Civil War History - Secession and PoliticsWas it Slavery, or was it States Rights? Perhaps it was the election of Lincoln? What were the real reasons for Southern Secession and what were the political issues in this time of war? Find your answers here in the Secession and Politics Disussion.
With regards to your statement "that folks prior to the Civil War thought there was a natural right to revolution," and you question whether there was a legal one, I would only ask you this, "What then are sufficient grounds for a natural revolution? Was secession a natural right that was suppressed because of missing legal rhetoric?
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If I may jump in, the Declaration of Independence tells us exactly what are sufficient grounds to exercise the natural right to revolution:
When any form of government becomes destructive of the ends of securing the natural rights of its People, such rights being life, liberty, and the pursuit of happiness, it is the right of the People to alter or abolish it and to institute new government, laying its foundations on such principles and organizing its powers in such forms as to them shall seem most likely to effect their safety and happiness.
I think that you have dismissed the credentials of William Rawle far too quickly. This gentleman was George Washington’s first candidate to be the first Attorney General of the United States,
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I have consulted every biography of George Washington I can lay my hands on, from John Marshall's 2-volume biography to Flexner's biography, to Willard Sterne Randall's biography, and I cannot find any reference to Rawle being Washington's first choice for Attorney-general.
What I did find:
"The attorney-generalship being so minor a post, Washington felt
justified in appointing a young friend who would be an agreeable
companion: Edmund Randolph of Virginia." [James Thomas Flexner,
_Washington: The Indispensable Man,_ p. 222] No hint at all that
anyone else had been considered, and no mention of Rawle at all in the
biography.
" 'I am a chld of the Revolution,' Edmund Randolph once asserted, as
if hoping to conceal the politically dubious parentage of a Tory
father, who had fled to England early in the rebellion with Virginia's
deposed royal governor. Young Edmund's family disgrace had been
salved by General Washington, who accepted Randolph into his personal
circle as an aide de camp. With no children of his own on which to
project future hopes, Washington grew close to the deferential youth.
Their intimacy survived publication of letters forged by Randolph's
father denigrating the commanding officer's patriotism.
"Made legitimate, so to speak, by his brief military career, Randolph
went on to twenty years of public service as mayor of Williamsburg,
attorney general of his state, a member of Congress, Virginia's
postwar governor, and moving force behind the Annapolis Convention of
1786 that led to the Constitutional Convention of the following
summer. At Philadelphia, Randolph introduced the Virginia Plan for a
federal government resting upon the power and wealth of large states,
then backed away from his proposal and refused to sign the
convention's final product. A self-proclaimed 'recusant' in
Virginia's bitter ratification struggle, Randolph was finally goaded
by Patrick Henry's harshly personal criticism into leading a
successful Federalist drive. After engineering ratification by the
narrowest of margins, Randolph zigzagged again, this time endorsing
Henry's call for a second convention to address the shortcomings of
the first." [Richard Norton Smith, _Patriarch: George Washington and
the New American Nation,_ p. 240] Again, no mention of Rawle and no
hint of any other choice for attorney-general.
"The offices had to be filled, primarily by the president, who
suffered in consequence, as did all of his successors. He was plagued
with applications from men who were willing to sacrifice themselves at
a suitable salary for the good of the country. ... The key
appointments made by Washington were those of Jefferson as secretary
of state and Alexander Hamilton as secretary of the treasury. They
were the dominant figures in his cabinet. Knox had much less
influence and Attorney General Edmund Hamilton played only a minor
role." [John R. Alden, _George Washington: A Biography,_ p. 245] As
with the others, no mention of Rawle or of any other candidate for the
post of attorney general.
"The office of attorney general was filled by Mr. Edmund Randolph. To
a distinguished reputation in the line of his profession, this
gentleman added a considerable degree of political eminence. After
having been for several years the attorney-general of Virginia, he had
been elected its governor. While in this office, he was chosen a
member of the convention which framed the constitution, and was also
elected to that which was called by the state for its adoption or
rejection. After having served at the head of the executive the term
permitted by the constitution of the state, he entered into its
legislature, where he preserved a great share of influence." [John
Marshall, _The Life of George Washington,_ Vol 2, pp. 199-200]
Reading this summary of Randolph's qualifications, I find it more
difficult to believe an obscure figure like Rawle, with no significant
accomplishment to match Randolph's, would have been the first choice.
Rawle’s Philadelphia law firm, Rawle and Henderson, founded in 1783, was recognized by the Pennsylvania Legislature as "the oldest law office in continuous practice in America" in 1983.
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Which has absolutely nothing to do with Mr. Rawle's credentials as a constitutional scholar.
William Rawle’s grandfather, Francis Rawle, wrote the first book published by Benjamin Franklin.
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Which also has absolutely nothing to do with Mr. Rawle's credentials as a constitutional scholar.
Also, William Rawle was the United States Attorney for the District of Pennsylvania (appointed by George Washington), and a founder of the Philadelphia Bar Association.
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Mr. Rawle was in actuality a relatively obscure figure. There are no biographies written of him, he left behind no large body of scholarly work on the Constitution other than his one rather forgettable book used at West Point for a single year and then summarily replaced by James Kent's Commentaries, and he is only cited today by those who wish to claim secession as a constitutional right--which is something no serious constitutional scholar today would claim.
The _Dictionary of National Biography_ had no entry for him. Neither did the
_American National Biography._
The entry I found on him was in _The National Cyclopedia of American
Biography,_ published in 1897:
[QUOTE ON]
RAWLE, William, jurist, was born in Philadelphia, Pa., Apr. 28, 1759,
great-grandson of Francis Rawle, who was a member of the Society of Friends and emigrated from England to Pennsylvania in 1686. He was educated at the Friend's Academy, and while a student there the revolutionary war broke out. The Rawles and their immediate connections being loyalists, William removed to New York when the British evacuated Philadelphia, and there took up the study of law under Counsellor Kemp. He then went to London and completed his studies in the Middle Temple, returned to Philadelphia in 1783, was admitted to practice in the supreme court, soon attained distinction as a practitioner, and in 1789 was elected to the legislature. He was U.S. district attorney for his state (1791-99), and prosecuted the offenders in the western whiskey riots of 1794 and 1798. The office of judge of the U.S. district court for Pennsylvania was several times offered to him, but declined on account of his youth and his professional prospects. For forty years--from 1796 until his death--he was a trustee of the University of Pennsylvania; and for fifty years a member of the American Philosophical Society, acting for twenty years as one of its councillors. He was one of the original members of the Society for Political Inquiries, established by Benjamin Franklin, and its meetings were held at his house. He was first president of the Historical Society of Pennsylvania, which he helped to found in 1824, and for many years was president of the Abolition Society. He was the chancellor of the Associated Members of the Bar of Pennsylvania, and after this and the Law Association were united, in 1827, he became chancellor of the reorganized society. He was first vice-president of the Law Academy, and served for many years as secretary of Library Company. He was attorney and counsel for a long period for the Bank of the United States. In 1830, together with Thomas I. Wharton and Joel Jones, he revised the civil code of Pennsylvania, and the reports of the commission are
mainly his work. The varied titles of his writings show the breadth of his mind and the extent of his culture. They include "An Address before the Philadelphia Society for Promoting Agriculture" (1819); "Two Addresses to
the Associated Members of the Bar of Philadelphia" (1824): " A View of the
Constitution of the United States " (1825, - 2d ed. 1829), his chief work;
" Discourse on the Nature and Study of the Law" (1832); "Vindication of the
Rev. Mr. Heckewelder's 'History of the Indian Nations' " ; "Biographical
Sketch of the Life of Sir William Keith"; "A Sketch of the Life of Thomas
Mifflin." Among his manuscripts are an "Essay on Angelic Influences," said
to be "replete with the most fascinating speculation and soundest
reflection";"Original Sin and the Virtue of Baptism;" a fine translation of
the "Phaedo" of Plato, with a commentary; and an argument claiming that
sufficient proof of the truth of Christianity can be derived from the
parables of Jesus Christ alone. He received the degree of LL. D. from
Princeton in 1827 and from Dartmouth in 1828. Mr. Rawle was married to
Sarah Coates Burge, daughter of a merchant of Philadelphia, and had twelve
children. He died in Philadelphia, Apr. 12, 1836. His son, William, also
became a distinguished lawyer, and was a member of the American
Philosophical Society, a trustee of the University of Pennsylvania, and
reporter of the state supreme court, besides holding other offices.
[QUOTE OFF]
[_The National Cyclopedia of American Biography,_ Vol VII, James T. White &
Co., NY, 1897, pp. 442-443]
He was an accomplished lawyer and active in his community, a pillar of
society. But his bona fides as a constitutional scholar appear to be sorely
lacking.
The fact that Mr. Rawle's book was used by the Federal government to teach it's officers at West Point that States had a right to secede is not only noteworthy, but I feel of considerable significance.
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There is no evidence that Rawle's book was used to teach cadets at West Point that states had a right to secede. Rawle's book was used as a text for a single year, but there is no evidence that the section on secession was taught or that it was endorsed by the faculty.
Excerpts from Mr. Rawle's book:
[snip]
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I'd like to point out that Mr. Rawle never cites any authority for his assertions. He simply makes one unsupported assertion after another.
In contrast, Joseph Story, Associate Justice of the US Supreme Court, and Dane Professor of Law at Harvard University, punctuates his text denying any legality of secession with notes showing the sources and authorities of the Founding Fathers he used.
I'm new to this board but have discussed this topic on other boards. I'm personally fascinated by the topic, and impressed by the caliber of its discussion here. Since this is my first post, its nearly impossible not to rehash issues you've already discussed. For that I hope you'll forgive me.
I'll start by rehashing the right to secession. I believe the south had it in 1861, and that any state should have it now. I'm aware that the U.S.S.Ct. decided differently (Texas v. White, IIRC), but I find that decision contrary to the terms of the Constitution and to be a results-oriented decision borne of the time.
My belief is grounded in the fact that the Constitution does not forbid secession nor does it provide the fed. gov't. the authority to legislate on the issue. Thus, it must be a power left to the states by the structure of the Constitution; a structure affirmed by the 10th Amend.
Secession was a topic familiar to the drafters of the Constitution and the states which ratified it. Terms for secession or to prohibit it were offered, but no such terms were included in the Constitution. I don't believe that a Constitution which contained a prohibition on secession, or provided the fed. gov't. the authority to legislate on the issue, would have ever been ratified.
Based on my belief that secession is constitutional, I believe that federal interference with that right is unconstitutional. I think Lincoln acted unconstitutionally when he sought to repatriate the seceeded states. Worse, I think his conduct there created the worst type of precedent - that a majority may do what it wants if it has the power, regardless of the Constitution. I believe that this results in a nation of man (in the broad sense, the term to include both genders) rather than a nation of law. The more practical result is the uncontrollable growth of the central gov't at the expense of state sovereignty.
I look forward to sharing thoughts on these issues.
Senator Henry Cabot Lodge of Massachusetts wrote the following in 1899 in his biography of Daniel Webster:
[snip for brevity]
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Well, Lodge was demonstrably wrong, which I will get to, but what do you make of his later statement in that same work that by 1830 the popular conception of the government had changed. The new popular view "made peaceable secession a mockery, and a withdrawal from the Union equivalent to Civil War."(p. 178) Hence, the "popular idea of the constitution" had changed. "It was no longer regarded as an experiment from which the contracting parties had the right to withdraw, but as the charter of a national government."(p. 178) ?
As to his first statement concerning right to peacably withdraw, let's consider what George Washington said:
"To the efficacy and permanency of your Union, a government for the
whole is indispensable. No alliance, however strict, between the parts
can be an adequate substitute; they must inevitably experience the
infractions and interruptions which all alliances in all times have
experienced. Sensible of this momentous truth, you have improved upon
your first essay, by the adoption of a constitution of government
better calculated than your former for an intimate union, and for the
efficacious management of your common concerns. This government, the
offspring of our own choice, uninfluenced and unawed, adopted upon
full investigation and mature deliberation, completely free in its
principles, in the distribution of its powers, uniting security with
energy, and containing within itself a provision for its own
amendment, has a just claim to your confidence and your support.
Respect for its authority, compliance with its laws, acquiescence in
its measures, are duties enjoined by the fundamental maxims of true
liberty. The basis of our political systems is the right of the people
to make and to alter their constitutions of government. But the
Constitution, which at any time exists, till changed by an explicit
and authentic act of the whole people, is sacredly obligatory upon
all. The very idea of the power and the right of the people to
establish government presupposes the duty of every individual to obey
the established government. " [George Washington, "Farewell Address,"
1796]
Washington foresaw the evil influence of men like His Satanic Majesty,
John C. Calhoun, and warned us against them: "The unity of government
which constitutes you one people is also now dear to you. It is justly
so, for it is a main pillar in the edifice of your real independence,
the support of your tranquility at home, your peace abroad; of your
safety; of your prosperity; of that very liberty which you so highly
prize. But as it is easy to foresee that, from different causes and
from different quarters, much pains will be taken, many artifices
employed to weaken in your minds the conviction of this truth; as this
is the point in your political fortress against which the batteries of
internal and external enemies will be most constantly and actively
(though often covertly and insidiously) directed, it is of infinite
moment that you should properly estimate the immense value of your
national union to your collective and individual happiness; that you
should cherish a cordial, habitual, and immovable attachment to it;
accustoming yourselves to think and speak of it as of the palladium of
your political safety and prosperity; watching for its preservation
with jealous anxiety; discountenancing whatever may suggest even a
suspicion that it can in any event be abandoned; and indignantly
frowning upon the first dawning of every attempt to alienate any
portion of our country from the rest, or to enfeeble the sacred ties
which now link together the various parts." [Ibid.]
Washington knew that the states were not independent under the
Constitution, and in his cover letter transmitting the new
Constitution to Congress he said, "It is obviously impracticable in
the foederal [sic] government of these States; to secure all rights of
independent sovereignty to each, and yet provide for the interest and
safety of all--Individuals entering into society, must give up a share
of liberty to preserve the rest. The magnitude of the sacrifice must
depend as well on situation and cir****tance, as on the object to be
obtained. It is at all times difficult to draw with precision the line
between those rights which must be surrendered, and those which may be
reserved; and on the present occasion this difficulty was encreased
[sic] by a difference among the several States as to their situation,
extent, habits, and particular interests." [George Washington to
President of Congress, 17 Sep 1787]
"A survey of this correspondence and of his official career indicates
that the dominant note in the political thinking of Washington, both
before and after 1789, was his unwavering belief that only a strong central government, able to determine and enforce national policies, would enable the United States to assume its appropriate position among the nations of
the world." [Harold W. Bradley, "The Political Thinking of George
Washington," _Journal of Southern History,_ Vol XI, No. 4, Nov, 1945,
p. 472]
"No man in the United States is, or can be more deeply impressed with the necessity of reform in our present Confederation than myself. No man perhaps has felt the bad effects of it more sensibly; for to the defects thereof, & want of Powers in Congress may justly be ascribed the prolongation of the War & consequently the Expences occasioned by it. More than half the perplexities I have experienced in the course of my command, and almost the whole of the difficulties & distress of the Army, have
their origin here." [Washington to Alexander Hamilton, 31 Mar 1783]
Three months later he repeated this theme in his "Circular to State Governments," in which he wrote, "There are four things, which I humbly conceive, are essential to the well being, I may even venture to say, to the existence of the United States as an Independent Power:
"1st. An indissoluble Union of the States under one Federal Head.
"2ndly. A Sacred regard to Public Justice.
"3dly. The adoption of a proper Peace Establishment, and
"4thly. The prevalence of the pacific and friendly Disposition, among
the People of the United States, which will induce them to forget
their local prejudices and policies, to make those mutual concessions
which are requisite to the general prosperity, and in some instances,
to sacrifice their individual advantages to the interest of the
Community."
"Yet it will be a part of my duty, and that of every true Patriot, to
assert without reserve, and to insist upon the following propositions,
That unless the States will suffer Congress to exercise those
prerogatives, they are undoubtedly invested with by the Constitution,
every thing must very rapidly tend to Anarchy and confusion, That it
is indispensible to the happiness of the individual States, that there
should be lodged somewhere, a Supreme Power to regulate and govern the
general concerns of the Confederated Republic, without which the Union
cannot be of long duration. That there must be a faithfull [sic] and
pointed compliance on the part of every State, with the late proposals
and demands of Congress, or the most fatal consequences will ensue,
That whatever measures have a tendency to dissolve the Union, or
contribute to violate or lessen the Sovereign Authority, ought to be
considered as hostile to the Liberty and Independency of America, and
the Authors of them treated accordingly."
"I could demonstrate to every mind open to conviction, that in less
time and with much less expence than has been incurred, the War might
have been brought to the same happy conclusion, if the resources of
the Continent could have been properly drawn forth, that the
distresses and disappointments which have very often occurred, have in
too many instances, resulted more from a want of energy, in the
Continental Government, than a deficiency of means in the particular
States. That the inefficiency of measures, arising from the want of an
adequate authority in the Supreme Power, from a partial compliance
with the Requisitions of Congress in some of the States, and from a
failure of punctuality in others, while it tended to damp the zeal of
those which were more willing to exert themselves; served also to
accumulate the expences of the War, and to frustrate the best
concerted Plans." [George Washington, "Circular to State Governments,"
8 June 1783]
Thomas Jefferson:
"But if on a temporary superiority of the one party, the other is to resort to a scission of the Union, no federal government can ever exist." [Thomas Jefferson to John Taylor, 4 June 1798]
And let's not forget that when Aaron Burr plotted to get Louisiana Territory to secede, Jefferson wanted Burr tried for treason. When John Marshall refused to convict Burr on treason charges, Jefferson wanted to have Marshall impeached.
James Madison was the only Founding Father to live through an actual threatened secession crisis, the Nullification Controversy. He wrote several things on it, each time denying secession as a right possessed by single states which they could use anytime they wished.
"Applying a like view of the subject to the case of the U. S. it results, that the compact being among individuals as imbodied into States, no State can at pleasure release itself therefrom, and set up for itself. The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect. It will hardly be contended that there is anything in the terms or nature of the compact, authorizing a party to dissolve it at pleasure." [James Madison to Nicholas Trist, 15 Feb 1830]
"A political system which does not contain an effective provision for
a peaceable decision of all controversies arising within itself, would
be a Govt. in name only. Such a provision is obviously essential; and
it is equally obvious that it cannot be either peaceable or effective
by making every part an authoritative umpire. The final appeal in such
cases must be to the authority of the whole, not to that of the parts
separately and independently. This was the view taken of the subject,
whilst the Constitution was under the consideration of the people. It
was this view of it which dictated the clause declaring that the
Constitution & laws of the U. S. should be the supreme law of the
Land, anything in the constn or laws of any of the States to the
contrary notwithstanding." [James Madison, Notes on Nullification]
"It is remarkable how closely the nullifiers who make the name of Mr.
Jefferson the pedestal for their colossal heresy, shut their eyes and lips,
whenever his authority is ever so clearly and emphatically against them.
You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, Vol. 2, with respect to the powers of the old Congress to coerce
delinquent States, and his reasons for preferring for the purpose a naval to
a military force; and moreover that it was not necessary to find a right to
coerce in the Federal Articles, that being inherent in the nature of a
compact. It is high time that the claim to secede at will should be put
down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject." [James Madison to Nicholas Trist, 23 Dec 1832]
"The Constitution requires an adoption in toto, and for ever." [James Madison to Alexander Hamilton, 20 July 1788]
I find this letter interesting because not only did "at pleasure" imply that there were conditions under which a State could separate, but Madison made it clear what those conditions might be i.e. consent of the other States, usurpations, or abuses of power.
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Consent of the other States is required for a state to secede. Usurpations or abuses of power would lead to the entire compact being dissolved, affecting all the states, not just one.
George Tucker, another legal heavyweight,
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I find it curious that those who claim a right to unilateral secession also claim that obscure figures like Rawle and St. George Tucker are "legal heavyweights." What are Tucker's actual bona fides? I've looked into Rawle, and his are sorely lacking. How can one ignore a true giant like Joseph Story, a real scholar who was not only associate justice of the US Supreme Court but also Dane Professor of Law at Harvard University, the subject of several biographies, and the author of a significant body of work on the Constitution?
The Southern states used the same process to secede that the original thirteen states used to ratify the U.S. Constitution, i.e., by voting in special conventions comprised of delegates who were elected by the people, with the exception of Tennesee.
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Then what do you make of Tennessee's attempted secession?
And it's not really the way they entered. No state became a part of the United States by virtue of its own action, therefore no state can leave the United States by virtue of its own action.
Regarding Article VI, Section 2, my interpretation of this clause means that ony those federal laws which are pursuant to the Constitution are the 'supreme law,' and if these laws are not pursuant to the Constitution, they are not the supreme law of the land. Wouldn't this imply that the States have a right/duty to interpret the U.S. Constitution equally with the federal government?
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The People of the States are the parties to the constitutional compact, and they are supreme over it. If the People of the States wish to declare a law unconstitutional, they can do so, provided it is the People of ALL the states who are speaking, not just the People of a single state.
Since we seem to have different interpretations of Amendments and Articles, I will leave you with a question and a comment. By forcing the South to stay in the Union, is this not just another form of slavery?
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No, because the states voluntarily entered the Union and obligated themselves to the other states and to the Constitution.
I had read James Madison's letter to Nicolas Trist in it's entirety, but I read it again and I'm including an additional paragraph from that letter, which is compatible with the one from my previous posting: Applying this view of the subject to a single community, it results, that the compact being between the individuals composing it, no individual or set of individuals can at pleasure, break off and set up for themselves, without such a violation of the compact as absolves them from its obligations. It follows at the same time that, in the event of such a violation, the suffering party rather than longer yield a passive obedience may justly shake off the yoke, and can only be restrained from the attempt by a want of physical strength for the purpose. The case of individuals expatriating themselves, that is leaving their country in its territorial as well as its social & political sense, may well be deemed a reasonable privilege, or rather as a right impliedly reserved. And even in this case equitable conditions have been annexed to the right which qualify the exercise of it. Again, what Madison is saying is pretty clear to me.
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Individuals can leave anytime they wish. States, however, cannot.
In his report on the Virginia Resolution, Madison said:
[i]The constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority, of the constitution, that it rests upon this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated and consequently that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. (The Madison Report in the Virginia Report of 1799-1800).
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What you are missing, Dawna, is that Madison is speaking of the states in the plural. The states together are the parties to the compact, and when acting together they can interpose. A single state, however, has no such power. How do we know this is what he meant? Because he told us:
"The essential difference between a free Government and Governments not
free, is that the former is founded in compact, the parties to which are
mutually and equally bound by it. Neither of them therefore can have a
greater right to break off from the bargain, than the other or others have
to hold them to it. And certainly there is nothing in the Virginia
resolutions of -98, adverse to this principle, which is that of common sense
and common justice. The fallacy which draws a different conclusion from
them lies in confounding a SINGLE [emphasis in original] party, with the
PARTIES [emphasis in original] to the Constitutional compact of the United
States. The latter having made the compact may do what they will with it.
The former as one only of the parties, owes fidelity to it, till released by
consent, or absolved by an intolerable abuse of the power created. In the
Virginia Resolutions and Report the PLURAL [emphasis in original] number,
STATES [emphasis in original], is in EVERY [emphasis in original] instance
used where reference is made to the authority which presided over the
Government. As I am now known to have drawn those documents, I may say as I do with a distinct recollection, that the distinction was intentional. It
was in fact required by the course of reasoning employed on the occasion.
The Kentucky resolutions being less guarded have been more easily perverted. The pretext for the liberty taken with those of Virginia is the word
RESPECTIVE [emphasis in original], prefixed to the 'rights' &c to be secured
within the States. Could the abuse of the expression have been foreseen or
suspected, the form of it would doubtless have been varied. But what can be more consistent with common sense, than that all having the same rights &c, should united in contending for the security of them to each.
"It is remarkable how closely the nullifiers who make the name of Mr.
Jefferson the pedestal for their colossal heresy, shut their eyes and lips,
whenever his authority is ever so clearly and emphatically against them.
You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, Vol. 2, with respect to the powers of the old Congress to coerce
delinquent States, and his reasons for preferring for the purpose a naval to
a military force; and moreover that it was not necessary to find a right to
coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject." [James Madison to Nicholas Trist, 23 Dec
1832]
Welcome, Russ. Hope your stay here is pleasurable.
"I'll start by rehashing the right to secession. I believe the south had it in 1861, and that any state should have it now. I'm aware that the U.S.S.Ct. decided differently (Texas v. White, IIRC), but I find that decision contrary to the terms of the Constitution and to be a results-oriented decision borne of the time."
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I find it to be the law of the land and wholly consistent with previous court rulings dating back to the early 1800s, and with the views of the Founding Fathers, as well as wholly consistent with the Constitution.
My belief is grounded in the fact that the Constitution does not forbid secession nor does it provide the fed. gov't. the authority to legislate on the issue. Thus, it must be a power left to the states by the structure of the Constitution; a structure affirmed by the 10th Amend.
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Article VI, Clause 2 provides that the Constitution and US Laws passed in pursuance of the Constitution are the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.
When a state p***** an ordinance of secession, it is creating a thing in the constitution or laws of that state that is contrary to the US Constitution and US Laws passed in pursuance of the Constitution from being supreme law within the borders of that state. Therefore, by the Constitution itself, that act [passing an ordinance of secession] is unconstitutional and legally null. Because the Constitution prohibits the effect of an ordinance of secession, unilateral state secession is a power excepted from the 10th Amendment reserved powers.
Secession was a topic familiar to the drafters of the Constitution and the states which ratified it. Terms for secession or to prohibit it were offered, but no such terms were included in the Constitution.
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I don't believe you can substantiate the claim that "terms for secession or to prohibit it were offered."
I don't believe that a Constitution which contained a prohibition on secession, or provided the fed. gov't. the authority to legislate on the issue, would have ever been ratified.
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You're entitled to your belief, of course. I disagree with you, though. I offer as evidence the North Carolina Ratification Debate and the comments of Gov. Samuel Johnston from 29 July 1788:
"The Constitution must be the supreme law of the land; otherwise, it would be in the power of any one state to counteract the other states, and withdraw itself from the Union. The laws made in pursuance thereof by Congress ought to be the supreme law of the land; otherwise, anyone state might repeal the laws of the Union at large. Without this clause, the whole Constitution would be a piece of blank paper." [_Elliot's Debates,_ Vol IV, pp. 187-188]
Gov. Johnston was not contradicted.
Because secession is unconstitutional, President Lincoln was perfectly within the Constitution when he suppressed the rebellion.
Welcome and I'm glad that you've jumped in with your first post. I'm fascinated by this topic as well and no matter how many times I look at both sides of the secession issue, it's never enough...so don't be afraid to rehash the familiar as I would be the first to benefit!
I cannot find anything unconstitutional about secession either, nor can I interpret the Tenth Amendment any other way than I've already discussed with Neil. I agree that a precedence was set with the Lincoln administration for trashing civil liberties and no matter how hard I try, I can't accept the Northern belief that the "end justified the means."
Thanks for the welcomes. I'm happy to have found more CW folks.
Cash -
I'm unaware of the S.Ct. specifically ruling secession prohibited until after the ACW. I'm also unaware of any provision in the Constitution prohibiting state secession or granting the fed. the power to legislate in the area. I'll go so far as to state that secession, by terms or concept, is intentionally ignored. I, thus, cannot see how secession document can be contrary to the Constitution. You state that such would be contrary in 'effect.' As secession is ignored in the Constitution, I see no textual support for that argument. I invite you, however, to show me otherwise using the text of the Constitution. IIRC, several states ratification documents seek to specifically retain the right to secede; although those document would not have preserved that right had it been prohibited by the Constitution.
Madison was quite opposed to secession in the federalist papers. He thought it most pernicious to the proposed gov't. Simply put, his views didn't make it into the ratified Constitution.
I believe that the right of secession is fundamental to a sovereign state in, as ours, a dual sovereign gov't. Without the right of secession, the states are deprived of the right of self-determination which characterizes a sovereignty.
There is no argument that the Constitution is the supreme law of the land. And, as here where a right like secession is left to the states, it is unconstitutional for the fed to interfere.
I'm unaware of the S.Ct. specifically ruling secession prohibited until after the ACW.
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Well, I didn't say they did. I said Texas v. White, saying unilateral secession is unconstitutional, is wholly consistent with the body of Court rulings, to wit:
"The people made the constitution, and the people can unmake it. It is the
creature of their will, and lives only by their will. But this supreme and
irresistible power to make or to unmake, resides only in the whole body of
the people; not in any sub-division of them. The attempt of any of the parts
to exercise it is usurpation, and ought to be repelled by those to whom the
people have delegated their power of repelling it." [US Supreme Court,
Cohens v. Virginia, 19 US 264, 389]
"That the United States form, for many, and for most important purposes, a
single nation, has not yet been denied. In war, we are one people. In making
peace, we are one people. In all commercial regulations, we are one and the
same people. . .. America has chosen to be, in many respects, and to many
purposes, a nation; and for all these purposes, her government is complete;
to all these objects it is competent. The people have declared, that in the
exercise of all the powers given for these objects, it is supreme. . . . The
constitution and laws of a State, so far as they are repugnant to the
constitution and laws of the United States, are absolutely void. These
States are constituent parts of the United States. They are members of one
great empire." [19 U.S. 264, 413-414]
In Fletcher v. Peck, the U.S. Supreme Court ruled, "But Georgia cannot be
viewed as a single, unconnected, sovereign power, on whose legislature no
other restrictions are imposed than may be found in its own constitution.
She is a part of a large empire; she is a member of the American union; and
that union has a constitution the supremacy of which all acknowledge, and
which imposes limits to the legislatures of the several states, which none
claim a right to pass." [10 U.S. 87, 136]
In McCullough v. Maryland, Chief Justice John Marshall wrote: "In discussing
this question, the counsel for the state of Maryland have deemed it of some
importance, in the construction of the constitution, to consider that
instrument, not as emanating from the people, but as the act of sovereign
and independent states. The powers of the general government, it has been
said, are delegated by the states, who alone are truly sovereign; and must
be exercised in subordination to the states, who alone possess supreme
dominion. *It would be difficult to sustain this proposition.* The
convention which framed the constitution was indeed elected by the state
legislatures. But the instrument, when it came from their hands, was a mere
proposal, without obligations, or pretenses to it. It was reported to the
then existing congress of the United States, with a request that it might
'be submitted to a convention of delegates, chosen in each state by the
people thereof, under the recommendation of its legislature, for their
assent and ratification.' this mode of proceeding was adopted; and by the
convention, by congress, and by the state legislatures, the instrument was
submitted to the people. They acted upon it in the only manner in which they
can act savely, effectively and wisely, on such a subject, by assembling in
convention. It is true, they assembled in their several states--and where
else should they have assembled? No political dreamer was ever wild enough
to think of breaking down the lines which separate the states, and of
compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.
"From these conventions, the constitution derives its whole authority. The
government proceeds directly from the people. . . . The constitution, when
thus adopted, was of complete obligation, and bound the state
sovereignties." [17 U.S. 316, 402-404]
Marshall further ruled, "The government of the Union, then, is, emphatically
and truly, a government of the people. In form, and in substance, it
emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." [17 U.S. 316, 404-405]
And, "If any one proposition could command the universal assent of mankind,
we might expect it would be this--that the government of the Union, though
limited in its powers, is supreme within its sphere of action." [17 U.S. 316, 405]
In Gibbons v. Ogden, the Court ruled, "When these allied sovereigns
converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns, the whole character in which the States appear, underwent a change." [22 U.S. 1, 187]
I'm also unaware of any provision in the Constitution prohibiting state secession or granting the fed. the power to legislate in the area.
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You must have missed my first post to you where I explained where the Constitution prevents unilateral secession.
I'll go so far as to state that secession, by terms or concept, is intentionally ignored. I, thus, cannot see how secession document can be contrary to the Constitution. You state that such would be contrary in 'effect.' As secession is ignored in the Constitution, I see no textual support for that argument.
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If an ordinance of secession takes effect in a state, are the US Constitution and US Laws passed in pursuance of the Constitution the supreme law within the borders of that state? If the answer is "yes," then it is a thing in the constitution or laws of a state that is contrary to the US Constitution and US Laws passed in pursuance of the Constitution being the supreme law. By the plain text of the Constitution, then, it is unconstitutional.
I invite you, however, to show me otherwise using the text of the Constitution. IIRC, several states ratification documents seek to specifically retain the right to secede; although those document would not have preserved that right had it been prohibited by the Constitution.
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You do not recall correctly. It has been asserted that three states retained a right to secede in their ratifications, but this is incorrect.
Madison was quite opposed to secession in the federalist papers. He thought it most pernicious to the proposed gov't. Simply put, his views didn't make it into the ratified Constitution.
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You may wish to consult a timeline, because the Constitution was not changed from the moment it was sent to Congress until it was ratified. The Federalist Papers were written between those two events. As Madison said after Virginia's ratification and before New York's ratification, "The Constitution requires an adoption in toto, and for ever." [James Madison to Alexander Hamilton, 20 July 1788]
Additionally, The Father of the Constitution, James Madison, wrote on secession long after the Constitution was ratified:
"Applying a like view of the subject to the case of the U. S. it results, that the compact being among individuals as imbodied into States, no State can at pleasure release itself therefrom, and set up for itself. The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect. It will hardly be contended that there is anything in the terms or nature of the compact, authorizing a party to dissolve it at pleasure." [James Madison to Nicholas Trist, 15 Feb 1830]
"A political system which does not contain an effective provision for a peaceable decision of all controversies arising within itself, would be a Govt. in name only. Such a provision is obviously essential; and it is equally obvious that it cannot be either peaceable or effective by making every part an authoritative umpire. The final appeal in such cases must be to the authority of the whole, not to that of the parts separately and independently. This was the view taken of the subject, whilst the Constitution was under the consideration of the people. It was this view of it which dictated the clause declaring that the Constitution & laws of the U. S. should be the supreme law of the Land, anything in the constn or laws of any of the States to the
contrary notwithstanding." [James Madison, Notes on Nullification]
"It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, Vol. 2, with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject." [James Madison to Nicholas Trist, 23 Dec 1832]
I believe that the right of secession is fundamental to a sovereign state in, as ours, a dual sovereign gov't. Without the right of secession, the states are deprived of the right of self-determination which characterizes a sovereignty.
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The states are not sovereign. A sovereign state can coin its own money, can declare war at will, can enter any treaty or confederation at will.
Thank you for the above and your contributions to this and other threads. I fear that I have not the depth of knowledge and facts you have displayed and much appreciate your research and views on this thread that Dawna was kind enough to begin.
Russ, welcome and I for one am glad of another active participant to the board in general and this thread in particular! You are quite correct in your observation that this is one of the best civil war boards around with some of the most knowledgeable and polite folks on the web. Enjoy your time here.
Sincerely,
Unionblue
__________________ "The American people and the Government at Washington may refuse to recognize it for a time but the inexorable logic of events will force it upon them in the end; that the war now being waged in this land is a war for and against slavery." Frederick Douglass
"Loyalty to our ancestors does not include loyalty to their mistakes." George Santayana
Your post doesn't contain a reply button. It may be that there is a way to try and prevent replies; I've seen that option on other boards. As I'm new here, I can't tell if that is your desire. If it is, please let me know and I'll respect that. For now, I'll reply to your latest.
IIRC, Texas v. White is the first time the issue of secession was presented to the S.Ct. None of your citations (which I appreciate, BTW) alter my thoughts there. Personally, I find T v W internally inconsistent, results-oriented, and without textual support in the Constitution. Under the cir****tances of its issuance, though, it is all that could be expected. IMO, there is nothing in the phrase "a more perfect Union" that even arguably leads to the conclusion that secession is prohibited. Had the drafters intended such, they could simply have said that "secession by any state is prohibited." I find no substitute for that language intended or implied in the Constitution.
I think consultation of a timeline unecessary. In that regard, I'll simply ask whether it is your opinion that none of the drafters ever considered the secession issue?
The Constitution provides us with dual fed/state sovereignty. The states are sovereign in all areas where such sovereignty is not specifically ceded to the fed. Under the Constitution, the powers not specifically enumerated to the fed remain with the states. Do you really disagree? This is a fundamental tenet of the Constitution. The powers you mention - declaring war, signing treaties, etc. - are powers specifically ceded by the states to the fed in the Constitution. There is a laundry list of such in Art. 1, Section 8. Secession is not a power ceded by the states to the fed; therefore, it remains a power of the state.
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