Three Arguments of “Right to Secession”

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GwilymT

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The below link is to an academic paper discussing the right to secession or lac thereof by Professor Han Liu:


Abstract:

Secession becomes a source of controversies again both within and outside the United States. In both political discourse and public imagination, the images of secession of the South in the mid- Nineteenth century, as well as the Civil War it triggered, occupies an important position. Conducted in blood, the end of the Civil War is usually thought to establish a constitutional rule that no state shall secede from the Union. Challenging the conventional understanding, recent legal scholarship has shown that the legality/constitutionality of secession did not receive a definitive, legal answer at Appomattox. But the question remains: Why so? Explaining the puzzle, this article traces out the debate over the “rights of secession” before and during the Civil War, putting it into contemporaneous international horizons. It argues that, the Civil War cannot resolve the legality of secession because Southern secessionism actually resorted to not only legal/constitutional arguments, but also revolutionary and nationalistic justifications, both of which were extralegal. The dispute eventually went to a violent solution, because secessionists, with these arguments, had already moved beyond the law. In the contemporaneous legal imagination, secession belongs in the domain of sovereignty that involves war and violence, not the arena of law and the court.


From the introduction:

This article proceeds as follows. Part I describes territorial aggregation and disaggregation in the post-revolutionary republican states – America and France. Both countries followed the old-fashioned ways of accomplishing and justifying territorial acquisition. Both, however, encountered problems of territorial unity after the principle of popular sovereignty was enshrined by revolution. This was especially so in the United States, which faced secessionist instability after the Revolution. Part II deals with the normative debates – constitutional, revolutionary, and nationalistic – over secession around the Civil War. Southern theorists claimed that secession is constitutional because of the compact nature of the Union, while the North countered that secession is unlawful because of the perpetuity and indivisibility of the Union. The South also argued that even if secession is unlawful, it can be justified by the right of revolution; the North held that the right of revolution must have a just cause and is only vindicated by victory. Finally, the South employed a national self-determination argument. That argument was marred by ethnic indistinctiveness and slavocratic politics in the South. Part III shows that theory gave place to battle on the question of secession. Post-Civil War Americans can only re-invoke the trial by battle and the right of conquest to make sense of the war and its answer to the question of secession. (Bold emphasis mine)


More to come as I dig into the article further.
 

GwilymT

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I haven’t gotten far but seem to have run into an issue with the author at the outset. He claims that the secessionists of 1860 were the inheritors of a long line of secessionist heritage in the United States. This, in and of itself isn’t a problem, at any given time in the US there are always fringe secession movements at work- even today. The problem arises when the author equates previous secession movements, regardless of popularity or potency, to the secessionists of 1860. He calls all such movements “secession attempts”. I would state that most of these previous movements weren’t “attempts”, the only real secession attempt was that of the confederacy.

From Part One:

1) the author argues that the Revolution was a secession. This point has been belabored over and over and depends on one’s definition of secession. I tend to disagree and feel that while both the rebels of 1774 & 1860 were engaging in rebellion, claiming that these rebellions were equal in nature is a stretch at best.

2) in arguing that the secessionists of 1860 were simply following in the footsteps of previous “secession attempts” the author lists the Burr Conspiracy, the Hartford Convention, and Abolitionist argumentation in favor of free states seceding. These are termed “secession attempts” (though none actually attempted to secede) and equated with the actual secession attempt of 1860. To me, this is very far fetched. None of the precedents the author mentioned had popular support, were viable, or in actuality even attempted to secede.

So far, it seems that the author is mischaracterizing the preceding movements in order to give the 1860 secession historical precedent in the US which it doesn’t enjoy.
 
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