A coal miner, riding an elevator deep into a mine, looks for new veins of coal. In a similar way, I have looked for things that other historians might have overlooked, and asked whether they drew any incorrect conclusions.
Naturally, I’ve looked into the contentious topic of secession. Two questions emerged: 1. Was secession merely a revolution? 2. Was secession constitutional?
(Library of Congress)
When he was a young congressman, Abraham Lincoln spoke about the border dispute between Texas and Mexico. He stated:
Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better … Any portion of such people that can, may revolutionize, and make their own of so much territory as they may inhabit.
Thirteen years later, President Lincoln shifted from speaking of revolution. The chief executive flatly stated, “No State upon its own mere motion can lawfully get out of the Union.”
Pepperdine Law Professor H. Newcomb Morse questions President Lincoln’s assertion in “The Foundations and Meaning of Secession” (Stetson Law Review, 1986).
Morse first discusses the votes to ratify the Constitution. Virginia, New York, and Rhode Island had conditional clauses, stating their ability to leave the Union. Virginia’s conditional ratification states:
The powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression.
When the other states of the Union accepted their conditional ratification, Morse claims, they implied an acceptance of the right to secede. On the other hand, Morse allows that the Federal Government may forbid secession based on the constitutional authority of Congress to put down insurrections.
The Constitution as a contract
A compelling pro-secession argument involves looking at the Constitution as a contract. When people and corporations find loopholes in laws, Congress sometimes passes laws to close the loopholes. Apparently, a secession loophole existed in the Constitution. We know this because in late 1860 (when Southern states warned they would secede), three congressmen proposed amendments to the Constitution, forbidding or restricting the right of secession.
The secession loophole reappeared after the war ended. Six former Confederate states passed a new state constitution that had a paragraph, surrendering the right to secede. How, Morse asks, could the states surrender a right unless they had it in the first place?
Morse’s conclusion
His conclusion is most provocative. Morse suggests that the Federal Government may have acted illegally in pursuing war against Southern states. According to Morse, “The Southern States, in all likelihood, were exercising a perfectly legitimate right in seceding from the Union.”
Nonetheless, Morse reflects that the Civil War “helped to ensure equality among individuals in the nation as a whole.” The war also ended the notion that states could disregard national laws.
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Tom
6 May 2019Very thought provoking essay. Perhaps the answer to succession must consider what the Constitution says about the mechanism of applying to join the Union and and the dissolution of the union.
David Connon
6 May 2019Dear Tom,
Thank you for your kind comment. You make a good point. Unfortunately, it seems the Constitution is fairly silent regarding, as you say, the dissolution of the Union.
Karen Black
6 May 2019Wonderful facts for pondering.
David Connon
6 May 2019Thank you, Karen, for your kind comment.
E.g. Schwetje
6 May 2019How can secession be legal in the context of a more perfect, perpetual union?
David Connon
6 May 2019Hi, E.G. Schwetje.
You raise a good question. That in turn suggests another question: Was “a more perfect, perpetual union” mean figuratively, or perhaps as an ideal? I don’t have an answer, by the way, but I can ask questions.
Steve Hanken
6 May 2019So, when founders like Jefferson suggested that the government of the US should occasionally have revolutions to adjust the government he wasn’t suggesting people had the right to secede? It may not stand the test of his description, but how you can have a “little” revolution, is of course completely impossible unless it is crushed, as was the “Whiskey Rebellion”. Ideologically speaking Jefferson as a Virginian and a slave holder obviously saw nothing wrong with “slavocracy” and was cool with counting slaves through the census to assure slave holders could maintain their balance of power in Congress, even if you only counted a fractional amount of the slave population. After all the counting, slaves still had no voice, and the white slave owners held the power those fractional votes were meant to give them. When the Kansas-Nebraska Act was passed the seeds of revolution were also within that act. For two years the revolution simmered in the far west to only create the fire that swept the country in the Civil War.
David Connon
6 May 2019Hi, Steve.
You raise some good points. I especially like the way you compared the discontent, antagonism, and strife to heat that simmered and then “created a fire that swept the country in the Civil War.”
Richard Pohorsky
6 May 2019Your post touches on a subject that I have studied for years. As you know, I do an impression of William Lowndes Yancey, Prince of the Fire-Eaters. In the speech that Mr. Yancey gives, I try to build a legal case for secession. I firmly believe that secession was legal, and that the United States did in fact “invade” a sovereign nation – the Confederate States of America. The results of the war and the establishment of equality for all overshadows this often neglected topic. Contact me if you would like to discuss this in more detail. I have several points of legal precedent that Mr. Yancey makes in his case for secession. Thank you for your thought provoking posts, and your extensive research.
David Connon
6 May 2019Thank you for your kind comment, Dick.
Ron Nurmi
6 May 2019Did the U.S. Supreme Court in Texas v. White not rule ” the court further held that the Constitution did not permit states to unilaterally secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”.[2]” It is my understanding the Supreme Court can decide what is constitutional.
David Connon
6 May 2019Hi, Ron.
You make a good point. However, a single U.S. Supreme Court decision is not always the final word because later Supreme Courts have overturned earlier decisions. Of course, the U.S. Supreme Court will probably never see fit to revisit its decision in Texas v. White. There is simply no practical, pressing, or pragmatic reason to revisit that decision.
Richard Pohorsky
6 May 2019Texas v White was used by Chief Justice Chase, as Chief Justice Taney used Dredd Scott, to interject his personal belief. Texas v White was overturned by a later court. I believe the reversal was in the 1880’s.
kbrown2225
8 May 2019Texas v. White (1869) has never been overturned.
Richard Pohorsky
7 May 2019The worst sin an historian can make is to judge the events of 160 years ago with today’s standards and morals. Just as technology evolves – so do society’s values, morals and sense of justice. Torture was widely used and accepted 400 years ago. This was even true of religious leaders of that era. The Great Emancipator, Abraham Lincoln, hated the “peculiar” institution of slavery, yet he can be quoted on many occasions saying he did not believe the Black man was equal to the White man. Let us study history in perspective, and with a view to the predominate standards of the era.
David Connon
8 May 2019Hi, Dick.
I appreciate the words of historian David M. Potter who said that the best historians try to “see the past through the imperfect eyes of those who lived it.”
Richard Pohorsky
8 May 2019Texas v White was overturned by Morgan v United States, 113 U.S. 476 (1885).
Secession was not an issue argued in Texas v White, therefore Chase’s comments on it are dicta. Dicta has no precedential authority. As dicta, it does not establish precedent, nor does it have authority. The reversal by Morgan nullified the original opinion of Texas v White in 1869, in its entirety.