Revisiting the Past : Part 1 – An examination of the concept of Secession
By Robert Hubbard
(Drawing upon the works of Thomas DiLorenzo and Dr. Walter E. Williams)
(Originally published on Martialtalk.com 08-19-2004 – Published to Consider, Reconsider by authors permission)
The concept of the legality of Secession has interested me since my studies of the American Civil War (also referred to as the War of Northern Aggression, and the Second American Revolution) began. In this article, I will examine this document and look at how the idea of Secession applies. The scope of this is strictly the idea of ‘Is it legal for a State to leave the Union?” Other social/political issues will be examined in a later article if I get to it.
First, we must begin by examining the Declaration of Independence (1) itself. 3 quotes from this document are of importance here:
“that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. “
“But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.”
“That these United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great-Britain, is and ought to be totally dissolved; and that as FREE AND INDEPENDENT STATES, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which INDEPENDENT STATES may of right do. “
In these 3 statements, we see that our Founding Fathers made 2 distinct ideas clear:
1 When a government fails to meet the needs of it’s people, the people have the right to change it.
2 With this document, the 13 Colonies became 13 –Independent- States, or Countries.
Following this Declaration of Independence, each of the thirteen States proceeded to exercise its separate sovereignty; adopted for itself a Constitution, and appointed officers for the administration of government in all its departments– Legislative, Executive and Judicial. For purposes of defense, they united their arms and their counsels; and, in 1778, they entered into a League known as the Articles of Confederation (2), whereby they agreed to entrust the administration of their external relations to a common agent, known as the Congress of the United States, expressly declaring, in the first Article “that each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not, by this Confederation, expressly delegated to the United States in Congress assembled.”
The war of the Revolution was carried on under this Confederation, and on the 3rd of September, 1783, the war ended, and a definite Treaty(3) was signed by Great Britain, in which she acknowledged the independence of the Colonies in the following terms: “ARTICLE 1– His Britannic Majesty acknowledges the said United States, viz: New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be FREE, SOVEREIGN AND INDEPENDENT STATES; that he treats with them as such; and for himself, his heirs and successors, relinquishes all claims to the government, propriety and territorial rights of the same and every part thereof.”
Thus were established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrent with the establishment of these principles, was the fact that each Colony became and was recognized by the mother Country a FREE, SOVEREIGN AND INDEPENDENT STATE.
In May 1776, 2 full months prior to the July 1776 Declaration of Independence, the colony of Virginia issued the Virginia Declaration of Rights, thereby declaring it’s own independence from Great Britain. In June 1776, Virginia adopted and proclaimed her own bill of rights and adopted her own Constitution. She declared all power of government vested in her own people, who alone succeeded to the rights and territories of the crown. Her governor and State officers were elected, taking an oath of fealty to the Commonwealth of Virginia. All this was accomplished before the 4th of July, 1776–before the Declaration of Independence, which declared the colonies free and independent States, had been proposed at her instigation and prepared by her great son.
Thus, the people of Virginia became citizens of the State, and she their sovereign. The Declaration of Independence, so far from changing the allegiance of her citizens or proclaiming the independence of the country as a whole, by its very terms declares that the several colonies are “free and independent States.”
Rather than rewrite much, I will quote South Carolina when it left the Union:
“In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and on 17th September, 1787, these Deputies recommended for the adoption of the States, the Articles of Union, known as the Constitution of the United States.
The parties to whom this Constitution was submitted, were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority.“
The US Constitution(4) states as follows:
“Amendment IX – Construction of Constitution. Ratified 12/15/1791.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X – Powers of the States and People. Ratified 12/15/1791.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
At no point in the writings that make up the US Constitution did it say a State could not leave. It explicitly stated that the rights not assigned the Federal Government remained with the States. That means that Article II of the Articles of Confederation was still in effect! “Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
South Carolina continues – “If only nine of the thirteen States had concurred, the other four would have remained as they then were– separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.
By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. On the 23d May , 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.
Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.
We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third fundamental principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.”
In this last paragraph we see a key component to the argument of a States right to leave the Union. “the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other”
The final paragraph from South Carolina reads as follows:
“We, therefore, the People of South Carolina, by our delegates in Convention assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, have solemnly declared that the Union heretofore existing between this State and the other States of North America, is dissolved, and that the State of South Carolina has resumed her position among the nations of the world, as a separate and independent State; with full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do.”
Please examine the wording carefully here. The paragraph is very similar to those found in the Declaration of Independence, as well as the Paris Peace Treaty.
I will move for a moment to the case of Texas. To fully understand the unique case of Texas, we must look first at the history of Texas. At the beginning of 1845, Texas was an independent nation, having won it’s own independence from Mexico in 1836. By the end of 1845, Texas had agreed to joining the Union, had formed a constitution of it’s own, and been assured of all the rights and privileges enjoyed by the other States of the Union.
The ability for a sovereign nation to join the Union was included in the original Articles of Confederation (Article XI) when it specifically mentioned the right of Canada to join the newly formed Confederacy. It was also touched upon in the Constitution (Article IV – Section 3)
In short, historical precedence had been set starting with the original revolt against Great Britain, documented in the various declarations of independence that had declared the splits of first the original colonies, the ‘United States’, of the Republic of Texas that indicated that this was a Right and Just act. Neither the original Articles of Confederation, nor the Constitution of the United States explicitly declared it wrong to leave. They did in fact suggest just the opposite.
So, if Secession was in fact legal, why was there a war fought to “Preserve the Union”? Was the American Civil War fought over States Rights, Slavery, Power or other reasons? Were Lee, Davis and the other leading figures of the Southern Confederacy traitors to the Union, or true patriots following in the direction of their fathers and grandfathers? Was Lincoln’s call for 75,000 volunteers to put down the rebellion even legal? The answers to those questions will wait as it deals with a great deal of build up.
1 – Declaration of Independence 1776
2 – Articles of Confederation 1778
3 – The Paris Peace Treaty of 1783
4 – Constitution of the United States of America 1787
5 – The Texas Declaration of Independence 1836
6 – Virginia Declaration of Rights 1776
Northern States Opinions on secession
A common fallacy is the belief that this struggle was North Vs South. While it was so geographically, the feelings in the hearts of many was evenly spread. Northern Opinion in a number of cases ran very much in support of the Southern Confederacy’s right to leave.
- In 1804, the legislature of Massachusetts passed an act declaring that the purchase and annexation of the territory of Louisiana by the general government was a sufficient cause for the dissolution of the Union. In fact, the State of Massachusetts had threatened on four separate occasions to secede from the Union. First, in the debates referred to on the adjustment of the State debts; secondly, on the purchase of Louisiana and its admission into the Union; thirdly, during the war of 1813; and fourthly, on the annexation of Texas, when, it is believed, one chamber of her legislature actually passed a vote of secession
- When the War of 1812 broke out, New Englanders saw it as a dispute between Jefferson’s Republican Party and England that did not involve the entire country. The region refused to send militia troops when they were requested by President James Madison.
- In 1814 the representatives from the six New England States assembled in the celebrated Hartford convention, and, because of their opposition to the war with England, declared that unless the policy of the administration in prosecuting this war was changed, they would be forced to adopt measures for withdrawing from the Union. The convention adjourned to meet the following June, when the timely ending of the war prevented the necessity of its reassembling.
- Josiah Quincy, of Massachusetts, in a speech delivered in the House of Representatives upon a bill for the admission of the first State from the Louisiana purchase, declared: “It is my deliberate opinion that if this bill passes, the bonds of the Union are virtually dissolved; that the States which oppose it are morally free from their obligations, and that as it will be the right of all, so it will be the duty of some, to prepare definitely for a separation.”
- In 1839 John Quincy Adams, in an address before the New York Historical Association, declared: “We may admit the same right has vested in the people of every State of the Union with reference to the general government, which was exercised by the people of the united colonies with reference to the supreme head of the British Empire, of which they formed a part, and under these limitations have the people of each State in the Union a right to secede from the Confederate Union itself.”
- In 1845 the legislature of Massachusetts, in view of its opposition to the proposed annexation of Texas, passed a series of resolutions in which, after declaring that there was no precedent for the admission of a foreign State or territory into the Union, and as the powers granted in the Constitution do not provide for such legislation, so “an act of admission would have no binding force whatever upon the people of Massachusetts.”
These various resolutions and enactments of State authorities, and declarations of statesmen both of the Revolutionary and later periods, were accepted as acknowledgment of constitutional rights, implying no lack of loyalty or patriotism.
Thus stood the historical and legal features of the great controversy. To say that the people of any State, acting under the forms of law, could not withdraw from the Union without a violation of the Constitution, was to contest what was an accepted theory of the government, held by leaders of thought in every section, from the day of its foundation.
We are not discussing either the wisdom of exercising the right of secession or the wisdom of the fathers in the formation of such a government, but we are considering the actual terms of the Constitution and the truths of history. Up to the early 1860’s, many states both North and South considered leaving the Union…and no one questioned the right of any free and independent state to secede, only its economic or political wisdom.
Touching briefly on the concept of “States Rights” superseding those of the Federal Governments I point to this quote “In response to British hijacking of American ships, President Thomas Jefferson imposed an embargo on all shipping on December 22, 1807. The New England states, whose economy depended heavily on shipping, first ignored the embargo with massive smuggling and then formally nullified the federal embargo law, the very kind of act that Owens describes as “blackmail.” On February 5, 1809, both houses of the Massachusetts legislature nullified the embargo act by denouncing it as “unjust, oppressive, unconstitutional. While this State maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of State government” (James J. Kilpatrick, The Sovereign States, p. 130). The embargo, said the Massachusetts legislature, “was not legally binding on the citizens of this state.” This was an application of the Jeffersonian states’ rights doctrine, as enunciated in the Kentucky and Virginia Resolves of 1798, authored by Jefferson, James Madison, and Virginia Senator John Taylor.”
- Connecticut also denounced the federal embargo law as being “incompatible with the Constitution of the United States, and encroaching upon the immunities of this State.” Its legislature directed all state government officials to deny “any official aid or co-operation in the execution of the act aforesaid.”
- Rhode Island’s legislature announced that it was its duty to “interpose for the purpose of protecting [its citizens] from the ruinous inflictions of usurped and unconstitutional power.”
- All of New England, plus Delaware, formally nullified the federal embargo law by denouncing it as an unconstitutional usurpation of power. “
Lets look at that for a moment.
The President imposed a national embargo.
Massachusetts declared it not binding because “this State maintains its sovereignty and independence”
Connecticut declared it unconstitutional, as did Rhode Island and other Northern states.
This was in 1809. A States right to self-determination had been confirmed.
We aren’t looking at what the Founding Fathers ‘meant‘. The people in power here -were- the Founding Fathers. Jefferson was the author of the Declaration of Independence. He and Madison were participants in the drafting of those documents we hold most dear. Certainly, -they- knew what they meant, right?
On the eve of war, with several states already gone, public sentiment was clear – Let them Go!
- Dozens of Northern newspapers which, on the eve of the war, favored peaceful secession.
- The New York Tribune wrote on February 5, 1861, that “Nine out of ten people of the North” were opposed to forcing South Carolina to remain in the Union. “The great principle embodied by Jefferson in the Declaration” is “that governments derive their just power from the consent of the governed.” Therefore, if the Southern states want to secede, “they have a clear right to do so.”
- The New York Times concurred on March 21, 1861 by writing, “There is a growing sentiment throughout the North in favor of letting the Gulf States go” (emphasis in original).
- The Hartford Daily Courant wrote on April 12, 1861, that “Public opinion in the North seems to be gradually settling down in favor of recognition of the New Confederacy by the Federal Government.”
- New York Tribune, foremost among the organs which had supported Mr. Lincoln, declared: “If the Declaration of Independence justified the secession from the British Empire of three million of subjects in 1776, it was not seen why it would not justify the secession of five millions of Southerners from the Union in 1861.“
So, what we have here is an 80+ year history where the idea of States Rights and Secession had been debated, and decided in favor of. Given this proof, we can see that a State had up until 1865 every right to leave the Union if it so chose, and that the war to “Preserve the Union” was in fact an illegal action.
The U.S. Supreme Court, according to the Prize Cases decided on in December 1862, ruled: “Congress cannot declare war against a state or any number of states by virtue of any clause in the Constitution. The President has no power to initiate or declare war against a foreign nation or a domestic state. Several of these states have combined to form a new Confederacy, claiming to be acknowledged by the world as a Sovereign state. Their right to do so is now being decided by wager of Battle.”
Please read that again. The U.S. Supreme Court states clearly that neither Congress nor the President as of 1862 had the power to declare war against a state. The right to do so was to be decided not in the courts, but on the field of battle.
So, if the war was not about the right of secession, what was it then about?
I hear the response now: Slavery.
Right and wrong. It did involve slavery, however it wasn’t the main reason for war. If it had been the main focus, then it would not have taken until December 6th 1865 for the 13th amendment to be issued. (Amendment XIII – Slavery Abolished. Ratified 12/6/1865.). The Civil War officially ended in April 1865. That means, for 8 months –after- the end of the war, slavery was still legal in the US. So much for that myth. Wait, what about the Emancipation Proclamation? This document only freed those slaves in the States that had seceded. It didn’t free any slave in those states still a part of the Union, and in fact allowed for slavery to continue in any state that voluntarily returned to the Union. It was meaningless. I will address the issues of slavery and the Emancipation Proclamation more in a future article.
So, what was it really all about? Money and power. Plain and simple, money & power.
The South felt they were paying too much in tariffs to the North, and that their political power was threatened by the incoming administration. The South felt it could do better without the restrictions imposed upon it by the North. The North however, needed the South. I will examine this in more depth shortly. My next article will focus on the road to war, and it’s roots in the original revolution.
More on the legality of secession:
Thomas DiLorenzo writes “Nor would the Republican Party, which enjoyed a political monopoly after the war, have insisted that the Southern states rewrite their state constitutions to outlaw secession as a condition of being readmitted to the Union. If secession was really unconstitutional there would have been no need to do so. “
This quote led me to do a search on this. I found this article by Dr. Walter E. Williams who said in part:
“On March 2, 1861, after seven states had seceded and two days before Abraham Lincoln’s inauguration, Sen. James R. Doolittle of Wisconsin proposed a constitutional amendment that said, “No State or any part thereof, heretofore admitted or hereafter admitted into the Union, shall have the power to withdraw from the jurisdiction of the United States.” ”
(Full text at http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=36294
Why would we need a new amendment IF it was already illegal?
Dr. Williams continues:
“Several months earlier, Reps. Daniel E. Sickles of New York, Thomas B. Florence of Pennsylvania and Otis S. Ferry of Connecticut proposed a constitutional amendment to prohibit secession. Here’s my no-brainer question: Would there have been any point to offering these amendments if secession were already unconstitutional? I’m guessing, no.”
Interesting…several times it was suggested specifically making the act illegal…which means, it was not.
“But there’s more evidence. The ratification documents of Virginia, New York and Rhode Island explicitly said that they held the right to resume powers delegated should the federal government become abusive of those powers.
There’s more evidence. At the 1787 constitutional convention, a proposal was made to allow the federal government to suppress a seceding state. James Madison, the father of our Constitution, rejected it, saying: “A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.” “
So, at least 3 states wrote their own exit clauses…one of who did in fact exit the Union. Of more importance, one of our founding fathers was on record as being against the use of force in the case of secession. Now, we here 200+ years later can wonder what he meant, but I’m certain he did.
Dr. Williams concludes thusly:
“Every single bit of evidence shows that states have a right to secede. There’s absolutely nothing in the Constitution that prohibits secession. What stops secession is the brute force of a mighty federal government, as witnessed by the costly War of 1861. Only one thing good came out of that war: It eliminated slavery. It’s had a devastating legacy for future generations of Americans, in that since the issue of secession was brutally settled, the federal government is free to run roughshod over the safeguards envisioned by the Framers, namely the Ninth and 10th Amendments.
There’s little to suggest that the same brutality wouldn’t be encountered if secession were tried again, as one writer cautioned: If New Hampshire seceded, massive troops along with today’s deadly modern military equipment would be on its soil before lunch.”
We’ve seen the horrors of modern warfare, and read the stories of how our troops fare in places like Iraq and more. These horrors are not to be called upon lightly, and we can have no misunderstanding that faced with secession today, that our federal government would hesitate to use force of arms to quell the rebellion.
I have read the entire US Constitution, and within that sacred document, considered the Supreme Law of this land, I can find nothing that indicates, suggests or directly states that a State may not leave the Union once it joins it. If someone can provide a law at the Federal level that passed and was ratified that says as much I welcome your evidence.
This concludes my examination of Secession. I will now turn my attention to the causes both fact and myth of the war of 1861-1865 and the long winding road that brought us there.
Article Copyright 2004 – Bob Hubbard. Reprinting by permission only.