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February 17, 2010

Did the Civil War truly settle the secession question?

Prior to the American Civil War, it was popularly assumed that states which had freely chosen to enter the Union could just as freely withdraw from said union at their own discretion.  Indeed, from time to time individual states or groups of states had threatened to do just that, but until 1860 no state had actually followed through on the threat.

Since then, it has been considered axiomatic that the War “settled the question” of whether or not states had the right to secede.  The central government, backed by force of arms, says the answer is No.  As long as no state or group of states tests the central government’s resolve, we can consider the question to be “settled” from a practical viewpoint.

This assertion has long troubled me from a philosophical and moral viewpoint.  We are supposedly a nation of laws, and the central government is supposedly subservient to the laws that established and empower it.

In a nation of laws, when someone asks, “Do states have a right to secede from the Union?”, a proper answer would have one of two forms:

  • “Yes, because x.”
  • “No, because x.”

Here, x would be an explanation of the laws that supported the Yes or No answer. 

With the secession issue, though, we are given the following as a complete and sufficient answer:

“No, because if any state tries to secede, the central government will use force of arms to keep it from succeeding.”

There is no appeal to law in this answer – just brute force.

Based on this premise, the central government can amass to itself whatever right or power it chooses, simply by asserting it.  After all, who has the power to say otherwise?

Come to think of it, that’s exactly how the central government has behaved more often than not since the Civil War.

This issue came to mind today because of an item posted today on a trial lawyer’s blog (found via Politico).  The lawyer’s brother had written to each of the Supreme Court justices, asking for their input on a screenplay he was writing.  In the screenplay, Maine decides to secede from the US and join Canada.  The writer asked for comments regarding how such an issue would play out if it ever reached the Supreme Court.

Justice Antonin Scalia actually replied to the screenwriter’s query.  I have a lot of respect for Scalia regarding constitutional issues, but his answer here is beyond absurd.

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.")

He actually said that a constitutional issue was settled by military action.  Oh, and by including the word “indivisible” in the Pledge of Allegiance, the issue became even more settled.

What if the president were to send out the troops to prevent the news media from publishing or broadcasting anything critical of his administration?  This is clearly an unconstitutional action, but by Scalia’s logic, if the president succeeds, we must then say that the military action “settled the question” of free speech.

If these scenarios are not comparable, I’d like to hear why.


Anonymous said...

Force majeure in civilized societies never settles anything-- a Norman Conquest, maybe, but not the issue of Southern Nationalism aka secession, obscured by imperative Abolitionism during America's ghastly Civil War.

We note that post-war Reconstruction Amendments to the U.S. Constitution never addressed the issue. In joining the Federal Union, Texas retained the right to split into as many as ten States, thereby reserving an option to seat ten U.S. Senators should popular opinion warrant. So if States can split internally, why not externally, from the Union of States itself?

Though this question was addressed at the Convention of 1786, the Founders preferred to fudge the issue. As Fort Sumter showed, it is overwhelmingly a political rather a mere legal matter. Let's just say that, absent slavery and world-historical leadership like Lincoln's, any State or region voting to secede today would very likely go its way in peace.

Anonymous said...

I love this post. I've always thought the "succession thing is settled" was a bit fuzzy as well. I have to disagree with the above commentor that an attempt at secession today would be peaceful. I think if states started suceeding it would get bloody. We are no more civilized than our forefathers. However I also think the premise that the Civil War was about secession is false. It was about slavery. Slavery had to end and unfortunately the only way was war. Secession was just the South's way of declaring they would not obey the rule of law. The north said, yes you will. Secession was not even the real issue, just an excuse to dance around the real issue.

Legally I think states that join voluntarily ought to leave voluntarily as well. But Hawaii has had a strong seccesionist movement since it was made a state and has gotten nowhere.

The truth is humans all want power and as long as a state is a state the fed govt and the neighboring states have power over it.

Sarahwitch said...

"Did the Civil War truly settle the secession question?"

This is a logical fallacy known as "begging the question," i.e. it implies that it was a civil war-- i.e. a dispute between within a single nation, against the nation's sovereign power.

This in turn would settle the question, since if a faction loses a civil war to secede, then of course it is settled.

However it was not a civil war, but a war between separate sovereign nations, jut like when Hitler invaded Poland, or Saddam Hussein invaded Kuwait. (Proof of this is shown at http://www.youtube.com/watch?v=Y9cXwlDt6VU )

These invaded nations obviously lost thee wars; but it did not "settle the question" of their sovereignty, in favor of the victors!

On the contrary, their sovereignty remained intact, even if their territorial integrity did not; and they were simply considered "under hostile occupation by a foreign power."

And thus, this is also the status which must apply to the American states: i.e. they are still sovereign nations, just as much now as they were in 1776 or 1783, as well as 1787 when they retained their sovereignty under the Constitution.

However don't expect any "experts" to argue this point, since they don't want to upset the 900-lb gorilla of the federal government from costing them their jobs... or worse, such as causing them trouble with the IRS etc., which has been known to happen to people who "ask too many questions" or who annoy and upset "people in high places."

So the American people MUST rise up and re-claim the national sovereignty of their respective state, so they can refuse to obey bad federal laws.