Constitution and Legality of Secession

Constitution, Supreme Court, Secession, and Civil War

Recommended Reading: One Nation, Indivisible? A Study of Secession and the Constitution. Description: Is secession legal under the United States Constitution? "One Nation, Indivisible?" takes a fresh look at this old question by evaluating the key arguments of such anti-secession men as Daniel Webster and Abraham Lincoln, in light of reason, historical fact, the language of the Constitution, and the words of America's Founding Fathers. Modern anti-secession arguments are also examined, as are the questions of why Americans are becoming interested in secession once again, whether secession can be avoided, and how an American state might peacefully secede from the Union. Continued below…

"The federal government's growth of power at the expense of individuals and natural human communities has been the trend so long now that it has seemed inevitable. But thoughtful people of late have been rediscovering the true decentralist origins of the United States. Robert Hawes states the case beautifully for the forgotten decentralist tradition - which may be our only hope for the preservation of freedom."

Recommended Reading: Look Away! A History of the Confederate States of America, by William C. Davis. Review: The military history of the Civil War is well known. The political history of the era, and especially of the South, is less documented, a gap that William Davis's Look Away! admirably addresses. Although the rhetoric of secession was democratic, invoking the ideals of the American Revolution and its classical forebears, Southern politics was directed by members of a small, self-serving aristocracy. And though the Confederate government advanced what then and now might be thought to be radical proposals (for one, that the postal service had to be self-supporting within two years of its founding), it was intolerant of dissent; the South's leaders, Davis writes, even barred a constitutional provision "recognizing the right of a state to secede." Continued below…

The natural result, Davis shows, was widespread resistance, including the development of a peace movement and of political groups loyal to the old Union. At the end of the war, Davis writes, "Confederate democracy had gone and would not be seen again--but the oligarchies had survived." Davis's study affords new and inviting views on the Civil War, and, it not only compliments, but makes a fine addition to any American history and Civil War buff library.

Recommended Reading: Lincoln and the Decision for War: The Northern Response to Secession (Civil War America) (Hardcover). Review: When Abraham Lincoln's election in 1860 prompted several Southern states to secede, the North was sharply divided over how to respond. In this groundbreaking book, the first major study in over 50 years of how the North handled the secession crisis, McClintock follows the decision-making process from bitter partisan rancor to consensus. From small towns to big cities and from state capitals to Washington, D.C., McClintock highlights individuals both powerful and obscure to demonstrate the ways ordinary citizens, party activists, state officials, and national leaders interacted to influence the Northern response to what was essentially a political crisis. Continued below...

He argues that although Northerners' reactions to Southern secession were understood and expressed through partisan newspapers and officials, the decision fell into the hands of an ever-smaller handful of people until finally it was Abraham Lincoln alone who would choose whether the future of the American republic was to be determined through peace or a sword.

Recommended Reading: When in the Course of Human Events: Arguing the Case for Southern Secession. Review: As a historian, I have learned that the heart of any great work in history lies in the ample and accurate use of primary sources, and primary sources are the great strength of this work. While countless tomes have debated the perceived moral sides of the Civil War and the motivations of the various actors, this work investigates the motives of the primary players in the era and in their own words and writings. This gives the work an excellent realism and accuracy. The author, Charles Adams, has earned a reputation as one of the leading economic historians in the field, particularly in the area of taxes. He utilizes this background to investigate the American Civil War, and comes to some very striking conclusions, many that defy the politically-correct history of today. His thesis postulates that the Civil War had its primary cause not in slavery or state's rights, but rather in cold, hard economic concerns. Continued below...

He shows that the North used its supremacy in Congress to push through massive tariffs to fund the government, and that these tariffs fell much harder on the export-dependent South than upon the insular north. In fact, the total revenue from the "Compromise" Tariffs on the 1830s and 40s amounted to $107.5 million, of which $90 million came from the South. The majority of the revenue, moreover, was spent on projects “far from the South.” According to Adams, this disparity finally pushed the South to seek its own independence. Supporting this conclusion is the fact that the South enacted extremely low tariffs throughout the war, whereas the north enacted the Morrill Tariff of 1861, which enacted tariffs as high as 50 percent on some goods. Adams also chronicles the oft-overlooked excesses of the Lincoln Administration, and compares them to the actions of Julius Caesar. Using the letters and reports of the times, he tells how Lincoln suspended habeas corpus, trod roughshod over the Constitution, jailed thousands of U.S. citizens who dared disagree with him and even wrote a warrant for the arrest of the Chief Justice of the United States. Adams also ably uses the viewpoints of British and other Europeans to describe different contemporary views on the struggle. These provide excellent outside insight. On the whole, readers will find the book a superb and scholarly analysis, providing fresh insights into the motivations and causes of the defining war in American history. AWARDED 5 STARS by americancivilwarhistory.org

Recommended Reading: Lincoln President-Elect: Abraham Lincoln and the Great Secession Winter 1860-1861 (Hardcover) (Simon & Schuster) (October 21, 2008). Reviews: "This detailed and gripping narrative of Lincoln's thoughts and actions during the four months between his election and inauguration -- perhaps more important than any four months of his actual presidency -- is another tour de force by one of our foremost Lincoln scholars. Bristling with new information and key insights, it enriches our understanding of this most fateful time in American history."-- James M. McPherson, author of Tried by War: Abraham Lincoln as Commander in Chief. Continued below…

"Lincoln President-Elect is Harold Holzer's best and most controversial book. Many historians, myself included, have depicted Lincoln in the months between his election and inauguration as weak and indecisive. Holzer, carefully studying the record, argues that Lincoln was a strong-minded, highly principled, and shrewd president-elect."-- David Herbert Donald, author of Lincoln

"This is a stunningly original work that casts completely new light on the most turbulent and critical presidential transition in American history. Holzer's superb narrative skill, along with his abundant use of colorful details, creates an atmosphere of such immediacy that the reader feels transported back to "the Great Secession Winter" as an eye-witness to Lincoln's gifted leadership during this dramatic period. This groundbreaking book will take its place with the most valuable and indispensable works in the Lincoln canon."-- Doris Kearns Goodwin, author of Team of Rivals: The Political Genius of Abraham Lincoln

"No one has a finer intuitive understanding of Abraham Lincoln than Harold Holzer. In this fascinating book, he throws a searchlight on a crucial and surprisingly underexamined episode of Lincoln's life to show us the essential elements of Lincoln's political and moral greatness."-- Michael Beschloss, author of Presidential Courage: Brave Leaders and How They Changed America, 1789-1989

Recommended Reading: Lincoln and Chief Justice Taney: Slavery, Secession, and the President's War Powers, by James F. Simon (Simon & Schuster). Publishers Weekly: This surprisingly taut and gripping book by NYU law professor Simon (What Kind of Nation) examines the limits of presidential prerogative during the Civil War. Lincoln and Supreme Court Chief Justice Roger Taney saw eye to eye on certain matters; both, for example, disliked slavery. But beginning in 1857, when Lincoln criticized Taney's decision in the Dred Scott case, the pair began to spar. They diverged further once Lincoln became president when Taney insisted that secession was constitutional and preferable to bloodshed, and blamed the Civil War on Lincoln. In 1861, Taney argued that Lincoln's suspension of habeas corpus was illegal. This holding was, Simon argues, "a clarion call for the president to respect the civil liberties of American citizens." Continued below...

In an 1862 group of cases, Taney joined a minority opinion that Lincoln lacked the authority to order the seizure of Southern ships. Had Taney had the chance, suggests Simon, he would have declared the Emancipation Proclamation unconstitutional; he and Lincoln agreed that the Constitution left slavery up to individual states, but Lincoln argued that the president's war powers trumped states' rights. Simon's focus on Lincoln and Taney makes for a dramatic, charged narrative—and the focus on presidential war powers makes this historical study extremely timely.

Recommended Reading: Secession Debated: Georgia's Showdown in 1860. Review: The critical northern antebellum debate matched the rhetorical skills of Abraham Lincoln and Stephen A. Douglas in an historic argument over the future of slavery in a westward-expanding America. Two years later, an equally historic oratorical showdown between secessionists and Unionists in Georgia generated as much popular interest south of the Mason-Dixon line, and perhaps had an even more profound immediate effect on the future of the United States. Continued below...

With Abraham Lincoln's "Black Republican" triumph in the presidential election of 1860, the United States witnessed ardent secessionist sentiment in the South. But Unionists were equally zealous and while South Carolina--a bastion of Disunionism since 1832--seemed certain to secede; the other fourteen slave states were far from decided. In the deep South, the road to disunion depended much on the actions of Georgia, a veritable microcosm of the divided South and geographically in the middle of the Cotton South. If Georgia went for the Union, secessionist South Carolina could be isolated. So in November of 1860, all the eyes of Dixie turned to tiny Milledgeville, pre-war capital of Georgia, for a legislative confrontation that would help chart the course toward civil war. In Secession Debated, William W. Freehling and Craig M. Simpson have for the first time collected the seven surviving speeches and public letters of this greatest of southern debates over disunion, providing today's reader with a unique window into a moment of American crisis. Introducing the debate and debaters in compelling fashion, the editors help bring to life a sleepy Southern town suddenly alive with importance as a divided legislature met to decide the fate of Georgia, and by extension, that of the nation. We hear myriad voices, among them the energetic and self-righteous Governor Joseph E. Brown who, while a slaveholder and secessionist, was somewhat suspect as a native North Georgian; Alexander H. Stephens, the eloquent Unionist whose "calm dispassionate approach" ultimately backfired; and fiery secessionist Robert Toombs who, impatient with Brown's indecisiveness and the caution of the Unionists, shouted to legislators: "Give me the sword! but if you do not place it in my hands, before God! I will take it." The secessionists' Henry Benning and Thomas R. R. Cobb as well as the Unionists Benjamin Hill and Herschel Johnson also speak to us across the years, most with eloquence, all with the patriotic, passionate conviction that defined an era. In the end, the legislature adopted a convention bill which decreed a popular vote on the issue in early January 1861. The election results were close, mirroring the intense debate of two months before: 51% of Georgians favored immediate secession, a slim margin which the propaganda-conscious Brown later inflated to 58%. On January 19th the Georgia Convention sanctioned secession in a 166-130 vote, and the imminent Confederacy had its Southern hinge. Secession Debated is a colorful and gripping tale told in the words of the actual participants, one which sheds new light on one of the great and hitherto neglected verbal showdowns in American history. It is essential to a full understanding of the origins of the War Between the States.

Recommended Reading: A Government of Our Own: The Making of the Confederacy. Review: An authoritative account from Civil War historian Davis (Jefferson Davis: The Man and His Hour, 1991) of the would-be Founding Fathers of the Confederacy. In February 1861, delegates from six states in the Deep South met in Montgomery, AL., to form their own nation. Despite constant invocations of the spirit of 1776, their movement, in their own view, aimed at reform rather than revolution. Davis (no relation to the Confederate president) traces how the delegates hammered out a constitution that protected slavery, selected Jefferson Davis and Alexander Stephens as provisional president and vice president, and erected the governmental apparatus that would turn their dreams of secession into reality. They were a varied lot, from “fire-eaters” who expected a swift, comparatively bloodless separation from the Union, to reluctant secessionists who correctly feared a slaughter. By May 1861, when the capital was moved to Richmond, Va., the seeds of the new government's destruction had already been planted. Davis disputes the often-suggested epitaph for the Confederacy, ``Died of States Rights,'' but his own account demonstrates that the correct label might better read, “Died of States Rights and Swollen Egos.” Continued below...

However idealistic the delegates might have been initially, by the time they moved to Richmond they were already beginning to regard Jefferson Davis with suspicion, arrogance, and frustrated ambition. Davis argues that “the finest statesmen the South had to offer composed that Provisional Congress.” …He also makes fine use of hundreds of often previously unpublished letters, diaries, and memoirs, and he deftly captures the capital's climate as officeholders, office seekers, lobbyists, businessmen, and transients joined the mosquitoes in infesting Montgomery. Includes numerous photos.

Recommended Reading: This Mighty Scourge: Perspectives on the Civil War, by James M. McPherson (Hardcover). Review: The Pulitzer Prize-winning author of Battle Cry of Freedom and the New York Times bestseller Crossroads of Freedom, among many other award-winning books, James M. McPherson is America's preeminent Civil War historian. Now, in this collection of provocative and illuminating essays, McPherson offers fresh insight into many of the most enduring questions about one of the defining moments in our nation's history. McPherson (Battle Cry of Freedom, etc.) weighs in on the Civil War in this compilation of 16 essays, most of which have appeared in print before—seven of them in The New York Review of Books. Continued below...

Revised and edited for this collection, the essays read like chapters in a smooth narrative that addresses some of the biggest questions of the Civil War: why did it start? Why did the South lose? What motivated the men who fought on both sides? How do we evaluate the top leaders—including Lincoln, Jefferson Davis, Robert E. Lee and Ulysses G. Grant? McPherson goes about answering these and other questions in his usual graceful style, underscored by a thorough grasp of myriad primary and secondary sources on virtually every aspect of the conflict. He forthrightly expresses his opinions while backing them up with well-reasoned arguments, whether challenging the "Lost Cause" argument about why the South lost, or supporting the proposition that it was slavery—and not states' rights—that was the main cause of the war. This strong addition to the massive Civil War canon will appeal to all readers.

The accession of William of Orange to the throne was met with popular support, as the usurpations of William II were not amenable to the populace. This so called revolution set a standard for peaceful political separation, and it was exactly what the American Continental Congress sought from Great Britain. Likewise, peaceful separation was what the southern states that formed the Southern Confederacy wanted when those eleven states formally separated from the United States. Secession does not have to mean war and violence, but war was thrust upon American colonials and southern confederates when their previous government refused to acknowledge their right of self-determination. As the Declaration of Independence proclaims, "...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." As Confederate President Jefferson Davis proclaimed, "All we ask is to be left alone." The Glorious Revolution forms the foundation of Graham's treatise as he advances his thesis and makes the case for secession. As Donald Livingston proclaims in the preface, "The central focus of this work will be revolution, not as an armed overthrow of an established government, but as a rational and orderly process, specifically allowed by fundamental law."

In making the case for secession, Graham substantiates the compact nature of the Union as well, which correspondingly legitimizes interposition, nullification, and secession. Two early constitutional commentaries including St. George Tucker's View of the Constitution of the United States (1801) and Pennsylvania Federalist William Rawle's A View of the Constitution (1829) both affirm a right of secession.

John Remington Graham further traces American constitutional developments, and in doing so he substantiates the compact nature of the Union, and makes a profound case for the Constitution as a compact, which in effect legitimizes the right of secession. He further explains all of these episodes in constitutional history with amazing detail and clarity:

**The Kentucky and Virginia Resolutions which were in continuity with the colonial-revolutionary tradition of State remonstrance, protest, interposition and nullification of unconstitutional acts of central government authorities.

**The Hartford Convention and the anti-war, anti-embargo northern secessionist movement which emerged after the unwelcomed War of 1812 with the British.

**The Webster-Hayne Debates on the nature of the Union is explained in detail. Likewise, Daniel Webster's case of foot-in-mouth disease is made manifest as Hayne hearkens back to his deeds at the Hartford Convention.

**The Missouri Compromise and constitutional question of slavery and the sectional strife over the spread of slavery into the territories is explained.

**The secession of the eleven southern states from the Union and the circumstances leading to their separation are explained in detail. Likewise, the birth of the Southern Confederacy and the north's violent refusal to accept their separation is painstakingly documented.

**The unlawful and violent conquest of the South, the unconstitutional political repression in north and south, the illegal suspension of the writ of habeas corpus throughout the whole nation and the oppressive Reconstruction Acts are explained with amazing clarity and detail.

**Graham fast forwards to the twentieth-century. In our time, Quebec has asserted the legal right of secession as a viable political alternative if its relationship with the central government of the Canadian Confederation does not prove to be more mutually-beneficial and less detrimental to the interests of Quebec's citizenry in coming years. With a distinctive francophone culture and nearly half of the populace voting for secession in the last popular referendum, we may well witness the peaceful separation of Quebec from Canada in our lifetime.

All things considered, John Remington Graham has done a remarkable job at making the case for secession and has made a lasting contribution to constitutional scholarship. His book is well-documented and awash in powerful quotations from British and American statesmen. There is a preponderance of evidence in the Anglo-American constitutional heritage which makes secession a lawful exercise. Likewise, he is very logical in tracing the deducible nature of State sovereignty. Graham in final application points out that self-determination as expressed in an act of secession emanates from the right of people themselves to self-government. Essentially by presenting the secession of the American colonies and the Southern Confederacy in its proper historical and legal context, Graham has made a valuable contribution to understanding the Anglo-American political tradition. John Graham who presently served as an expert advisor on British constitutional law to the amicus curiae (i.e. friend of the court) for Quebec in the secession state decided in 1998. As Jefferson astutely opined, "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes..." Thus, secession is never to be approached lightly, and the act of secession negates the value, benefits and security of the Union.

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"Whenever government becomes destructive of these ends (i.e. life, liberty, and the pursuit of happiness), it is the right of the people to alter or abolish it, and to institute a new government." -Declaration of Independence of the American Colonies, July 4, 1776

"Sovereignty is the highest degree of political power, and the establishment of a form of government, the highest proof which can be given of its existence. The states could have not reserved any rights by articles of their union, if they had not been sovereign, because they could have no rights, unless they flowed from that source. In the creation of the federal government, the states exercised the highest act of sovereignty, and they may, if they please, repeat the proof of their sovereignty, by its annihilation. But the union possesses no innate sovereignty, like the states; it was not self-constituted; it is conventional, and of course subordinate to the sovereignties by which it was formed." -John Taylor of Caroline, New Views of the Constitution, Nov. 19, 1823

"I saw in State Rights the only availing check upon the absolutism of the sovereign will, and secession filled me with hope, not as the destruction but as the redemption of Democracy. The institutions of your Republic have not exercised on the old world the salutary and liberating influence which ought to have belonged to them, by reason of those defects and abuses of principle which the Confederate Constitution was expressly and wisely calculated to remedy. I believed that the example of that great Reform would have blessed all the races of mankind by establishing true freedom purged of the native dangers and disorders of Republics. Therefore I deemed that you were fighting the battles of our liberty, our progress, and our civilization; and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo." -Lord Acton in a letter to Robert E. Lee, Nov. 4, 1866.

Among the most misunderstood, Davis contends, was Jefferson Davis. Often branded as enigmatic and incompetent, the Confederate president was simply a decent and committed leader whose mistakes were magnified by the war's extraordinary demands. Davis scrutinizes Jefferson Davis' relationship with his generals--most of whom were unproved talents or cronies with proven deficiencies--and reveals why only Robert E. Lee succeeded in winning Davis' confidence through flattery, persuasion, and a sense of responsibility. He also examines the myths and memories of the nearly deified Stonewall Jackson and of John C. Breckinridge, the only effective Confederate secretary of war. Davis also explores the causes and origins of the war and secession; why Southerners, 90 percent of whom didn't own slaves, were willing to join in the battle to defend their homeland; how the personalities, tactics, and styles of the armies in the turbulent West differed greatly from those in the East; what real or perceived turning points influenced Southern decision making; and how mythology and misinterpretations have been perpetuated through biography, history, literature, and film. Revealing the Confederacy's myths for what they really are, Davis nevertheless illustrates how much those myths inform our understanding of the Civil War and its place in Southern and American culture.