Wednesday, February 17, 2010

The Right To Secede

The South claimed that they had a right to secede from the Union if they Union was no longer protecting their interests. Lincoln and Northerners claimed that the government was (1) a perpetual union, or (2) a contract that could only be dissolved by mutual consent, or (3) a contract that could be dissolved by mutual consent for only the original 13 states, and that all subsequent states, having been formed out of federal territory, could never leave. You might note the hypocrisy here - The North celebrated the Declaration of Independence's secession from Britain but denied the same Lockean right to the South. Perhaps the Northern leadership had another reason to stop secession - if the South left, you couldn't constitutionally free their slaves a generation down the road.

The South, which decried the "false" idea undermining the Declaration of Independence - that all men were created equal (Fitzhugh wrote that some men were born to ride and some men were born with saddles on their back), accepted the conclusion resulting from that enlightenment idea that they rejected - that they had a right to rebel against the abolitionist tyranny of the North that threatened their property.

Both sides made legal arguments about whether secession was legal and those arguments continued after the war with a twist. Having been defeated on the battlefield, Southerners began arguing that secession WAS illegal and that therefore they had never left the union and they should be allowed to immediately reconstitute their governments and send representatives to Congress. The radical abolitionists who had so vociferously denied that there was a right to secede, suddenly accepted that the Confederacy had passed ordinances of secession. Those ordinances hadn't counted, of course, but the passage had represented state suicide. The Southern states hadn't left the union but they were no longer part of the union - their suicide had made them revert to territories (never mind that some had never been territories), which meant that Congress could make all laws whatsoever for the South and could rule the South with a military dictatorship and deny them the right to send representatives to Congress.

What a mess.

In short, however, the issue of secession's legality was settled by the ordeal of war. The Supreme Court (now sans Roger B. Taney) ruled in Texas v. White that secession was illegal. So the constitutional issue is settled.

But if, in the future, a state wants to secede, are Appomattox and Texas v. White the final word? The Volokh Conspiracy has a couple of posts on the topic. Here's the first:

The Supposed Settling of the Question of “Secession” at Appomattox

Skim the comment thread too - you can really see people using history as argument.

And now the cool part - we actually have one of the Justices of the Supreme Court on record about the constitutionality of secession: Antonin Scalia.

Scalia: "There Is No Right to Secede"

Click to embiggen.

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