining a state? And does anyone really think that any country, gov’t or organization can be “perpetual”? It seems silly to base an opinion on something that has never happened (and, come to think of it, you can’t determine that it had happened at any point in history until you actually reached “perpetuity”...) and never will happen. (non-perpetual by the sun exploding, if nothing else) “Perpetuity” is a nice idea though, infinitely more grandiose than a mere 1,000 years.
(2) Well, right now:
A. Criminal(Quote)
Blue says:
Not the same at all. The colonies had no say in Parliament at all. That’s very different than restricting the franchise to a subset of the population. Blue(Quote)
Geoff says:
Great argument. The DoI is meaningless because you can’t cite it to a Court? Whatever. I deem it to be the highest law in the land. So if a bunch of farmers show up at your door with rifles and pitchforks, don’t start waiving your Westlaw card and expect that to scare them away. Geoff(Quote)
Mark Field says:
No, it states a natural (not moral) right to revolution, which is justifiably exercised with good cause. IOW, the right is natural and can be exercised at any time, but to be just it must be moral.
Again, revolution and secession are 2 separate and distinct arguments. You’re confusing the two. Mark Field(Quote)
Dilan Esper says:
Great argument. The DoI is meaningless because you can’t cite it to a Court? Whatever. I deem it to be the highest law in the land.
You can deem it to be anything you want it to be, but that doesn’t mean the government or the American people have any legal obligation whatsoever to obey any of its terms (except the extent that they are incorporated into actual laws).
It’s like arguing that one of FDR’s speeches is the law. Or your Christmas list. Or the script to a porn movie. Or some made-up religious text from 2,000 years ago.
In each case, you can say anything you want is law, but that doesn’t mean that an actual legal obligation is created. Dilan Esper(Quote)
mack says:
“Settled at Appomattox,” is shorthand for “just shut up and don’t make us come kick your whiney a** again.” Though slavery was the precipitating cause of the war — an important point to recognize was that most southerners did not own slaves and most in their own minds were fighting for “states rights” and not slavery. At that time most Americans identified closely with their state of birth — referring to themselves a Virginians or South Carolinians etc... and not so much as just Americans, as we do today.
Secession seems to me to be a political question and not a legal question. Government is not a natural right, it is a political creation and as such has no basis in natural law — has no natural right to exist or defend itself except through the consent of the people. Therefore I would suggest that “legally there is no right to secession” of a state government from a federal government as it is in the end by necessity a political decision and thus as all political decisions never finally decided — in the sense that one might say that the principles that one has a right to life and thus the right to defend that life as being definitively set or decided in natural law.
As such I do not much hold forth for secession, I would think that revolution would be more appropriate — individuals joining together outside of government statutes to throw off a government that has become destructive to the ends of liberty, as is their right, as is their duty.
So, when do we begin? Oops forgot, “America is at that awkward stage. It’s too late to work within the system, but too early to shoot the b*****ds.” Claire Wolfe
Seriously, I do think that such talk about secession today is not just people ticked off about one or another election — a party in power or a party out of power. I think there is a growing skepticism and inchoate anger over the continued growth and intrusiveness of government and big business. I think many people are feeling disrespected by arrogant government and taken advantage of by faceless corporations — of seeing their freedom to live their lives — to work or have a job that treats them with respect in terms of monetary compensation and basic dignity — to own their own property or business and to live, raise a family, or run a business without a tangle of rules, regulations, taxes, lawyers, bureaucrats, statutes, restrictions, prohibitions, requirements, assessments, pc judgments, and basic bull scatology — bending them over.
I truly do see a real storm brewing — what that fore tends I do not know — but I do know that the middle class in America in the fly over states — especially in the less urban areas is being pushed to the limits and are becoming more and more alienated from the traditional institutions of power in this country. mack(Quote)
Geoff says:
I got your point the first time. Your follow up does not change the truth or validity of my comment. Geoff(Quote)
ShelbyC says:
It arguably has the legal effect of ensuring that we’re not bound by the laws of England. ShelbyC(Quote)
Dilan Esper says:
It arguably has the legal effect of ensuring that we’re not bound by the laws of England.
Not really. It was neither necessary nor sufficient to give rise to that. Dilan Esper(Quote)
athEIst says:
The confederate states DID secede, elsewise why were they(at gunpoint)required to apply for REadmission to the Union. athEIst(Quote)
Dr. Scott says:
The constitutional question is easy. Does the Constitution forbid the states to secede? No? Then they can. 10th amendment.
I believe the southern states did in fact secede. The US then fought and won a war of conquest against those states, following which, they were readmitted to the Union.
The question of whether you can secede, and *succeed*, seems to have been settled at Appomattox. Dr. Scott(Quote)
epluribus says:
Ware v. Hylton, 3 U.S. 199 (1796)
Is the beginning of American independence, and the fact that all laws made by the legislature of the several states therefter were the laws of sovereign and independent governments, and the ability of foreign powers to enter into treaties with the United States, the mere equivalent of a political speech of a porn show? I would never have guessed. epluribus(Quote)
epluribus says:
dearieme:
Texaw was/is a question? I know it was a Mexican province, then an independent republic, and finally a state of the United States. Some even think it’s a way of life. But a question? Wow. epluribus(Quote)
S says:
EV: I keep hearing the claim that the legitimacy of secession from the U.S. was “settled at Appomattox,” and I wanted to say a few words about . . .Am I the only one who finds it strange that EV ‘keeps hearing this’?
What could be the circumstances behind this seemingly pointless and useless historical trivia discussion? S(Quote)
Oren__ says:
Eugene, can you point to any modern scholars that dispute the legality of secession with the consent of Congress? Oren__(Quote)
ohwilleke says:
As a general principle, precedents not made by courts can be as persausive and long lasting as those made by courts. The Civil War set a great many non-judicial precedents many of which were lated cited by the administration of George W. Bush in courts of law in the war on terror.
The constitutional principle that Presidents serve just two terms was set by George Washington even though it wasn’t codified until the experience of FDR (whose terms coincided with a period when other countries like the U.K. also suspended “constitutional” political and electoral rules in light of pending crisis), and then codified. Term limits were adopted as a constitutional rule precisely because the precedent had already been set.
The notion the U.S. Senate can’t disregard prior rules when setting its rules in a new session of Congress is likewise an important non-constitutional precedent set by Senators before the Senate was even an elected body. So is the important constitutional principle of Senatorial privilege in U.S. District Court appointments.
One of the most recent well reasoned discussions of secession comes from the Canadian Supreme Court which held that the international law norm was that a secession was only legal if approved both nationally and by the territory departing. The U.S. Civil War was an important precedent in creating this norm. This norm also has ties to the express language of the U.S. Constitution which requires the approval of Congress and the affected state(s) in any change of state boundaries (including a subdivision of the state).
If the U.S. Supreme Court issued a ruling that said that “the legitimacy of [unilateral] secession from the U.S. was ‘settled at Appomattox,’” does anyone really believe that this ruling would be viewed as illegitimate? Indeed, the Pledge of Allegiance, while not strictly speaking a constitutional document, has so enshrined this executive branch constitutional concept with its “One Nation, indivisble” language (ratified by Congress) that it has become more a part of the ethos of the United States than many of its more obscure true constitutional amendments. ohwilleke(Quote)
Xenocles says:
Isn’t the first sentence a better citation?
“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.”
“Dissolve the political bands” and “separation” sound a lot like secession to me.
FWIW, count me among those who think the 10th Amendment gives the states all the power they need to secede. Yes, there are specific provisions elsewhere in the Constitution that deal with rebellion, but I see the type of secession that took place in the Civil War as different from ordinary rebellion. It seems like all the rebellions at the time were merely violent populist uprisings whereas secession was enacted by each state’s duly elected and constituted legislature. By ignoring (or in the case of Maryland, simply dissolving) these bodies, Lincoln merely provided justification for secession IMO.
The only thing the Civil War settled was that at the time the original political power was able to apply enough force to subdue its rival. Then, as always, the strong did what they could and the weak did what they must. Xenocles(Quote)
ohwilleke says:
Would a “secession movement motivated by a local majority’s desire to oppress a minority group . . . be completely illegitimate,” if President Lincoln had said, “I will respect fair and democratic elections choosing to leave the Union?” The motive would be no different. It was certainly an option at the time. If he had had any idea how many people would have died in the U.S. Civil War in advance, and how little the war would advance civil rights for blacks for the three generations after the Civil War ended, he might very well have gone along. In almost every state that left, the popular vote to leave the Union would have been there even if adult slaves had all had the vote.
Also, doesn’t a “secession movement motivated by a local majority’s desire to oppress a minority group” encompass the political history that brought Texas and California to the United States. Anglos migrated into those territories in Old Mexico, outnumbered the locals, and joined the United States to deny the locals political power. Hawaii differed only in that the entire Kingdom was annexed to the United States, not just part of it.
Furthermore, the creation of a new nation is not necessarily an extra-legal act. The cession of the Louisiana Territory to the United States, the cession of Alaska to the United States from Russia, the cession of the American Northwest to the United States from Britain, the Gadsden purchase, independence for Canada, India, Australia, New Zealand, Papua New Guinea, Iceland, Finland, Egypt, almost of all the former French colonies; the Velvet Revolution, and the independence of Montenegro were all legally authorized by the regimes that preceded them, for example. More remotely, the division of the Holy Roman Empire into three components in the Middle Ages was not an extra-legal act, nor was the division of the Roman Empire into Western and Byzantine components.
New nations are created by extra legal revolutions and by treaties dictated by military victors, and by out and out conquest, but those aren’t the only way that new nations are created. ohwilleke(Quote)
ohwilleke says:
The secession ball was in full swing the day President Lincoln was elected President, and the Union had been on the verge of falling apart for a couple of decades before then. Fort Sumter, where Confederates started the shooting war, also didn’t leave him a lot of flexibility to negotiate. It forced an emotional symbolic reaction, closing the door to cold reasoned deal making.
We’ll never know what would have happen if Confederate soldiers had held their fire that April and the Confederates had sent a delegation without bloody hands to Washington. Slavery wasn’t a matter of principle for Lincoln until well into the Civil War, and even the Empancipation Proclamation didn’t by its terms free slaves in the remaining slave territories of the Union. ohwilleke(Quote)
Brett Bellmore says:
IIRC, at least one of the states was coerced into ratifying the Constitution by a naval blockade. Brett Bellmore(Quote)
ohwilleke says:
So clearly, you can walk into Court and apply the “New York is still part of England” theory and prevail. Not!
The Declaration of Independence is cited now and again in courts, as an authoritative legal document that clarifies the legal rights in place at the founding. It certainly remains good law on the point that the United States was independent as of July 4, 1776, which once had considerable importance in relationship to the validity of British public debts. It didn’t purport to say much else. It wasn’t the Code of Hammurabi. Much of it is horatory anyway, to the extent it wasn’t, much of it was superceded in 1789 when the current constitution replaced the Article of Confederation. But, saying that the Declaration of Independence is superceded in part or not intended to be self-executing in others is hardly as profound as saying that it might as well not exist. For example, it is probably a residual source of sovereign powers in the United States granting “full power to levy war, conclude peace, contract alliances, establish commernce and to do all other acts and things which independent states may of right do.”, imparting power that the current U.S. Constitution did not disturb. Sometimes courts hold that states or the federal government have power simply because they are sovereigns can do what independent states may of right do.
The Declaration of Independence also supports a natural rights approach to constitutional interpretation. ohwilleke(Quote)
Dilan Esper says:
epluribus:
All that case says is that if the date of formation of the US is at issue, the prevailing doctrine is that July 4, 1776 is taken as that date. It says nothing more than that. It wouldn’t matter what particular press release was issued that day, and it certainly doesn’t assign any importance at all to the actual words that were uttered, much less making them into law (despite that no vested, sovereign legislature, court, or other lawgiving body ever adopted them).
I am not claiming that the Declaration has no historical importance. Rather, it just isn’t a law. As far as the LAW is concerned, the declaration’s provisions don’t bind anyone. Dilan Esper(Quote)
Dilan Esper says:
The Declaration of Independence also supports a natural rights approach to constitutional interpretation.
NO NO NO A THOUSAND TIMES NO.
There are NO “natural rights” in American law. Any argument that you are naturally entitled to anything is sanctionably frivolous. If you don’t have a court decision, statute, constitutional provision, or some other form of positive law to support your position, you lose. Period.
This is EXACTLY what the Declaration does NOT do. It’s a rousing political speech designed to get people roused up to go to war against the British. That’s why it contains all the BS about “natural” rights (as well as positing the existence of God). But that’s all it is.
You don’t have any ENFORCEABLE “natural” rights. You can make a political / moral argument about going to war to vindicate natural rights, but that’s not law. That’s war. In war, the laws are silent, etc.
Our law comes from positive sources, and it would be no different if the framers had issued a different press release on July 4, 1776. They happened to issue the one they thought would rile up the population.
And this is really important because by requiring reference to positive law, we prevent people from arguing whatever they want to be the law is the law on the basis of some claim that an invisible man in the sky said so. That’s where claims of natural rights lead, and thankfully they have no part in American law. Dilan Esper(Quote)
Ricardo says:
Dilan,
As a piece of rhetoric, the Declaration of Independence has, of course, been deeply influential in getting the people to support past government initiatives. Most famously, Lincoln repeatedly made reference to it in justifying the Civil War.
It’s a “meme” that can lend the government legitimacy or lack thereof to anything it does. And legitimacy is a powerful thing, more powerful than a Supreme Court decision that can easily be ignored if there is the will to do so.
As for Constitutional interpretation, since the Constitution does indeed contain vague guarantees of “liberty” and unenumerated rights, if we don’t wish to take the Scalia approach and assert these are dead letter with maybe one or two exceptions, appealing to the country’s founding documents is an entirely defensible way to attach meaning to these guarantees.
Take this passage: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Leave aside any partisan loyalties you may have for a second and tell me whether you think that is any better than appealing to “an invisible man in the sky” or “natural rights.” Ricardo(Quote)
JeremyKidd says:
Dilan Esper:
I want to understand what you are arguing. Are you arguing that an appeal to natural rights within the context of a legal proceeding will be fruitless, or are you arguing that there simply are no natural rights in America? If the former, I think that’s an interesting question that I have to give more thought to. If you are arguing the latter, I can dismiss it without a great deal of analysis.
The foundation of the American system is that government derives its authority from the governed. Therefore, rights arise without the existence of government, and any right that is not precluded by the Constitution, or the laws passed in compliance with the Constitution, is one we enjoy based in natural law.
If we have no rights other than what the Constitution “gives” us, then the government creates rights, and there are no rights outside of governed society. Even Hobbes didn’t buy that nonsense. Government may protect our rights, but it does not grant them to us. JeremyKidd(Quote)
Dilan Esper says:
I want to understand what you are arguing. Are you arguing that an appeal to natural rights within the context of a legal proceeding will be fruitless, or are you arguing that there simply are no natural rights in America?
I am not arguing that there are no “natural rights”, if you are talking about in the moral realm. There’s a plausible argument that there are.
But in the legal realm, i.e., what is subject to sanction, reward, and punishment at the hands of the state, if your claim is based on a natural right, you lose. Dilan Esper(Quote)
epluribus says:
Dilan, all of your assertions regarding the Declaration of Independence should be prefaced with “in my opinion.” Then all of my responses would be “I disagree.” You are asserting your opinions as if they were facts. Not a winning strategy for a legal argument. epluribus(Quote)
CJColucci says:
EV: I keep hearing the claim that the legitimacy of secession from the U.S. was “settled at Appomattox,” and I wanted to say a few words about . . .
Am I the only one who finds it strange that EV ‘keeps hearing this’?
What could be the circumstances behind this seemingly pointless and useless historical trivia discussion?
An excellent question. The only reason I could think of for anyone to “keep hearing this” is that one hangs out with a secessionist cabal, and someone tries to inject some reality into the scheming. The FBI will be knocking any day now. CJColucci(Quote)
Dilan Esper says:
Dilan, all of your assertions regarding the Declaration of Independence should be prefaced with “in my opinion.” Then all of my responses would be “I disagree.” You are asserting your opinions as if they were facts.
epluribus:
It is a fact that the principles set forth in the Declaration of Independence do not impose any legal obligations recognized in the American legal system on the American people. If you don’t believe me, try filing a lawsuit or filing a legal brief arguing that your rights under the Declaration were violated.
That’s just a fact. As I said, if you want to get into the airy world of what “rights” one might have that preexist the state, that’s fine, we can have that discussion, but that’s not a discussion about the content of American LAW. Dilan Esper(Quote)
epluribus says:
Dilan, you original assertion was: “The Declaration of Independence is not a legal text.” That is an opinion, not a fact, and I thoroughly disagree with it. Ipse dixit is not enough to prevail on this point. epluribus(Quote)
Dilan Esper says:
Dilan, you original assertion was: “The Declaration of Independence is not a legal text.” That is an opinion, not a fact, and I thoroughly disagree with it. Ipse dixit is not enough to prevail on this point.
Epluribus, this is not an ipse dixit. It doesn’t matter how many times you say “I disagree with it”, you still can’t bring a claim or make a legal argument before a tribunal that an enforceable right under the Declaration of Independence has been violated. A document that creates no obligations and no enforceable rights is not law.
This is undisputed and undisputable fact. Dilan Esper(Quote)
Federal Farmer says:
Despite being a member of the great unwashed, I’m sticking my nose into this little debate. I found this, which indicates that while the DoI has been cited in dicta 100 times, it has never been the basis for a supreme court decision.
My feeling is that the DoI is an integral part of our national identity, and certainly should be considered when interpreting our Constitution, especially the fundamental rights of all mankind (US citizen or not) but Dilan is correct it is not actual law. Federal Farmer(Quote)
Kevin P. says:
The text of the Constitution says nothing about secession one way or the other, so I am not sure what originalism has to do with this. Kevin P.(Quote)
epluribus says:
Since you insist on prolonging this argument, I will answer you. First, if I was prosecuting a case that depended on an act of parliament pertaining to the colonies and passed after July 4, 1776, I would argue that the act created no rights or duties and was a nullity. I would cite the Declaration of Independence as authority for that proposition. If I was prosecuting a case that depended on an act of the Virginia General Assembly passed after July 4, 1776, and my opponent argued that it was a nullity because Virginia was at that time subject to parliament, I would argue that it was not because Virginia was an independent sovereign at the time, and I would cite the Declaration of Independence as authority for the proposition. If I represented a client who held a promissory note incurred in the Commonwealth of Massachusetts after July 4, 1776, and if obligor on the note argued that it was invalid under a particular act of parliament passed after July 4, 1776, I would argue that the act of Paliament had no operation in Massachusetts after July 4, 1776, and I would cite the Declaration of Independence for that proposition. If I had a case that depended on the validity of the treaty between France and the United States made after July 4, 1776, and if an argument was made that the treaty was invalid because the United States was then subject to the authority of the King of England, I would argue that the United States was then an independent sovereign and fully capable of making a treaty with France, and I would cite the Declaration of Independence as authority. I could go on and on and on. The Declaration of Independence had real and important legal consequences. It was thus, and remains today, a legal text. It is printed in the United States Code. It is preserved in the National Archives alongside the Constitution and the Bill of Rights. All three of those documents are legal texts. I would argue further that the Declaration of Independence can be a valuable tool in interpreting particular provisions of the U.S. Constitution. Interpreting the Constitution is of course a legal exereice, perhaps the highest legal exercise that can be engaged in in the United States. epluribus(Quote)
epluribus says:
No, he is not correct. The United States is independent and sovereign. It has been since July 4, 1776. Its independence and sovereignty are legal. The legality and sovereignty derive from the Declaration of Independence. By establishing the legal independence and sovereignty of the United States, and incidentally of the separate states as well, it is a legal text. epluribus(Quote)
epluribus says:
For one United States Supreme Court decision acknowledging the legal effect of the Declaration of Independence (there may be others), see Ware v. Hylton, 3 U.S. 199 (1796), cited (and quoted from) above. epluribus(Quote)
Federal Farmer says:
The DoI is entitled “The Unanimous Declaration of the Thirteen United States of America” but those states were united by the Articles of Confederation in 1781 and arguably our actual legal ‘birth date’ is with the ratification of our current constitution, which could be considered an overthrow of the pre-existing government. Federal Farmer(Quote)
Dilan Esper says:
Again, the Declaration may establish the country’s “birth date”, but that isn’t the same thing as saying they are law. That’s no different from any official record– for instance, a police report establishes the fact, date, and time of arrest. But the police report is not law.
When people say the Declaration is “law”, they are not meaning that the Declaration is an official record of the birth of a nation, but rather that the principles therein are or should be enforceable. Dilan Esper(Quote)
epluribus says:
Perhaps, Dilan, we are talking past each other. (Wouldn’t be the first time that has happened on VC, would it?) I agree that the Declaration is not a legal text in the same sense in which the Constitution or a statute or a treaty is. There’s no disputing that. But it did establish some enormously important legal principles. One is that the United States was/were (the terminology varies somewhat over the years) an independent sovereign as of July 4, 1776. That had enormous legal significance. It was adopted by the United States Congress by a legal vote. All kinds of legal rights, duties, and concepts flowed from that. In that sense, it was a “legal text.” epluribus(Quote)
epluribus says:
The use of the term “United States” predates both the Declaration of Independence and the Articles of Confederation. The Declaration is legally important, not because it adopted the name, but because it established the independent sovereignty of the United States. No document before or after did that. The ARticles did not do that. The Constitution did not do that. The Declaration of Independence did that. And from that flowed (and still flow) enormous legal consequences. epluribus(Quote)
Federal Farmer says:
The term “United States” was used certainly in the sense of Thirteen United States. But a Country named “United States of America” arising out of the DoI does not make sense given the title’s phrase “...Thirteen United States of America”. That sounds like they are using “United” as a verb not part of the noun. Federal Farmer(Quote)
epluribus says:
You are raising some interesting questions. I suggest you do some research if you want answers. As an example, see the following, which is from the concluding words of the Declaration of Independence. I have added the bolding:
epluribus(Quote)
Federal Farmer says:
Representatives of the States of America which are united...yes yes. I see nothing contradicting me. Federal Farmer(Quote)
epluribus says:
If you all you want is to find somnething that doesn’t contradict you, you are not going to get very far. History isn’t a game, it should be a pursuit of the truth, and the truth will often lead you in directions you don’t expect. epluribus(Quote)
Mark Field says:
Yes, and originalism is the interpretive rule which says that when the Constitution is silent (or ambiguous) we should look to the original public meaning in order to interpret the text. It’s an argument which says, in essence, “let history judge”.
But in that case, we can let history decide other issues as well. And few issues are decided so, well, decisively, as when they are fought out in a war which results in the surrender of one side.
If, for some reason, we’re going to ignore the history of secession — including the small matter of total defeat — then we should feel equally free to ignore the much less convincing evidence of “original public meaning”. Mark Field(Quote)
JaimeInTexas (Jam) says:
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor. JaimeInTexas (Jam)(Quote)
JaimeInTexas (Jam) says:
1) The FedGov (or the States in Convention) do not have the delegated authority to “kick out a State.” neither the FedGov (or the States in Convention) have the delegated authority to prevent a State from seceding.
2) Rawl’s ” A View on the Constitution”, a textbook used in Westpoint (I guess until the War For Southern Independence) tought that secession was legal.
3) The Constitution defines “rebellion” and “insurrection” as “Domestic Violence” and requires that the militia be employed by request of the State’s Legislature (or Executive). Then the Congress, by report of the Federal Executive of the request, can call the Militia. No request by the State’s Legislature (or Executive) no Federal Involvment. That request by the State’s Legislature (or Executive) is the requirement that triggers the Federal involvement.
4) Ft. Sumnter: The commander of Ft. Sumnter stated, upon receiving the letter informing him that resupplying ship was on its way, that the war ahd already begun. It was Lincoln that waged war first and if the States really did not seceded then Lincoln commited treason by waging war against States.
5) The Articles of Confederation states that it is a “confederacy” and the “style” of a “united States of America” with the States retaining their respective “sovereignty” and “independence”. Sounds familiar? Look in the Unanimous Declaration “We, therefore” paragraph. JaimeInTexas (Jam)(Quote)
TGGP says:
The U.S is, like “England the happy isle”, fortunate to have large bodies of water separating it from the rest of the world. Canada and Mexico are no threats. We do not receive such great benefits from the “common defense”. Rather, our military generally embroils us in wars around the world, needlessly killing our citizenry (less of an issue without conscription admittedly). Nor do I agree that the U.S was some great benefactor to the world. After we ceased our involvement in the killing in Vietnam, it went the route of China and so today we have good relations with it. And of course it was the prior reaching out to China that helped pave the way for one of the greatest reductions in poverty in history. Military threats make other countries frightened and act paranoid. For more libertarian cold war revisionism, check out Jeffrey Rogers Hummel:
http://jrhummel.com/ TGGP(Quote)
Brad says:
You may want to re-read the Declaration. There’s nothing in it justifying any form of government, just the ends of government. Brad(Quote)
Brian says:
Eugene:
Your definition of “settled” is such that the Constitution itself is not settled– the polity could reach the decision to abrogate it, change it in fundamental ways, or ignore it.
Secession isn’t really a constitutional question, is it? A state electing to secede isn’t going to be suing the federal government for a declaratory statement, and the state is not going to recognize the validity of a federal court decision against secession.
Secession is ultimately a matter of military might and the nature of our union, and this is what the Civil War answered. Brian(Quote)
WHAT ABOUT THE EUROPEAN UNION? says:
I believe it was Jefferson who said he hopes the countries of Europe one day follow the States in uniting under one flag. Two-hundred years later, they have, forming the EU. But what if Italy decides to leave the EU next year (say, because the EU has done a horrible job regulating immigration and Italians don’t want to become an Islamic state). Do Italians not have that right? Is it so odd to suggest that they could leave the Union?
The extent to which some think it blasphemous for a State to leave the Federal United States is defined by the extent to which that person has forgotten the notion of states’ rights. California = France. New York = Italy. The “United States” is — and notice the odd use of the word ‘is’ — the European Union.
It wasn’t until after President Lincoln’s reign that the phrase “the United States are” was abandoned in favor of “the United States is” — a phrasing that is quite grammatically incorrect. But I guess if you’re responsible for killing 620,000 people, you get to write the history books. WHAT ABOUT THE EUROPEAN UNION?(Quote)
Sam Pryor says:
To me, the interesting (and relevant) question is whether the Constitution provides (whether expressly or not) that the state’s agreement to join in union with the other states is irrevocable. It’s always struck me as somewhat odd, but perhaps necessary for the development of our nation, that a state, having decided to form this union, could not, under any circumstances, decide to withdraw from the “club”. Lincoln surely construed the Constitution in this way, but the North’s victory in the Civil War was a military and political one, not the resolution of a constitutional question. If the Constitution is interpreted to bar forever the unilateral revocation of the state’s consent then secession is clearly impermissible. A state’s reasons for wanting to secede are irrelevant. Scalia’s comment that the issue would not come before the Supreme Court strikes me as inane. Somehow, some way, I’m certain the Supreme Court would be called upon to interpret the Constitution if Alaska, for example, decided that it had a right to secede and that its citizens no longer needed to pay federal taxes. Sam Pryor(Quote)
Bill Madden says:
The Constitution empowers the Congress to admit new states to the union (Art IV, sec 3), a power that I think fairly implies the power to permit a state to withdraw from the union. But there is no way that any Congress is going to permit such a withdrawal without obtaining an iron clad agreement providing for the payment of the wthdrawing state’s fair share of the national debt and for the resolution of a variety of other issues.
Withdrawal without the permission of the Congress? Forget it. If Lincoln had had in his arsenal one tenth of the financial weapons the President and Congress have today, there would not have been a Civil War and no Appomattox. Social Security payments, medicare payments,obligations of corporations (including multistate corporations) and citizens to remit taxes — No need to call out the militia. All Lincoln would have needed to do in the circumstances that now exist would have been to make a phone call to the IRS. Bill Madden(Quote)
SECESSION WITHOUT WAR says:
BILL MADDEN and others have suggested that the threat of a military attack from Washington would prevent a state from leaving the Union. But do you REALLY think that if Wyoming started making plans to leave tomorrow, promised to pay taxes owed, and said “we just want to be left alone,” that President Obama would mobilize forces? Do you REALLY think that President Obama (or any president) would command F-16s to drop bombs on Cheyenne? Would a modern president kill as many as Lincoln did? I seriously doubt it. Conservative presidents, by nature of their politics, would be more sympathetic to the movement. Liberal presidents generally are so post-American anyhow that motivation to stop a secession would be nearly non-existent. Modern presidents are already so scared to kill foreigners in foreign lands that to suggest they would start indiscriminately killing (former) Americans is just silly. AND, if a president IS willing to do so, then I think secession would be warranted, no?
Bottom line, a modern president is almost powerless to do anything anywhere near to what Lincoln did. If Obama/Bush even tried to make such moves, he would simply encourage other states to join the fight. Likely, a modern president would just turn the other cheek. SECESSION WITHOUT WAR(Quote)
William Downey says:
This is always an interesting discussion, and there are several interesting points on both sides. Let us first remember that history is written by the winner. In this case the War Between the States ended and the states in secession were readmitted into the Union following Reconstruction.
If these states were re-admitted then that is a defacto admission that they had in fact left the Union.
Could the Confederacy have succeeded as a nation state? Primarily agricultural, as opposed to the industrial Union, the Confederacy would have been ripe pickings for Mexico to take back Texas and further would have become an economic dependent of Great Britian and other European nations in all probablility.
The fact is that leaving the union is simply an unrealizable dream, even if the Consitution provided for such an action, due to the economic and political realities of todays world. William Downey(Quote)
William Van Alstyne says:
The many excellent commentators on this eternally fascinating question may find it useful, for comparison, to compare
a provision in the Constitution of the former USSR, providing a legal right to each of the Soviet Socialist Republics (of the USSR)to withdraw from the Union, if so inclined. To be sure, it was for a time honored more in the breach than the observance, but, begining with MikhailGorbashev, came approximately to be acknowledged, pretty promptly followed by the dissolution of the USSR itself (after a unified time span of fewer than eighty years).
S William Van Alstyne(Quote)
Charles says:
The constitution contains no express provision regarding secession or other dissolution of the United States while it contains express provisions for adding new states or dividing existing states. (Art IV, Sec. 3) Rather thoughtless of the Framers not to have provided a way to check out. Under a literal interpretation, the Framers plainly didn’t intend for states to be able to leave. The consequence is that States can only extract themselves via the amendment process. If you want to leave, you’ve got to get 3/4th of your fellow states and 2/3rds of each house of congress. Charles(Quote)
Joe says:
I don’t think any one moment in time settles things of this nature. If true tyranny arises in the next few decades, for instance if aliens take over our government and enslave our citizens, the legitimacy of secession might seem reasonable. I don’t see how 1865 — which ended a war started when a moderate Republican won a national election, one who thought slavery in the states was protected by the Constitution and continued to think colonization was a possible option in various cases — changed this. Nothing is so set in stone, even if it does have a strong significance.
As to the DOI, Justice Stevens and others have occasionally cited the DOI for the principle that we have certain inalienable liberties as a means to determine the true meaning of due process of law. The same might be said about the Ninth Amendment, which pretty clearly was understood to recognize some natural rights that the government could not alienate. Thus, like legislative history, the DOI is legally relevant. It provides a means to understand what our independence was understood to mean. The true nature of legitimate governmental power. And, it has been so cited in legal opinions repeatedly. Yes, the basic grounds rested on other matters — like again Due Process — but the DOI (as a citation of Casey noted) was a bit more relevant legally than a “speech” or campaign pamphlet.
BTW, act of independence was a separate vote from accepting this “legislative report” that discusses its meaning. So, citing the document as conclusive as a sign of the legal moment of independence is misguided. Joe(Quote)
Maj. League says:
I agree with EV that the present-day tossing around of vague threats of secession by the likes of Gov. Perry of Texas is political posturing. What concerns me is what this element or type of public assertion does — its effects — which are twofold in my mind: first, debasing the national political discourse (secession being invoked as an alternative to political compromise, or really as a reason not to even try to negotiate); and, second, enraging and encouraging the wackos out there on the fringe [such as the “Republic of Texas Militia” and related nuts (see http://www.rickross.com/groups/republic.html and http://www.republicoftexas.50megs.com/index.html) and, on the Great Plains, the “Posse Comitatus” groups]. These folks are not benign in their intentions; they intentionally create harm and danger to public officials; filing false liens against the homes of judges is one of their lesser tactics. The dignifying of the possibility of secession of Texas or other states from the federal Union reinforces and validates their intent and message.
So when the Texas Governor speaks publicly of secession — even though, as EV points out, it is not at all practical — that is really harmful. Also it encourages talk of the related concept of nullification, which harks back to John C. Calhoun.....and the coming of the Civil War.
The seceding states expected a negative response from the other states. That is exactly what today’s secession advocates are alluding to: departure from the federal Union (because they don’t like to pay federal income taxes, don’t want the federal government to provide, or to compel one to have, health insurance, etc.) even if it means, or leads to, violence.
–Maj. League
Dallas Maj. League(Quote)
Eric Welch says:
Forgive me, I’m not a lawyer, but isn’t it highly improper for a sitting Supreme Court Justice to write a letter about what might or might not be “settled law?” If he had suggested in a letter that Brown v Topeka Board of Ed was not settled law would anyone have let him get away with that? I would love to hear what some lawyers think about that kind of injudicious behavior. Eric Welch(Quote)
Lane says:
Repeat after me.
Laws only have the power you give them.
If a state decides to secede and the federal government is against it, tough cookies.
The state better be ready to defend itself, but there’s not made up “law” that can stop a people who feel oppressed by a government they no longer believe in. Lane(Quote)