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.

[CodeToad]

“Obviously he was not.”

Only a propagandist could read his words and conclde that.

[Conservative9]

Are you also well aware that our founding fathers seceded from Great Britain? Have you read any of Washington’s, Jefferson’s, Adams, or Henry’s words?

[Bigun]

Based on the responses to Scalia: No to secession I would say that the answer to the question is an emphatic NO!

[Non-Sequitur]

I am sorry but I am not following your logic or conclusions. Are you using absurdity to support your name, non-sequitur?

Then let me try again. The claim was made by you that in his 1848 speech Lincoln was supporting secession when it is obvious he was not. Secession and rebellion are not synonymous, one is a legal course of action and the other is not.

The South did secede peacefully- Lincoln made it hell, which you seem to think is a sacred right.

All governments have the right to suppress rebellion and the U.S. is no different. The power to do so is contained in Article I, Section 8. But any hell that may have fallen on the South was the result of their choosing war to further their aims. No hostile acts had been taken towards the South prior to their bombardment of Sumter. War was their choice, hell was their reward for that choice.

Jefferson said rebellion from time to time, including blood shed, would be useful and necessary to restrain the power of government. I hope we both pray that our current state of affairs does not come to that. But if you think that is more “sacred” than peaceful secession I could be wrong.

As Lincoln pointed out any people any where have the right to rebel. It is not my place to pass judgement on their motivations any more than it would be their place to pass judgement on mine.

Can we at least agree on that?

We can.

[Non-Sequitur]

Only a propagandist could read his words and conclde that.

I can't imagine how anyone can read them and conclude otherwise.

"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."

[iowamark]

1776 was a revolution, not a secession.

[Non-Sequitur]

1776 was a revolution, not a secession.

You mean you never learned about how we won our independence after the Secessionary War with Great Britain?

[Bigun]

That's the point. That is why it is so important to restore the Constitutional balance by repealing the 14th, 15th, 16th and 17th Amendments as a starting point to restoring the Sovereignty of the States.

Hear here!

BRAVO!!!

[Lancelot Jones]

Secession is a right of any State.

I disagree.

"The Preamble of The Constitution says:

'We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.'

Formed by the people, the whole people, of the United States, its existence is dependent on them, aud not on the States ; and it can only be dissolved by the power that give it birth; States may pass ordinances of seccession, but they cannot over- throw the fabric created by the source of all political authority in this country — the people." - In Congress, Rep. Edward J. Morris (Penn) January 30, 1861.

The union known as The United States was formed by the people, the whole of the people, and only the whole of the people have the authority to dissolve it.

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

Beauseant!

[CodeToad]

“1776 was a revolution, not a secession.”

Semantics. The result is the same: A territory decides they no longer will be governed by their current authority and will form their own government.

[Non-Sequitur]

Semantics. The result is the same...

The same can be said about murder and capital punishment.

[CodeToad]

“legal course of action “

What legal doctrine would that be? Please be specific. Please also state the legal process by which a State may seceed from the United States and your legal reference for the process. You keep saying there is one, yet, you’ve never defined it.

[imjimbo]

Wrong AGAIN-! Lincoln provoked the south by resupplying a military base in their sovereign territory. Go back and bone up on your history before proving yourself a fool AGAIN-!

[Bigun]

Lincoln happened to be speaking of Texans and Mexico

Was he really? Or is it possible that hes was talking about the failed socialist revolutions which took place in Europe at that time?

[stainlessbanner]

Dixie Ping

[Lancelot Jones]

Semantics.

No, different words with different meanings.

"Seceding" is the act of formally withdrawing from an association, allience, or UNION, that you voluntarily entered into.

A revolution is the (violent) overthrow of one government to be replaced by another.

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

Beauseant!

[Non-Sequitur]

Was he really? Or is it possible that hes was talking about the failed socialist revolutions which took place in Europe at that time?

Probably not. Lincoln's speech was January 12, 1848. The first of the revolutions that occured in Europe during the 1848-1852 time frame didn't start until March and weren't put down until after that.

[mo]

Any group of people, or individuals for that matter, may choose with whom they affiliate. That is a “natural”- a God granted right. The principle thesis behind the formation of the United States was to help men preserve their God given freedoms.

[EdReform]

Ping

[Non-Sequitur]

What legal doctrine would that be? Please be specific. Please also state the legal process by which a State may seceed from the United States and your legal reference for the process. You keep saying there is one, yet, you’ve never defined it.

My belief is that the process for leaving should be the same as the process for joining - with the approval of the other states as expressed through a majority vote in both houses of Congress. The process should be: 1) a state demonstrates that it's people want to leave the U.S.; 2) matters concerning debt, obligations, federal property, and the like are negotiated and a fair and equitable settlement is reached; 3) Congess votes to partition; 4) we wave bye-bye. And the idea is not new and it isn't mine. James Madison said that a fair and equitable separation requires the consent of both sides.