A Brief Examination of the Legality of Secession in the United States
Did the Southern States Have the Right to Secede from the Union During the Antebellum Period?
by
Kenneth S. Imbriale



Secession Proclamation Draft, June 14th, 1861, drafted by the governor of Virginia

Of all the events that have occurred in the history of the United States, none is more controversial or has greater implications for the nation than the War for Southern Independence, or, if preferred, the War Between the States. (The conventional term “American Civil War” is a misnomer, implying that factions within the United States were engaged in a class struggle for control of the government – clearly, this was not the case. Upon the secession of eleven Southern states, a new nation – the Confederate States of America – was created. The war was fought by two sovereign nations, not factions within a singular political entity.) It was a “a sectional combat having its roots in political, economic, social, and psychological elements so complex that historians still do not agree on its basic causes.” [The Columbia Encyclopedia, Sixth Edition., s.v. “Civil War, in U.S. History.”]  The fact that there is a lack of agreement on how to simply refer to the war is demonstrative of the incredible controversy engendered by this cataclysmic event and its salient causes.

Two monumental results of the War for Southern Independence were the radical reinterpretation of the constitutional definition and meaning of the term “United States” and the abolition of slavery. The former result has literally changed the political philosophy and governmental structure of the United States to such a degree that it can be argued that the current nation is unrecognizable from the incipient one created by the Founding Fathers at the Constitutional Convention in 1787, while the latter result forever altered the socio-economic landscape in the United States. Both results were triggered by the decision of eleven states to secede from the United States from December of 1860 (South Carolina) to April of 1861 (Virginia, North Carolina, Tennessee, and Arkansas); Georgia, Alabama, Mississippi, Florida, Louisiana, and Texas had seceded in early 1861. One can argue that the decision to secede unleashed the greatest forces of change in American history.

With this in mind, it is the purpose of this essay to prove that the right of secession existed legally in the United States in the antebellum period (one can infer that this right still exists today, although that argument will not be attempted here). If secession was illegal, then the actions of the those eleven Southern states led to the destruction of the republic as created by our Founding Fathers, and the South bears ultimate responsibility for the deaths of the 620,000 Americans who died in the ensuing war. However, if secession was a legal action, then blame for the aforementioned tragedies can be placed squarely upon the shoulders of President Abraham Lincoln; the deification of the putative “Great Emancipator” can cease, and he can be forever known as the President who plunged the nation into the bloodiest conflict in its history. High stakes indeed! (It is interesting to note that the eradication of slavery remains an unblemished virtuous outcome of the War for Southern Independence, regardless of where fault may lie for the war’s causation. Whether the “peculiar institution” would have been eventually extinguished without the bellicosity is beyond the scope of this paper.)

It may be helpful to begin by determining what is meant by the term “secession.” According to the Columbia Encyclopedia, secession is, “in political science, formal withdrawal from an association by a group discontented with the actions or decisions of that association. The term is generally used to refer to withdrawal from a political entity; such withdrawal usually occurs when a territory or state believes itself justified in establishing its independence from the political entity of which it was a part. By doing so it assumes sovereignty.” [Ibid.]  This seemingly straightforward definition raises another issue – what was the nature of the political entity from which the Southern states seceded? Was the United States a sovereign nation, an indivisible union that made secession an impossibility, akin to the Judeo-Christian view of marriage as expressed in Matthew 19:6 (“therefore what God has joined together, let not man separate”)? Or was the United States simply a voluntary compact of sovereign states who ceded some of their sovereign power to the federal government for specific reasons, with those states ultimately retaining absolute sovereignty in their self-government (and thus possessing the ability to withdraw from this compact)? This view portrays the union as analogous to a business partnership, which is dissoluble by one or more of the parties to its contract. The entire discussion of the legality of secession hinges on the nature of the union formed by the former British colonies, as determined by the Founding Fathers of the United States.

The classical arguments against the doctrine of secession are neatly summed up by Professor Kenneth M. Stampp in his treatise The Concept of a Perpetual Union: “Lacking an explicit clause in the Constitution with which to establish the Union’s perpetuity, the nationalists [anti-secessionists] made their case, first, with a unique interpretation of the history of the country prior to the Philadelphia Convention; second, with inferences drawn from certain passages of the Constitution; and third, with careful selections from the speeches and writings of the Founding Fathers.” [Kenneth M. Stampp, “The Concept of a Perpetual Union,” The Journal of American History, Vol.65, No.1 June, 1978: 6.] The nationalists believed that the Union existed prior to the creation of the states (the Declaration of Independence refers to “these united colonies”), that the Articles of Confederation provided for a “perpetual union,” and that the Constitution had as a chief goal the creation of a “more perfect Union.” [Ibid.]  All of these arguments served to establish the supremacy of the federal government, and weaken the raison d’etre of secessionist logic – the concept of state sovereignty. Each of these arguments will be explored and refuted throughout this essay.

The document that actualized – brought into being - the United States of America was the Declaration of Independence, written primarily by Thomas Jefferson (he will play a significant role in this discussion) as part of a larger group assigned this task. How does Jefferson describe this union? In the document, he states, “We, therefore, the Representatives of the United States of America, in General Congress…in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, 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.” [Jerome B. Agel, ed., We the People: Great Documents of the American Nation. New York: Barnes and Noble Books, 2000, 19-20.]  Jefferson refers to the states as “free” and “independent”, with the power to conduct any and all affairs to which sovereign states are entitled. Notice that Jefferson refers to the states in plural form; whatever the form of this “union”, it certainly is not a singular, nationalistic entity (unless, of course, we are to believe that the sage of Monticello was ill-equipped as a political writer and philosopher - would anyone dare mount such an indefensible argument?).

In addition, Jefferson included the Enlightenment thoughts of the great British political thinker and empirical philosopher John Locke on the right to alter or abolish unjust government. In the section of the Declaration of Independence that lists the natural rights of man, he presciently includes, “That to secure these [natural rights] rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, - 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.” [Ibid., 17-18.]  It is not difficult to ascertain an implied right of secession in these words, providing that the existing government is truly “destructive,” in Jefferson’s phrase, of man’s natural rights.

After the Declaration of Independence was made public, the governing body of the nascent United States was the Continental Congress. In 1781, the Articles of Confederation were ratified, in order to delineate the powers of the Congress relative to the states. In essence, the Articles of Confederation was the first governing document – the first national constitution – of the United States. How does this initial constitution describe the union of states?

In Article I, the document declares that “The style of this Confederacy shall be "The United States of America." [Ibid. 21]  A “confederacy”! The term, as defined by Merriam-Webster Dictionary, means “a league or compact for mutual support or common action: an alliance.” Article II states 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.” [Ibid.]  Here the Articles of Confederation make reference, as did the Declaration of Independence, to states being sovereign, free, and independent. Article III states, “The said states hereby severally enter into a firm league of friendship with each other for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.” [Ibid.] Clearly, a “firm league of friendship” is not synonymous with an inviolable union; the principle of sovereignty is unequivocally confirmed.

Yet, the conclusion of the Articles of Confederation (Article XIII) makes reference to “the Union shall be perpetual.” Merriam Webster Dictionary defines “perpetual” as “continuing forever: everlasting.” Are we to believe that the Articles of Confederation contains an obvious and blatant contradiction, that none of its creators were either aware of or capable of rectifying?

If we are to view all of the articles as part of a systematized unit, we must conclude that sovereign, independent states entered into a confederation – a “firm league of friendship” – for various mutually beneficial reasons, and that the ardent desire of all parties was that this confederation (as defined by the Articles of Confederation) would last in perpetuity. Similarly, nearly all friendships, business partnerships, and alliances are entered into with the hope of fruitful existence, and thus the desire for continual, i.e., perpetual, existence. However, if by use of the term “perpetual” the Articles of Confederation purport to suggest an inviolable union for eternity, then the political and legal sentiments expressed in the first three articles of that very document are negated, and have absolutely no meaning or significance. This cannot be the case; any impartial exegesis will not permit it.

Next we turn to the United States Constitution, the governing document that superseded the Articles of Confederation after it was ratified in 1788. While it is true that the Constitution does not expressly prohibit or allow secession – “the wording of the Constitution gives neither the believers in the right of secession nor the advocates of a perpetual union a case so decisive that all reasonable persons are bound to accept it” [Kenneth M. Stampp, “The Concept of a Perpetual Union,” The Journal of American History, Vol.65, No.1 (June, 1978): 12.] - there are some parts of that document that have been used to either justify or negate the right of secession.
Opponents of secession point to its preamble, with its declaration of, “We the People of the United States, in order to form a more perfect Union…” as proof that the Union was a creation of the American people in their totality, not an amalgam of individual states. In fact, Senator Daniel Webster of Massachusetts makes this very point in a speech in 1833 that has since been entitled, “The Constitution Not a Compact Between Sovereign States.” However, Professor Thomas E. Woods, Jr. notes that Webster’s “exegesis of the Constitution’s preamble is faulty. In fact, the Constitution as originally drafted did say ‘We, the States.’ This wording was removed for practical reasons by the committee on style. The fact that this textual change was unanimously accepted proves it could not have been intended to alter the nature of the Union. Had the new text really meant what Webster later claimed it did, vocal and lengthy debate would have ensued.” [Thomas E. Woods, Jr., The Politically Incorrect Guide to American History, Washington, D.C.: Regnery]

Of course, the Tenth Amendment to the Constitution stands as a towering monument to the concepts of states’ rights – the doctrine that states are ultimately sovereign in their affairs. Some would argue that upon states entering the Union, the federal government becomes sovereign, but historically this has been refuted both vehemently and often. The existence of the Tenth Amendment – “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.” – is ipso facto proof that the concept of state sovereignty was not abandoned by the Founding Fathers (especially by the group known as the Anti-Federalists). In fact, Thomas Jefferson believed that the Tenth Amendment “was the cornerstone of the entire Constitution.” [Ibid. 26]

Another aspect of the Constitution that strongly supports secession is the state ratification debates of Virginia, New York, and Rhode Island. If entry into the Union somehow meant a diminution of state sovereignty, with each state becoming an indivisible part of a larger whole, you wouldn’t know it by the conditions stipulated by these states effective upon their entry into the Union. As per Professor Woods, “So concerned were Virginians about the possibility that the new Union would infringe upon their rights of self-government that upon ratification of the Constitution, Virginia declared that it reserved the right to secede from the Union…evidence from Virginia’s ratifying convention makes clear that the delegates believed they were entering a voluntary compact [italics added] among states rather than yielding their sovereignty to an all-powerful national government. New York and Rhode Island would include similar clauses in their own acts of ratification.” [Ibid. 18]
Equally powerful is the philosophical meanderings made by the framers of the Constitution during the Convention of 1787. Rufus King of Massachusetts, “speculating about circumstances that might cause the southern states to secede, concluded that they would always be in a position to say, ‘do us justice or we will separate.’” [  Kenneth M. Stampp, “The Concept of a Perpetual Union,” The Journal of American History, Vol.65, No.1 (June, 1978): 14.]  Somewhat peripherally, Nathaniel Gorham (also of Massachusetts) “doubted that it [the Union] would ‘150 years hence remain one nation.’” [Ibid]  Additionally, William Blount of North Carolina “predicted privately that in ‘not many years’ the states would be ‘distinct Governments perfectly independent of each other.’” [Ibid]  Professor Kenneth M. Stampp highlights another powerful expression of sovereignty, by John Dickinson of Delaware, by noting, “that the Union would be ‘a confederacy of republics…in which, the sovereignty of each state was equally represented,’ was by no means uncommon.” [Ibid. 15]

Finally, there are the comments of George Mason of Virginia – author of the Fairfax Resolves of 1774 (that sought to clarify the relationship between Great Britain and the colonies and advocated a colonial congress in response to perceived British malfeasance), creator of the Virginia Declaration of Rights (the blueprint for the U.S. Bill of Rights), the primary author of the Virginia state constitution, and a leading Anti-Federalist at the Constitutional Convention. As per Stampp, “Most arresting is the contribution that George Mason made to the mechanics of secession, should it ever be attempted. Mason opposed referring the Constitution to state legislatures for ratification, ‘because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Government would stand in each State on the weak and tottering foundation of an Act of Assembly.’” [Ibid. 14]  In other words, Mason believed that as states could ratify the Constitution when seeking to join the Union, that very same statutory power allows them to undo that ratification and secede from the Union. It was for this reason that Mason preferred that the people of each of the several states elect delegates to a convention (as opposed to the sitting state legislature) for the sole purpose of debating and, if agreed upon, ratifying the proposed national constitution. States would retain their sovereignty, and the right of secession would still exist, but the power to do so would reside much closer to the people of each state. “Thus, delegates to the Philadelphia convention, in effect, explained both what proved to be the principal justification for secession (violations of the compact) and the method by which it might be accomplished (through a state convention).” [Ibid. 14-15]  This is precisely the mechanism used by the eleven states of the Confederacy when they seceded from the Union.

Concerning the various opinions articulated at the Constitutional Convention, it is interesting to note that former diplomat and Senator Henry Cabot Lodge, in his book entitled Life of Webster, writes that "It is safe to say that there was not a man in the country, from Washington and Hamilton to Clinton and Mason, who did not regard the new system as an experiment from which each and every State had a right to peaceably withdraw."
[http://civilwar.bluegrass.net/secessioncrisis/890304.html]

Years later, however, Chief Justice of the Supreme Court John Marshall and Senators Daniel Webster of Massachusetts and Edward Livingston of Louisiana would make impassioned arguments against the constitutionality of secession. Disagreements among such highly esteemed men highlight the unsettled nature and brewing controversy underlying the topic.

The importance of Thomas Jefferson to the secession argument cannot be overestimated. Jefferson’s legendary status in American history as a Founding Father, primary author of the Declaration of Independence, writer of the Kentucky Resolutions, and third President of the United States makes his pronouncements on the topic of secession invaluable both during his own epoch as well as in contemporary American history. We have already examined Jeffersonian thought as detailed in the Declaration of Independence; a brief review of Jefferson’s ideas as expressed in the Kentucky Resolutions – his reaction to the Adams Administration’s Alien and Sedition Acts of 1798 (Jefferson was, amazingly, the sitting Vice President of the United States to President John Adams when he wrote the Resolutions) - would be appropriate. It should be noted that James Madison – considered the “father of the U.S. Constitution - wrote a corresponding treatise that became the Virginia Resolutions. Madison, however, offers a “softer” version of the strict constructionism of the Constitution and the compact theory of the Union as compared to Jefferson.

The Kentucky and Virginia Resolutions define the Constitution as a compact between the states, and reiterating the sentiments expressed in the Tenth Amendment, that the federal government did not possess the right to exercise any powers that weren’t delegated to it by the compact itself. The Resolutions also contained provision for “interposition” and “nullification” – the cancellation of objectionable federal laws. Professor Clement Eaton opines that, “The Virginia and Kentucky resolutions are important documents in Southern political theory, for the compact theory of the Constitution that they expounded contained the germs of the South Carolina nullification movement and of the secession doctrines.” [Clement Eaton, A History of the Old South (New York: The MacMillan Company, 1966), 155.] Thus, the Kentucky and Virginia Resolutions, authored by two of the greatest constitutional authorities produced by this nation, lay the foundation for the states’ rights theory of government, which subsequently paved the way for South Carolina Senator John C. Calhoun’s attempts at nullification (of the federal Tariff Act of 1832) and ultimately for the right of a state to secede from the Union.

Included in the Resolutions was the notion that the federal government was a creation of the states, and as such the federal government did not have the authority to determine the extent of its own power; however, states certainly could determine the breath and scope of federal power. Professor Eaton illustrates this by stating, “Jefferson and Madison maintained in their resolutions that in the absence of an umpire between the states and the Federal government, the states or the people had this power – in the words of the Kentucky Resolution, ‘That the government created by this compact [italics added] was not made the exclusive or final judge of the extent of powers delegated to itself.’” [Ibid. 154-155]

Jefferson again rises to the fore a few years after his Presidency, when the Madison Administration occupied the White House. As a reaction to the deleterious economic and commercial effects of the War of 1812 (“Mr. Madison’s War”) on many of the New England states, a meeting of leading Federalist Party politicians from those states convened in Hartford, Connecticut at the end of 1814. This so-called Hartford Convention actually toyed with both the notion of secession and with creating a subsequent agreement to empower them to negotiate a separate peace treaty between these newly (if the proposition succeeded) seceded New England states and Great Britain. However, the proposal to secede from the Union was discussed and rejected, essentially aborting the idea in its infant stage.
The importance of the Hartford Convention lies in its deference to the states’ rights theory of government, and its receptivity to secession as a legal, viable constitutional option possessed by states. Thomas Jefferson’s reaction to the New England secessionist movement was telling; he philosophically supported the cause. According to Professor Lee C. Buccheit, Jefferson “was even willing to contemplate a disruption of the union in 1816 under the influence of commercial differences: ‘If any State in the Union will declare that it prefers separation…to a continuance in union…I have no hesitation in saying, let us separate.’” [Lee C. Buccheit, Secession: The Legitimacy of Self-Determination (New Haven: Yale University Press, 1978), 109.]  It must be noted here that Jefferson was not a proponent of secession; he simply acknowledged that the legal and constitutional right of secession did exist.

While the writing and political philosophy of Jefferson remained remarkably consistent throughout his lifetime, the same cannot be said for another monumental American constitutional figure, James Madison. He vacillates greatly on the topic of the permissibility of secession. In Federalist 39, Madison explains, “the Constitution is to be founded on the assent and ratification of the people of America…not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong." [James Madison, “Federalist 39,” in The Federalist Papers (New York: The New American Library, 1961), 243.]  Yet, Madison “urged the delegates to the Philadelphia Convention to give the federal government sufficient power to prevent a dissolution of the Union.” [Kenneth M. Stampp, “The Concept of a Perpetual Union,” The Journal of American History, Vol.65, No.1 (June, 1978): 16.]  However, “at the Virginia ratifying convention he asked: ‘Who are the parties to…[the Constitution]? The people – but not the people as composing one great body; but the people as composing thirteen sovereignties.’” [Ibid. 17]

Madison exerted much energy in his later years denying that his Virginia Resolutions and Jefferson’s Kentucky Resolutions expounded the doctrines of nullification or secession, despite their obvious intent. “The Virginia Resolutions, Madison insisted, gave ‘not a shadow of countenance to the doctrine of nullification.’ His defense was not altogether convincing…” [Ibid. 30]  Keeping track of the positional fluctuations of Mr. Madison is incredibly frustrating. Professor Thomas Woods remarked, “That Madison indicated in 1830 that he had never meant to propose nullification or secession either in his work on the Constitution or in his Virginia Resolutions of 1798 is frequently taken as the last word on the subject. But Madison’s frequent change of position has been documented by countless scholars.” [Woods, Jr. 38-39]  Such indecisiveness effectively eliminates either side in the secession debate from claiming Madison as their ideological cornerstone.
The next step in this historical chronology is South Carolina’s Nullification Act of 1832, which was a response to the Tariff Acts of 1828 and 1832 (the “Tariff of Abominations”). Senator John C. Calhoun builds his case for nullification on the arguments previously established by Jefferson and Madison in the Kentucky and Virginia Resolutions, respectively. That is to say, a state’s sovereignty within the federal compact is what gives it the legal standing to “nullify” a federal law in the first place. Nullification and secession are inextricably linked, according to Calhoun, and if that right does not exist, then “the character of the Government has been changed in consequence, from a federal republic, as it originally came from the hands of its framers, into a great national consolidated democracy.” [John C. Calhoun, Southern States May Be Forced to Leave the Union, ed. William Dudley, The Civil War: Opposing Viewpoints (San Diego: Greenhaven Press, Inc., 1995), 29.]  According to historian Avery O. Craven, “Calhoun had insisted that the real issue was whether this was a federal union of states or a union of the American people in the aggregate. He made it perfectly clear that he thought it was the former…” [Avery O. Craven, The 1840s and the Democratic Process, ed. Edwin C. Rozwenc, The Causes of the American Civil War (Lexington, MA: D.C. Heath and Company, 1972), 182.]

This logic was countered by President Andrew Jackson, who claimed that the inherent error in South Carolina’s reasoning was the mistaken belief that the Constitution was a compact between sovereign states, when it was actually ratified by the American people via their respective state conventions. States thus lost their sovereignty, and the people’s allegiance was transferred to the government of the United States. [Kenneth M. Stampp, “The Concept of a Perpetual Union,” The Journal of American History, Vol.65, No.1 (June, 1978): 31-32.]  (President Abraham Lincoln would be profoundly influenced by Jackson’s rationale in the ensuing decades.) However, Jackson’s line of reasoning distorts the philosophical premise of George Mason when he proposed the “state convention ratification” concept during the Constitutional Convention in 1787 (see above). Three decades later, South Carolina would, of course, refer to the Declaration of Independence, the Articles of Confederation, and the Tenth Amendment to the Constitution as evidence of the right to secede when creating its Declaration for the Causes of Secession in December of 1860.

Jefferson and Madison are not the only grand historical figures of American history that delved into the states’ rights/secessionist philosophical swamp. Abraham Lincoln put forth numerous statements on the topic – unfortunately, his later opinions upon assuming the Presidency differed greatly from his public pronouncements from the previous decade. “A dozen years before assuming the burdens of the presidency, the young politician Abraham Lincoln was willing to concede that: ‘Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable, - a sacred right…Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people can, may revolutionize, and make their own, of so much of the territory as they inhabit.” [Ibid. 110]  Lincoln was a secessionist – at least for a while, anyway. Like many politicians, Mr. Lincoln was not immune from switching positions for reasons of political expediency.

Accordingly, he would alter his position on secession as well. “By the date of his inauguration, Lincoln expressed a somewhat different opinion on this subject. Secession was no longer seen as a ‘sacred right,’ but rather as the ‘essence of anarchy.’” [Ibid. 111]   In part of Lincoln’s First Inaugural Address on March 4, 1861, the newly elected President declares, “We find the proposition that, in legal contemplation, the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And, finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union." [Jerome B. Agel, ed., We the People: Great Documents of the American Nation (New York: Barnes and Noble Books, 2000), 198.]  Lincoln’s key point is that the concept of “Union” predates the documents that formed that Union in the first place. In fact, Lincoln believed that the Union predated the creation of the states themselves!

This is a puzzling philosophical stance, and one that does not withstand scrutiny. The fact that Article VII of the U.S. Constitution states that “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same” [Ibid. 43]  tells us that states not ratifying the Constitution would be excluded from the Union. Indeed, Rhode Island did not ratify until 1790; for two years, the “Union” certainly existed, but it did not include the state of Rhode Island! How could Rhode Island be part of a pre-existing Union, and not part of this Union, at the same time? This is a philosophical impossibility, and Lincoln’s concept of “Union… much older than the Constitution itself” explodes under the weight of chronology and historical fact.

In that same First Inaugural Address, Lincoln “tried to place the burden of proof [of legality] on the secessionists, claiming that they could not destroy the Union ‘except by some action not provided for in the instrument itself.’ Unfortunately, the secessionists could argue with equal plausibility that Lincoln could not preserve the Union except by some action whose constitutionality would also be in doubt.” [Kenneth M. Stampp, “The Concept of a Perpetual Union,” The Journal of American History, Vol.65, No.1 (June, 1978): 13.]  Additionally, what Lincoln possessed in eloquence was attenuated by his general lack of originality of thought. As per Professor Kenneth Stampp, Lincoln “made no original contribution to the classical nationalist argument when he attempted to prove that ‘the Union of these States is perpetual,’ that ordinances of secession were ‘legally void,’ and that resistance to the Federal government was ‘insurrectionary or revolutionary, according to circumstance.’” [Kenneth M. Stamp, And the War Came: The North and the Secession Crisis 1860-1861 (Baton Rouge: Louisiana State University Press, 1950), 200.]

Lincoln also maintained a third position (modifying his pro- and anti-secession rhetoric) in which he believed that the right of secession was legitimate only as a reaction to government tyranny and oppression. Since that was not the case, Lincoln reasoned, in the United States circa 1860, the Southern secessionist movement was an illegitimate response and thus impermissible. Of course, and perhaps unwittingly on the part of Lincoln, the underlying implication is that should a state actually suffer from “government tyranny and oppression,” secession would be an appropriate course of action – and, accordingly, a legal remedy.

Ironically, Lincoln was no stranger to the concepts of government tyranny and oppression. During his presidency, he “illegally suspended the writ of habeas corpus; launched a military invasion without consent of Congress;…imprisoned without warrant or trial some 13,000 Northern citizens who opposed his policies; arrested dozens of newspaper editors and owners and, in some cases, had federal soldiers destroy their printing presses; censored all telegraph communication;…ordered Federal troops to interfere with Northern elections; deported a member of Congress from Ohio after he criticized Lincoln’s unconstitutional behavior; confiscated private property; confiscated firearms in violation of the Second Amendment; and eviscerated the Ninth and Tenth Amendments.” [Thomas J. DiLorenzo, “Fighting Facts with Slander,” April 3, 2002, http://www.lewrockwell.com/dilorenzo/dilorenzo14.html ]

While this shocking behavior does not prove Lincoln is wrong about the legality of secession, it does indicate a willingness to act extra-constitutionally when he deemed it necessary. Four years of bloodshed did not provide a theoretical foundation for or against secession; it did, however, summarily end the debate. (It is of crucial significance that “no Confederate leader was ever brought to trial for treason. A trial would have brought a verdict on the constitutional legality of secession. Federal prosecutors were satisfied with the verdict that had been decided in battle.”) [< http://civilwar.bluegrass.net/secessioncrisis/890304.html>]

Where does this leave us? The arguments made by the nationalists - those unequivocally opposed to secession – appear to be based on semantics and impassioned extrapolations of words and phrases that prove little or nothing at all. While a multitude of reasoned opinions (and some more emotional than logical) existed during the Constitutional Convention in Philadelphia regarding state sovereignty vis-à-vis the formative governing document, the Constitution was “remarkable for its ambiguity on many substantive matters, none more fateful than its silence on this crucial question [the legality of secession].”  [  Kenneth M. Stampp, “The Concept of a Perpetual Union,” The Journal of American History, Vol.65, No.1 (June, 1978): 5.] 

Yet the totality of the founding documents of the United States of America – the Declaration of Independence, the Articles of Confederation, and the Constitution (in particular, its Tenth Amendment), augmented by the penetrating and convincing arguments supplied by Thomas Jefferson and James Madison (at least in this particular incarnation), provide a formidable case for the legality of secession. As Professor Kenneth M. Stampp notes, the “case for state sovereignty and the constitutional right of secession had flourished for forty years before a comparable case for a perpetual union had been devised…[a] case…so late,…the logic behind it…far from perfect...” [Ibid. 33]

There is another argument that can be proffered, albeit more intuitive than tangibly evidentiary. Is it likely that the framers of the Constitution, having lived through a war against Great Britain fought primarily for the right to be self-governing, would so soon after that war’s conclusion bind themselves in an inviolable union of states with no possibility of ever leaving? Would the Anti-Federalists at the Constitutional Convention and in their states, led by such luminaries as George Mason, Patrick Henry, Richard Henry Lee, John Hancock, Melancton Smith, Robert Yates, and Luther Martin (and Thomas Jefferson - in spirit if not by explicit proclamation), allow the cherished concept of state sovereignty to wither away a mere decade after the unambiguous expression of autonomy expounded in the Declaration of Independence? This is more than ludicrous; the notion is inconceivable! Finally, if the Republic was to be a union, it had to be voluntary; a “union” based on compulsion is in actuality an autocracy!

John Quincy Adams had noted, on the fiftieth anniversary of the ratification of the Constitution, that “The indissoluble link of union between the people of the several states of this confederated nation is, after all, not in the right but in the heart. If the day should ever come (may Heaven avert it!) when the affections of the people of these States shall be alienated from each other; when the fraternal spirit shall give way to cold indifference, or collision of interests shall fester into hatred, the bands of political associations will not long hold together parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; and far better will it be for the people of the disunited states to part in friendship from each other, than to be held together by constraint.[italics added]” [Woods, Jr., 64.]

The wisdom of secession, particularly from December of 1860 to February of 1861, can be criticized in the most vehement of terms, without substantive objection. The legality of that secession, however, is beyond dispute.


Essay © 2006 Kenneth S. Imbriale.

THE HISTORY VORTEX