Walter Williams: Wrong on Secession

Last week, Walter Williams published a column called The Real Lincoln, in which he mostly quoted editorialists to support his claim that "virtually every political leader of the time and earlier believed that states had a right of secession."

If that were really true, of course, the Civil War would never have been fought. "Virtually every" political leader in Washington would have let the secessionist states go their own ways. But of course they didn't do that. Instead, they prosecuted a long, bloody war to prevent it. So that part of Williams' case simply fails.

The question remains as to the legality of secession: does the Constitution grant power to the Federal Government to prevent it? Oddly, Williams does not refer to the Constitution itself, to see whether it has something to say about the matter. Rather, Williams (quoting author Thomas DiLorenzo) only provides several quotations about the Constitution, and peoples' opinions about secession.

Article 1, Section 8 gives Congress the power To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Thus, the Constitution recognizes the possibility of rebellion (armed secession would seem to qualify), and gives Congress the power to suppress it.

The next question is: does secession represent a rebellion or insurrection? Webster's defines insurrection as "an act or instance of revolting against civil authority or an established government." So if secession is a revolt against the defined powers and authority of the Federal Government, as defined in the Constitution, then the Federal Government is granted the power to prevent it.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The secessionist states clearly violated almost every part of Section 10 -- especially that last clause -- and would by any standard be considered in a state of insurrection.

Article III, Section 3 states that Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The actions of the people in secessionist states fit this definition of treason, and it is within the powers of the Federal Government to deal with them.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Section VI clearly states that, since the Constitution is the "supreme Law of the Land," the interests of individual states are inferior to those of the United States -- even if their state Constitutions say otherwise. The individual states are bound to remain part of the United States, both by their ratification of the Constitution, and also by their Oath of Affirmation to support the Constitution.

A plain reading of the Constitution not only does not support DiLorenzo's (and thus Williams's) argument, it flat-out refutes it. The powers of the Federal Government do in fact include the power to prevent secession, and Lincoln was properly discharging his duties as President when he acted against the Confederacy.

DiLorenzo's argument thus reduces to whether or not Congress and Lincoln should have allowed the seceeding states to violate the supreme Law of the Land with impunity -- which puts DiLorenzo in the awkward position of having to argue against the rule of Law.

Finally, the pro-secession case simply ignores history: a war between North and South was inevitable. It had been brewing for decades. Even had the secession been allowed to proceed, war would undoubtedly have occurred anyway, following the pattern of Kansas in the 1850s.

Williams is a smart fellow, and he says a lot of good things. But he also says some dumb things -- his "Lincoln" column being exhibit A.

I stated "the Confederates placed a value of $3 billion on their slaves -- equivalent to $58 billion in current dollars and $3 trillion as a percentage of GDP", to which you replied:

And how much did the war cost in those terms?

Given that federal government spending in 1860 totaled $63.1 million, what chance do you think Lincoln would have had to convince Americans to pay slaveholders anything close to $3 billion (over 47 times the annual federal budget)?

Civil War spending topped off at $1.3 billion in 1865, but that was after a great deal of wartime inflation, so even assuming that Lincoln could have raised enough money to buy off the slaveholders, you'd be hard pressed to prove that doing so would have been cheaper for Americans. Moreover, what kind of precedent would paying off "man stealers" set for the American government?

...emancipating the slaves and preventing secession both violate the Constitution as it existed at the time.

Lincoln didn't prevent secession. It had already occurred before his inauguration as President. What he in fact did was to break up an unconstitutional Confederation of states and defeat them in the unconstitutional war they started (see Art. I, Section 10). Lincoln believed that any Americans had a right to revolution for just cause. He just didn't believe that the election of a Republican was "just cause". Do you believe that a desire to preserve the institution of slavery was just cause for a revolution?

Lincoln emancipated negroes held in bondage by Confederates as a wartime measure. Even if you consider slaves "property", do you doubt that a President had/has the constitutional power to confiscate the property of people who have taken up arms against the U.S.? Lincoln also spearheaded the passage of the 13th Amendment, which constitutionally emancipated all negroes in America.

You have to keep in mind that we're talking about things as they should be, not as they are. The issue of secession was decided by force with the Civil War, establishing the principle that "might makes right."

The issue of the use of force was decided by the Constitution when it granted to the Federal Government the power to suppress insurrection. The issue of whether secession qualifies as insurrection seems also to have been decided: it does.

As to which side best embodies the principle of "might makes right" -- it's hard to avoid giving the grand prize to a group of folks who were willing to fight a war to preserve the institution of slavery.

I stated: "The absence of [a dissolution clause] in the U.S. Constitution strongly suggests that peaceful secession was never seriously considered by any state entering into the Union", to which you replied:

This can only be true, if, and only if, the 9th and 10th Amendments are meaningless. If they are meaningless, the situation begs the question, why are they there? So, now answer: Why do you believe the 9th and 10th Amendments exist given your above stated belief?

The 9th and 10th Amendments are not dissolution clauses. They say nothing about states seceding or how assets or debts will be distributed in the event of dissolution. The 9th and 10th were obviously weak, ambiguous attempts to check federal authority, but claiming that the 9th and 10th amendments were intended to make it easier for states to preserve slavery only weakens their moral authority. Clearly, no state has/had a moral "right" to preserve slavery.

The Supreme Court failed to find such logic compelling when it cited the Militia Act as empowering the president to act, or when they referred to the "So-called Confederate States" as being in rebellion.

Apparently, this only works because you ignore the fact that the Supreme Court you hold so dear was part of the government those States were trying to leave. If you cannot fathom how that would be an immense conflict of interest, then further discussion with you is pointless. You have the same blind adherence to dogma, no matter how wrong, that propels BATF, FBI, and DEA agents through doors, guns blazing; that drives the IRS to target middle America, ripe for the picking, rather than the wealthy who can afford to defend themselves; that demands absolute loyalty to whomever you deem should be in charge, brokering no dissent. You might not agree with all the policies at DemocratUnderground, but your thought processes would fit in perfectly.

To sum up, this thread is not about slavery, or how proud anyone is about their ancestors. It is about a question that could be important in the near future. I, unlike some, would prefer a peaceful separation should things become too divided, but people like Walt and the "War Settled the Question" crowd seem to crave bloodshed before anything can be resolved. Do you all look forward to killing your neighbors, cousins, or brothers, if they decide to go their own way, all in the name of your precious federal government? That's not "red text" behavior.

LTS
end rant

No, a State law that violates a Constitutional provision is invalid. Since secession is not proscribed by that document, a State law or resolution seceding is not invalid.

This is a circular argument. You start off by saying that secession is OK, and end up proclaiming that secession is not invalid, because secession is OK.

So let's take this slowly.

Article VI says, in part:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Which is to say: in cases where there is any conflict between the Constitution and the laws or constitution of any state, the Constitution is supreme. A state cannot legally do something that runs counter to the Constitution.

Every elected official in every state is required to swear an oath declaring to be bound by the Constitution.

If we want to split hairs here, let's grant for the sake of argument that secession is not proscribed. Even so, the act of secession must of necessity begin before the state has actually seceeded.

Remember: during those proceedings, the state and its officers are still part of the United States, and as such are explicitly sworn to be bound by the Constitution. This remains true right up until the last motion of the governor's signature on the bill.

This is in direct conflict with Article VI -- which they swore to uphold.

Thus, even if "secession" is not proscribed, every act leading up to it is an explicit and undeniable act of insurrection, which the Federal Government is empowered to suppress.

In light of this, it's hard to see how one can rationally defend the claim that the Constitution is actually silent on secession. After all: the Constitution explicitly denies the states the right to perform any of the actions necessary actually to do it!

Thus, in working through the various machinations of the secession act, the elected officials of the state have been explicitly breaking their solemn oath to uphold the Constitution as the supreme Law of the Land. Instead, while still sworn to support the Constitution, they are declaring that the actions of their own state government are superior to Article VI. If you've granted (for the sake of argument) that secession is not proscribed, then working for it cannot be a failure to uphold the Constitution. That's like saying tapdancing is not against the Constitution, but putting on your tapshoes is a violation. Preparing to do a legal thing isn't illegal.

LTS

If you've granted (for the sake of argument) that secession is not proscribed, then working for it cannot be a failure to uphold the Constitution. That's like saying tapdancing is not against the Constitution, but putting on your tapshoes is a violation. Preparing to do a legal thing isn't illegal.

You obviously miss the point: even if "secession" is OK, all acts leading up to it are explicitly contrary to the Constitution, and as such are acts of insurrection.

It's like granting for the sake of argument that a robber is doing nothing illegal when he walks out of the bank with the money. The act of actually performing armed robbery is still illegal, but walking out with the bag is OK.

So now you're stuck having to defend the proposition that it is possible for an act to be legal when all of the acts leading up to it are illegal. Saying that states can seceed is like saying the robber should go free if he can just make it out the door.

Note that the reason we got to this point in the first place is that you guys are making an indefensible claim that secession is not an act of insurrection.

So let's just drop the pretense: the secession of the southern states was an act of revolt, and was acknowledged to be so even at the time. Within this thread we have various Confederate leaders quoted as calling it "the revolution," or words to that effect.

The reason people don't want to call it a revolution or insurrection is to do so is to admit that Lincoln (as commander in chief) and the Federal Government as a whole, were Constitutionally justified in moving against the breakaway states.

Once we get past that impediment, we get into the unfortunate (for you) area of whether the South had just cause for its revolt.

The long-term roots of the conflict had to do with slavery, and the South's fears of its abolition. Thus we had the Missouri Compromise of 1820, and all of the political maneuverings before and after. In the political atmosphere of the time, "States Rights" meant "the right of states to decide on an individual basis whether slavery was legal."

We know that this is what drove secession -- if it were anything else, the election of Abraham Lincoln and the abolitionist Republicans would not have been the final straw.

So perhaps you can answer: is the preservation of a state's right to allow enslavement of human beings, a just cause for revolution?

So perhaps you can answer: is the preservation of a state's right to allow enslavement of human beings, a just cause for revolution?

No. And this question is still irrelevant, since injustice given constitutional luster, is still constitutional.

Once we get past that impediment, we get into the unfortunate (for you) area of whether the South had just cause for its revolt.

Once we get past this "impediment", we get into the unfortunate (for us all) area that means for a group or State to secede, they must first make sure they can slaughter enough of the citizens of their former country, that the former country cannot stop them. That, or face slaughter themselves. Since many on this thread like to ask questions of morality, I'll ask one of my own:

Is the use of violence to keep such a group from seceding the just and moral act of a Christian nation? Forget 1861, I'm talking about 2002.

LTS

No. And this question is still irrelevant, since injustice given constitutional luster, is still constitutional.

Let's go back to the beginning, and Williams's original column, and his claim that states have a right of secession, and as such Lincoln had no legal grounds for opposing it.

It's been pretty well demonstrated that Williams's arguments have no constitutional backing, whereas Lincoln's actions have explicit backing.

Is the use of violence to keep such a group from seceding the just and moral act of a Christian nation? Forget 1861, I'm talking about 2002.

So now we come to your comment concerning justice, which is the only argument left to you. Let us grant that a state may have just reasons for seceeding (even if it is an act of revolt, and thus legally open to suppression).

This brings us right back to the "irrelevant" question: was the defense of the right of enslavement a just cause? No.

Is the act of suppression of insurrection "just"? If the Constitution is a just document, then the suppression is just.

Is suppression moral? It depends. What is the nature of the insurrection being suppressed?

It's been pretty well demonstrated that Williams's arguments have no constitutional backing, whereas Lincoln's actions have explicit backing.

I do not agree with your assertion. I am only humoring it in order to get to the heart of the matter, whether it is moral, just and Christian to take up arms against a group who wishes for peaceful secession in 2002. If Maine held a referendum and 90% of State citizens voted to secede, would you, if president, send in the troops? Bomb the capital?

To the posters who start playing the reductionist game of saying then an individual's consent to be governed can be revoked, and that the result is anarchy, I say this. Anarchy would not be negative if it weren't for people willing to use force to impose their views upon others. All of you "might makes right" people should take note.

LTS

Here's what Lincoln had to say about that issue:

"[Revolution is] a moral right when exercised for a morally justifiable cause, [but] when exercised without such cause revolution is no right, but simply a wicked exercise of physical power."

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