On Secession and Southern Independence

[BWV 1080]

Another board I frequent has a couple of neo-confederate types who, while I diagree with them, are rather thoughtful and not the sort to wear white sheets. Anyway, I have been intrigued about the right of secession - were the Southern states within the bounds of the constitution to secede?

My own opinion is that they may have been, but it would have been a disaster for the country and the issue was settled by Grant and Sherman (now who says violence never solves anything)

On Secession and Southern Independence

By Dr. Michael Hill
President, The League of the South

The voluntary union (or confederacy) of States known as the United States was born of a secessionist movement against Great Britain, and our Declaration of Independence is, at base, a secessionist document. How, then, can secession legitimately be called "un-American?"

When our Founding Fathers broke the bonds of political association with the British Empire in 1776, the former colonies became free and independent States constituting thirteen separate communities, each asserting its sovereignty. This state of affairs received confirmation by both the Articles of Confederation (1778) and the Treaty of Paris (1783). Thus Americans themselves, as well as their British foe, acknowledged that each State was a separate and sovereign entity.

The sovereignty of the separate States is an important issue in understanding exactly how the United States was formed under its Constitution of 1787-88. When delegates from the States met in Philadelphia in May 1787, they came as representatives selected by the people (i.e. citizens) of their respective States. These delegates were not given authority by the people of their States to make any binding agreements, rather, they were only to discuss proposed changes to the Articles of Confederation. Any changes to the Articles might become effective only if they were ratified in convention by the citizens of the separate States.

The result of the Philadelphia Convention of 1787 was , of course, the U.S. Constitution. However, that document did not become binding until nine of the thirteen States had ratified it for themselves. That happened in 1788, and thus these nine States entered into a compact (or contract) with each other. By doing so, they created the political union known as the United States. The four States that remained outside of this union for a time were not bound by the compact. Eventually, though, all thirteen States united under the Constitution.

It is important to note here that no State (or States ) could answer for another State. Each State acceded to the compact by its own sovereign will. Moreover, all of them understood that they might secede from the compact by the same means by which they had acceded to it, and that is by a convention of the citizens or their representatives.

Nowhere in the Constitution is it forbidden for a State to secede from this voluntary union. In fact, the Tenth Amendment (contained in the Bill of Rights of 1791) expressly confirms that "the powers not delegated to the United States by the Constituition nor prohibited by it to the States are reserved to the States respectively, or to the people." The power to force a State against its will to remain in the union is absent among the powers delegated to the general (or federal ) government, therefore, the right of secession is reserved to the States, or more precisely, to the people of the States.

Some of the New England States actually threatened to secede several times before 1860 (e.g. 1803, 1807, 1814, and 1844-45). At no time did the Southern States deny them this right. However, when a number of Southern States seceded in 1860-61, Lincoln and the Republican Party went to war to prevent the South from exercising its Constitutional right to secede. Simply put, Lincoln placed the forced unity of the States above the Constitution itself, and this action set him in opposition to the principles of the American Founders.

Lincoln's "victory" in 1865 thus marked the end of true Constitutional government in America. In its place he created an "American Empire" that now defines the limits of its own power without serious regard to the Constitution. Formerly free and sovereign States have become little more than administrative provinces of an all-powerful central government in Washington, DC.

Without the right of secession (which, by the way, the people of the States still possess) we have no remedy for encroaching tyranny on either a national or global scale. The New World Order is, after all, the logical outworking of Lincoln's assault on the South and its guiding principle of State sovereignty. No people can be truly free without the means of withdrawing from an illicit regime that is destructive of life, liberty, and property. Our forebears in 1787-88 understood that at some time in the future their descendants might find it necessary and profitable to dissolve the political bonds that joined the States together in voluntary union. That time came in 1860-61, and indeed it may be prudent again in the twenty-first century if we are to be a free people.

Secession is nothing more than the assertion of the inalienable right of a people to change their form of government whenever it ceases to fulfill the purposes for which it was created. Under our Constitution this should be a peaceful remedy. The decision of a State or States to withdraw from a confederacy or league (and not to overthrow it by rebellion) ought not be seen as a revolutionary or insurrectionary act. To call the secession of a sovereign State from a voluntary union an act of "treason" or "rebellion" is sheer folly. Yet this is what most Americans --especially Southerners--have been taught.

One of the most common criticisms that the League of the South receives is that "secession is impractical and/or unattainable." We agree that it certainly is both as long as the people of the States remain ignorant of or apathetic toward the very practical remedy to tyranny bequeathed us by our forefathers. The League's primary goal is to counter the lies and distortions that have lulled people into a fatal misunderstanding of their condition and to bring hope and encouragement in place of their despair. In doing so we lay the foundation for a new Southern Confederacy. The people of the States, though long languishing, indeed hold the weapon and the legitimate power (sovereignty) to wield it against the current tyranny. The only ingredient lacking is the will of the people to wield it.

The League of the South, therefore, insists on the legitimacy of the right of secession. May it be the will of God to favour our honourable Cause.

[Ralph]

Well, too bad you're not around here because you could audit my Spring "Slavery, the Constitution and the Civil War" seminar, one of my favorite elective offerings. We cover the issue of Southern secession theory in depth.

Most people interested in the Civil War care only about battles and leaders, perhaps about slavery, but rarely are they immersed in Constitutional Law. The question of Southern secession constitutionalism is relegated to scholars.

The orthodox answer, of course, is that there is no right to secession. The Supreme Court has in effect said that on the theory that the right of the people to amend the Constitution precludes changing the form of govenment by any other means (see Texas v. White which basically holds that the Confederate States of America never existed as a legal entity). And the Smith Act makes any attempt to change the form or nature of the U.S. government by force or violence a crime in and of itself.

That view isn't accepted by some who view as victors' justice constitutional justifications denying a right of secession.

I personally know of no regarded Constitutional Law scholars who maintain that states have a right of secession.

[Ralph]

For what's it's worth, the article above repeats a tired claim to Southern constitutional legitimacy. The League of the South isn't taken seriously by most historians. I doubt that many Southerners are even familiar with it.

[Reed]

What a lot of bollocks, as the British say.

I was born in the south, and I find this whole romantization of the Confederency repulsive. "It wasn't about slavery, the Civil War was about states' rights."

Whose rights? The slaveholders.

Let those morons go back and view Gone with the Wind one more time. Their view of "history" is about on the level of that racist movie/book.

[burnitdown]

"It wasn't about slavery, the Civil War was about states' rights."

Slavery was the trigger of that issue, but was it the only topic? I seem to recall a Constitutional Confederation or somesuch existing before the current Constitution (1776-1789 or so). It's an enduring issue: mega nation-state, or coalition of independent states?

The trigger could as easily have been the legalization of marijuana, had more people smoked it back then (?).

[Ralph]

"It wasn't about slavery, the Civil War was about states' rights."

Slavery was the trigger of that issue, but was it the only topic? I seem to recall a Constitutional Confederation or somesuch existing before the current Constitution (1776-1789 or so). It's an enduring issue: mega nation-state, or coalition of independent states?

The trigger could as easily have been the legalization of marijuana, had more people smoked it back then (?).

*****

While there were other issues that were of varying different levels of concern in the North and the South, slavery was the sole intractable problem that could not be resolved politically or through law. The Dred Scott case was the absolute nadir of constitutional jurisprudence in American history but a decision in favor of Scott would have hastened, not avoided, dissolution.

[BWV 1080]

There are also some old cultural issues behind the war, which has been called the second refighting of the English Civil War (the American Revolution was the first). The planter class of Virginia was begun by Cavaliers who fled Cromwell's England in the mid 17th century. On the other hand, many Northern puritans went back to England to fight for Cromwell. There is also a Celtic / Teutonic divide as most Southerners originally came from Celtic areas of England while the former Danelaw and Anglo-Saxon regions such as Northumberland and East Anglia were the source of most New England Puritans.

[Ralph]

There are also some old cultural issues behind the war, which has been called the second refighting of the English Civil War (the American Revolution was the first). The planter class of Virginia was begun by Cavaliers who fled Cromwell's England in the mid 17th century. On the other hand, many Northern puritans went back to England to fight for Cromwell. There is also a Celtic / Teutonic divide as most Southerners originally came from Celtic areas of England while the former Danelaw and Anglo-Saxon regions such as Northumberland and East Anglia were the source of most New England Puritans.

*****

Those cultural issues did not and could not have led to disunion, much less war. It was slavery.

[BWV 1080]

There are also some old cultural issues behind the war, which has been called the second refighting of the English Civil War (the American Revolution was the first). The planter class of Virginia was begun by Cavaliers who fled Cromwell's England in the mid 17th century. On the other hand, many Northern puritans went back to England to fight for Cromwell. There is also a Celtic / Teutonic divide as most Southerners originally came from Celtic areas of England while the former Danelaw and Anglo-Saxon regions such as Northumberland and East Anglia were the source of most New England Puritans.

*****

Those cultural issues did not and could not have led to disunion, much less war. It was slavery.

I agree that Slavery was the primary cause. People simply do not go to war for fine points of constitutional law, they go to war because they feel that their economic well-being is threatened.

The cultural issues are important though.

[BWV 1080]

Well, too bad you're not around here because you could audit my Spring "Slavery, the Constitution and the Civil War" seminar, one of my favorite elective offerings. We cover the issue of Southern secession theory in depth.

Most people interested in the Civil War care only about battles and leaders, perhaps about slavery, but rarely are they immersed in Constitutional Law. The question of Southern secession constitutionalism is relegated to scholars.

The orthodox answer, of course, is that there is no right to secession. The Supreme Court has in effect said that on the theory that the right of the people to amend the Constitution precludes changing the form of govenment by any other means (see Texas v. White which basically holds that the Confederate States of America never existed as a legal entity). And the Smith Act makes any attempt to change the form or nature of the U.S. government by force or violence a crime in and of itself.

That view isn't accepted by some who view as victors' justice constitutional justifications denying a right of secession.

I personally know of no regarded Constitutional Law scholars who maintain that states have a right of secession.

So what in your opinion would it have taken legally to let the South secede, a constitutional amendment?

[Kevin R]

I agree with Ralph on this one. Mr. Hill strikes me as a typical neo-Confederate. His attempt to couch secession in Lockean terms simply doesn't work. He confuses Locke's "right of rebellion" with the secession of 1860-61.

How interesting that the word "slavery" appears nowhere in his essay. One simply can't discuss this issue without mentioning slavery. Slavery was the reason why so many in the South decided to depart the Union (while there were a few side issues, they played almost no role). Why is he silent on that issue?

And where in the Constitution is the right of secession spelled out? Certainly he can't be basing this on the 10th Amendment.

Lincoln demolished the Southern view during his First Inaugural and his message to the Special Session of Congress.

[BWV 1080]

I agree with Ralph on this one. Mr. Hill strikes me as a typical neo-Confederate.

Well he is president of the League of the South. If that does not make one a "typical neo-Confederate" I do not know what does. I agree the 10th amendment argument is weak, but am interested in the historical veracity of this claim:

It is important to note here that no State (or States ) could answer for another State. Each State acceded to the compact by its own sovereign will. Moreover, all of them understood that they might secede from the compact by the same means by which they had acceded to it, and that is by a convention of the citizens or their representatives.

[Kevin R]

That claim doesn't hold up. Ralph could have a different view, but I would argue that the Supremacy Clause did not allow for secession.

http://en.wikipedia.org/wiki/Supremacy_Clause

http://showcase.netins.net/web/creative ... 1inaug.htm

http://teachingamericanhistory.org/libr ... ument=1063

[Ralph]

That claim doesn't hold up. Ralph could have a different view, but I would argue that the Supremacy Clause did not allow for secession.

http://en.wikipedia.org/wiki/Supremacy_Clause

http://showcase.netins.net/web/creative ... 1inaug.htm

http://teachingamericanhistory.org/libr ... ument=1063

*****

Of course it doesn't. Nothing does.

A key failing of Confederate secessionist theory is the repeated insistence that the Union was formed BY THE STATES. In fact, a unique and relevant aspect of American constitutional history is that the Constitution was ratified by the People (in the late 18th century definition) in special assemblies. State legislatures did not ratify the Constitution.

The Supreme Court has often used that reality to show that the Constitution was established by and for the American people, not by and for states. See McCullogh v. Maryland, a landmark Marshall Court decision.[/u][/i]

[rogch]

How exciting that this debate should come up! I was once very interested in everything that had to do with the American civil war. I am not sure what triggered it, but the beautifull song "The night they drove old Dixie down" by the Band played its part...

In my opinion we can't separate the problem of slavery from the constitutional issues. There were principal disagreements about constitutional issues, but it was often slavery that triggered the bitter conflicts about the states vs. the federal government. One thing seems clear though: The civil war was not started to abolish slavery, but to uphold the union.

It seems like most legal experts agree that the states do not have the right to seceede today. But it has been claimed that the legal situation was less clear about that in 1861 than it is now, is there some truth to that?

"The southern league" is a strange case. By calling themself "southern", don't they imply that they are part of the USA? They are not in the south of the American continent, not even the North American continetnt...

[Ralph]

How exciting that this debate should come up! I was once very interested in everything that had to do with the American civil war. I am not sure what triggered it, but the beautifull song "The night they drove old Dixie down" by the Band played its part...

In my opinion we can't separate the problem of slavery from the constitutional issues. There were principal disagreements about constitutional issues, but it was often slavery that triggered the bitter conflicts about the states vs. the federal government. One thing seems clear though: The civil war was not started to abolish slavery, but to uphold the union.

It seems like most legal experts agree that the states do not have the right to seceede today. But it has been claimed that the legal situation was less clear about that in 1861 than it is now, is there some truth to that?

"The southern league" is a strange case. By calling themself "southern", don't they imply that they are part of the USA? They are not in the south of the American continent, not even the North American continetnt...

*****

The issue of secession arose several times before it actually occurred. And not only in the Deep South. It was a subject of serious discussion in the North, especially in New England but largely as a politically tangential issue.

As the great Daniel Webster said, "Liberty and Union, now and forever, one and inseparable."

[BWV 1080]

Some have claimed Texas, as it was an independent country prior to its admittance to the Union, has a special right of seccession. It does not, however the state does have a little known right to split itself into as many as four parts.

Texans are justly proud of living in a state that was once an independant republic and that entered the Union by treaty, not by act of Congress. Surprise! Texas did *not* enter the Union by treaty. Though at the time of its admission the two countries were negotiating a treaty of annexation, President John Tyler, as one of his last acts in office, offered statehood under the terms drawn up by the House of Representatives. As a result, Texas got a better deal than it would have under the treaty. For example, it became a state immediately, without having to pass through a probationary period as a mere territory.

The terms of the congressional bill included a requirement that Texas cede to the US all forts, barracks, navy yards, and other property pertaining to the public defense, but it also allowed Texas to keep its public lands, a generous condition rarely found in annexation treaties. However, in exchange for that concession, Texas also had to maintain responsibility for its own public debt.

[Ralph]

Some have claimed Texas, as it was an independent country prior to its admittance to the Union, has a special right of seccession. It does not, however the state does have a little known right to split itself into as many as four parts.

Texans are justly proud of living in a state that was once an independant republic and that entered the Union by treaty, not by act of Congress. Surprise! Texas did *not* enter the Union by treaty. Though at the time of its admission the two countries were negotiating a treaty of annexation, President John Tyler, as one of his last acts in office, offered statehood under the terms drawn up by the House of Representatives. As a result, Texas got a better deal than it would have under the treaty. For example, it became a state immediately, without having to pass through a probationary period as a mere territory.

The terms of the congressional bill included a requirement that Texas cede to the US all forts, barracks, navy yards, and other property pertaining to the public defense, but it also allowed Texas to keep its public lands, a generous condition rarely found in annexation treaties. However, in exchange for that concession, Texas also had to maintain responsibility for its own public debt.

*****

The right of Texas to subdivide was actually taught in my high school years. But, of course, it ain't never gonna happen.

[Corlyss_D]

I have been intrigued about the right of secession - were the Southern states within the bounds of the constitution to secede?

Are they thinking of going out again?

[rogch]

Some people have claimed that the south has gained so much in influence that the north should consider secession...

[Ralph]

Well, too bad you're not around here because you could audit my Spring "Slavery, the Constitution and the Civil War" seminar, one of my favorite elective offerings. We cover the issue of Southern secession theory in depth.

Most people interested in the Civil War care only about battles and leaders, perhaps about slavery, but rarely are they immersed in Constitutional Law. The question of Southern secession constitutionalism is relegated to scholars.

The orthodox answer, of course, is that there is no right to secession. The Supreme Court has in effect said that on the theory that the right of the people to amend the Constitution precludes changing the form of govenment by any other means (see Texas v. White which basically holds that the Confederate States of America never existed as a legal entity). And the Smith Act makes any attempt to change the form or nature of the U.S. government by force or violence a crime in and of itself.

That view isn't accepted by some who view as victors' justice constitutional justifications denying a right of secession.

I personally know of no regarded Constitutional Law scholars who maintain that states have a right of secession.

So what in your opinion would it have taken legally to let the South secede, a constitutional amendment?

*****

Sure. A constitutional amendment can achieve anything and if plainly stated does not leave any room for judicial interpretation.

[Corlyss_D]

Some people have claimed that the south has gained so much in influence that the north should consider secession...

Post of the Day Award to ya, Roger.

[rogch]

Thank you very much Corlyss, i have wanted that one for a long time

[Corlyss_D]

Thank you very much Corlyss, i have wanted that one for a long time

You're welcome, Roger. Actually, I should give you the award with the noodle cluster for special achievement: it's not easy being funny in a language not one's own. So consider yourself especially kudoed.

[burnitdown]

The right of Texas to subdivide was actually taught in my high school years. But, of course, it ain't never gonna happen.

You never know. A few more years of watching the federal government bungle it down here, and you'd be amazed at what will happen.

http://www.texassecede.com/

We're seeing a lot more of these lately.

My historical reading conveys to me that larger nation-states have a habit of collapsing and taking down all their members, where localized entities are more flexible and can last far longer, especially if their members are unified by inherent ideals including heritage, culture and language.