Looking back on the whole bloody mess, I truly believe that it was completely pointless EXCEPT as a maneuver to obliterate southern independence.

trice

Lt. Colonel
Joined
May 2, 2006
"I’m a screenwriter in New York City, and am writing to see if you might be willing to assist me in a project that involves a unique constitutional issue.

My latest screenplay is a comedy about Maine seceding from the United States and joining Canada. There are parts of the story that deal with the legality of such an event and, of course, a big showdown in the Supreme Court is part of the story.

At the moment my story is a 12 page treatment. As an architect turned screenwriter, it is fair to say that I come up a bit short in the art of Supreme Court advocacy. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts. I’m sure you’ll find the story very entertaining."

http://newyorkpersonalinjuryattorneyblog.com/2010/02/scalia-there-is-no-right-to-secede.html
There is no unilateral legal "right of secession" as the secessionists of "the South" attempted in 1861. Generally, the result of the Civil War is the de facto decision on that. The 1869 Texas v. White et al decision is the last word from the Supreme Court on it, and the XIV Amendment contains some provisions that were imposed to punish those who rebelled.

The Constitution offers little that would point to a legal way out. Most likely, the Supreme Court would punt the issue over to the Congress as being rightly a "political matter" that the Court could not decide. If you want a Supreme Court decision to free Maine, you would need to postulate and prove a violation and an injury to the State of Maine so overwhelming that the only possible remedy the Court could provide would be to free Maine of the obligation she undertook to be part of the "perpetual Union".
 
Joined
Jun 7, 2021
It was a legal secession from the union that was voted on by the southern states in accordance with the principles of the Declaration of Independence.
Can you explain what you mean by a legal secession? I understand what you are saying about the Declaration, but the governing document is the Constitution. I am not aware of any provision within the document for leaving the Union.
 

Jantzen64

Private
Joined
Aug 10, 2019
Actually, Jefferson would agree that there is a right of revolution, but he would not agree that there is a right to secede at will. During the 1830's secession crisis, Madison wrote this about those who were claiming Jefferson would agree with them on secession:

It is remarkable how closely the nullifiers, who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes & lips, whenever his authority is ever so clearly & emphatically against them. You have noticed what he says in his letters to Monroe & Carrington ps. 43 & 202. Vol 2d with respect to the power of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover his remark 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.​

If anyone would have known what Jefferson thought, it would be Madison.
Thank you for posting this, DanSBHawk. I have only a general understanding of the nullification crisis, and didn't know Madison had weighed in on it. Very interesting!
 

shooter too

Private
Joined
Mar 4, 2021
Lincoln's waging of the American Civil War was legal even if secession was legal.

There is nothing in the Constitution expressly permitting or forbidding secession. A number of clauses point toward secession being illegal, especially the power of Congress to suppress insurrections and the supremacy clause. The 10th Amendment, though, could be read to imply a right to secede. With respect, I deny that the war itself settled the constitutional question of secession; it merely settled whether one particular secession attempt would succeed. Had the South won, that would hardly prove that the secession was legal, any more than a bank robber getting away with his loot proves that bank robbery is legal; conversely, the fact that the North won no more proves that secession is illegal than the fact that the Army beat up and dispersed the Bonus Marchers proves that protesting is illegal.

A catch 22 for the budding secession was legal folk.


If secession was illegal, then of course Lincoln had the power to suppress it as he would any other insurrection. If secession was legal, then the Confederacy was a foreign country, which on multiple occasions attacked the United States by bombarding Fort Sumter, attacking the Star of the West, and looting federal arsenals. The war against that foreign power was fully as legal as would be an American invasion of Cuba if Cuba were to attack the American Embassy in Havana and fire on the Guantanamo naval base. Lincoln and the Congress waged the war on the theory that secession was not legal - thus the decision not to formally declare war, and to treat the citizens of Confederate states as American citizens - but if they were wrong, the war would still be a legal war against an attacking foreign power.

The fact of Lincoln's legal power to fight the war is much clearer than the question of whether secession was legal, which will always remain obscure until a constitutional amendment specifically outlaws or allows it.
 

NedBaldwin

Major
Joined
Feb 19, 2011
Location
California
Lincoln's waging of the American Civil War was legal even if secession was legal.

There is nothing in the Constitution expressly permitting or forbidding secession. A number of clauses point toward secession being illegal, especially the power of Congress to suppress insurrections and the supremacy clause. The 10th Amendment, though, could be read to imply a right to secede. With respect, I deny that the war itself settled the constitutional question of secession; it merely settled whether one particular secession attempt would succeed. Had the South won, that would hardly prove that the secession was legal, any more than a bank robber getting away with his loot proves that bank robbery is legal; conversely, the fact that the North won no more proves that secession is illegal than the fact that the Army beat up and dispersed the Bonus Marchers proves that protesting is illegal.

A catch 22 for the budding secession was legal folk.


If secession was illegal, then of course Lincoln had the power to suppress it as he would any other insurrection. If secession was legal, then the Confederacy was a foreign country, which on multiple occasions attacked the United States by bombarding Fort Sumter, attacking the Star of the West, and looting federal arsenals. The war against that foreign power was fully as legal as would be an American invasion of Cuba if Cuba were to attack the American Embassy in Havana and fire on the Guantanamo naval base. Lincoln and the Congress waged the war on the theory that secession was not legal - thus the decision not to formally declare war, and to treat the citizens of Confederate states as American citizens - but if they were wrong, the war would still be a legal war against an attacking foreign power.

The fact of Lincoln's legal power to fight the war is much clearer than the question of whether secession was legal, which will always remain obscure until a constitutional amendment specifically outlaws or allows it.
Wonderful post.

Reminds me of logical problem I have with Virginia's secession.
The Virginia convention meeting in Richmond passed an ordinance of secession on April 17, 1861.
The end of the ordinance reads:
This ordinance shall take effect and be an act of this day when ratified by a majority of the votes of the people of this State, cast at a poll to be taken thereon, on the fourth Thursday in May next, in pursuance of a Schedule hereafter to be enacted.
If secession is legal, then by the wording of this ordinance was not Virginia still in the US until the ratification vote in late May? If so, then would not the movement of troops from states further south into Virginia prior to the vote in late May be an invasion of the US by foreign forces?
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
The theory of unilateral secession, essentially, claimed that the right of secession was one of those rights retained by the states and thus was outside the authority of the Constitution and was available to the citizens of each and every state.

As is usual with theories in general and political theory's in particular, there was no unanimity in agreement. that the theory was true, or, even that a Right to/of Secession existed at all, of if it did, where it resided. All important question that needed to be answered, before application, if one were really interested in doing it peacefully
 

Potomac Pride

Sergeant Major
Joined
Oct 28, 2011
Location
Georgia
Actually, Jefferson would agree that there is a right of revolution, but he would not agree that there is a right to secede at will. During the 1830's secession crisis, Madison wrote this about those who were claiming Jefferson would agree with them on secession:

It is remarkable how closely the nullifiers, who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes & lips, whenever his authority is ever so clearly & emphatically against them. You have noticed what he says in his letters to Monroe & Carrington ps. 43 & 202. Vol 2d with respect to the power of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover his remark 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.​

If anyone would have known what Jefferson thought, it would be Madison.
Thomas Jefferson was one of the early proponents of the Compact Theory of the Constitution. The Compact Theory states that the Constitution was a voluntary agreement among the states to create a federal government that is delegated certain powers as their agent. The states still retain their sovereignty and can withdraw from the compact if the federal government abuses the power that is delegated to it. In some of his writings, it appears that Jefferson believed in the right of secession. During his first term in office, the New England Federalists were upset over certain actions by President Thomas Jefferson and threatened secession. In a letter, Thomas Jefferson commented on this when he wrote: “Events may prove it otherwise; and if they see their interest in separation, why should we take side with our Atlantic rather than our Missipi descendants? It is the elder and the younger son differing. God bless them both, & keep them in union, if it be for their good, but separate them, if it be better.” Source: Letter from Thomas Jefferson to John C. Breckenridge, August 12, 1803
 

Andersonh1

Brigadier General
Moderator
Joined
Jan 12, 2016
Location
South Carolina
Jefferson also did not assume that the entire continent would be part of one Union. From a letter to Dr. Joseph Priestley Washington, Jan. 29, 1804.

http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl161.php

I very early saw that Louisiana was indeed a speck in our horizon which was to burst in a tornado; and the public are unapprized how near this catastrophe was. Nothing but a frank & friendly development of causes & effects on our part, and good sense enough in Bonaparte to see that the train was unavoidable, and would change the face of the world, saved us from that storm. I did not expect he would yield till a war took place between France and England, and my hope was to palliate and endure, if Messrs. Ross, Morris, &c. did not force a premature rupture, until that event. I believed the event not very distant, but acknolege it came on sooner than I had expected. Whether, however, the good sense of Bonaparte might not see the course predicted to be necessary & unavoidable, even before a war should be imminent, was a chance which we thought it our duty to try; but the immediate prospect of rupture brought the case to immediate decision. The denoument has been happy; and I confess I look to this duplication of area for the extending a government so free and economical as ours, as a great achievement to the mass of happiness which is to ensue. Whether we remain in one confederacy, or form into Atlantic and Mississippi confederacies, I believe not very important to the happiness of either part. Those of the western confederacy will be as much our children & descendants as those of the eastern, and I feel myself as much identified with that country, in future time, as with this; and did I now foresee a separation at some future day, yet I should feel the duty & the desire to promote the western interests as zealously as the eastern, doing all the good for both portions of our future family which should fall within my power.​
 

DanSBHawk

1st Lieutenant
Joined
May 8, 2015
Location
Wisconsin
Jefferson also did not assume that the entire continent would be part of one Union. From a letter to Dr. Joseph Priestley Washington, Jan. 29, 1804.

http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl161.php

I very early saw that Louisiana was indeed a speck in our horizon which was to burst in a tornado; and the public are unapprized how near this catastrophe was. Nothing but a frank & friendly development of causes & effects on our part, and good sense enough in Bonaparte to see that the train was unavoidable, and would change the face of the world, saved us from that storm. I did not expect he would yield till a war took place between France and England, and my hope was to palliate and endure, if Messrs. Ross, Morris, &c. did not force a premature rupture, until that event. I believed the event not very distant, but acknolege it came on sooner than I had expected. Whether, however, the good sense of Bonaparte might not see the course predicted to be necessary & unavoidable, even before a war should be imminent, was a chance which we thought it our duty to try; but the immediate prospect of rupture brought the case to immediate decision. The denoument has been happy; and I confess I look to this duplication of area for the extending a government so free and economical as ours, as a great achievement to the mass of happiness which is to ensue. Whether we remain in one confederacy, or form into Atlantic and Mississippi confederacies, I believe not very important to the happiness of either part. Those of the western confederacy will be as much our children & descendants as those of the eastern, and I feel myself as much identified with that country, in future time, as with this; and did I now foresee a separation at some future day, yet I should feel the duty & the desire to promote the western interests as zealously as the eastern, doing all the good for both portions of our future family which should fall within my power.​
But that's different from saying a state can secede at will after becoming part of the union.

Jefferson's comments about the threat of Massachusetts secession didn't include any details of how a state could secede. The actual process that it needed to go through. And Jefferson assumed, in the case of a lone state like Massachusetts, it would regret secession and beg to re-enter the union.
 

CSA Today

Brev. Brig. Gen'l
Joined
Dec 3, 2011
Location
Laurinburg NC
But that's different from saying a state can secede at will after becoming part of the union.

Jefferson's comments about the threat of Massachusetts secession didn't include any details of how a state could secede. The actual process that it needed to go through. And Jefferson assumed, in the case of a lone state like Massachusetts, it would regret secession and beg to re-enter the union.
Don't you think that might have had something to do with there being no details on how a state could secede?

"The flag which he [my grandfather, Francis Scott Key] had then so proudly hailed, I saw waving at the same place over the victims of as vulgar and brutal despotism as modern times has witnessed.”

Francis Key Howard, a prisoner of Lincoln at Fort McHenry, 1861





[/ICODE]
 

Potomac Pride

Sergeant Major
Joined
Oct 28, 2011
Location
Georgia
Don't you think that might have had something to do with there being no details on how a state could secede?

"The flag which he [my grandfather, Francis Scott Key] had then so proudly hailed, I saw waving at the same place over the victims of as vulgar and brutal despotism as modern times has witnessed.”

Francis Key Howard, a prisoner of Lincoln at Fort McHenry, 1861




[/ICODE]
As you mentioned, there were no guidelines on how a state could secede from the Union before the Civil War. Secession was an unsettled matter because it was not addressed in the Constitution. However, the north and south had different concepts of the Union and the Constitution. The southern states believed the Union was voluntary in nature and the states retained their fundamental sovereignty which allowed them to secede from the Union. Furthermore, under the 10th amendment of the Constitution, the powers not granted to the federal government are reserved to the states. Therefore, since the Constitution did not expressly prohibit secession then this power was reserved for the states. However, the north viewed the Union as something that was more permanent in nature and the states had surrendered their sovereignty when they became part of the Union. In addition, the northern states believed that the Supremacy Clause in the Constitution prohibited secession by the south. These different concepts between the two regions of the country regarding secession was one of the causes of the Civil War.
 

OpnCoronet

Lt. Colonel
Joined
Feb 23, 2010
Don't you think that might have had something to do with there being no details on how a state could secede?

"The flag which he [my grandfather, Francis Scott Key] had then so proudly hailed, I saw waving at the same place over the victims of as vulgar and brutal despotism as modern times has witnessed.”

Francis Key Howard, a prisoner of Lincoln at Fort McHenry, 1861




[/ICODE]

Correct. the 'Right to Revolution' is more of a human\social right rather than a Constitutional\legal one.
Hence it was a 'Natural' right, justifiably available to all ... except slaves, of course ..... :O o:
Correct, revolution is a right of All humanity, i.e., of the individual, not their govt. and in the ACW, it applied equally to Every slave; as most southerners were well aware and thus seldom cited the DoI, except, perhaps to denigrate it.
 

Zack

Sergeant
Joined
Aug 20, 2017
Location
Los Angeles, California
Non-rhetorical and genuine question for those who believe that state sovereignty was preserved under the Constitution: One of if not the major issue of the Articles of Confederation was strong state sovereignty and a weak central government. The government couldn't tax, couldn't raise armies - the Confederation Congress was basically powerless. That was pretty much the driving reason to even have a Constitutional Convention in the first place.

So why would the founders enshrine state sovereignty into the Constitution? Why would they carry over the number one reason the Confederation didn't work?

Unless, of course, they didn't, which is my understanding.
 

Andersonh1

Brigadier General
Moderator
Joined
Jan 12, 2016
Location
South Carolina
Non-rhetorical and genuine question for those who believe that state sovereignty was preserved under the Constitution: One of if not the major issue of the Articles of Confederation was strong state sovereignty and a weak central government. The government couldn't tax, couldn't raise armies - the Confederation Congress was basically powerless. That was pretty much the driving reason to even have a Constitutional Convention in the first place.

So why would the founders enshrine state sovereignty into the Constitution? Why would they carry over the number one reason the Confederation didn't work?

Unless, of course, they didn't, which is my understanding.

I'd like to recommend a book I've been reading that clarifies how and why some elements of State sovereignty were retained in the Constitution. "The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765-1800" by Aaron Coleman. I'll have to find some sections that explain some of this, but the bottom line is that there was not a wholesale rejection of all State sovereignty. There was a willingness to give more power to the central government, but not to essentially erase all State powers in the process. The nationalists did not get everything they wanted, not by a long shot.

https://tenthamendmentcenter.com/20...y-and-the-american-constitutional-settlement/

Another appealing aspect of Coleman’s work concerns the actual impact of the Philadelphia Convention and the Constitution of 1787 on the American constitutional system. While some scholars have been inclined to portray the Constitution as a much more nationalistic, centralizing document, Coleman astutely recognizes that the modern Constitution retained the federalist-orientation of the union, its most recognizable and unique plank.​
Bolstering Coleman’s position is the innumerable cases in which clauses from the Articles of Confederation were either incorporated verbatim or slightly modified. Though some new powers were delegated to Congress under the new model, to the chagrin of American nationalists – Alexander Hamilton, James Madison, Gouverneur Morris, and Charles Pinckney – most of the aims of the great centralizers lost out. This was most apparent by the shift from general, plenary legislative authority to John Rutledge’s preference of enumerated powers, and the defeat of Madison’s cherished hope of a federal veto over state law.​
These circumstances led Hamilton to conclude that the ideas of the resulting document were “far removed” from his own, and for Madison to complain to Jefferson that the document would not be stable enough to survive for more than a generation. As a result of these findings and others, all of which are masterfully illustrated, Coleman explains why the Constitution of 1787 was “not a fundamental change” to the constitutional framework.​
One of the books’ best facets is its priceless ability to accurately depict the causes which have led to the diminishment of state sovereignty and federalism in most modern studies of founding ideals. Coleman does this by quoting progressive scholars such as Akhil Amar and Merrill Jensen, who have expressly admitted the propensity of most academics to view the founding period through nationalist lenses.​
Previews of the book can be found here.

 

Piedone

Corporal
Joined
Oct 8, 2020
Correct, revolution is a right of All humanity, i.e., of the individual, not their govt. and in the ACW, it applied equally to Every slave; as most southerners were well aware and thus seldom cited the DoI, except, perhaps to denigrate it.
You probably cannot make a revolution without setting up a revolutionary government...
 

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