Armed Force Against Secession: from The Original 13th Amendment to the U. S. Constitution.

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Congress didn't have to play a role

The following is an excerpt from an article entitled "When Doing Nothing is the Right Thing to Do" by Valerie Protopapas, 4/22/14

As various Southern states voted to secede, the President (Buchanan) asked his Attorney General, Jeremiah S. Black, to provide him with measures he might constitutionally take to stop the process in the remaining Southern States and to force those already removed back into the Union. Few people know of Black’s response to Buchanan, probably because it was not to the liking of Lincoln, his government and today’s historians. On November 20th, 1860, Black sent the following to Buchanan:

"Whether Congress has the constitutional right to make war upon one or more States, and require the Executive of the Federal Government to carry it on by means of force to be drawn from the other States, is a question for Congress itself to consider. It must be admitted that no such power is expressly given; nor are there any words in the Constitution which imply it. Among the powers enumerated in Article 1, Section 8, [it] certainly means nothing more than the power to commence and carry on hostilities against the foreign enemies of the nation.

"Another clause, in the same section gives Congress the power ‘to provide for calling forth the militia,’ and to use them within the limits of the State. But this power is also restricted by the words which immediately follow that it can be exercised only for one of the following purposes: To execute the laws of the Union;…To suppress insurrections against the State; but this is confined by Article 4, Section 4, to cases in which the State itself shall apply for assistance against her own people. (as in the Whiskey Rebellion—vhp) [And] 3. To repel the invasion of a State by enemies who come from abroad to assail her in her own territory. All these provisions are made to protect the States, not to authorize an attack on one part of the country by another; to preserve the peace, and not to plunge them into civil war.

"Our forefathers do not seem to have thought that war was calculated “to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”

"There was undoubtedly a strong and universal conviction among the men who framed and ratified the Constitution, that military force would not only be useless, but pernicious, as a means of holding the States together. If it is true that war cannot be declared, nor a system of general hostilities carried on by the Central Government against a State, then it seems to follow that an attempt to do so would be ipso facto an expulsion of such State from the Union. Being treated as an alien and enemy, she would be compelled to act accordingly. And if Congress shall break up the present Union by unconstitutionally putting strife and enmity and armed hostility between different sections of the country, instead of the domestic tranquility which the Constitution was meant to insure, will not all the States be absolved from their Federal obligations?"


It is clear from what Buchanan learned from Attorney General Black that there was no way he, as President, could constitutionally prevent secession or nullify it. Now, we must remember, that Buchanan—as every President before and after him—had taken an oath upon assuming the office President of the United States. That oath is found in Article II, Section 1 of the Constitution and states as follows:

I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.
 
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