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explicitly stated that the union is "perpetual" (which seems to foreclose secession), but the Constitution which superseded the Articles does not include any such language.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.