Is Secession Legal?

01/19/2020 | Rfreedom4u

[rfreedom4u]

Many people have stated that secession is illegal and not allowed as determined by the American Civil War. But is it really? Throughout the history of the United States our government has supported the independence/secession of states/territories/colonies from various other nations.

Haiti seceded from the French empire through a slave revolt. South Sudan broke from Sudan. Yugoslavia broke into several countries and later Kosovo seceded from Serbia. Czechoslovakia split into two countries. The Soviet split into quite a few countries. The UK left the European Union. And many others….

So why do people say secession is illegal in the United States? There’s nothing in the US Constitution that mentions secession. The Tenth Amendment states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Using my logic this means that since the issue of secession is not given to the federal government it is reserved to the states or the people themselves to determine. I’ve read the constitution of my own state (Texas) and secession is not mentioned at all. This even furthers my belief that is should be determined by the people.

If I were to join a club and did not like what the club became, I would be well within my rights to quit that club. If I go to see a movie and don’t like it, I can walk out. So why would anyone believe that the United States is a “once you’re in you can’t leave” type of deal? When someone doesn’t like the state in which they live they are free to move to another state or even another country.

If secession/independence/splitting up is supported for other people in the world why is it not ok for citizens of the United States? And yes, I know that politicians are garbage and want to maintain their power and control. So please give me your opinion on whether it is legal or not and why you think that way? But please spare me the “if it’s broke, we don’t run away, we fix it” argument. At this point I am fairly certain that it is not repairable.

[DoodleDawg]

You’re indeed correct.

Regardless of which quote they use they still always manage to misinterpret Lincoln's meaning.

[DiogenesLamp]

Chase was part of the swamp.

I believe you. Washington DC has been ran by influence sellers and traders for a long time.

As Lincoln said, Chase got the presidential bug, and once you get it, you don’t lose it. His circuit happened to include Virginia, where he could go down and try cases. The last thing he wanted to do was alienate the people in the returning states.

Speculative. Might be correct, but an opinion is not proof. It is also possible that Chase did not believe secession was treason.

Also, the Johnson Administration wanted to build up its support among Southern Democrats and trying Davis wasn't the way to do it.

Also likely true.

[Organic Panic]

Will or results? 100s of thousands dead regardless of will.

[x]

More about Chase here.

Chase had been a Whig, a member of the Liberty Party, a Free Soiler and a Democrat before becoming a Republican. While Chief Justice he switched over to the Democrats (with an interval as a Liberal Republican) in hopes of getting the Democratic nomination for president. Politics surely had much to do with his political opportunities which he now saw as more in the Democrat than the Republican Party.

More complications: Radical Republican Thaddeus Stevens actually wanted to defend Davis. He wanted secession to have been legal and happened, so that the South could now be treated as a conquered province. Chase believed that the ban on secessionists holding office was "punishment" enough for Davis. He did not believe that secession was legal. He just didn't want a trial. Andrew Johnson's blanket pardons (though Davis didn't want one) ended the possibility of a trial.

[DoodleDawg]

Evarts requested a written legal opinion from Dana, who wrote a letter recommending against prosecution.

But not because he thought that secession wasn't treason or that Davis wasn't guilty. Dana's concern was that since the trial was to be held in Virginia then it would be hard to convict Davis regardless of the evidence against him, and that might prove embarrassing to the government.

In the end, the prosecution fizzled because Johnson got impeached and so had other things to worry about. Johnson had been the only real driving force behind the prosecution because Davis had treated him like the moron he was when the two of them had served together in the Senate.

It was more Chase than Johnson. Chase was never a fan of the trial, not because he thought Davis was guilty but because he thought a trial would make a martyr of him and continue the divide in the country. With the ratification of the 14th Amendment, Chase decided that a trial and sentence would violate Davis's 5th Amendment rights against double jeopardy. Johnson's last amnesty proclamation killed any chance for a trial.

[SeeSharp]

Wirtz was tried by a military commission or tribunal. Davis's trial would probably had to have been by a civil court.

Wirtz was not in the union military. They invented a rationalization for doing what they wanted to do whether it was really constitutional or not. Imagine that.

Richmond was teeming with federal troops in 1868. They could certainly have tried Davis in Richmond if they had wanted to. The notion that they didn't try Davis because they were scared of confederates is just laughable.

They could have packed a jury any way they wanted. Reconstruction began in 1867 and disenfranchised most of the white population so they weren't going to be eligible to serve on a jury anyway. So much for that excuse.

[DiogenesLamp]

Stalin, Mao and Pol Pot also go results, and using the same methodology.

Some of us think that Legality matters.

[2big2fail]

I think you’re right about this!

[DNME]

... all of the BS foisted on We the People by Congress for the past 50 years...Was it ‘legal’? Certainly.

*****************

I’m not so sure about that legality, bakenenko.

The Constitution is noteworthy in part because it doesn’t outlaw what the gummint can do (“The KING shall not murder peasants without due process.”) so much as it lists exactly what the gummint CAN do and forbids everything else. The Tenth Amendment clearly states that powers not given to the central gummint by the Constitution belong to the states or the people.

Congress has hideously abused and obliterated that restriction. They seem to think a majority in Congress allows them to do any-damn-thing they want. There is not one aspect of American life, from your toothpaste in the morning to your pillow at night, that Congress doesn’t tax, control, regulate or prohibit.

I would love to see a Supreme Court justice sit down and start tearing page after page out of a stack of Federal law books.

[chuckles]

Sorry I stepped on your toes but Texas could buy La, 5 times over. I like La for fishing and hunting, but business is lacking compared to Houston and Dallas and Austin.

I just picked La at random. I could have picked Alabama or Mississippi just as easy.

About New Orleans,.....Are you aware they are under sea level? Don't even need a storm to drown there. A high tide can swamp the levee and things go south. It's like shaking your fist at God and daring Him to drown you. Who is dumb enough to spend any real money there?

Several big corp. are moving to Texas. How many picked La? If Fla wanted to join Texas, we would probably offer a spot for La, Miss, and Ala.We already have some dusty ole maps with Arkansas, all they way to the Atlantic, but we might have to cut Georgia with the last election results.

BTW, Houston/Beaumont/Galveston/Texas City, has an international port and we have offshore oil also. A majority of the gasoline comes from Texas Gulf Coast. We were marked #2 for atomic attack during the Soviet Union days. Destroy Houston/ Beaumont and that was about 3/4 of the nations fuel.

[BroJoeK]

Organic Panic: "Lincoln killed 700,000 Americans to show us secession is illegal."

DiogenesLamp: "That it was contrary to his will.
He did not show us it was illegal.
All the evidence shows that it is not."

Oh, for crying out loud!

First of all, Lincoln didn't "kill 700,000 Americans", if anybody, Jefferson Davis did -- Davis started it and could have ended it at any time on terms much better than the "unconditional surrender" Davis insisted on.
To claim that "Lincoln killed 700,000" is like saying President Roosevelt "killed" all 70 million who died in WWII.
It's total rubbish.

Second, as for the legality of secession, the US Constitution is totally copesetic with "secession", or any other such realignments, provided, provided, provided they are done by mutual consent.
And throughout US history there've been several such changes, as pointed out by SeeSharp (post #38):

"Maine seceded from Massachusetts, Tennessee seceded from North Carolina, Kentucky seceded from Virginia, Vermont seceded from both New York and New Hampshire."

To which Lurking Libertarian added (post #129):

"Each time, with the consent of all states involved and the consent of Congress."

I could add to that Pennsylvania's Erie Triangle (1792), the proposed states of Franklin & Jefferson, which did not happen, but which proposals were entirely constitutional.
Here is a whole listing of historical proposed state partitions.

In post #141 SeeSharp responded to Lurking Libertarian(#141):

"Not True.
Each of the seceding entities were admitted with the consent of Congress, but only Virginia consented to the secession.
And Congress didn't even exist at the time Vermont carved itself out.
They threatened to join Canada if they weren't recognized as an independent colony by the Continental Congress, which agreed over the objections of New York and New Hampshire."

Sorry, but most of that is pure nonsense.
The real fact is that in all those cases all the parties did eventually agree -- mutual consent.
That is what the US Constitution contemplates and has no problems with, so long as all parties agree.

But that is not what happened in 1806 when former VP Aaron Burr threatened to secede with Louisiana, or in 1814 when the Hartford Convention threatened New England secession, or in 1860 when the cotton South began to declare secession over the election of Lincoln's Black Republicans.
All those involved secession without mutual consent, and the Federal government acted in each case prevent or stop it.

Our Founders were clear and consistent: with mutual consent you can do nearly anything, but without mutual consent, you can't secede or make any other changes to boundaries, much less rebel, insurrect or commit domestic violence & treason against the United States.

[SeeSharp]

Go ahead and cry out loud then. Lincoln started the war by invading the South. He could have ended it at any time by simply bringing his army home. The South didn't want war. The Lincoln administration did. So yes, Lincoln killed all those people. His was a war of conquest, unpopular at home. Davis's war was a war of survival, intensely popular at home.

The constitution says absolutely nothing about secession, either with or without consent. And inanimate object do not "contemplate". Perhaps you can show us where the framers intended the union to be a one-way trap. Perhaps you can show us where any of them argued that no state can ever leave the union. This notion that all the states have to agree when a state secedes is just a made up rationalization for a past crime. Several states explicitly stated that they reserved the right to secede when they joined. Every new state, even those admitted after the first thirteen, did so with the consent of their population. The seceding states did so with the consent of their populations. They actually held elections to special conventions to decide the issue. You can't claim to believe in self government and government by popular consent on the one hand and oppose secession on the other.

As for North Carolina, Massachusetts, New York, and New Hampshire agreeing to the loss of their territory, they were each faced with a fait accompli and couldn't do anything about it. How Lincolnesque of you to call that consent.

[Uncle Sham]

"About New Orleans,.....Are you aware they are under sea level?"

I am going to give you an opportunity to explain why this is. I seriously doubt that you have a clue. Tell me, why is New Orleans under sea level? I'll give you a hint. You are partly to blame.

[chuckles]

I wasn't even born when New Orleans was under sea level. Is it because I voted for Trump? I'm getting blamed for a lot of stuff now. Maybe it's because they practice voodoo and God is not happy? Maybe it's because men dress as women?

All I know is my whole life they've been digging and throwing up dirt to try to keep the water out of downtown. I think God is going to win and N.O. will eventually drown. Some day some political party will cut off the money and walk away. Course, that will be racist.

[Uncle Sham]

About what I expected from you. If you had a brain, you'd understand that New Orleans was the highest point on the lower Mississippi at the time suitable to establish a port city. It was ABOVE the level of the Mississippi River when founded. Spring floods built the land higher and higher every year, increasing the level of the city.

The federal government saw fit to keep the Mississippi flowing through this valuable port so they constructed levees to keep the river under control. This did two things very detrimental to the geography of New Orleans. First, it robbed the city of the spring floods soil sedimentation which served to raise the level of the land. Second, it caused riverbed sedimentation to build up over the years which resulted in the level of the river itself being raised to the point that the elevation of the city is lower than the elevation of the river.

New Orleans has been forced to sacrifice it's best geographical interest so that the economic interest of most of the middle of this nation can count on shipping and receiving goods. You are a beneficiary of lower prices for goods because New Orleans exist. That you are too stupid to realize it is your problem. There is nothing in Texas that comes close to matching the importance of what New Orleans provides to this nation.

[ealgeone]

IF you can back it up....yes.

[BroJoeK]

SeeSharp: "Lincoln started the war by invading the South."

Rubbish -- secessionists were waging war from Day One, sometimes even before formally declaring their secession.
Secessionist demands for surrender of Federal forts were threats of war and firing on Union ships sent to resupply them were acts of war against the United States.

SeeSharp: "He could have ended it at any time by simply bringing his army home."

More nonsense, since most battles in the war's first year were fought in the Union and most Confederate soldiers who died that first year died in the Union, not in the Confederacy.
For Lincoln to have withdrawn his troops would have handed over to the Confederacy yet more Union states & territories.
What sane person would do that?

Sure, as the war progressed, more & more battles were fought in Confederate states, but even as late as the summer & fall of 1864 there were still Confederate forces fighting in Union states like Kansas & Missouri.

SeeSharp: "The South didn't want war.
The Lincoln administration did."

That's nonsense -- if "the South" truly didn't want war, they would have impeached & removed from office Jefferson Davis for the crime of starting Civil War at Fort Sumter.
Of course they did no such thing, instead were deliriously happy that Davis' military assault on Fort Sumter proved so blazingly successful.
And many Southerners responded enthusiastically to Confederate calls for hundreds of thousands of volunteer troops, many of which were soon sent to invade such Union states & territories as Maryland, West Virginia, Kentucky, Missouri, Oklahoma and New Mexico.
In the war's first year more Confederate soldiers died in the Union than in the Confederacy.
Later in the war Confederate forces also invaded Union states of Pennsylvania, Ohio, Indiana & Kansas, along with CSA guerilla forces in California, Colorado & Vermont.
Indeed, as late as the Battle of Nashville in 1864, Jefferson Davis' orders to CSA Gen. John B. Hood were, after defeating Union forces in Tennessee, to march on... Chicago!

SeeSharp: "So yes, Lincoln killed all those people.
His was a war of conquest, unpopular at home.
Davis's war was a war of survival, intensely popular at home."

So, now it turns out, you agree that "the South" did want Davis' war, especially when it was being fought in Union states & territories, right?
Lincoln's war was a war against rebellion, against Confederate attempts to destroy the United States, an existential war supported overwhelmingly in the North so long as it was believed Lincoln could win the war.
But by the summer of 1864 it seemed Lincoln was not winning and Lincoln himself believed the Democrats' peace candidate, George McClellan, would win election and then surrender to the Confederacy.
All such thoughts ended in Atlanta & Savanah.

SeeSharp: "The constitution says absolutely nothing about secession, either with or without consent."

All of our Founders were consistent in their ideas about "disunion" or "secession".
All believed it was acceptable under two, but only two, conditions:

1. From "necessity" as spelled out in their 1776 Declaration of Independence.
   "Necessity" was then fully defined as consisting of about two dozen specific complaints, including:
   "He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people."
   
   So "necessity" was not a trivial complaint about, for example, a leader tweeting too much!
   Rather "necessity" arose from material acts of lawlessness & harm to citizens.

2. By mutual consent as in their 1788 "secession" from the old Articles of Confederation and ratification of their new Constitution.
   Their new Constitution defines such mutual consent as three quarters of state ratifying conventions.

Every other form of disunion or secession our Founders condemned as rebellion, insurrection, domestic violence, invasion and/or treason.

Look, here's a very simple analogy: if you ask, "can anyone take money from a bank?"
The answer is, "certainly, under two but only two conditions, first, if it's money the bank agrees is in your positive balance, or second, if the bank agrees to loan you money.
But if you walk into the bank guns a-blazing, demanding, "your money or your life", that's a crime and you will pay dearly for it.

SeeSharp: "Perhaps you can show us where the framers intended the union to be a one-way trap.
Perhaps you can show us where any of them argued that no state can ever leave the union."

Those are straw-men, red-herrings, false arguments by any name you chose.
Founders understood & practiced "disunion" from necessity (1776) and by mutual consent (1788).
Anything else they knew was rebellion, insurrection, domestic violence, invasion and/or treason.

James Madison is usually credited as "the father of the Constitution" and his explanation on this is the best I've seen, here.

SeeSharp: "Several states explicitly stated that they reserved the right to secede when they joined."

But none of those -- zero, zip, nada of them -- claimed a "right to secede" at pleasure.
All, all referred back to the conditions of "necessity" spelled out in the 1776 Declaration of Independence.

And, none of those condition from 1776 existed in 1806 when Aaron Burr plotted to secede with Louisiana, or in 1814 when New Englanders plotted secession at the Hartford Convention, or in 1830 when South Carolinians threatened secession over President Jackson's "Tariff of Abominations", or in 1860 with the election of Lincoln's "Black Republicans".
In every case those secession attempts were seen as "at pleasure" and strongly opposed by the Federal government.

SeeSharp: "Every new state, even those admitted after the first thirteen, did so with the consent of their population.
The seceding states did so with the consent of their populations.
They actually held elections to special conventions to decide the issue.
You can't claim to believe in self government and government by popular consent on the one hand and oppose secession on the other."

Complete rubbish!
The US Constitution is totally copesetic with splitting up states, merging parts of states, adjusting boundaries, and any similar changes provided, provided they are made with the mutual consent of all the parties involved, including Congress.
No state in 1860 requested to secede, nor did Congress approve any.

SeeSharp: "As for North Carolina, Massachusetts, New York, and New Hampshire agreeing to the loss of their territory, they were each faced with a fait accompli and couldn't do anything about it.
How Lincolnesque of you to call that consent."

As usual, you don't know your history.
On North Carolina & Tennessee:

"When North Carolina ratified the Constitution of the United States in 1789, it also ceded its western lands, the "Tennessee country", to the Federal government.
North Carolina had used these lands as a means of rewarding its Revolutionary War soldiers.
In the Cession Act of 1789, it reserved the right to satisfy further land claims in Tennessee."

As for Vermont:

"On March 6, 1790, the legislature of New York consented to Vermont statehood, provided that a group of commissioners representing New York and a similar group representing Vermont could agree on the boundary.
Vermont's negotiators insisted on also settling the real-estate disputes rather than leaving those to be decided later by a federal court.
On October 7, the commissioners proclaimed the negotiations successfully concluded, with an agreement that Vermont would pay $30,000 to New York to be distributed among New Yorkers who claimed land in Vermont under New York land patents.[20]
The Vermont General Assembly then authorized a convention to consider an application for admittance to the "Union of the United States of America"."

In both cases mutual consent was achieved from all the parties, including Congress.

[windsorknot]

In fact, the ratification documents of Virginia, New York and Rhode Island explicitly said they held the right to resume powers delegated should the federal government become abusive of those powers. The Constitution never would have been ratified if states thought they could not regain their sovereignty — in a word, secede.

Walter Williams

[BroJoeK]

"...explicitly said they held the right to resume powers delegated should the federal government become abusive of those powers. "

Right, that was the Founder's definition of the kinds of "necessity" which compelled them in 1776 to issue their Declaration of Independence.
They also believed that mutual consent was all the authority needed in 1788 to abolish the old Articles of Confederation in favor of their new Constitution.

But no Founder or later President ever proposed or supported unilateral, unapproved declarations of secession at pleasure.
They considered those to be rebellion, insurrection, domestic violence, invasion and/or treason.
And those they opposed with all the military force necessary, be it 1806 (Burr), 1814 (Hartford), 1830 (S.Carolina) or 1860-1 (Confederates).

[chuckles]

...."There is nothing in Texas that comes close to matching the importance of what New Orleans provides to this nation."...

BWWAAHAHA! ........Swamp gas? That's the silliest argument I've heard in some time. Just imagine someone deciding who will be in the new seceded Union, Texas or La? BWWAAAHAHA! Somebody somewhere in NO has a doll with your name on it sticking it with pins. Ask yourself how many are coming into Texas and how many come to La from the rest of the country? It's that simple. We even have people from Louisiana coming to Texas to avoid taxes and storms.

Look, I like Louisiana well enough, but to act like it's more desirable than Texas is just silly. Your going to loose every time. I love hunting and fishing, but I still wouldn't move to La even if retired. Beaumont and Galveston Bay isn't that far away. Many of my neighbors live here in Texas and go fishing in La. Face it, most of it is a swamp.