Exactly correct.
From the moderated ACW newsgroup:
"There is no established legal procedure for secession. There are, however, two recognized methods of secession -- but neither of them are "established." No one has ever successfully seceded before.
One method would be to get all of the States to agree to spin off one or more states into a separate country. The other method would be to have a revolution "for cause," which means a revolution due to intolerable oppression. Madison made this distinction himself in his leter to Daniel Webster, dated March 15, 1833, wherein he states:
"I return my thanks for the copy of your late very powerful speech in the Senate of the U. S. It crushes "nullification" and must hasten an abandonment of "Secession." But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy."
Secession does not exist as a matter of right according to Madison because it is a breach of the "compact" between the States, whereas secession or "revolution" for cause is recognized without question.
BTW, I have finally come up with the killer argument against the use of the 10th Amendment to support secession. I have always believed that secession is not one of the rights "reserved" to the States because the 10th Amendment (and the 9th to boot) merely express the truism that the federal government is a government of limited powers, namely, that it is limited to the powers expressly enumerated in the Constitution. It means that whatever has not been delegated to the federal government is reserved to the States and the People. When for example, the South attempted to secede in the 1860's, it was the same as a declaration that the U.S. Constitution no longer applied to the Confederate States. It is inconsistent to claim a right to secede under the 10th Amendment, while claiming the document no longer has any force or effect. It is the same as if one sued for breach of contract, claiming that one has enforceable rights under the contract, while also suing for rescission of the contract for failure of the other party or parties to the contract to keep their end of the bargain. A court would be bound to rule that it is inconsistent to seek both remedies at the same time; and that the plaintiff could have one remedy or the other, but not both. The same is true of claiming constitutional rights under a document that one claims no longer has any application.
But that is not the most important, or even the best argument, against claiming a constitutional right to secede. The best argument is by posing this hypothesis:
Let us assume that the Constitution was amended to explicitly exclude secession as a legal right of the States, and that the President and or Congress could act to prevent any attempt at secession. In this scenario, one could say that secession or revolution (and I use the terms interchangeably as Madison did, depending on whether the action was for cause or not) would no longer be reserved to the States or the People by the express terms of the 10th Amendment. As such, there would be no reserved right to secede.
So, would such an amendment, if ever enacted, really deprive the People or the States of the right to revolt or secede? The answer is a resounding, "No." Why? Because the right to revolt is a "self-evident" right inherent in every social compact resulting in the formation of a government. That is what the Declaration of Independence was all about. That is what Madison was talking about, as discussed above. That is what Jefferson said elsewhere in his writings. In short, the Constitution could never prohibit the right to secede, even if it were to be explicitly stated in that document.
My point is that the 10th Amendment is too slender a reed upon which to hang the right of revolution. That right exists with or without the Constitution, and with or without any affirmative declaration or prohibition against the exercise of that right in it. It is the most fundamental right of any community of People to decide for themselves their own form of government and to change it if the government is destructive to the inherent rights of man. Until it is destructive, however, the People have a duty to preserve it.
The secession/revolution of 1861 did not hold a candle to the revolution of 1776 as a revolution for cause. Interestingly enough, the most persuasive argument against secession, as well as the most persuasive argument as to why secession was wrong, came from none other than the Vice President of the CSA, Alexander H. "Little Alex" Stephens. He answered the arguments of Mr. Toombs persuasively before the Georgia Convention when he said Georgia still had a viable alternative in (1) remaining in the Union and fighting it out in Congress; and (2) enacting its own retaliatory legislation to combat the perceived abuses of the Northern States.
In the declaration of causes for secession, the States that furnished such causes gave two basic reasons for secession: (1) that Northern STATES did not abide by their bargain in the compact; and (2) that the newly elected executive was so hostile to the interests of the South that it was inevitable that he would further intensify the hostility. The first reason was no reason to leave the Union, because it did not complain about the federal government's failure to maintain the compact, and it did not say that any petition was made to rectify the problem, much less that the federal government would do nothing to solve the problem. The second typical ground was no ground at all, given that Mr. Lincoln had, up to the time of the declaration of secession by several of the soon-to-be Confederate States, done nothing to establish the legitimacy of the view that he was so hostile to the interests of the South that he would carry through with the acts feared by the southern conventions. His first inaugural address should, instead, have laid those fears to rest.
So, given the above analysis, with which I am sure that Walt would agree in whole or in part, I genuinely doubt that Walt would agree, as you have said, that "the secession of 1861 had the same legal basis as the revolution of 1776 . . ." Assuming that Walt would agree with even the inherent right to revolt as expounded by Madison and Jefferson, I'm sure he would agree that a legitimate secession/revolution would have to be for cause, namely intolerable oppression, or that it would not be legitimate at all. Since the Southern States did not secede for a good cause, based on intolerable oppression which could not be redressed through the existing system, the grounds for secession did not form a legal basis for revolution."
Walt
Before we proceed any further, I must state that the desecration of the Lincoln monument is and was a despicable act. I do not hate Lincoln, but I do despise the methods he used to accomplish his goals. The protection of monuments, historical markers and the preservation of the history and heritage of of ancestors is what we a fighting for, and I denounce anyone that resorts to such tactics on either side.
I just don't understand why anyone has a problem understanding the statement, "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." The powers not given to the federal government, nor denied to the states, remain with the states. There is no article that vests the right of secession to the federal government, and neither is there an article that denies the states that right. The power remains with the state.
In 1803, when writing the Marbury v. Madison decision, Chief Justice Marshall wrote,
"It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.A government that refuses to recognize the rights retained by the states, and exceeds the limitations placed upon it by the state governments, a government that can ignore the Constitution, and refuse to adhere to that compact, has already broken it.The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?"