Actually, Kent Masterson Brown (article in North and South magazine last year) and Jefferson Davis (his book Rise and Fall) make a lot of the nature of the Constitution as a compact. This nature stipulates that, barring some provision on dissolution of the compact, the willful violation of a material provision of the compact by one party relieves other party from the requirement to abide by the compact. Even Daniel Webster agreed with this (speech at Capon Bridge, Virginia). I don't disagree with Brown and Davis, but believe that a better case for secession lies with the will of the majority of the people of the States that want to secede or not. The best basis of legitimacy of secession is found in the popular will of the people of the States that voted to secede (or not). Anti-secessionism was anti-democratic, in that it overthrew properly elected State governments once those States elected to secede. Of course, the unconditional Unionists had to do this. It is illogical to fight a war to force States to remain in the Union against the will of the people of those States, then leave the same secessionist State governments in place, to allow them to try it again, and again until they succeed. Likewise, it is ludicrous to overthrown an elected States government, then allow the people to elect the same secessionists to States office so they can try again, so the Federal government had to declare these men to be ineligible for re-election. Again, it is ludicrous to allow the people to elect others to State offices who will act exactly as the overthrown State officials, so the Federal government had to declare anyone who did not openly oppose secession to be ineligible to vote. Of course, the Federal government has no constitutional authority to dictate to the States who is and is not eligible to vote, but these ridiculous and scandalous acts were carried out because they had to be for the unconditional Unionists to enforce their views on the nature of the Union. These policies were the fruit of the poison tree of a coercive Union. The Federal government lacks a constitutional enforcement mechanism against secession. Jefferson Davis, citing the proceedings of the Federal Convention in 1787, demonstrated that this omission was intentional. There are no provisions in the Constitution allowing the overthrow of a republican State government, nor even allowing the Federal government's forces to enter a State to protect them from invasion without the request from the State legislature or the State governor. President Buchanan also saw no constitutional enforcement mechanism even though he did not recognize a right of secession. Secession is messy. A coercive Union is messier.
Why should the Constitution be any different. Why would the founding fathers have gone to great lengths to ensure that the people in each state be represented and guaranteed a republican government and protected from government excess only to make it that simple for a state to leave the Union and the people be at the mercy of whoever took them out?
As was borne out in the events during and following the war, a much greater threat to liberties comes from a State government or from a Federal Government that refuses to respect the established limits on its authority. It is logically ludicrous for the Federal government to overthrow an elected State government in executing its constitutional obligation to guarantee each State of the Union a republican form of government. Plus, secession is less risky from a civil liberty perspective because the people of Illinois can never be "at the mercy" of the government excesses of the people of Florida, for example, except through the intervention of the Federal government.
Madison ... the latter is another name only for revolution, about which there is no theoretic controversy."
What is the difference between revolutionary secession and constitutional? How does one invoke this revolutionary right? Simply by declaring the act secession to be a revolution? And then is the Federal government bound to respect it because "there is no theoretical controversy" about it? The Southern peoples' beef was with the Federal and northern State governments, not their own State governments. They wanted to keep their State governments as they were.
During the Constitutional Convention, Madison addressed New York's desire to ratify in part: "My opinion ... a rejection."
Actually, this was the private letter to Hamilton I was writing about in my last post. It was written after Virginia's Convention ratified the Constitution, with the proviso that the powers delegated could be resumed if perverted to their (the people's) oppression.
There are other quotes from Madison but I don't have them handy right now. But they all make clear his belief that the arbitrary secession was wrong.
Madison is a double-edged sword in this regard. He wrote on both ends of this argument. For example, he was the author of the letter described, and of the Virginia Resolution of 1798/9. Also, don't confuse wrong with unconstitutional. Many unconditional Unionists cite quotes from the Founding Fathers disapproving of secession or glorifying the Union and say, "Voila! Secession is unconstitutional." Many of these quotes merely show that the author saw that the Union was good and secession was inadvisable as a policy, not unconstitutional.
My point on the Supreme Court case was that a post-war decision could not have relevance to a pre-war constitutional debate. If does, then let me cite the future US Supreme Court decision of the year a.d. 2023 which will declare that secession is completely legal whenever a State decides it wants out of the Union. Just kidding, but you see my point, I hope.
Respectfully,
D J White
And how was that compact violated?
I don't disagree with Brown and Davis, but believe that a better case for secession lies with the will of the majority of the people of the States that want to secede or not.
That's Rawle's position and I would agree with him that the will of the people is paramount. So why didn't the people have a chance to decide? Of the original 7 confederate states only Texas put the matter to a popular referendum. We will never know what the popular will of the people was. Had referendums been held and had it been found that the popular will was secession it is possible, maybe even probable, that the support would have been found in the Congress to amend the Constitution and allow them to go in peace. When you figure that secession wasn't stongly opposed by the majority of Northern newspapers and public opionion until after the south fired on Sumter it's not as far fetched as one might think.
Isn't it the duty of the federal government to protect the republican form of government? More importantly, isn't it the duty of the federal government to protect the people of each state when laws are broken? Rebellion is a violation of the law.
Madison was opposed to arbitrary secession, as he would have been opposed to any state acting arbitrarily against the interests of any other state. He was pretty consistent on that in the letters I've seen.
A Supreme Court decision on a matter of Constitutional law is relevent no matter when the action and no matter when the decision. The Supreme Court ruled that the actions of Texas were not protected under the Constitution. That ruling will stand until overridden by a future court or by an amendment. And yes, should some future court rule that arbitrary secession is legal then I will accept that ruling as law.