Southern Secession: Unconstitutional Rebellion Or Legal Right?

The question of whether the South violated the Constitution by seceding is a complex and highly debated topic in American history. The Southern states' secession from the Union in the 1860s, leading to the formation of the Confederate States of America, was a significant event that ultimately resulted in the American Civil War. The Southern states, including South Carolina, Georgia, Mississippi, and Texas, argued that they had a constitutional and natural right to secede, citing violations of their rights, particularly regarding slavery and states' rights. On the other hand, the Union and many legal scholars argued that secession was unconstitutional and an illegal act of war. The Supreme Court's ruling in Texas v. White (1869) declared unilateral secession unconstitutional, but the question of the South's right to secede remains a subject of historical debate and interpretation.

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The US Constitution does not mention secession

The Southern states' right to secede was also based on the argument that the federal government had violated the Constitution. In 1852, South Carolina declared that frequent violations of the Constitution by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified its secession. Texas also asserted that the federal constitution had been violated and abrogated by several States, and that the federal government was now passing under the control of their enemies.

The counterargument is that the Constitution does not mention a mechanism for secession, and therefore, states that attempted to secede were considered to be in rebellion against the US government. The Supreme Court ruled in Texas v. White (1869) that individual states had no right to secede, and that unilateral secession was unconstitutional. However, the case did not completely or fairly resolve the issue, and it took another generation or two for the issue to fade from constitutional discourse.

The right to revolution

On the one hand, some argue that the Southern states did have the right to secede. This argument is based on the idea of a natural right to revolution, as affirmed by Madison, who stated that there is an "extraconstitutional right to revolt against conditions of 'intolerable oppression'". St. George Tucker, an influential jurist, wrote in 1803 that the unanimous dissolution of the Articles of Confederation in 1789 by Act of Congress set a legal precedent for future secession(s) from the Constitution. Additionally, the 10th Amendment to the Constitution, which states that any power not delegated to the federal government by the states and not prohibited by the Constitution remains a right of the states or the people, has been interpreted by some, including Confederate President Jefferson Davis, as providing a legal basis for secession. Furthermore, some argue that since states could voluntarily join the Union, they should also be able to voluntarily leave it.

On the other hand, others argue that the Southern states did not have the right to secede. The US Constitution does not mention or provide a mechanism for secession, and states that attempted to secede were considered to be in rebellion against the US government. In Texas v. White (1869), the Supreme Court ruled unilateral secession unconstitutional, stating that individual states did not have the right to secede. The Constitution is based on the principle of coequality, which means that all states are equal in dignity and rights, and no state can have more rights than another. Therefore, if one state has the right to secede, then all states must have that right.

It is important to note that the question of secession was not just a legal one, but also a moral and political issue. The debate around secession was closely tied to the issue of slavery, with Southern states seeking to protect their right to own slaves. The North was opposed to secession, not only because it would challenge the Union, but also because it would allow the South to continue the practice of slavery.

In conclusion, the right to revolution, or secession, in the context of the American Civil War, is a complex and contentious issue. While some argue that the Southern states had a natural right to secede, particularly in the face of "intolerable oppression", others maintain that secession was unconstitutional and an illegal act of war. The question of whether the South violated the Constitution when it seceded remains a subject of debate among historians and legal scholars.

The Supremacy Clause

The debate around the constitutionality of the South's secession centres on the absence of a mechanism for secession in the US Constitution. The Supremacy Clause, a cornerstone of the US federal political structure, assumes the underlying priority of federal authority. It asserts that federal laws made in pursuance of the Constitution take precedence over contradictory state laws.

The Supreme Court has relied on the Supremacy Clause to establish a robust role for the federal government in managing the nation's affairs. The Court has interpreted the Clause to mean that federal law can preempt state law either expressly or impliedly. Express preemption occurs when federal law contains explicit language stating its supremacy over state law. In contrast, implied preemption happens when the intent to preempt state law is implicit in the structure and purpose of the federal law.

In the context of the secession debate, the Supremacy Clause suggests that the US Constitution, as the supreme law of the land, takes precedence over any contradictory state laws or actions, including secession. While the South argued that the federal government had violated the Constitution and their rights, the absence of a mechanism for secession in the Constitution meant that seceding states were considered in rebellion against the US government.

In conclusion, the Supremacy Clause reinforces the priority of federal authority and the supremacy of federal law over state law. While the South cited violations of their rights as justification for secession, the lack of a constitutional mechanism for secession and the Supremacy Clause's assertion of federal supremacy suggest that the Southern states' actions were in conflict with the US Constitution.

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The 10th Amendment

The Tenth Amendment to the United States Constitution states:

> 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.

This amendment emphasizes the limited nature of the federal government's powers, clarifying that any powers not expressly granted to the federal government are retained by the states or the people. The Tenth Amendment was proposed by Thomas Burke, a strong advocate for states' rights in the Continental Congress. Burke intended to eliminate any ambiguity regarding the distribution of powers between state and federal authorities.

The Tenth Amendment has been invoked in several Supreme Court cases to invalidate congressional laws and prevent the federal government from compelling states to enforce federal regulations. For example, in Printz v. United States (1997), the Court ruled that the Brady Handgun Violence Prevention Act, which mandated that state and local law enforcement officials conduct background checks on handgun purchasers, violated the Tenth Amendment. Similarly, in New York v. United States (1992), the Supreme Court invalidated a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 that required states to take responsibility for waste within their borders.

The concept of nullification, which asserts that states have the right to nullify federal laws or Supreme Court decisions that they deem unconstitutional, is closely associated with the Tenth Amendment. While the Supreme Court has rejected nullification efforts, the Tenth Amendment has been used to challenge federal authority and uphold states' rights.

The right to redress

The Southern states, including South Carolina, Georgia, Mississippi, and Texas, cited violations of the Constitution and encroachments upon their reserved rights as justification for their secession. They believed that the federal government had become inimical to their rights and interests, particularly regarding their property and slavery. According to the Declaration of Causes of Seceding States, the Southern states felt that they had no other means to redress their grievances except by separating from the Union.

The Tenth Amendment to the Constitution, as argued by Jefferson Davis, president of the Confederate States of America, states that any power not delegated to the federal government by the states and not prohibited by the Constitution remains a right of the states or the people. This interpretation suggests that the Southern states had the legal right to secede. However, it is important to note that the Constitution does not explicitly mention or provide a mechanism for secession. States that attempted to secede were considered in rebellion against the U.S. government, and the Supreme Court ruled in Texas v. White (1869) that unilateral secession was unconstitutional.

Despite the legal ambiguities, it is clear that the Southern states felt strongly about their right to redress and believed that their secession was justified to protect their rights and interests. The debate around the right to redress and secession continues to be a significant aspect of American political discourse, with some arguing for it as a constitutional or natural right.

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