U.S. Civil War - Did the South Have the Right to Secede?

[MichaeltheGreat]

Originally posted by Ogie Oglethorpe
If given the choice to build a gated area on your property you might have chosen to make a perimeter all around your property and the choice of gate in the fence would have been closest to your driveway for own convenience sake.

By pooling your resources with your neighbor, you instead saved on the costs of construction of the fence but decided to be equitable and place a gate at the border of you and your neighbors property. The end result you have to drive a half mile to the border everytime you want to leave or enter your property.

By virtue of the compromise you changed what you normally would have considered (your sovereignty) and have set in motion a permanent situation not agreeable (or optimal) to the MtG household. An agreement that you have surrendered until such time as the agreement is modified. (i.e you install a second gate more appropriately placed for your egress)

You mean another gate.... like... secession?

The point is, that having agreed to do certain things for mutual convenience does not subjugate one party to the total control and convenience of the other. If the neighbor piles up trash cans and parks ten cars at the common gate to impede my egress, then I'll build my own gate, and change the fence line on my property, not his, to reflect the new boundary of our association.

[Imran Siddiqui]

There is debate on both sides of this issue amongst scholars.

Not all that much. The great majority of scholars read the 10th as adding no more rights, but allowing the states to reserve the rights they've already had at the time.

3) it remains where it was - with the states or the people.

Bingo. It remains where it was... no powers are added, the states just get to keep the rights they had already.

The whole point of the Amendment was to allay the fears of states that they wouldn't be able to keep the powers they traditionally had because of the power of the federal government; it was to tell them as long as we don't give it to the government or say you can't do it, you get to keep the powers you have.

[Deity Dude]

OK then we agree - since the Constitution nowhere forbids secession - the 10th Amendment doesn't add the power to the Government to stop it.

The point of this amendment was to make clear that things not specifically granted to the Federal government were left to the states.

Show me where it is specifically granted to the Federal Government the power to stop a state from seceding and I will agree that original 13 colonies didn;t have the powere to secede. If you can't show me thata specifically than they have that power.

As for states that were once territories, I think it is less clear. One could argue that secession would be a power they never had and since the 10th Amendment doesn't add powers, it only deals with those not discussed specifically, that they don't have that right. (ie. the Constitution doesn't say states have the right it just doesn't discuss it)

On the other hand, one could argue that upon being granted statehood, the Federal Government recognizes you a sovreign co-equal to the other states possessing the same rights as those states. (ie. there aren't different classes of staehood) In that case they would have the right, unless they specifically gave it up.

It is a fact however, that when the Confederate States were READMITTED to the union (thus acknowledging that they had seceded and were being granted a 2nd entrance into the union) that they all had to swear an oath of allegiance not to secede again. Thus, those states gave up their right to secession.

[Imran Siddiqui]

As for states that were once territories, I think it is less clear. One could argue that secession would be a power they never had and since the 10th Amendment doesn't add powers, it only deals with those not discussed specifically, that they don't have that right. (ie. the Constitution doesn't say states have the right it just doesn't discuss it)

On the other hand, one could argue that upon being granted statehood, the Federal Government recognizes you a sovreign co-equal to the other states possessing the same rights as those states. (ie. there aren't different classes of staehood) In that case they would have the right, unless they specifically gave it up.

Well, the federal government may recognize you as co-equal, but that wouldn't mean they did have the same 10th Amendment powers, as the 10th reserves powers and if you didn't have a power beforehand you can't reserve a new power. It kind of does set up a different class of statehood, but I'm not sure that is all that shocking... consider the case of Utah and the fact they were required, before joining up as a state, to forbid polygamy. Different standards have existed for different states.

[Wycoff]

Originally posted by Deity Dude Secession is different because there is no enumerated power dealing with the issue.

Congress is explicilty empowered by Art. 1 §8 cl. 15 to call forth militia to supress insurrections. Though secession is not addressed, this clause gives Congress great power in determining what to do when a state decides to seceed. If Congress determines that there is an insurrection, then Congress is empowered to suppress it. The key then is to decide what constitutes an insurrection.

[Ogie Oglethorpe]

Originally posted by Wycoff


The key then is to decide what constitutes an insurrection.

Yes to all the above but this is the key part. Is a legal request of a given state to secede an insurrection?

Certainly in the civil war the point was moot as the matter quickly devolved into a matter of force.

[Wycoff]

Originally posted by Ogie Oglethorpe Yes to all the above but this is the key part. Is a legal request of a given state to secede an insurrection?

First you must decide how a legal sucession can be conducted. It's not detailed in the Constitution. That may suggest that there can be no legal secession, or it may mean that what constitutes legal secession needed to be defined elsewhere. If we assume that the secession is permissible, then it needs to be defined. Certain questions must be answered. How could a state secede legally? Who would decide? How would the votes be counted? What if only one region of the state wanted to secede? What would be done about the Federal property in that state? What would be done with the infrastructure built in part or fully by Federal funds?


If the Southern states conducted illegal secessions, then they could legitimately be considered as participating in an insurrection. Since there was no agreed upon secession procedure, since Congress hadn't enacted a way for a state to legally secede, then the refusal of the states to follow Constituionally ordained orders was illegal. The southern states acted outside of the law, and it came down to "might-makes-right."

If Congress enacted legislation detailing how a state could legally secede, or if a constitutional amendment was passed detailing how to secede, then any state who followed those laws or secession couldn't be considered to be in insurrection. Without those laws, then there couldn't be a legal secession, IMO.

[MichaeltheGreat]

A state, by definition, can not be a party to an insurrection.

An insurrection is a rising by a group of individuals against the lawful authority of the state.

Lincoln did not call forth the militia and Federalize it, precisely because he knew he had no legal authority to do so.

The statutory scheme in effect at the time provided for calling forth the militia, or the land and naval forces of the United States (this addition was made by act of Congress in 1807), only upon application of a Federal associate justice or district judge (act of May 2, 1792), or upon the application of the legislature or the governor of a state in event the legislature was unable to convene. (act of February 28, 1795, adopted after the end of the Whiskey Rebellion).

Lincoln's lack of authority to call out the miliatia or land and naval forces was clear and explicit, so Lincoln just decided to bypass the whole mess by demanding the raising of regiments of "volunteers" by the states to do what the state militias, army and navy could not do.

The yankee congress wiped it's own collective ass with the Constitution in August 1861, by ex post facto granting Lincoln retroactive "authority" to do all he had had no authority to do at the time it was done.

[DaShi]

And how has history judged him?

[MRT144]

Re: U.S. Civil War - Did the South Have the Right to Secede?

Originally posted by Caligastia
Those southern states who chose to secede were, and still are, referred to as 'rebels' by those who supported Lincoln's war.

the southern states refer to themselves as rebels, and are quite proud of that distinction, you idiot.

[chequita guevara]

Originally posted by DaShi
And how has history judged him?

Very well.

[Deity Dude]

It's pretty interesting if you read some of the contemporaneous writings from the time period and before. It was pretty much assumed by everyone - Northerner and Southerner that states had the right to secede

New England held a secession convention in the early 1800's and refused to send troops to fight the war of 1812 because they claimed they were independent states that had no part of the conflict between the Republican Party and England.

There was a secessionist movemet amongst the Central States in the 1840's and 1850's. One group wanted and independent confederacy of central states - another group suggested trying to convince the south to secede and join them.

New York State discussed secession many times. One Mayor of New York ran and was elected on a platform of seceding from the Union and making New York City a free and independent entity.

John Quincy Adams gave a speech to Congress in 1845 basically saying that if the states couldn't get along they should dissolve and reform as they choose, and in the Spirit of the Declaration of Independence form 2 or more "more perfect unions".

Mass. passed a secession bill stating basically that it agreed to join a union of 13 states and that the Louisiana Purchase disolved that contract and therefore they reserved the right to remove themselves from this new entity anytime they wanted. Various other states passed similiar measures.

A New York newspaper poll taken at the begining of the standoff between South Carolina and the North reported that 9 out of 10 New Yorkers favored states peacefullty seceding from the Union as they saw fit.

After the Civil War none of the Confederate Leaders or Generals were tried for treason because it was widely felt that the Supreme Court would find that the states had a right to secede thus undermining the legitimacy of the war.

The point is at that period of time very few questioned the right of any free and independent state to secede, only its economic or political wisdom

[chequita guevara]

Not everyone. Andrew Jackson made a pretty clear statement about what he thought of the "right" to secede.

[Deity Dude]

Originally posted by DaShi
And how has history judged him?

I'm pretty certain that European History would judge Hitler pretty favorably if Germany had won WWII and maintained control of continental Europe.

[MichaeltheGreat]

Originally posted by Wycoff
If Congress enacted legislation detailing how a state could legally secede.

It was not within Congress' enumerated powers to do so.

If a constitutional amendment was passed detailing how to secede, then any state who followed those laws or secession couldn't be considered to be in insurrection.


Without those laws, then there couldn't be a legal secession, IMO.

If there was an amendment, then states would have to follow it. In the absense of the amendment, and no enumerated power of the Congress to set the terms of secession, then it was up to the state to decide the mechanism for secession.