In a recent post, co-conspirator Eugene Volokh argues that the Civil War did not settle the issue of the constitutionality and moral defensibility of secession. I made a detailed argument to the same effect in this 2008 post.
I’m not going to restate all my analysis here. But I will say that I don’t think that secession is either clearly unconstitutional or always morally wrong. I agree with Eugene that secession at this particular moment in American history is probably both infeasible and likely to cause more harm than good. I don’t think, however, that that will necessary remain true indefinitely.
In many federal systems, secession is an important safeguard for minority groups and a guarantee against excessive concentrations of power in the central government. Historically, at least some secessions have done great good, such as the “Velvet Divorce” between the Czech Republic and Slovakia in 1993, Norway’s early 20th century secession from Sweden, Finland’s secession from the Russian Empire, and the Baltic States’ 1991 secession from the USSR. The American Revolution was, of course, a violent secession from the British empire, one that most Americans surely believe to have been justified.
Not all secession movements are defensible. As I see it, their merits depend crucially on the nature of the regime they are seeking to secede from and the quality of the one they are likely to establish. For this reason, I am one of the relatively few Americans sympathetic to the general idea of secession who also believes that the Confederate secession effort of 1861 was utterly indefensible. The Confederates seceded for the deeply unjust purpose of defending and perpetuating slavery, a point that I discuss in detail here and here. For that reason, among others, their defeat and the resulting abolition of slavery was a far better outcome than a Confederate victory would have been.
For those who may be interested, I discussed many issues related to the pros and cons of secession in this series of posts in 2008 and 2009. It may be an interesting way to pass the time for federalism buffs confined to their homes by the latest iteration of “Snowmageddon.”
Repeal 16-17 says:
I believe secession from the Union is a political question. While unilateral secession is never permissible, secession could be made a reality via such methods as Constitutional amendment or consent of all the States.
February 10, 2010, 10:08 pmmaster shake says:
The fact that FedSoc types even have to ask themselves whether this issue’s settled is reason enough their little club is a laughingstock at most law schools.
But you’ll always have the Birthers in your corner, too bad those “Real Americans” despise intellectuals so much.
February 10, 2010, 10:09 pmSkyler says:
600,000 people died in taking that right away from us. I’d be happy if it were given back to us but I don’t think any fancy argument will change the de facto situation. Asserting the now extinguished right of self-determination and secession is a purely political and possibly military action. It cannot be done in a court of law.
February 10, 2010, 10:13 pmIlya Somin says:
The fact that FedSoc types even have to ask themselves whether this issue’s settled is reason enough their little club is a laughingstock at most law schools.
Neither the premise nor the conclusion drawn from it is true. Big-name left-wing lawprofs who participate regularly in Fed Soc events (e.g. – Akhil Amar, Bruce Ackerman, Guido Calabresi, Jack Balkin to take just the ones at Yale), would be surprised to learn that the organizations is a laughingstock. And as I discussed in the linked post, the use of force in the Civil War cannot settle a legal and moral issue such as secession. It can only make secession politically infeasible for a time.
February 10, 2010, 10:20 pmDilan Esper says:
As a moral and a political matter, Prof. Somin is right. But as a constitutional matter, so long as secession involves levying war against the US, it’s treason and is clearly prohibited.
Of course, when secession succeeds, none dare call it treason.
February 10, 2010, 10:23 pmmaster shake says:
Name drop all you want, Professor Somin, but I was talking about the rank and file, the student body. You know, the people who pay your salary. For most of us the mere mention of the Federalist Society calls to mind flabby, almost invariably white and male, individuals with comical voices and unfortunate facial hair. You don’t believe me, give an anonymous survey to a randomly selected group.
Or hell, just start up a conversation about secession with students who don’t know who you are. That’s to say nothing of the reaction you’d get descending your ivory tower to speak to lay people on this issue.
February 10, 2010, 10:26 pmSkyler says:
Well, master shake, you go to the wrong schools. The Federalist Society enjoys a very positive reputation in the Texas law schools. Too bad for you.
February 10, 2010, 10:42 pmMark Field says:
If you continue to misstate the case, despite repeated corrections, you’ll continue to get the wrong answer.
February 10, 2010, 10:44 pmSandy MacHoots says:
I disagree that the legal and “constitutional” questions are still open; there never was a valid argument for the lawfulness of secession.
But as a moral matter secession depends not on the legalities but on what the Declaration calls the “causes that impel them to the separation.” The Confederacy wanted to secede because it feared it would lose its effective control over the federal government and thus lose its slave system. Heck, the Confederates didn’t even wait for some overt act against them — they seceded merely because an anti-slavery Republican was elected president instead of the guy they liked.
You might make the same argument about Texas’s secession from Mexico, since a major reason for dissatisfaction with the Texians was the Mexican prohibition of slavery. But the secession Coahuila, Nuevo León, and Tamaulipas a few years later was probably justified due to abuses of the Mexican government.
If the causes are just (such as the government raising taxes too high, or failing to protect important rights, or failing to make itself accountable to the governed) then secession is morally justifiable.
February 10, 2010, 10:49 pmChrisIowa says:
Even if the South had been allowed to secede in 1861 there were enough unresolved issues that a war would have happened anyway.
The big one would have been the disposition of the territories.
Another would have been the refusal of the North to return escaped slaves.
February 10, 2010, 10:53 pmRepeal 16-17 says:
Sandy MacHoots, merely “raising taxes too high” is sufficient to morally justify secession?
February 10, 2010, 10:57 pmmaster shake says:
William Ayers probably has an okay reputation in his neighborhood in Chicago. So what?
February 10, 2010, 10:59 pmAnderson says:
I think “failure to appreciate the sublime leadership of Sarah Palin” is ample moral and legal grounds for secession.
You know which states you are.
(Of course, I would have to flee Mississippi under cover of night ….)
February 10, 2010, 11:00 pmJames N. Gibson says:
I’m less concerned with the legality of secession and more interested in the question of revoking Statehood. Living in a State which appears to be on the edge of bankruptcy and the possible civil strife that may accompany it, I would be more interested in the possibility of Barrack and Congress declaring California a territory and then (with no posse Comitatus issues) send in US troops to maintain order while a territorial governor takes over and banishes our insane political elites (in both parties) to some Ellba (I would say Alcatraz but that could insult San Fran). Otherwise I see this state going down very soon and taking a good chunk of the Western United States with it.
February 10, 2010, 11:12 pmConrad Bibby says:
The reason the Federalist Society provokes laughter from the likes of Master Shake and his friends is that they lack the intellectual maturity to confront ideas that challenge their politically correct worldview with anything other than snarky derision. That’s what happens when a generation’s most influential source of intellectual nourishment is The Daily Show.
February 10, 2010, 11:16 pmJones' Cell Mate says:
I just want to thank master shake for his comments. He could have simply provided us with insight, but instead he has provided us with so much more. I find that I am always fortunate when I run across someone who has a pronounced respect for intellectualism- and isn’t afraid to show it.
February 10, 2010, 11:24 pmCurious passerby says:
but I was talking about the rank and file, the student body.
Admittedly the naive ones who haven’t finished their education yet but already think they are smarter than the professors. HA!
February 10, 2010, 11:29 pmll says:
The 1861 secession was, in a sense, a breach of contract. The contract being the Constitution. The breach being attempting to “un-unite” without attempting to reverse the procedures that brought the Union into being, namely, agreement of a percentage ~ = to 9/13 of the states agreeing to the un-uniting.
The Civil War was the lawsuit over the breach of contract as there was no regular court to try the action.
February 10, 2010, 11:31 pmBumpjon says:
How does the provision in most, if not all, state constitutions that provides that the people are sovereign and that they may alter or abolish their form of government when they deem it necessary fit into this? While I haven’t looked, I imagine that some of the former Confederate States had similar provisions when they were re-admitted to the Union and that many of the states subsequently were admitted with similar provisions in their constitutions.
February 10, 2010, 11:33 pmMark Field says:
The government is not the same as the state. From Texas v. White:
“Some not unimportant aid, however, in ascertaining the true sense of the Constitution may be derived from considering what is the correct idea of a State, apart from any union or confederation with other States. The poverty of language often compels the employment of terms in quite different significations, and of this hardly any example more signal is to be found than in the use of the word we are now considering. It would serve no useful purpose to attempt an enumeration of all the various senses in which it is used. A few only need be noticed.
It describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times, it represents the combined idea of people, territory, and government.
It is not difficult to see that, in all these senses, the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state.
This is undoubtedly the fundamental idea upon which the republican institutions of our own country are established. It was stated very clearly by an eminent judge, [Footnote 6] in one of the earliest cases adjudicated by this court, and we are not aware of anything in any subsequent decision of a different tenor.
In the Constitution, the term “state” most frequently expresses the combined idea just noticed, of people, territory, and government. A “state,” in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such states, under a common constitution, which forms the distinct and greater political unit which that Constitution designates as the United States, and makes of the people and states which compose it one people and one country.
The use of the word in this sense hardly requires further remark. In the clauses which impose prohibitions upon the States in respect to the making of treaties, emitting of bills of credit, and laying duties of tonnage, and which guarantee to the States representation in the House of Representatives and in the Senate, are found some instances of this use in the Constitution. Others will occur to every mind.
But it is also used in its geographical sense, as in the clauses which require that a representative in Congress shall be an inhabitant of the State in which he shall be chosen, and that the trial of crimes shall be held within the State where committed.
And there are instances in which the principal sense of the word seems to be that primary one to which we have adverted, of a people or political community, as distinguished from a government.
In this latter sense, the word seems to be used in the clause which provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion.
In this clause, a plain distinction is made between a State and the government of a State.”
February 10, 2010, 11:50 pmConrad Bibby says:
Not only isn’t secession necessarily immoral, it isn’t even presumptively immoral. As others have said, it’s essentially a political act, which puts it on the same moral plane as voting. The act of voting COULD be immoral under certain hypothetical circumstances (e.g., choosing to cast a vote for Adolf Hitler), but there’s nothing inherent to the act of voting that renders it morally suspect.
If the U.S. via constitutional amendment reinstated black slavery, would anyone consider it “immoral” for particular states to secede from the union?
Clearly, the fact that the Southern states seceded for immoral reasons in 1861 doesn’t render the act of secession immoral under all circumstances and for all times. (In fact, didn’t West Virginia essentially secede from Virginia during the Civil War?)
I would also note that secession does not necessarily imply war. There were plenty of people — in the North and South alike — who assumed the federal government would accede to Southern secession without anything more than a token show of military opposition (if that). Almost nobody envisioned the bloodbath that actually ensued.
February 10, 2010, 11:56 pmbyomtov says:
It’s interesting that in all this discussion no one has addressed the state-level requirements for secession.
Suppose that secession is allowed under some conditions (maybe only with the agrement of the federal government) What is needed, in terms of processes in the state wishing to secede, to go ahead with it?
Is it just like a piece of legislation? That doesn’t seem right. Surely secession is at least as significant as an amendment to the state constitution, so the hurdle ought to be at least that high, and probably higher. Do any state constitutions address this issue? I doubt it.
So how can secession be legitimate without a specified political process for agreeing to it?
February 10, 2010, 11:57 pmS says:
Since the laws of the federal government are the supreme law over the states, I don’t see how secession that is not provided for by federal law could be legit. Moreover, since the federal government is the sole guarantor of the very form of state government, the protector from invasion and has the power to put down insurrection then it can’t be “constitutional.”
Interestingly, in the OP, apart from the US revolution (which was a revolution because we deposed our Most Gracious Sovereign Lord and King) all the “good” secessions are the separation of different ethnic groups.
February 11, 2010, 12:33 ambobc says:
This may be tangental. Assume that “in the course of human events..” seccession is legitimate in America. Does the grounds for seccession matter? If so, did the South have valid reason?
The South wasn’t denied anything without due process. They had equal representation. Everyone in the South had the right to petition anyone in the government. They had an interest in a political outcome but failed to convince people of the idea’s value. Is that valid for secession?
February 11, 2010, 12:39 amElliot says:
An area can secede if it has the political, military, or economic power to enforce it, is willing to employ that power, and accepts the consequences of doing so. The fact that some states failed 150 years ago doesn’t matter. Neither does the law.
February 11, 2010, 12:50 amConrad Bibby says:
As for whether the constitutionality of secession is a “settled” issue, it is certainly possible to argue that the question is unsettled due to the lack of any express prohibition against secession or any decision of the SCOTUS directly addressing the question.
That said, I think a stronger case can be made that the question is, in fact, “settled.” For one thing, I believe the only reason the victorious North didn’t amend the Constitution to expressly prohibit secession was that might
have implied that the question was legitimately debatable before the war. But for that somewhat vain concern, they obviously could and would have amended the Constitution, and we wouldn’t be having this debate.
Moreover, I would submit that the entire Civil War episode itself, starting with the feds’ initial refusal to surrender Fort Sumter and ending with the southern states’ unqualified reentry into the Union, manifested a collective determination by the states that the Union was and is constitutionally inseverable. It was tantamount to constitutional convention on the issue, albeit one in which the people voted with the lives of their young rather than paper ballots or a show of hands.
February 11, 2010, 12:57 amOff Kilter says:
While Ilya’s point that the attempted secession of the South from the North was immoral due to it’s purpose–maintaining slavery, note that many Northern abolitionists wanted the North to secede from the South (making the Fugitive Slave Law nugatory and dropping the northern border to be reached by an escaping slave several hundred miles to the South, from the Canadian border to the Mason-Dixon line). THAT, I assume Prof. Somin agrees, would have been a moral use of secession. Ironically, though, they amount to the same thing.
February 11, 2010, 12:58 amOff Kilter says:
Conrad Bibby: “but there’s nothing inherent to the act of voting that renders it morally suspect.”
Obviously Conrad disagrees with HL Mencken’s view that “An election is nothing more than the advanced auction of stolen goods.”
February 11, 2010, 1:01 amConrad Bibby says:
“So how can secession be legitimate without a specified political process for agreeing to it?”
Why does legitimacy depend on the existence of formalistic legal processes? There was no “specified political process” when the colonists declared independence from the Crown. “Legitimacy” was based on the inherent right of men to be free.
February 11, 2010, 1:02 amConrad Bibby says:
“Since the laws of the federal government are the supreme law over the states, . . . ”
“Moreover, since the federal government is the sole guarantor of the very form of state government . . . .’
I don’t think either of these statements is true as a matter of history or law. The states exist independent of the federal government and federal law is only “supreme” in the sense that certain federal laws operate to supersede state laws.
February 11, 2010, 1:07 amBumpjon says:
There is no “specified political process” for admitting a new state into the union. Do you suggest that aside from the original 13 states, all others are illegitimate?
February 11, 2010, 1:12 amAllan Walstad says:
1. So–we’re going to keep on ignoring that the industrial North wanted economic hegemony over the agrarian South via high tariffs, and this was no small part of the reason why the South wanted out?
2. Slaves freed–great. 2% of the entire population of the US killed in the war–not so great, even if the war was actually fought over slavery. Of course, there’s that pesky little statement by Lincoln that if he could preserve the union by not freeing the slaves, he would have not freed the slaves.
3. Wasn’t it the case that some of the more strident northern abolitionists wanted the North to secede from the South over the issue of slavery?
4. The Northern states made their compact with the devil in 1789. Once the Constitution explicitly allowed slavery (importation of slaves up to 1808, no mention of an end to slavery) there was no Constitutional basis for the North to impose an end to slavery, as unfortunate as that may be.
5. If the original states could enter a union, in the absence of any explicit prohibition on secession (sorry, “more perfect union” boilerplate doesn’t cut it) or any Constitutional authority for the feds to prevent it, and given the 10th amendment power of states in respect to any power not delegated to the feds, Lincoln’s war against the South was nothing other than imperial–unless perhaps there had been an explicit justificatory statement at the outset to the effect that we have to fight a war to end slavery. There would have been something noble about that, although 600,000 dead surely counts in the negative category.
February 11, 2010, 1:16 amdcp says:
The Civil War was about a lot more than slavery.
But whenever these threads appear *cringe* I’m reminded of that scene from the Simpsons where Apu is taking his citizenship test and when asked what caused the Civil War, he launches into a detailed explanation of socioeconomic factors, before the instructor interrupts him and says, “dude just say ‘slavery’”.
February 11, 2010, 2:36 amRoger says:
Aren’t you and Eugene both Russians? Why are you lecturing Americans on succession? This is not the Soviet Union.
February 11, 2010, 3:02 amWhy the Issue of Secession Isn’t “Settled” | Liberal Whoppers says:
[...] the original: Why the Issue of Secession Isn’t “Settled” [...]
February 11, 2010, 4:11 amepluribus says:
I believe that both of these men are citizens of the United States. Around my parts, we call people like this Americans. Even if they weren’t Americans, the notion that only Americans can comment on American issues is interesting. Absurd, of course, but still interesting.
February 11, 2010, 5:39 amepluribus says:
While I of course defend the right of EV and Ilya to comment on any and all issues they choose to comment on, I am disappointed that Ilya, at least, seems to have so little understanding of the legal issues involved in the secession of 1861. This is a legal site, and bloggers here should demonstrate some understanding of the legal issues they discuss. To call the War of Independence from Great Britain “secession” betrays a deep misunderstanding of the issues of 1861-65. Mark Field has made the same point.
February 11, 2010, 6:20 amArkady says:
It’s interesting that in the aftermath of the war, many in the North wanted to try Davis, Lee, and other leaders of the Confederacy for treason, but many others, led by Horace Greeley, one of the stoutest defenders of the Northern cause, argued that the Southerners had not committed treason. The argument was that attempting to separate from the United States did not constitute treason against the United States.
No Southern leader was ever tried for treason as far as I know.
February 11, 2010, 6:57 ammaster shake says:
Sorry we can’t all enjoy the sublime art favored by the over 40 white male demographic (which, let’s face it, given this site you almost certainly belong to), his holiness El Rushbo. But hey, the benefit of not coming up with gay little names for ourselves like “dittoheads” is we don’t have to whip ourselves into a public masturbatory frenzy pretending Sarah Palin is particularly attractive.
And yes, clearly the Daily Show is the epitome of political correctness. You can just smell the PC in my posts.
You want intellectual confrontation? Okay, I’ll bite. Secession is code for treason. Anyone who engages in it, past, present, or future, is a domestic fucking terrorist. Anyone who defends it academically is a Useful Idiot in the mold of the hypothetical leftist professor who supports Al Qaeda.
February 11, 2010, 6:59 ammaster shake says:
See above, secession = treason. And the US federal government has all the legitimacy it needs, seeing as how nearly our entire population would identify as Americans first and state citizens distant second.
Intellectualism to me is fine. Stupid ideas aren’t. It’s the Fox News Red State “Real Americans” circle-jerk that has a problem with educated people*. Maybe because they’re harder to manipulate and bamboozle with straw men and red herrings.
*Outside of the minority who identify as conservative and cry and immediately wet themselves because they can’t compete in the academic marketplace of ideas but know how ridiculous they sound having it both ways on affirmative action.
Now how do you like them apples?
February 11, 2010, 7:10 ammaster shake says:
And William Ayers is a free man to this day. Again, so what?
February 11, 2010, 7:13 amdearieme says:
“There was no “specified political process” when the colonists declared independence from the Crown. “Legitimacy” was based on the inherent right of men to be free.” On the contrary, “Legitimacy” was based on the French winning the battle at Yorktown for the Secessionists. At least The North won its own battles.
February 11, 2010, 7:49 amJohnny Longtorso says:
I love how the state is supposedly legitimized with arguments like “you chose to live here, so you chose to accept these laws”, and then complains that leaving is treason. If I can leave as an individual (you will let me leave as an individual, right), so can a state.
February 11, 2010, 8:00 amjh says:
Sigh
I don’t know why people confuse the Natural Law right to Revolution (and the various requirements for it) and the supposed right to secede.
THe FOunding Fathers were not talking about Secession they were making the case for Revolution. As Lincoln to well pointed out there is a difference.
February 11, 2010, 8:45 amArkady says:
My point was, and I should have elaborated, that I think there was some kind of understanding that the Southerners were not trying to overthrow the government of the United States, just trying to separate themselves from it (and that in this they were our misguided brethren). One would have thought, given the ferocity of the conflict and the passions brought to it, that treason trials would have been the natural sequel. Yet that did not happen, as it surely would have in other countries. The leaders of the rebellion, civil and military, were allowed to live out their lives in peace. Moreover, I think there was some understanding that the seeds of the war were sown in the pre-war Constitution itself, that there was a tragic inevitability about it. The lack of treason trials was an important element in the binding up of the nation’s wounds.
Shelby Foote recounts the story of the 50th Anniversary of the Battle of Gettysburg. As part the commemoration, the old rebels and the old union soldiers were to reenact Pickett’s charge. At the appointed time, the confederates took up their positions in front of Cemetery Ridge, and the old union soldiers on the Ridge behind the wall. At the signal, the old confederates stepped off, but as they came across the field, a moan went up from the old union soldiers, and they left their positions and went down and stopped the oncoming old confederates saying, “No, no, no.”
After Appomattox, the nation was done with Americans killing Americans.
February 11, 2010, 9:19 amS says:
People are mixing up two different claims: 1) that secession is a natural right/power politics fact and 2) that it is constitutional.
The OP makes the claim that it is constitutional.
You should read the US Constitution which explicitly says that federal laws are supreme and that the federal government is the guarantor of the form of the state’s government.
February 11, 2010, 9:21 amSandy MacHoots says:
Sure. Cf. Boston Tea Party. The power to tax is the power to destroy. At some level taxation (which is the practical equivalent to confiscation of private property) for the benefit of the rulers or their supporters could easily become intolerable.
No we didn’t. He continued in office. We just left his domain. By this reasoning didn’t the South “depose” Abraham Lincoln?
Canada? Australia? New Zealand? Those secessions were consensual, but certainly no one would have argued that they would have been immoral had they not been.
Sure. But nearly all the other issues (“state’s rights”) devolved into slavery. Which one of Lincoln’s non-slavery-related opinions would have caused the South to secede?
I think you have a lot of personal issues to work through. Good luck with them.
Lincoln was obviously trying to explain why it was okay for a group of colonies to renounce their allegiance to the central government and form their own, but not for a group of states to do the same. “Revolution” ordinarily implies overthrow of the government, not forming a new entity out of part of the old entity, leaving the old government in place. I’m interested in what you think the difference between the (highly illegal and treasonous) American Revolution and the Confederacy was?
February 11, 2010, 9:27 amStones Cry Out - If they keep silent… » Things Heard: e105v4 says:
[...] Secession. [...]
February 11, 2010, 9:27 amS says:
Arkady, as I recall treason trials were not held, despite government efforts to build cases because they would have to be held in civil court’s in the South before southern juries.
February 11, 2010, 9:28 amHan Solo says:
I’m ready to sign up….where do we go to get our uniforms?
February 11, 2010, 9:28 amS says:
Sandy: Yes we deposed our King, he did not remain in the office of Our King, indeed we abolished the office of Our King, which was quite revolutionary.
‘all the “good” secessions are the separation of different ethnic groups.
Canada? Australia? New Zealand? Those secessions were consensual, but certainly no one would have argued that they would have been immoral had they not been.’
If you read what I wrote, I was talking about the examples in the OP. Your new examples, however, all retain the British sovereign as their sovereign lord.
February 11, 2010, 9:35 amArkady says:
That may be true. I was pointing out that there was very strong sentiment among very influential people in the North against trying Southern leaders for treason because they believed there was no treason. And I think this did have some strong effect of the outcome.
February 11, 2010, 9:36 amButternut says:
I am getting the sense that the Appomattox Armistice is stretching thin.
February 11, 2010, 9:49 amOwen H. says:
Four points-
First, the American Revolution was not “secession”; the colonies were not equal partners in the compact binding them to Great Britain.
Second, there is in fact a SCotUS ruling on secession, Texas v. White (1869). It held (among other things) that the Constitution did not permit state to secede from the Union.
Thirdly, going back to the Revolution, the legitimacy of such actions are generally determined by the winners. Had we lost, it is doubtful that the Crown would have viewed it as a legitimate act, and most assuredly would not have been as lenient as the Union treated secession.
lastly, I believe that a large part of the reason for not pursuing such treason trials was a need to move forward from the war, and not create a whole new set of casus belli.
February 11, 2010, 10:04 amAmiable Dorsai says:
This would be a much more compelling argument if free agricultural states such as Wisconsin and Minnesota had not been such enthusiastic supporters of the Union.
February 11, 2010, 11:06 amVlad Konings says:
Chris Iowa is quite right. Had the South been allowed to secede, in addition to perpetuating the evils of slavery for that much longer, the South might still have gone to war with the North over the issue of runaway slaves and the territories. The Southern “filibusters” (a different meaning of the word that may not be familiar to all) were dedicated to creating an American slave empire from Tierra Del Fuego to Canada — and while it is true they were the extremists, that might not have precluded them from running the show.
The failure of the Constitution to include any mechanism for secession, when it did include mechanisms for adding new states, suggests that the Founders did not consider this a serious option — at least by legal means. Jefferson might have advocated a natural right of secession by extralegal means, but then he was from Virginia. ;)
February 11, 2010, 11:16 amepluribus says:
You as an individual could leave and go to South America or Europe. I am not clear how South Carolina could leave and go to South America or Europe, but if you have figured that out please let us know.
February 11, 2010, 11:21 amCJColucci says:
As byomtov pointed out, there’s no procedure for non-consensual secession. (Consensual secession, like consensual admission of states, doesn’t need one. As long as the parties agree, they can make up such procedures as they see fit.) Contracts often have provisions for one party or the other getting out of them. Thirty-day written notice, and the like. If they don’t, then trying to get out (in the absence of certain recognized excuses) is not an authorized withdrawal from a contract, it’s a breach. The Constitution doesn’t have a procedure for any kind of secession. If you want to secede, you’ll either have to get permission or fight and win. There’s nothing else to appeal to.
February 11, 2010, 11:27 amepluribus says:
Reality check, Sandy. The Boston Tea Party did not protest taxes that were too high, but taxes that were imposed without representation. The tax was imposed on the colonists by the British Parliament without the consent of the colonists.
February 11, 2010, 11:28 amepluribus says:
Jefferson Davis was arrested and held in jail for an extended period. He was not tried, in large part because Article III, Sec. 2, of the Constitution provides that “the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed.” Chief Justice Salmon P. Chase, acting in his capacity as circuit judge, was assigned to the circuit in which Davis’s crimes were committed and in which he would have been tried. Chase was of the opinion that a jury in that circuit would never convict Davis and argued that no attempt should be made to convict him. There were other reasons, of course, for the decision not to try him. One was an effort on the part of the victorious Northerners to extend an olive branch of conciliation to the vanquished South.
February 11, 2010, 11:36 amS says:
. . . that and hundreds of thousands had already been killed because of their treason.
February 11, 2010, 11:42 amKeith Waters says:
Too many people view the secession/states’ rights issues from a contemporary viewpoint.
Secession was not a ridiculous antiquated doctrine. It was on the minds of many people throughout the first part of the nineteenth century. Does master shaker want to call the participants in the Hartford Convention domestic terrorists? Why did so many Northerners, including William Lloyd Garrison, urge the federal government to allow the slave state to leave?
States’ right? It’s not just for the slaveholders? As the issues of the relationship of the federal and state governments were being worked out, we can cite many examples of Northern states appealing to that doctrine. They even spoke of nullification. It’s not as simple as saying, “They are invoking states’ rights. They must be in the Klan.”
Finally, I believe that there is no reference in the Constitution to the indivisibility of the Union. There are documents relating to the belief by prominent Southerners that they would not have gone along with the Constitution had it been the consolidating work some liberal believe it to be. Ilya, if a state had a right to secede, it didn’t need to give a reason. Therefore, whether the reason was good or bad does not apply.
February 11, 2010, 11:42 amKeith Waters says:
The Americans by in large did not want to be represented in Parliament. They would have been outvoted on the issue of taxes. They wanted to run their affairs. They didn’t fully grasp the conception of empire. They were not equal partners, but rather existed for the benefit of the mother country.
February 11, 2010, 11:45 amS says:
But that’s the very point up for discussion, whether the civil war determined how we look at secession. When was the last popular secession conference supported by states?
February 11, 2010, 11:51 amMark Field says:
It was actually no reason at all why the South wanted out. While the tariff issue gets a mention or two, virtually all of the Southern states used slavery as their rationale for leaving.
Indeed. The Tea Act lowered the tax on tea.
The Hartford Convention did not call for secession.
Garrison and his followers were a VERY small minority in the North. And in any case, there’s a vast difference between secession and mutual agreement that the states can leave.
Which brings us back full circle to Appomattox.
February 11, 2010, 11:51 amMark Field says:
Vague as to time. Whether this is true or not depends on the time frame. Early on, at least, they did want representation. As the crisis developed, more and more of them came to realize how unsatisfactory that result would be in real life.
February 11, 2010, 11:54 amJohnny Longtorso says:
They went to the CSA. Would it have been OK if they “went to” Mexico instead of creating a new country?
February 11, 2010, 12:04 pmConrad Bibby says:
I agree that non-consensual secession amounts to treason. Treason can be defined as an act in violation of one’s own sovereign. Certainly, claiming that the state of Alaska, for example, is no longer the sovereign territory of the U.S. is treason, just as the same claim by a foreign power (Russia) would be considered an act of war.
I also agree, having now read up on it, that Texas v. White (1869) appears to “settle” the issue quite nicely, so I’m unclear on what basis anyone would now argue that the constitutionality of non-consensual secession remains “unsettled.” (I suppose one could argue it was wrongly decided, but that belief doesn’t render the question unsettled in the first instance.)
February 11, 2010, 12:11 pmConrad Bibby says:
I forgot to mention, but Lincoln himself believed that southern leaders were traitors who were fit for the gallows (not that he likely would have treated them that way). In fact, he told a southern “peace” delegation, including Confederate VP Alexander Stephens, just that, to their faces, during a secret meeting aboard the River Queen.
It should be noted, however, that the notion of “secession=treason” is more theoretical than real. There are a few secessionist groups around today, but nobody (I don’t think) wants them to be rounded up and executed. Even during the Civil War, there were often cordial relations between Northern and Southern leaders. Both sides obviously thought they were right, but there seems to have been a widespread, mutual recognition that the issues were complex and that leaders on both sides were acting in good faith in accordance with their own (perhaps misguided) notions of legality and justice.
February 11, 2010, 12:32 pmDilan Esper says:
It’s interesting that in the aftermath of the war, many in the North wanted to try Davis, Lee, and other leaders of the Confederacy for treason, but many others, led by Horace Greeley, one of the stoutest defenders of the Northern cause, argued that the Southerners had not committed treason. The argument was that attempting to separate from the United States did not constitute treason against the United States. No Southern leader was ever tried for treason as far as I know.
I would read this about the same way as the decision not to try Hirohito for war crimes after World War II. I.e., it wasn’t because he didn’t commit them….
February 11, 2010, 1:05 pmDilan Esper says:
My point was, and I should have elaborated, that I think there was some kind of understanding that the Southerners were not trying to overthrow the government of the United States, just trying to separate themselves from it (and that in this they were our misguided brethren).
But that’s not the definition of treason. Treason consists of levying war on the United States, and they certainly did that.
February 11, 2010, 1:07 pmepluribus says:
When you said that you “as an individual” could leave, I thought you meant “leave,” not “secede” from the United States. If you are seriously arguing that you “as an individual” could secede from the United States, you “left” me long ago.
February 11, 2010, 1:10 pmButternut says:
Why talk of secession. Think French Revolution. The rebels are everywhere.
February 11, 2010, 1:16 pmmaster shake says:
Passive-aggressive sass! I like it!
btw everyone has issues they need to work through, it’s how you do it that’s important. Rhetorical ownage of people who spout stupid shit beats the hell out of some other stuff (see above discussion of talk radio and its gay little nicknames).
February 11, 2010, 1:21 pmAllan Walstad says:
Amiable Dorsai says:
Different agricultural products, different physical barriers to easy trade with Europe.
February 11, 2010, 1:35 pmAllan Walstad says:
Huh? So any country that wages war against the US is committing treason? Nonsense. Lincoln waged the war. There was no question of the South invading and trying to rule the North. Lincoln could have faced up to his Constitutional limitations and let the southern states go. Instead, he prosecuted a war that killed 2% of the entire population of the country at the time. For comparison purposes, 2% of today’s population would be over 6 million people, which is more than 2000 times the number killed in the 9/11 attacks.
February 11, 2010, 1:50 pmepluribus says:
You’re right, Dilan. I wonder why people want to discuss provisions of the Constitution but they seem to have no interest in reading those provisions. “Treason against the Unigted States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Art. III, Sec. 3.
February 11, 2010, 1:55 pmredl says:
It would be 9/11… times a thousand!
Good legal argument.
February 11, 2010, 1:59 pmS says:
Since we’re nationally celebrating the great man’s birthday, it looks like you are wrong, Allan.
February 11, 2010, 2:01 pmepluribus says:
Please, read Art. III, Sec. 3, cited above. Are you seriously arguing that Robert E. Lee did not levy war against the United States? Further, a person may be charged with treason only if he or she has a duty of allegiance to the government. A foreign country does not commit treason when it wages war against the government. One who has allegiance to it does commit treason by doing so. Lee and Davis and the other Confederates had a duty of allegiance to the U.S. Not only that, they had all taken oaths to support and uphold the Constitution. Davis was a U.S. Senator when he left to head the Confederacy. Lee was a U.S. Army officer.
February 11, 2010, 2:01 pmDilan Esper says:
Huh? So any country that wages war against the US is committing treason? Nonsense.
No. But when US citizens do it, it’s treason.
By the way, this isn’t me talking out of my butt. This stuff is expressly written into the Constitution and should have been covered in your civics or history classes.
February 11, 2010, 2:46 pmJohnny Longtorso says:
Would the rest of Europe be justified in invading Greece if it tried to leave the Eurozone?
February 11, 2010, 3:33 pmKeith Waters says:
It doesn’t matter that the Hartford Convention fail to call for secession. They discussed it. Therefore they believe they had the right.
February 11, 2010, 3:51 pmSuperSkeptic says:
It is not fair to compare Lee to Hirohito. Lee, IIRC was solicited to fight for the North, but being a southern gentleman, could not in good conscience fight against his home state (Virginia). It’s just a completely different situation. Your legal point can be made without disparaging the man.
February 11, 2010, 4:05 pmSuperSkeptic says:
…Patriotism…Treason…what’s the difference?
February 11, 2010, 4:11 pmGuy says:
I agree, but to play devil’s advocate, isn’t that question-begging? To say that federal law trumps state law just because the Constitution says so is a little circular, in that it assumes Constitutional supremacy. It could be argued that the states conceded the point when they ratified the Constitution, but then again, If the U.S. ratified a treaty repealing the First Amendment, that would almost universally be agreed to be unconstitutional.
On the other hand, most (all?) of the states adopted new constitutions after ratifying the Constitution, so maybe the issue is moot.
February 11, 2010, 4:48 pmredl says:
Yes.
Yes it is.
February 11, 2010, 4:55 pmShannon says:
Secession is like revolution.
It’s only legal if you win.
February 11, 2010, 5:03 pmMark Field says:
The original comment to which I responded was in the context that secessionists (i.e., those who actually did it as opposed to talking about it) were equivalent to domestic terrorists. Merely discussing secession is not the same as actually being a secesh (as the North would have said), nor is merely discussing terrorism the same as being a terrorist.
February 11, 2010, 5:03 pmepluribus says:
I really don’t follow this reasoning. The Constitution says “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” (Art. VI.) The Constitution was ratified in state conventions elected by the people of the various states, not by the state legislatures. How is that circular? If a law states that it is effective in a certain territory or after a certain date, is it circular because only the law states that? Not if it was validly enacted. To determine that, we look to the circumstances of adoption of the Constitution. There has never been any serious argument that the Constitution of the United States was not duly adopted.
February 11, 2010, 5:30 pmS says:
Uh, Guy? Since the QUESTION is whether something is CONSTITUTIONAL, reading the Constitution is more like question-answering than question-begging.
February 11, 2010, 5:50 pmBumpjon says:
The Constitution!?! Are you serious? Are you serious? Next question.
February 11, 2010, 6:26 pmOwen H. says:
Can I declare my house and property a part of Mexico?
February 11, 2010, 7:51 pmOwen H. says:
You do know that the Confederacy started the war, right? They shot first, attacking Federal property and killing Union soldiers.
February 11, 2010, 7:59 pmloki13 says:
Owen H.,
You’re kidding, right? To those like Allan, it’s the war of northern aggression, and it’s a shame that the imperialist and racist Lincoln won. Cuz, um, slavery wasn’t really involved, and the, uh, South was just, you know, being all libertarian… or something.
I don’t know. Seems crazy to me. When people said the South would rise again, I guess they were talking about misguided blog posts.
February 11, 2010, 9:21 pmSandy MacHoots says:
True. It allows the anonymous loser to feel smart and superior to others, without actually having to possess any intelligence, education, knowledge, wisdom, or discretion. It’s certainly less unhealthy than climbing to the top of a tower with a rifle and opening fire, which is another way that inadequate and deeply disturbed people can get a sense of power. So more power to you, dude.
The colonists did not want to pay the tax. I feel pretty confident that if there had been 13 members of parliament from the colonies, all of whom voted against it, they would still have thrown the tea into the harbor. But whether that’s true or not, it’s certainly the case that some level of confiscatory taxation would morally justify secession, which wsa my point.
February 11, 2010, 10:13 pmJoe Markowitz says:
I just checked my copy of the Constitution and saw nothing about secession in it. If secession were possible without Constitutional amendment, one would think the procedure for seceding would be spelled out in the Constitution. Would it take a majority vote of a state legislature to secede, for example? Or maybe it should be a two thirds majority? Or maybe it should be put up for popular vote? Or maybe it should require a vote by the voters in the seceding state as well as a vote by the voters of the remaining states? Again, would that be a majority vote, or a super-majority? And what happens if a majority favor secession this year, but want back into the union the following year? Can they rescind the vote to secede? Because none of these questions can be answered, there is no doubt that secession is unconstitutional.
February 11, 2010, 11:31 pmTGGP says:
I’m in favor of secession any time, anywhere for any reason. But I don’t think the American war of independence was justified. Wars require (a lot!) more justification than secession.
February 12, 2010, 11:28 pmRich Rostrom says:
Arkady: “Southerners were not trying to overthrow the government of the United States, just trying to separate themselves from it…”
They were trying to overthrow the authority of the United States in part of the territory of the United States. And it should be noted that the secessionists wanted to separate themselves and millions of other Americans too. There were Unionists throughout the South who had no desire to change their nationality or lose the benefits of American citizenship. The secessionists coerced them (or tried to coerce them) to participate in secession; many Unionists were murdered.
Secession may be presumptively justifiable if the entire population of a region wants it. If; and the example of the ante-bellum South shows that a fanatical faction may try to impose unanimity by intimidation.
February 13, 2010, 1:50 amJaimeInTexas (Jam) says:
The Constitution says nothing about granting the FedGov authority to stop a State from leaving the union. There is the 10th amendment and that overrides anything that could be construed, even remotely, as granting such authority to the FedGov. The Constitution can only be enforced in a State in Union and only laws dealing with a delegated authority.
Lincoln supported the so called Corwin Amendment. Only in these uS is the right for self-determination is supported for others.
Treason: The Constitution uses the term “waging war against them“. As I have written before, Major Anderson reaction to being informed that the Star of the West was that the war had begun. Lincoln was the one who started the war:
1) If a State did not really leave the union then Lincoln acted unconsitutionally calling the militia and by invading a memberr State where the State’s Legislature (or Executive) did not make the request.
2) If a State really left the Union then Lincoln violated the Consitution by going to war without a Declaration of War by the uS Congress.
February 13, 2010, 8:24 amOwen H. says:
The Confederate states never left the Union. Texas v. White, 1869
The President is the Commander in Chief of the militias of the several states, if called to national service. He gets to do that, it’s in the Constitution.
The states legislatures that voted to secede were not legitimate under the US Constitution, also from White v. Texas.
And the Confederacy shot first, firing upon a ship attempting to deliver supplies to Fort Sumter. A state has no authority to interfere with the administration of a Federal military base, nor to demand it not be reinforced or supplied.
February 13, 2010, 4:45 pmJaimeInTexas (Jam) says:
Texas v. White, 1869 settled nothing.
THe POTUS is the CIC of the armed forces and only get to use the militias upon a request of a State’s Legislature (or Executive) and the uS Congress calling the militia. It is in the Constitution too, you know?
You see, an insurrection consists of a private citizens rising against a State’s government and the State’s government not able to handle it. Otherwise, why the State’s government would ask the uS Congress to intervene in its [the State's] own actions?
The war started when the Star of the West was fitted and escorted under arms and sent to a foreign country. The fort was being supplied by South Carolina while the delegation was purposely ignored by Lincoln.
February 14, 2010, 9:08 amJohn Giles says:
Rich Rostrom: They were trying to overthrow the authority of the United States in part of the territory of the United States.
They were trying to fire their agent, the federal government. They were not “territory” of the United States. How could South Carolina be territory of, say, Pennsylvania? The United States is a Republic, a collection of sovereign states, notwithstanding the fact that the federal government has tried to merge the states.
February 17, 2010, 12:09 amJohn Giles says:
Right. That means two things: 1) that the States granted their agent, the federal government, no power under the Constitution to address the matter of secession, and 2) power of secession belonged to the States unless such power was in their own Constitutions prohibited to them by their People. Lincoln, however, had no respect for the law but much love for war and more for bond holders. He got what he deserved.
February 17, 2010, 12:16 amRon Miller says:
Great conversation by many and then someone writes “Lincoln got what he deserved.”
February 17, 2010, 1:43 pmMatthew in Austin says:
Agree with Ron. It seems like some kind of Godwin’s law corollary has been reached.
Anyway, history is written by the victors. So the American revolution was moral and the southern seccession wasn’t.
February 17, 2010, 4:52 pmSCOTUSblog » Wednesday round-up says:
[...] recent online chatter about whether states have a right to secede emerges a 2006 letter from Justice Scalia, written to a [...]
August 23, 2010, 11:04 am