Wednesday, December 22, 2010

Some Thoughts on Secession

The 150th anniversary of the passage of South Carolina's secession ordinance has generated some silly commentary by the Left. This excerpt from a 2008 post by Volokh Conspirator and Lawprof Ilya Somin serves as a useful corrective:
A recent Zogby/Middlebury Institute poll shows that 22% of Americans believe that "any state or region has the right to peaceably secede and become an independent republic." Belief in states' and regions right to secede was especially common among blacks (40%), Hispanics (43%) and people aged 18-24 (40%). Interestingly, political liberals (32%) were more likely to believe in a right to secession than conservatives (17%). 18% of respondents say they would support a secession movement in their own state, including 24% of southerners.

Constitutional law professor Ann Althouse claims that these poll results show that "all these people [who believe in a right to secession] have the law wrong and don't seem to know the basics of the history of the Civil War." She concludes that the pro-secession survey respondents are "fascinatingly stupid."

I certainly agree with Ann that much of the public is shockingly ignorant about American history and constitutional law. . . . At the same time, I don't think that ignorance is necessarily a sign of stupidity.

I. Secession and the Constitution.

More importantly, I don't think that belief in a right of secession by itself demonstrates ignorance about either law or American history. The Constitution is famously silent on the issue of secession. It doesn't explicitly guarantee states a right to secede, but also doesn't explicitly forbid secession. Interestingly, the Articles of Confederation explicitly stated that the union is "perpetual" (which seems to foreclose secession), but the Constitution which superseded the Articles does not include any such language. This silence has led to ongoing debate over the constitutional status of secession. Prior to the Civil War, many respected scholars and political leaders claimed that secession was permitted by the Constitution. Many were apologists for slavery, but by no means all. For example, political leaders from several northern free states asserted that they had a right to secede at the 1814 Hartford Convention. In light of this history and the ambiguity of the constitutional text, I don't think that belief in a right to secession is at all unreasonable, much less a sign of obvious ignorance or stupidity.

II. Secession and the Civil War.

Many people, of course, believe that the issue of secession was definitively resolved by the Civil War; Ann may be alluding to this when she writes that the survey respondents she criticizes "don't seem to know the basics of the history of the Civil War." There is no question that the federal government defeated the south's attempt to secede. However, superior military might doesn't prove superior constitutional right. There are many instances in American history where federal and state governments managed to get away with violating the Constitution by applying superior force. The imposition of Jim Crow segregation on blacks in the South is the most notorious example.

To avoid confusion, I should emphasize that I think that the federal government was right to suppress the Confederates' efforts to secede. But not because secession is always illegal and impermissible. Rather, the Union was right in that instance because the southern states sought to secede for the indefensible purpose of protecting and extending the evil institution of slavery. Moreover, none of the southerners' constitutional rights had been infringed by the federal government. Things would look very different if a state sought to secede for the purpose of defending fundamental human or constitutional rights rather than continuing to violate them; if, for example, the feds were trying to force slavery on unwilling free states.


  1. This comment has been removed by the author.

  2. Interesting and valid, but you fall into the ever present trap when discussing "secession".

    You call it "secession". It was no more secession than a murder spree is a withdraw from your Christmas Club Account.

    First of all, the Southern leaders were not even legally or morally in charge. Slavers had taken illegal control of the South from 1820 on, violently suppressing free speech, and therefore there had been no real elections. As Hiton Helper said in 1857, if the South had free speech (they did not) and if the South had real elections (they did not) Slave owners would have been kicked out of power by the people themselves.

    Second of all, the Southern leaders in MOntgomery in March of 1861 gave Five Ultimatums -- all of these demands were about the SPREAD of slavery. THe North had to spread slavery or the South would attack, was the basic Ultimatum.

    Imagine if today, if 10 states told Washington DC that the US must invade Canada and spread slavery there, even though Canada had just voted 98%-2% against slavery.

    Well as bizzare as it sounds, thats what happened in 1860. We just are not taught to connect the dots that way.

    Our "dots" do not even include the South's own Ultimatums -- where the Southern leaders demaded the spread of slavery by force, against the will of the people. Yet the Southern newpapers reported these Ultimatums with great fanfare -- calling them "THE TRUE ISSUE!" (See Richmond Enquirer, March 23, 1861)

    If these demands were not met, war would ensue. And war did ensue.Once Lincoln ignored these Ultimatums, the South attacked.

    Seen in that light --the light of what really happened - the Civil War occured because Lincoln and the North would not cave to violent, criminal, and insane demands. There would have been no "secession" if the North had spread slavery, and stomped on State's Rights, which the Southern Ultimatums were demanding.

    When has ANY text book in the United States said one word about the Southern Ultimatums? Never. If you can find any text book, grade school or high school, which even mention these demands, I will eat it.

    As you know, if you can frame the question
    (was secession legal) you can shape the answer. But secession is not what was going on.

    Southern Ultimatums were what was going on. These ultimatums were not a last minute bout of insanity by Southern leaders -- they were the articulation of persistent demands that were the central issue for the South for 50 years. And they said so, repeatedly.

    If anyone thinks that was secession -- go do what the South did at the time. Go threaten the capital, issue Ultimatums that Obama must spread slavery, attack 12 (not just one) forts, hang voters, plunder the coasts, etc.

    Go do the exact same thing that the South did then, and call it anything you want. But it won't be secession, and you won't get far.

    So if that was secession, what the South did -- DO IT AGAIN. Just like that.

    When you realize what really went on, you understand that wasn't secession. That was the fantatic, religious insanity of violent men, who promised war if they could not spread slavery.

    It's time we told the truth -- and told it from the SOUTH's own words, their own ultimatums, their own threats, their own speeches, their own newspaper accounts, at the time.


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