Did the Civil War truly settle the secession question?

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

[Constitutionalist Conservative]

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

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

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

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

• “Yes, because x.”

• “No, because x.”

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

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

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

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

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

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

---

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

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

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

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

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

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

[Bigun]

How about this?

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

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

St. George Tucker

[Bigun]

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

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

[manc]

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

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

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

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

[manc]

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

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

it amazes me that some still do not see this

[Lancelot Jones]

"That amounts to tidily squat!"

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

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

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

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

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

[Bigun]

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

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

Try again!

[Bigun]

Great post!

[Little Ray]

Yes, it did.

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

Any questions?

[lentulusgracchus]

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

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

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

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

[lentulusgracchus]

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

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

[x]

and that applies how?

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

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

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

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

[afnamvet]

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

[Bigun]

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

[x]

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

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

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

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

Second, it was the people declaring their independence.

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

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

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

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

[RJS1950]

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

[x]

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

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

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

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

[RJS1950]

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

[afnamvet]

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

[Bubba Ho-Tep]

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

Lincoln never said that secession was lawful.

What he said was:

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

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

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

[Let's Roll]

Agreed.

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