A recent Zogby/Middlebury Institute poll shows that 22% of Americans believe that "any state or region has the right to peaceably secede and become an independent republic." Belief in states' and regions right to secede was especially common among blacks (40%), Hispanics (43%) and people aged 18-24 (40%). Interestingly, political liberals (32%) were more likely to believe in a right to secession than conservatives (17%). 18% of respondents say they would support a secession movement in their own state, including 24% of southerners.
Constitutional law professor Ann Althouse claims that these poll results show that "all these people [who believe in a right to secession] have the law wrong and don't seem to know the basics of the history of the Civil War." She concludes that the pro-secession survey respondents are "fascinatingly stupid."
I certainly agree with Ann that much of the public is shockingly ignorant about American history and constitutional law. This is one aspect of the more general widespread political ignorance that I have often written about on this blog and elsewhere (e.g. here and here). At the same time, I don't think that ignorance is necessarily a sign of stupidity.
I. Secession and the Constitution.
More importantly, I don't think that belief in a right of secession by itself demonstrates ignorance about either law or American history. The Constitution is famously silent on the issue of secession. It doesn't explicitly guarantee states a right to secede, but also doesn't explicitly forbid secession. Interestingly, the Articles of Confederation explicitly stated that the union is "perpetual" (which seems to foreclose secession), but the Constitution which superseded the Articles does not include any such language. This silence has led to ongoing debate over the constitutional status of secession. Prior to the Civil War, many respected scholars and political leaders claimed that secession was permitted by the Constitution. Many were apologists for slavery, but by no means all. For example, political leaders from several northern free states asserted that they had a right to secede at the 1814 Hartford Convention. In light of this history and the ambiguity of the constitutional text, I don't think that belief in a right to secession is at all unreasonable, much less a sign of obvious ignorance or stupidity.
II. Secession and the Civil War.
Many people, of course, believe that the issue of secession was definitively resolved by the Civil War; Ann may be alluding to this when she writes that the survey respondents she criticizes "don't seem to know the basics of the history of the Civil War." There is no question that the federal government defeated the south's attempt to secede. However, superior military might doesn't prove superior constitutional right. There are many instances in American history where federal and state governments managed to get away with violating the Constitution by applying superior force. The imposition of Jim Crow segregation on blacks in the South is the most notorious example.
To avoid confusion, I should emphasize that I think that the federal government was right to suppress the Confederates' efforts to secede. But not because secession is always illegal and impermissible. Rather, the Union was right in that instance because the southern states sought to secede for the indefensible purpose of protecting and extending the evil institution of slavery. Moreover, none of the southerners' constitutional rights had been infringed by the federal government. Things would look very different if a state sought to secede for the purpose of defending fundamental human or constitutional rights rather than continuing to violate them; if, for example, the feds were trying to force slavery on unwilling free states.
During the Civil War, even some defenders of the Union admitted that secession might be justified in some instances. For instance, in his First Inaugural Address, Abraham Lincoln stated his view that the Union is "perpetual," but also that "If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one." Lincoln (correctly) denied that any such thing had happened in the case of the South in 1861, but left open the possibility that secession might be permissible in a situation where the federal government really had deprived a minority of a " vital" constitutional right.
Secession can be used to advance evil ends, such as the protection of slavery. But it can also be used to pursue good ones. After all, the United States was established by means of secession from the British Empire. More recently, the secession of the Baltic States from the Soviet Union, and the secession of Slovakia from Czechoslovakia have caused far more good than harm.
In sum, the text of the Constitution is ambiguous about secession, and nothing in our later history definitively forecloses the possibility that secession might be permissible in some situations. The Zogby poll respondents might be ignorant in so far as they may believe that the federal government will allow states to secede at will. But they are not necessarily ignorant or stupid to believe that states have a right do so - irrespective of whether the federal government is likely to honor that right. Even as a matter of practical political reality, the federal government's reaction to a serious modern secession movement is likely to be dictated more by the immediate circumstances than by the long-ago precedent of the Civil War. Without knowing the background of the future dispute in question, it's hard to predict whether the feds would use force to prevent secession or not.
UPDATE: In addition to criticism from people who think that any form of secession is unthinkable, I also expect criticism from those who claim that the South seceded for more admirable reasons than the protection of slavery. Unfortunately for these people, Confederate leaders at the time clearly stated that slavery was the cause of secession. For example, in his famous 1861 "Cornerstone Speech," Confederate Vice President Alexander Stephens emphasized that "slavery as it exists amongst us—the proper status of the negro in our form of civilization . . . was the immediate cause of the late rupture and present revolution." He also avowed that the enslavement of blacks was the "cornerstone" of the new Confederate government and constitution. For most pro-slavery southerners, states' rights were merely a tool for protecting slavery. When slavery could more effectively be promoted through federal power, they were perfectly willing to jettison their states' rights principles, as in the case of their trampling on state prerogratives for the purpose of enforcing the Fugitive Slave Act (as I briefly discussed here).
Related Posts (on one page):
- Tentative Thoughts on The Russia-Georgia Ceasefire Agreement:
- Southern States' Official 1861 Statements of Reasons for Secession Emphasized Slavery:
- Slavery as the Motive for Southern Secession in 1861:
- Two Excellent Books on Secession:
- South Ossetia and the Morality of Secession:
- Zbigniew Brzezinski on Russia and Georgia:
- CNN Website Gives Edwards Affair Higher Billing than the Russia-Georgia Fighting:
- Fighting Between Russia and Georgia:
- Secession, Ignorance, and Stupidity:
On the other hand, Lincoln's acceptance of a hypothetical "moral" right to seceed did not affect his belief that there was no legal right to seceed. "The North will not leave the Union, and the South shall not," he said (I am paraphrasing from memory here; he was probably more eloquent).
I'm not sure about that. Lincoln clearly believed that the it was illegal for the South to secede for the reasons stated in 1861. But I'm not so sure he claimed that secession is always illegal, regardless of circumstances.
This is better expressed in "Why does treason never prosper? For if it prosper, none dare call it treason!"
2. If bad motives invalidate a secession, then we should bear in mind that among the Thirteen Colonies' reasons for seceding from the UK were that they wanted the freedom to invade and encroach on Indian lands, that they expected the UK to defend them without having to pay a penny for the cost of that defense, and that they thought the Quebecois ought to have had the common law imposed on them by force. None of these are all that noble.
3. That said, when the Confederacy in its constitution explicitly denied the right of secession to its member states, it seriously tarnished the legitimacy of its own secession.
Lincoln distinguished between secession and the right of revolution. He conceded the latter, as did virtually everybody. The term "secession" was generally used to claim a Constitutional right to leave the Union. Lincoln denied any such right.
Irrelevant. Under the "equal footing doctrine", either all of the States have the right to secede from the Union or none do.
We would all agree I hope, in 2008, that slavery is indeed an evil institution, though it is allowed to exist. In 1860 it was a legal institution, and one on which the Southern cotton producing states were critically dependent. They were rightfully concerned based on the election results of 1860 that Congress, dominated by Lincoln's party and leaning (or being pushed by activists) toward anti-slavery legislation, would abolish slavery and economically devastate the South.
So it is false and misleading to suggest that some abstract love of slavery was the reason for secession. And it is disingenuous to stand today and condemn a culture that was in effect forced into a choice of secession and likely war, or accepting politically-dictated economic collapse and the chilling prospect of several million ex-slaves wandering about the countryside with little other than crime to sustain them.
It sounds like Montana was recently on record as at least pondering the issue pending the outcome of Heller (http://www.freerepublic.com/focus/f-news/1973142/posts or just Google Montana secede). I for one felt they were wholly justified in their position, and in fact admired their courage in the matter. Not that SCOTUS is likely to be "bullied" by such tactics, but one has to wonder what would happen if 10 or 15 States got together and says "if SCOTUS decides so-and-such a right doesn't exist, we will secede".
I like Montana's attitude toward the Feds in general. They aren't afraid to say "this isn't any of your concern and we're not playing". Take for example Montana's refusal to play ball with the Federal "REAL ID" program. Kudos to Montana (and Maine, New Hampshire, Oklahoma, South Carolina and Washington too). If more States started acting like sovereigns instead of subjects, things might just be a little different.
Honestly I don't think the Feds probably fret too much about Montana seceding all on her own, but if she did, it would be interesting to see the response.
In any case, it seems remarkably silly to ask whether or not a state has the the right to secede under the Constitution. Secession seems like the kind of extralegal event that makes anything the Constitution said about it either way mere surplusage, just as the Constitution was ratified on its own terms and not those of the Articles of Confederation.
Also, the Civil War seems to establish that states at least have the power to secede. I don't think any members of Congress were seated for the secessionist states during the war, nor did they have any electors in the 1864 election, except for those from the new state of West Virginia, carved out of Virginia without the Virginia legislature's consent. Assuming we think everything that happened during the Civil War regarding these issues was constitutional, I don't think this can be justified unless you conclude that the secession was effective and the southern states were not part of the U.S.
In the end, might pretty much makes right when it comes to this. Just because we think that Taiwan should be allowed to secede because it wants more freedom doesn't mean China's gonna let that happen. On the other hand, we basically enforced Kosovo's slow secession from Serbia. If only Taiwan was trying to escape a weaker country, we would have helped it succeed by now.
I think it was Texas v. White where the U.S. Supreme Court basically called the Civil War an unconstitutional act by the South. The only reason why that decision carried any credibility was because the North won, not because of some undeniable constitutional jurisprudence.
The implication, as I read it, was that the means the Union chose to return the Confederacy to the Union and to stamp out slavery was morally and legally right because of the ends. However, if your motivations are fundamentally humanitarian, you would require the North to go about ending slavery by not just any means that happened to accomplish it. The Civil War was arguably more destructive than anything else the Federal Government has ever done, and it's important to ask how slavery could have been ended with less loss of life.
An alternative reading of your statement is that you recognize that Confederate secession would have been less likely had abolition been rightly pursued by other means.
I seem to recall that some state officials in Montana recently took the position that if Heller had come out differently on the issue of an individual right to keep and bear arms for personal protection, that position would have violated something in the 'contractual' terms under which Montana joined the Union, and would have given the state the legal right to secede. Anybody know the details?
I don't see how this is a constitutional argument? Slavery may be evil, but it was certainly constitutional. You might argue that what Lincoln did was morally right, but that's very different from saying it's constitutionally right. I'm not arguing that you're wrong (I think there are good reasons why secession is unconstitutional), but this strikes me as a pretty weak argument for it.
So do I think that there is aright to secede? You betcha, depending on the circumstances.
Here's a link to an article about the Montana resolution.
Here's a link to the complete text of that resolution.
http://progunleaders.org/resolution.html
For some reason the "Link" function failed.
Sorry, couldn't resist.
How were they "rightfully concerned"? The Republicans WERE "anti-slavery." But that is very different from "abolitionist." The make-up of Congress would have precluded any attempt at passing abolitionist legislation, starting with Lincoln friend and fellow Illinoisan Sen. Lyman Trumbull. The secessionists had heated up their rhetoric so much by 1860 that they had convinced themselves that Lincoln was another John Brown. That's really not Lincoln's fault. or the Republicans'.
"In any case, it seems remarkably silly to ask whether or not a state has the the right to secede under the Constitution. "
Well, the basis for the state secession resolutions was just this question. Confederate politicians argued that this was right inherent in the US Constitution and the principles of the Founders.
My guess is that "through consent of the States" is a reference to Article V. In other words, a Constitutional amendment is the only means by which any State could secede from the Union within the Constitutional framework.
I'm always reminded of this quote, from rapper Ice-T when discussing free speech and his record "Cop Killer":
The government is not the grantor of the rights bestowed in the Bill of Rights, nor any other rights not explicitly stated there, including secession.
It is also not an argument supported by history. Lincoln used the armed forces of the US to prevent secession long before he decided to use them to end slavery. Only after the Emancipation Proclamation was promulgated did the fight for Union become a fight for abolition in the policy of the executive of the Federal Government. So was the Union morally wrong until 1863?
(And, yes, we all know that the EP allowed for slavery to continue in areas not in rebellion at that time. But this was always meant to be temporary.)
but Jim Crow WAS constitutional...until it wasn't.
plessy v Ferguson had told the states that the 14th isn't violated as long as your separate but equal, and the supreme court overturned civil; rights statues banning segregation in the private sector as not regulating anything...
only after brown vs board and the court adopted permissive commerce clause doctrine to uphold the civ rights act of 1964 that jim crow finally ended.
So even if five states could claim the inherent right of secession,for the sake of argument, the other six could not. Texas presents a special case, since it joined the Union by means of a voluntary annexation treaty. The Texans could have insisted on an expicit right to secession at time that the treaty was being negotiated. They did not. To claim such a right in 1861 strikes me as an "inventive" reading of the Constitution.
The basic idea on secession was whether one of three situations were present. 1) whether there was an internal means of self-determination. That would mean participation in the process of selecting representatives in the national, state and local government. 2) A second independent question was whether this was a post-colonial setting. 3) A third independent question was whether the situation was that the area seeking to secede was occupied by foreign power(s). These were all situations where a right to self-determination could be triggered so that unilateral secession was possible. If there was one of these settings, then the affeected secessionist people could proclaim independence from the predecessor state.
If there was internal self-determination then the process of secession would have to be through consultation and consent between the state and the separating entity.
One other thing about secession is what aspects of the international obligations of the predecessor state devolve upon the successor state and the secessionist state? These were some of the thorny issues with the Soviet Union's obligations for example being transferred to the Russian State.
I once had a colleague who said that 1990-2040 would be occupied with issues of succession of states in what had been the old Eastern Europe.
A fascinating topic. With states having debts, the pressure of the international financial systems tends to lead to allocations of obligations by agreement. Such agreements might be part and parcel of the opening of diplomatic relations with the seceding state. You all remember the Czarist bonds being revived against Russia after the fall of the Soviet Union? The world and the financial markets have a long memory.
Best,
Ben
This is not correct. Abolishing slavery would require a constitutional amendment, which would require ratification by 3/4 of the states. Given that no southern state would ratify such an amendment, there was no chance of it passing.
My understanding (and I ask for corrections by anyone better-read in the relevant history) is that the South's real concern was that Lincoln campaigned on an explicit promise to forbid the formation of any new slaveholding territories in the West, or the admission of any new slave states to the Union. So years down the line, a 3/4 state majority for an antislavery amendment might form. In other words, they were less concerned about an immediate abolition of slavery than about possible abolition years or decades in the future.
This is just silly. The South had other choices, including the morally obvious one: free their slaves and allow them to take jobs. That is (to oversimplify a great deal) basically what happened after the War, after all.
Of the states, only the 13 original colonies, Vermont, Texas, California (loosely speaking) and Hawaii were ever independent, sovereign entities.
By that logic the colonies had no right to leave the British Empire. Is that really what you want to say?
And yes, many states made their joining contingent on the US having a certain Constitution. If that is altered without their consent then basic contract law says that they should be able to withdraw from the compact.
After all, the legal and constitutional issues aren't explicitly mentioned anywhere in the poll article, and many prominent political philosophies hold that people are as a pre-political matter endowed with certain inalienable rights, of which no legal or political institutions can deprive them, and which they need no legal justification to claim. Whether this is the case may be in doubt, but, if the respondents in question believe it true, then in answering the question they aren't expressing a legal view of any kind, so their responses can't be taken as an indication of legal ignorance.
Maybe the idea of rights outside of a legal framework is such a fringe position that we can safely assume none of these people are thinking of it, but it seems like we'd need to run another poll about that question before we could be sure, especially since the idea that a region or a people might have a right to determine for itself its political status - that that natural law might entitle 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 - has had some prominent supporters at various points in history.
It's not inventive at all. It's based on the principles outlined in the Declaration.
The constitution actually sets up a government the governs the states within the union to prevent war amongst themselves for petty differences or jealousies. Hints are made on this subject relating to Natural Law. First form of government a person experiences is the family unit. The community of family units are not told what they can or cannot do in private, only laws respecting how you interact with other members within the cummunity. Then County Government, State, and finally, federal. Any acts of Congress were to be limited to the General Welfare of the people, not people of other countries, and definitely not for expanding an empire.
If there's anything we learn from history, it's how often it repeats itself, like a snake biting it's own tail for eternity.
That would make a lot more sense if it was only by a Constitutional amendment that new states could join.
1. The Montana legislature would declare the United States in breach of the Compact under which it joined the Union, and would announce unilateral plans to secede.
2. But then Attorney General Clinton would file suit against Montana at the direction of President Abraham Obama, claiming that Texas v. White precluded unilateral secession, and arguing that Montana could only secede if an authorizing amendment were enacted pursuant to Article V of the Constitution.
3. The Supreme Court, in a 5-4 decision authored by Justice Stevens, would reaffirm Texas v. White as good law and enjoin Montana from leaving.
4. But the International Court of Justice would intervene sua sponte, citing the Declaration of Independence to rule that the U.S. Supreme Court has violated the human rights of the good citizens of Montana, who have an inherent right to self-determination (but not necessarily armed self-defense).
5. And then a newly-emboldened Montana would call for an Article V Constitutional Convention, and virtually every special interest group in the country would support this call for their own parochial reasons. The special interests would ram the convention petition through enough state legislatures to make it official, and would then send their highest-paid lobbyists to represent them at the convention.
6. The outcome of which would be... mud.
Nope. Won't happen. Too many lawyers. Hollywood would veto the story proposal as not having enough box office draw. This one ain't Gods and Generals. Not gonna do it, wouldn't be prudent...
;~}
Sorry, but this is one of the many subjects in life which the Court is not entitled to speak on. That opinion is not worth the paper it's written on.
The problem you run into with the reservation clauses is that it's not exactly clear who retains the right. If the people have the right, it's simply a right of revolution, which is uncontroversial. But if the states have the right, then it's secession.
Another problem, at least with respect to those three reservation clauses, is that the Constitution was already in operation by the time NY, VA, and RI ratified. If you're looking for a right to secession in the Constitution, you presumably want to show that it was originally considered to be part of the Constitution. The reservation clauses provide precious little evidence of that, because NY, VA, and RI were already superfluous, from a ratification standpoint.
Very close. Lincoln also campaigned against slavery in the Territories at all (not just the formation of slaveholding Territories).
William Freehling argues that the South seceeded because it couldn't tolerate an anti-slavery party at the head of the national government. That would have meant, for example, that anti-slavery literature might have been allowed to pass through the mail (instead of being seized, as had been the case since the 1830s). It would have meant public discussion about the morality of slavery and of the benefits of abolition (a crime in the South). It would have meant anti-slavery judges, and all the basic political discussion which the North tolerated and the slaveholders had successfully censored. It was these consequences and others, Freehling says, which caused the secessionists to roll the dice.
No. Lincoln took the view I mentioned above, namely that secession (which implied a legal or constitutional right to leave) was not permitted. He admitted that revolution -- and extra-constitutional right -- could be justified in the proper case.
Interestingly, some abolitionists agreed that secession was legal and urged the North to let the South go.
How would Thomas Jefferson have answered the poll question?
"What did Adams say?"
At the time Lincoln was inaugurated as President, in March, 1861, the following justices were on the Court:
Chief Justice Roger Taney of Maryland;
Justice John McLean of Ohio (who dissented in Dred Scott);
Justice James Wayne of Georgia;
Justice John Catron of Tennessee (who joined the Dred Scott majority but opposed secession to the point he actually fled Tennessee);
Justice Samuel Nelson of New York;
Justice Robert Grier of Pennsylvania;
Justice John Campbell of Georgia (who resigned from the Court in April, 1861, and jointed the Confederacy);
Justice Nathan Clifford of Maine.
Thus, the Taney Court, at the time of Lincoln's inauguration, had Chief Justice Taney and Justices Wayne and Campbell as being sympathetic to the Confederacy with Justices McLean, Catron, Nelson, Grier, and Clifford opposed.
But even that count is somewhat misleading. Justice Campbell originally opposed succession. He resigned from the Court after concluding that he had been lied to by Union officials about reinforcements at Fort Sumter.
Chief Justice Taney issued Ex Parte Merryman (an opinion stating the President had no right to suspent the Writ of Habeas Corpus) as a Circuit Justice and it was never a holding by the full Court.
No, Jim Crow in general was not constitutional even under Plessy v. Ferguson. In the case of the schools, the pretense (though not the reality) was that black and white schools, though separate, were equal. Many of the Jim Crow laws did not establish separate but putatively equal facilities for blacks: they excluded blacks outright.
Widespread ignorance of basic facts goes well beyond law and history, and even the college educated can be "fascinatingly stupid.". One would think that graduating seniors at Harvard University would know what causes the seasons. But evidently they don't. In 1982 a sample of graduating seniors were asked "what causes the seasons," and 21 of 24 asked could not give the correct answer! A Harvard history professor (parent of a graduating senior) also got the question wrong. Of course the seniors gave the wrong answers in strong and confident tones.
Why should we be surprised that the average Joe doesn't know the law regarding secession when even the graduates of our most selective university don't understand seasons, something every one experiences all the time?
1) Senator Andrew Johnson of Tennessee rejected his state's declaration of secession, and served until his resignation on March 4, 1862.
2) In summer 1862, special elections to the U.S. House were held in Union-occupied Louisiana; two Representatives were elected, and served until the end of the Congress, March 4, 1863.
3) Virginia legislators from the western part of the state and the Union-occupied areas along the Potomac acted as the full legislature of the state. They elected U.S. Senators for Virginia, to replace the secessionists who left in 1861. These Senators were seated and cast votes.
4) Supreme Court Justices Catron of Tennesse and Wayne of Georgia remained on the Court despite the actions of their native states.
These facts establish clearly that the declarations of secession had no legal power, and that the "seceding"
states were never out of the Union, even if it was practically impossible for Senators and Representatives to be elected from those states.
5) That same rump Virginia legislature approved the establishment of West Virginia as a separate state, which satisfied the Constitutional requirements.
U. VA 3L: Neither Virginia nor any other state "reserved a right to secede" when ratifying the Constitution. Virginia's resolution of ratification states that the powers granted to the government are not irrevocable and may be resumed by "the people" - not "Virginia" or even "the people of Virginia". It is rhetorical re-assertion of the right of revolution, and says nothing about any legal rights of the state of Virginia.
SIG357: The Declaration asserts the moral right of revolution: that when legally constituted authority becomes oppressive, the people have a moral right to break the law and overthrow it.
That principle does not mean that legally constituted authorities must surrender to anyone who claims to be oppressed. And it most certainly does not mean that a U.S. state has a legal right to repudiate Federal authority.
But the critical fact was that there weren't all that many states that had seceded: South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas. Most notably, North Carolina and Virginia had not seceded, and showed no likelihood of doing so. And absent North Carolina and Virginia - which held the majority of the South's population and the vast majority of the South's industrial capacity - the Confederacy was not a viable state.
South Carolina intentionally instigated the crisis at Ft. Sumter - fired on Union troops - knowing that it would trigger a military response by Lincoln, and hoping that the actuality of a Union invasion would motivate North Carolina and Virginia to join them in secession. Which it did.
But nothing about the process gives any insight as to whether unilateral secession is Constitutional, or whether secession with ratification by Congress is Constitutional. The only question at issue is whether a proclaimed secession followed by attacks on federal troops would be considered an act of rebellion. But that was a question that had been settled way back in the Whiskey Rebellion.
Some cases are just too important to leave to the Supreme Court.
Thus, after Justice Davis joined the Court in 1862, Chief Justice Taney only had one other ally who was arguably sympathetic to the Confederacy.
Adding to this, Justice Peter Daniel of Virginia died in April, 1860 and was not replaced until 1862 by Justice Samuel Miller of Iowa.
The bottom line this: Dred Scott was decided by a vote of 6-2--Chief Justice Taney joined by Justices Wayne, Grier, Daniel, Campbell, Catron.
Justice Nelson concurred but did not join Taney's decision. Justices Curtis and McLean dissented.
By 1861, Justice Daniel had died and Justice Curtis had resigned several years before in disgust, to be replaced by Justice Clifford.
Of Taney's 6, one died and one became a fervent opponent of succession. Justice Grier had apparently joined the decision due to pressure from President Buchanan. There is nothing in his Civil War jurisprudence to suggest Southern sympathies--indeed, he wrote the Court's opinion in the Prize Cases, which upheld the Union's blockade of the South.
Justice Nelson dissented in the Prize Cases, joined by Chief Justice Taney and Justices Catron and Clifford. The dissent's argument was that there was no Civil War until Congress declared such in April, 1861.
the other reason many jim crow laws were constitutional is that most of them regulated private facilities (resturants, clubs, bars, pools, supermarkets etc.) In such a case it wouldn't matter at all if blacks were kept out completely or if there were just separate entrances. TO this day, the 14th amendment does not cover no state actors. If a bar tried putting up a "white only" sign now and not letting n blacks-you would only have state law and federal statutes as authority to force the to take it down The 14th amendment would be irrelevant.
indeed..for a while the constitution protected the rights of states to have jim crow...as courts were striking down federal legislation outlawing jim crow type stuff in private facilities (under the theory of states rights and no federal jurisdiction over the issues). only an expansive commerce clause interpretation could solve that and uphold the civil rights act of 1964 (which created restrictions on private racial discrimination at the federal level)from federal challenge.
to be sure, its probably true that there were some Jim crow laws out there that were about public facilities and didn't even meet the (now defunct) Plessy v Ferguson "separate but equal" standard. for example, buses were public, and the back of the bus was not "separate but equal" from wherever whites could sit, nor was requiring blacks to give up seats to whites equal in any way.
However, much of jim crow survived legal challenges by the NAACP until until brown v board and 1964.
Nor do I overlook the instance in which the military of the US needed to enforce the reintegration of schools over the objection of the governor even after brown. but thats a case of the military might being used to conquer the violators of the constitution..not the reverse.
You're right that private racial discrimination was not reached by the 14th amendment, but Jim Crow was not primarily "private racial discrimination." It was legally-mandated racial discrimination.
thanks. duh. any such law would indeed be state action. good point.
and as such bill poser is right.
i would still point out that some of crow would end up still constitutional (and even legal) under Plessy v Ferguson and before the commerce clause was used to support civil rights, because
a)there was a lot of private voluntary white only signs not mandated by law and
b) some of the laws indeed required separate entrances/separate facilities/ that could have been defended under the separate but equal standard of Plessy v Ferguson .
in any case-i don't see how military might was used to enforce jim crow unconstitutionally, as Ilya argues in the post. when jim crow was enforced unconstitutionally for the time-like when the separate facilities did not even meet the (then constitutional) standard of separate but equal, it usually just was enforced by police or the klan. how is that "military" might? unless you considerer use of police on civilians to be military operations.
This is actually startingly common among would be (and successful)secessionists, seemingly unaware of the irony. Some examples: Ireland can secede from the UK but Ulster cannot from Ireland, Scotland can secede from the UK but the Orkneys cannot from Scotland and Quebec can secede from Canada but the Indian nations of Northern Quebec have no such right.
Personally, I think this should be something widely available (not least because the possibility of being an independent country with all that entails) seems to bring a dose of much needed reality to some would be secessionists absent if they have no chance of actually getting there, but you must allow sub units of your proposed new country the same rights.
It should noted that Jefferson and Madison (whom Lincoln agreed with) regarded "The Declaration of Independence, as the fundamental act of union of these States," NOT the Constitution or the Articles of Confederation.
Further, doesn't the possible disproportionate effect of succession on real estate owners (who cannot transport their real property in any other state as can citizens with more liquid assets) make the whole question more problematic? The negative effects of a state secession on property values could make takings, as under the federal Kelo decision, look like gifts.
Isn't this just the kind of thinking that's regularly criticized here on the VC?
I have no idea what that means to the legality of secession.
Given that a Right of secession therefore exists (or the US is illegitimate), and absent a specific Constitutional provision forbidding it, secession must be one of those Rights protected under the Ninth and Tenth Amendments.
I have heard that the USSR's constitution allowed (at least on paper) the right of each Soviet Socialist Republic to secede. Does anyone know if I am right?
The Civil Rights Act of 1875 was intended to outlaw such discrimination. But the Supreme Court rolled back those protections in the "Civil Rights Cases". Arguably, that decision set back the efforts against discrimination for almost 100 years.
The Declaration of Independence is essentially a recognition of the NATURAL right of people to self-govern and be free from tyranny. It is recognized by the constitution, then, unless the constitutition explicitly denies it. If the constitution explicitly denied it, that wouldn't strip people of their right, but arguably would give them an argument that the government is tyrannical.
I suppose the best way is just to acknowledge that being a poor speller, while embarrassing, doesn't say much about whether one understands the constitutional implications of secession.
My understanding is that Congress seated representatives from those parts of Virginia that did not recognize that state's decision to secede. The Congress then decided to divide up the state of Virginia and had the "consent" of Virginia, or at least those Virginians who stayed loyal to the union, in favor of the division. In other words, the Congress technically followed the letter (though maybe not the spirit?) of the constitutional provision that allowed a state to be divided into two or more states provided that that state gave its consent.
"Interesting"? Yes, but not particularly analogous to the decision of state to secede from the union full bore.
This is wrong on several points. First, West Virginia did not secede from Virginia. It was formed within the jurisdiction of Virginia in accordance with Article IV, Section 3, clause 1. You cannot cite any section of the Constitution that authorizes secession. Maine was formed within the jurisdiction of Massachusetts. Maine did not secede from Massachusetts. This was all done as provided in the Constitution. Second, the Lincoln "administration" didn't encourage this. As far as Lincoln was concerned, all of Virginia was still a part of the Union, as he never recognized the legality of the secession of any of the Confederate states. West Virginia was formed within Virginia by the loyal government of that state. Third, Lincoln had qualms about the admission of West Virginia as a state, but acquiesced in it because the people in West Virginia were loyal to the Union, they wanted to form a loyal state, the constitutional procedures had been followed, and he didn't feel like spurning them.
No, because leaving the Union means losing whatever benefits the state enjoy as a member thereof, which presumably are not trivial.
However, I think the United States has exhibited extreme hubris in how it has approached this issue with regards to the rest of the world.
From the breakup of the Soviet Union, Yugoslavia, and East Timur, the US Government has consistently (and most rightly so) the position that it within the basic human rights of a people to form a new government and seperate themselves from a country that they no longer wish to be part of. In some cases, we have even sent in troops to support the changing governments and national borders (former Yugoslavia).
But if Southern California took a vote and decided to form a new country, the US Government would say, nope sorry, not constitutional and would bring troops in to prevent it.
Doesn't this strike anyone else as odd? Would we support an new and free independent Scotland, if they so chose?
We also support Canada's attempts to keep Quebec from breaking off into a separate country.
It is probably a case of "my house is okay, but the guy next door lives in a dump". International NIMBYism may be another way to describe it.
Virginia political leaders had long maintained that there was a right of secession. From the reservations when ratifying the Constitution, to having the Bill of Right include the 10th Amendment, to the Kentucky and Virginia resolution there had been a strong sense that states had such a right. Thomas Jefferson's writing included letters that discussed what would happen after a state seceded.
Having established that Virginians believed that a right to secede existed, examine the timing of Virginia's secession. Virginia chose to secede only after the Union attempted to deny other states their constitutional right to secede. This contradicts what was said in the original post in this topic: "Moreover, none of the southerners' constitutional rights had been infringed by the federal government. Things would look very different if a state sought to secede for the purpose of defending fundamental human or constitutional rights rather than continuing to violate them; if, for example, the feds were trying to force slavery on unwilling free states."
To return to the original premise about ignorance and stupidity, which group of people are the most ignorant and stupid? It has been clearly established that the original Constitution was silent on the right of secession. It has been clearly established that some of those who voted for ratification of the Constitution reserved the right to secede. It has also been established that some of those who passed the 10th Amendment to the Constitution were aware that the right to secede was a popular notion. Based on a reading of the Constitution, a reading of the 10th Amendment and the general acceptance of the notion of the right to secede at the time these were both ratified, the ignorant and stupid label seems best applied to the majority who thinks that states do not have the right to secede.
This is a gross overstatement. If the Declaration has "no legal standing," then we are not independent of Great Britain, but of course we are, and the date of our independence is reckoned from the date of the Declaration of Independence. This is a pretty important concept, and it is a legal concept. Further, the Declaration is printed in the United States Code under the heading of "Organic Laws of the United States." Of course, the Declaration is not a law in the same sense as the Constitution, but arguing that the Declaration has "no legal standing" is foolish.
Directly yes. Indirectly no. The Articles of Confederation expressly stated that the Union was "perpetual". The Constitution states that its purpose is to form a "more perfect" union. Thus, the clear implication is that the Union -- which preceeded the Constitution -- remains perpetual.
In any case, an argument that something is legal when the only law which exists is silent on the matter is dubious, at best.
Did you read David Nieporent's posts?
This is irrelevant and unconvincing. Who cares what "some" thought? Popular with whom?
The Founders created a republic. Fundamental to republican government is the principle of majority rule. Secession denies that principle -- it's a form of minority rule and utterly antithetical to republicanism.
This hasn't been clearly established at all. The most you can say is that the Constitution did not explicitly address this question one way or the other. However, there is abundant authority in the Constitution that secession is not authorized. The idea of secession itself is contradicted by the supremacy clause. If a state can unilaterally shake off all of the laws of the United States, including the Constitution itself, whenever it chooses to do so, the Constitution is not a "supreme law." It is an "option" or a "choice." One state cannot say "We choose not to be bound by this supreme law." A law is not a law (much less a supreme law) unless it is binding. Further, one state cannot "reserve" a right that does not belong to all, and that is not provided for in the supreme law of the Union. Virginia could not reserve a right that was not established throughout the United States. Where in the Constitution does it state that Virginia has reserved a right to secede? This has been thoroughly argued. The Supreme Court in Texas v. White rejected the legality of secession.
Au contraire, speaking Constitutionally it's at the heart of the Ninth and Tenth Amendments. Speaking more generally, the idea that what isn't permitted is forbidden is pretty much of a non-starter.
But on a more serious note, I don't think one can just glibly assert that the United States would always oppose secession of some jurisdictions. We let the Phillipeans and a number of other Pacific territories go, and by all accounts Congress would likely honor the results of a popular referendum by the people of Puerto Rico in favor of independence. The practical test for consensual secession would probably be whether losing parts of the current territory would materially weaken what remains (meaning as a practical matter that given its huge resources, agricultural base, industrial production and military infrastructure, California won't be leaving anytime soon). Of course, applying that test we should immediately offer to return the entire District of Columbia to the British Empire...
You are correct. The "more perfect" clause of the Preamble is inconsistent with the claimed right of secession. How can it be seriously argued that a temporary Union is "more perfect" than a perpetual Union? Yet a temporary Union is just what the secessionists were arguing for. They claimed that they were part of the Union until they didn't want to be part of the Union any more. What would their response have been if the Northern states had sought to expel them from the Union? Would they then have argued that the Union was "perpetual" and they couldn't be denied their rights as part of the Union?
The secessionist states were picking and choosing what they wanted to abide by, and what they didn't. They were jealous of their rights under the Constitution, but chose to erase certain words from the document--like "more perfect" and "supreme law."
And yes, I fully understand the distinction between "secession" and "succession."
The Articles of Confederation must still be in effect then. Hooray!
This confuses several different concepts. First, the Phillipines and Puerto Rico were never states of the Union, and they did not "secede." The Phillipines were territory taken from Spain in war and never intended to be part of the Union. Puerto Rico is a commonwealth (a sui generis entity), and it has been clear all along that they can have their independence whenever they want it, simply by voting for it. In fact, this question has been submitted to the voters of Puero Rico, and it can be submitted again. Second, any part of the Union could be granted independence if the Constitution was duly amended to provide for that. In fact, the whole country could be broken up in this way. Just follow the procedures outlined in Article V. Lincoln acknowledged that possibility. If it were to be done, he thought it would be best accomplished by a convention, as provided for in Article V. That would be perfectly legal and perfectly democratic, and Lincoln would never have objected. He did, however, object to the unilateral secession of a particular state or states, without observing any of the procedures of Article V. That is what secession was. It was a rebellion by fewer than one-third of the states of the Union against the laws of the Union, unilaterally declared for the purpose of perpetuating slavery.
The question the respondents were asked was not "do you believe the text or the construction of the constitution acknowledges a right for states to secede" or "do you believe a court of law would recognize such a right."
Rather, it was "I believe any state or region has the right to peaceably secede and become an independent republic"
The people who answered in the affirmative could very well for the most part have been answering based on some "natural right" theory (even if poorly defined in their own brain). This did not necessarily reveal any ignorance of the "actual law" at all. In fact, the way the question is worded would have led me to believe this wasn't a quiz on "Con Law 101" but about more abstract, fundamental beliefs not written in the formal constiution.
When Apu was applying for citizenship, he was asked to state the reasons for the civil war in his interview. Apu, who has a Ph.D., began to discuss economic and legal factors going on and on until the interviewer told him to "just say slavery."
Sure, we all make spelling errors from time to time, and it's