A Superb Essay:
There is No Right to Unilateral Secession
Even to this day we hear from neoconfederates the patently absurd assertion that there is a right of a state to unilaterally secede from the Union. This is settled law. There is no such right. While the illegality of secession isn’t really a question most historians care much about, it’s something I’ve looked into. I think it ‘s more proper for constitutional scholars to explore than historians. After all, historians seek to understand what happened. Whether secession is legal or not does not affect that understanding. Constitutional scholars are more concerned with what is possible under the Constitution.
Entire books can be written to fully cover this issue, but here I’ll give a more bare-bones discussion.
I won’t get into the arguments specifically pertaining to secession that were thrown about by constitutional theorists and others. There are so many theorists around that one can find a theorist supporting virtually any facet of any position you’d like to find. So this is not intended as a look at both sides of the issue, merely as the official pronouncements of those with the authority to pronounce on the subject and have legal force behind what they say.
Let’s look at:
1. Official Government Statements
2. Case Law Before the War
3. Case Law During the War
4. Case Law After the War
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1. Official Government Statements
Secession was only seriously considered in such a manner to bring out an official statement of some kind from the Federal Government twice–in the Nullification Crisis and in the 1860 crisis. Three sitting presidents and two attorneys-general have made official statements on secession [Former presidents had also made statements while they were not in office. Since they were not speaking as the sitting presidents, I’m not including them.] The attorneys-general agreed with the presidents, so I’ll just show what the presidents said:
a. Andrew Jackson:
[begin quote]
The Constitution of the United States, then, forms a government, not a league, and whether it be formed by compact between the States, or in any other manner, its character is the same. It is a government in which all the people are represented, which operates directly on the people individually, not upon the States; they retained all the power they did not grant. But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union. To say that any State may at pleasure secede from the Union, is to say that the United States are not a nation because it would be a solecism to contend that any part of a nation might dissolve its connection with the other parts, to their injury or ruin, without committing any offense. Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right, is confounding the meaning of terms, and can only be done through gross error, or to deceive those who are willing to assert a right, but would pause before they made a revolution, or incur the penalties consequent upon a failure.
Because the Union was formed by compact, it is said the parties to that compact may, when they feel themselves aggrieved, depart from it; but it is precisely because it is a compact that they cannot. A compact is an agreement or binding obligation. It may by its terms have a sanction or penalty for its breach, or it may not. If it contains no sanction, it may be broken with no other consequence than moral guilt; if it have a sanction, then the breach incurs the designated or implied penalty. A league between independent nations, generally, has no sanction other than a moral one; or if it should contain a penalty, as there is no common superior, it cannot be enforced. A government, on the contrary, always has a sanction, express or implied; and, in our case, it is both necessarily implied and expressly given.
<snip>
[Proclamation Regarding Nullification, 10 Dec 1832]
b. James Buchanan:
In order to justify secession as a constitutional remedy, it must be on the principle that the Federal Government is a mere voluntary association of States, to be dissolved at pleasure by any one of the contracting parties. If this be so, the confederacy is a rope of sand, to be penetrated and dissolved by the first adverse wave of public opinion in any of the States. In this manner our thirty-three States may resolve themselves into as many petty, jarring, and hostile republics, each one retiring from the Union without responsibility whenever any sudden excitement might impel them to such a course. By this process a Union might be entirely broken into fragments in a few weeks which cost our forefathers many years of toil, privation, and blood to establish.
Such a principle is wholly inconsistent with the history as well as the character of the Federal Constitution.
<snip>
2. Case Law Before the War. While secession never came up in Court cases prior to the war, there were cases that dealt with the relations of states with each other and with the Federal government. If secession was a legal thing to do, it would be inconsistent with this body of case law.
In Fletcher v. Peck, the U.S. Supreme Court ruled, “But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution. She is a part of a large empire; she is a member of the American union; and that union has a constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several states, which none claim a right to pass.” [10 U.S. 87, 136]
“From these conventions, the constitution derives its whole authority. The government proceeds directly from the people. . . . *The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties.*” [17 U.S. 316, 402-404]
Marshall further ruled, “The government of the Union, then, is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” [17 U.S. 316, 404-405]
And, “If any one proposition could command the universal assent of mankind, we might expect it would be this–that the government of the Union, though limited in its powers, is supreme within its sphere of action.” [17 U.S. 316, 405]
The makeup of the Union, without doubt, is within the sphere of action of the Federal Government. We can see this from the fact that Congress admits new states into the Union, and the Federal law admitting those new states is signed by the President.
In Gibbons v. Ogden <cited earlier>
And in Cohens v. Virginia the Court ruled, “That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. . .. [19 US 264, 389]
3. Case Law During the War:
The prime example here is The Prize Cases:
“Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its accidents — the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.
“The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars.
“A civil war,” says Vattel,
breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.
“This being the case, it is very evident that the common laws of war — those maxims of humanity, moderation, and honor — ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c., & c.; the war will become cruel, horrible, and every day more destructive to the nation.
“As a civil war is never publicly proclaimed, eo nomine, against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know.
“The true test of its existence, as found in the writings of the sages of the common law, may be thus summarily stated:
“When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.” [67 US 635, 666-668]
“This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.
“It is not the less a civil war, with belligerent parties in hostile array, because it may be called an “insurrection” by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties.” [67 US 635, 668-669]
In upholding Lincoln’s actions against the rebels, calling the war a “civil war,” calling the rebellion an “insurrection,” and labeling the rebels as “rebels or traitors,” the Supreme Court was implicitly denying the legality of secession.
4. Case Law after the war:
The first chance the Supreme Court got to speak directly on the question of secession was Texas v. White.
“The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.
....
In Williams v. Bruffy, the Court ruled that the confederacy had no legal existence. It said, “The pleas aver that a confederation was formed by Virginia and other States, called the Confederate States of America, and that under a law of this confederation, enforced in Virginia, the debt due to the plaintiffs was sequestrated. Now, the Constitution of the United States prohibits any treaty, alliance, or confederation by one State with another. The organization whose enactment is pleaded cannot, therefore, be regarded in this court as having any legal existence.” [96 US 176, 182]
In Lamar v. Micou, the Court ruled, “The so-called Confederate government was in no sense a lawful government, but was a mere government of force, having its origin and foundation in rebellion against the United States.” [112 US 452. 476]
...
<snip>
The matter of secession has been clarified and is settled law, and no serious legal scholar supports the idea that unilateral secession is a right any state possesses. At best, one could say it wasn’t a completely settled question until the Supreme Court ruled on it after the war; however, anyone familiar with case law prior to the war would know that the idea it was legal would be inconsistent with what the Court had already ruled. Today’s neoconfederates who make the claim that unilateral secession was a right the states possessed are merely showing their ignorance.
There is No Right to Unilateral Secession Student of the American Civil War