The American Civil War, fought over one hundred fifty years ago, still incites argument and debate amongst people. One area of continued contention is the legality of secession. Did the southern states, in fact, have the legal right to secede? While this question may seem superfluous, considering the states did secede and a war fought to reestablish the Union, the question is important. From both a historical perspective and a modern political perspective, the secession debate raises valuable questions. The issue of just how the Articles of Confederation comes into play in the secession argument is of interest as is the language of the Constitution.
How the various southern states utilized Constitutional arguments to justify their position and the role slavery played in the proceedings is of particular importance to understanding this long-standing debate on secession. Both sides of the debate utilize various aspects of the Articles of Confederation and the Constitution, indeed, the entire premise of legality is based on the language and interpretation of these documents. The language, however, is obscure at times, and misleading at others, leaving it open to interpretation. The various interpretations create the debate. As the Constitution replaced the Articles of Confederation, however, it stands as the primary document to measure the legality of secession considering that the Constitution was the law of the land at the time the various states elected to succeed in late 1860 and early 1861. While the Constitution contains no language prohibiting a state from seceding, it does contain language, which made the actions of the seceding states unconstitutional.
To understand the succession debate as it relates to the aforementioned documents, an examination of certain passages in those documents is in order. In one particular instance, the Constitution directly references the Articles of Confederation. Article VI of the Constitution states, “All Debts and Engagements entered into before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” Both sides of the argument utilize this section of the Constitution.
Anti-secessionists use it to demonstrate a connection to the Articles, which deemed the Union of the states to be “perpetual” or in other words, the succession could not break the Union apart. Anti-secessionists also utilize wording of Article VI, the so-called Supremacy Clause, which states all laws and treaties made in “pursuance thereof” are binding, in other words, once passage of the Constitution takes place, its laws are the supreme laws. The Anti-secessionists use these two elements together, one to tie into the perpetual state of the Union, and the fact that the Constitution states all laws contained within it are supreme. This seems black and white to them, the Constitution is the law and it states the Union is perpetual. In closer examination of Article VI, however, a different, or greyer, picture emerges that secessionists use to bolster their own argument.
First, the section pertaining to all debts and engagements is in reference to loans and treaties made prior to the adoption of the Constitution. This makes perfect sense in that France would not likely forgive a debt owed by America because of France’s aid during the American Revolution simply because they adopted a new Constitution. This is simply stating that the United States will honor these previous agreements. Secondly, the use of pursuance thereof refers to the laws and treaties enacted while constructing the Constitution, not to any laws, which existed previously. The definition of pursuance is, “the act of pursuing”, or “carrying out or into effect”. Thus, it does not mean all laws enacted under the Article of Confederation. With these two elements in mind, then the term perpetual should remain in the Articles of Confederation, it does not automatically transfer to the Constitution. The only connection the Constitution makes to the Articles of Confederation is in the aforementioned clause on debts and engagements. As such, the Constitution, not the Articles of Confederation is what will decide the legality of secession.
Another Constitutional Article that both sides point to in their argument is Article I. Section Ten of Article I states that, “No State shall enter into any treaty, Alliance, or Confederation…” The anti-secessionists point to this section as demonstrating that the southern states had no right to secede and set up their own government, thus secession was illegal. Secessionists argue that by seceding, the states that left no longer adhered to the Constitution and thus were not in violation of the laws of the land.
The basis for this latter argument is that secession reverts a state back to its independent status. The thinking behind this comes from the seceding states assertion, which South Carolina’s Ordinance of Secession articulated in 1860, that the Constitution represented a compact between the independent states and a central government. In their view, to use Section Ten as an example of the illegality of secession is something of a stretch, because if a state seceded, then the rules of the Constitution no longer apply. Therefore, a state could only be in violation of this article if it were still bound to the laws of the Constitution. This then, brings the argument back to the question of whether a state has the right to succeed. To debate this, the two sides turn to one of the Amendments to the Constitution.
The Tenth Amendment states, “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 surface of this wording, secessionists appear to have a case. There is no language in the Amendment that prohibits a state from seceding and in fact, the Amendment grants them the right as a State’s right. Anti-secessionists, such as Abraham Lincoln, argue that the right to secede is not a States right because the Constitution would not have a means for the dismemberment of the United States. This, of course, is conjecture; the argument assumes that secession was excluded as a state right, but the Constitution never spells that out, therefore, that argument is groundless as there are no facts or documents to support it. The Tenth Amendment, therefore, could reserve the ability of a state to secede. How the states utilized these arguments for secession will help to clarify the argument.
The first state to secede, South Carolina, offers an excellent example of the Constitutional arguments put forth by the seceding states. In the opening of the Ordonnance of Secession, the state of South Carolina proclaimed that the Constitution represents a, “compact between the States, a Government with defined objects and powers, limited to the express words of the grant.” This establishes, at least in South Carolina’s thinking, that the Constitution is an agreement that has limited scope. This agreement, or compact, South Carolina states, must be mutual and that the, “failure of one of the contracting parties to perform a material part of the arrangement, entirely releases the obligation of the other.” This very neatly provides South Carolina with an excuse to secede. They claim the Federal government failed in its part of the compact by allowing non-slaveholding states to dictate rules on property (slaves) and state institutions of the southern states. While this seems to add a coherent legal foundation to secession, the ordnance engages in similar hyperbole as the anti-secessionists use of Article I, Section Ten of the Constitution. There were others, prior to South Carolina, who agreed with this sentiment, however, and one was Thomas Jefferson.
Thomas Jefferson stated in 1825 that upon declaring independence from Great Britain, Virginia became one of the, “free and independent States, and as such authorized to constitute governments, each for itself, in such forms as it thought best.” Jefferson also claimed that the states, “entered into a compact”, when they ratified the Constitution. Jefferson later asserts the rights of states, and alludes to secession being one of those rights. Here then is a powerful ally for the secessionists. Thomas Jefferson outlines in 1825 some of the very points South Carolina raised in 1860. Based on Jefferson’s words, South Carolina may not have made such a great assumption about the existence of a compact; however, the Constitution does not spell this out in any clear manner.
Returning to the idea of a compact and the role of the Federal government in the Ordinance of Secession, South Carolina is assuming a compact exists. While this may be justifiable, the Constitution does not state that there is any compact in which the Federal government must meet certain expectations of the various states. The connection to the words of Thomas Jefferson may be a nice bolster to their argument, but he was not the government and the fact remains, the Constitution does not clearly grant the right of secession. Nor does the Constitution anywhere mention an arbiter to settle disputes between the Federal government and a state. This is simply a way for South Carolina to justify, or explain, their secession.
The ordinance also engages in manipulations of the Constitution. South Carolina claims the Federal government is itself violating the Constitution by, “elevating to citizenship persons who, by the supreme law of the land are incapable of becoming citizens.” Not until the Fourteenth Amendment passed in 1868 did the Constitution define who could become a citizen. Thus, claiming the Federal government was acting in an unconstitutional manner and using it as a reason to secede in this instance is simply untrue. The South Carolina Ordinance of Secession, however, demonstrates that both sides of the argument utilized the Constitution for their own purposes. Indeed, secessionist even attempted to utilize the Constitution to make slavery a right, and thus a reason to break the compact and secede.
The issue of slavery lies at the heart of the why the southern states wished to secede, and requires an in-depth examination, but for the purposes of this discussion, the focus will remain on the Constitutional arguments. The southern states used the fact that the government was attempting to outlaw slavery as a reason to invoke the Constitution. The argument was that the Federal government was overstepping its bounds, something Jefferson argued in 1825 regarding the building of roads and canals, establishing a precedent for the argument. Abraham Lincoln, however, addressed the secessionist attempt to make slavery a right in an 1854 speech. In that speech, in discussing the issue of slavery, Lincoln stated, “But NOW it is to be transformed into a “sacred right”.” Lincoln’s argument here was that slavery was never a right guaranteed by the Constitution, and in fact, the government had passed various laws designed to phase out slavery. He argued that the tolerance of slavery upon the United States securing its independence was out of necessity, mainly due to the institution existing prior to the Constitution, never was it a right and certainly not a sacred right.
These examples demonstrate that both sides of this argument used Constitutional arguments to promote their position. The Constitution, however, does not clearly spell out if secession is legal or not, thus in the absence of clear language prohibiting secession, the Tenth Amendment, discussed earlier, would imply that secession remains a right of the individual states. Where the states were in violation of the Constitution would be in the actions of their elected representatives to Congress. These men, who opted for secession, broke their Oath to the Constitution that Article VI requires them to take.
The Article states that these elected officials are, “bound by Oath or Affirmation, to support this Constitution…” Lincoln agreed with this sentiment. Speaking in 1858, Lincoln asked, “if you were elected members of the Legislature, what would be the first thing you would have to do before entering upon your duties? Swear to support the Constitution of the United States.” This was a recognized fact and the Constitution spells this out very clearly. Thus the men, who voted for secession, were in violation of the Constitution, but only if as elected members of Congress, the state legislatures were not under this prohibition, thus their action to secede did not violate the Constitution. This does not mean that the seceding states did not break any Constitutional laws, for many did just that prior to their formal secession from the Union.
Virginia, prior to secession from the Union, engaged in direct aggressive action against the government. Virginia militia attacked and seized the Federal armory at Harper’s Ferry, and removed military equipment from the site. They also attacked and took over the United States Gosport naval yard outside Norfolk and took possession of ordinance and ships. In a similar fashion, Arkansas, North Carolina, and Tennessee raised militia companies for the Confederacy and allowed Confederate forces into the state prior to seceding from the Union. These actions were illegal and in direct violation of Article I, Section Eight of the Constitution that reserves to the central government the right to raise militia units, and maintain a navy.
Along these lines, any states that joined the Confederacy prior to secession were in violation of Article I, Section Ten of the Constitution. This Section states, “No State shall enter into any Treaty, Alliance, or Confederation…” The states of Virginia, Tennessee, Arkansas, and North Carolina, were all in violation the aforementioned Articles of the Constitution by joining the Confederacy prior to formal secession. Therefore, they entered into a state of rebellion prior to seceding.
The arguments regarding any individual states right to secede or not becomes convoluted by obscure Constitutional language and references to the Articles of Confederation. The Constitution, however replaced the Articles of Confederation, and thus became the primary document to decide if secession was legal. The Constitution, however, does not contain language prohibiting a state from seceding, and it could be argued that the lack of a prohibition reserves the right for a state under the Tenth Amendment.
The Constitution does contain language, however, which made the actions of the seceding states and some of their representatives unconstitutional. The violations that the southern states committed are important as they justify President Lincoln’s response to suppress the rebellion by force. The states that joined the Confederacy prior to formal secession were in a state of rebellion and as such, the Federal government was within its constitutional rights to suppress that rebellion. The fact that they joined the Confederacy, engaged that entire body in the conflict.
On 15 April 1861, Abraham Lincoln called for militia to suppress the rebellion, and secessionists utilize this call to justify their actions. As demonstrated, however, many of these states were already in a state of rebellion, thus Lincoln was upholding the Constitution. The legality of secession is not overly clear, but the actions of the states prior to rebellion, is clearer. Numerous states that eventually seceded engaged in aggressive action against the Federal government, breaking the law of the land and inciting insurrection. As such, the Federal government was bound by the Constitution to, “execute the Laws of the Union” , and to “suppress Insurrections.” Only by suppressing the rebellion in the country, could the President uphold the Constitution and “insure domestic Tranquility.”
Bibliography
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McClanahan, Brion. “Is Secession Legal?” 2012.
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Merriam-Webster. 2016. https://www.merriam-webster.com/dictionary/pursuance (accessed December 29, 2016).
The Constitution of the United States of America. 1791. New York: Barnes and Noble , Inc., 1995.
Historical Cogitations 