Nowhere does the Constitution state that the Union shall exist in perpetuity. |
Posted on 04/03/2002 9:52:50 AM PST by r9etb
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.
One can see why: the Constitution itself does not support his case.
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.
The rights and restrictions on the States are defined in Section 10:
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.
Article VI says, in part:
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.
Grant for the sake of argument that you're correct about Virginia. The problem is, most of the secessionist states did not (could not!) have such clauses. The independent country of Virginia entered into a compact (which included significant military support) with states that were in open revolt against the U.S.
Virginia thereby declared itself to be our enemy, and as such the U.S. was justified in a military campaign against it.
But if a state has seceded then it's no longer subject to any restrictions in the Constitution, since it is no longer a party to it.
Also, what about Article VII: The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.
Clearly no state could be forced to be part of the Union without its express consent. By giving consent to enter the Union, a state is supposed to forever surrender it's ability to withdraw its consent?
Why? If Williams says that secession was legal, and that Lincoln was wrong in trying to stop it; and the Constitution flatly contradicts him -- what other argument need be made?
Nowhere does the Constitution state that the Union shall exist in perpetuity. |
And it still doesn't apply!!
Well, here's what it says:
"And it be further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislatures of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session."
The 1862 Supreme Court decision on the Prize Cases cites the Militia Axt as modified in 1795.
The Militia Act was passed at the request of President Washington.
Just saying it doesn't apply doesn't make it so.
You might want to consider an adult response.
Walt
I agree. It was also illegal to secede from Britain. It was also illegal when Texas seceded from Mexico.
Either you beleive that people are endowed by our creator with certain inalienble rights, which includes the right to self government, or you don't. I do. You don't.
I am a Yankee. I am not saying that "The south was right" or anything like that. They were slaveholders. However the fact that it was "illegal" to secede is meaningless.
You have to remember that the Articles of Confederation were a total failure. Something more pervasive was needed, as George Washington said. The Constitution does have a conflict resolution mechanism; it can be amended.
But you are correct. There is no legal way out of the Union without the consent of the other states.
Walt
Article X.
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.
Which is EXACTLY what did happen in 1860-61. The slaveholding states chose to put up their own candidate, Breckinridge, and so split the vote allowing Lincoln to be elected in a plurality.
They didn't like it, they said much the same kinds of things about it that the Democrats (again!) said about G. W. Bush in 2000, and so the seceded rather than face the steady decline of the power of the slaveowner. They had been beaten in "Bleeding Kansas" five years earlier, they had been prohibited by the Wilmot Proviso from extending slavery into the new territories, and they saw no alternatives to either giving up on the inevitable emancipation of their "property" or leaving the union (even if illegally), so that's what they did.
In the case of the slaveholders' rebellion, "the People" had nothing to do with it. It was all done by the will of a few powerful and influential slaveholders and their political cronies.
Hardly a popular revolt.
I didn't say that at all
Both secession of individual states and the abolition or replacement of the constitution itself are implicitly covered under the provisions governing the amendment of the constitution. Secession was, and still is possible. All that is needed is a constitutional amendment providing for the secession of the states that request it. Similarly, the present constitution could be replaced in its entirety through the amendment process. The amendment could be, in effect, a "deconstitution" detailing the disposition of federal assets and liabilities, treaty obligations, etc.
What is NOT provided for in the constitution is the unilateral secession of individual states.
It is an interesting "what if" question as to what would have happened if a constitutional amendment resolution were introduced in congress in 1860 allowing for the secession of the slave states.
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