Secession's Legal Basis: Interpreting The Constitution

The concept of secession has been a highly debated topic in the United States, with no clear constitutional interpretation. While the Constitution does not directly mention secession, the legality of states seceding from the Union has been a contentious issue. The Supreme Court has interpreted the Constitution as an indestructible union, but this stance was largely developed after the Civil War. Debates on secession often refer to the American Revolution and the Declaration of Independence, with scattered statements about the permanence or impermanence of the Union. The Founding Fathers, such as Gouverneur Morris, claimed that secession, under certain circumstances, was entirely constitutional. The issue of secession came to a head during the Civil War, when several southern states, starting with South Carolina in December 1860, seceded, citing violations of state rights and the institution of slavery as justification. The failure to prosecute Confederate President Jefferson Davis for treason further complicated the question of secession's legality, leaving it unresolved for subsequent generations.

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The Constitution does not mention secession

The absence of a clear constitutional mention of secession has significant implications. It allowed for varying interpretations and debates about the legality of secession. During the War of 1812, the Federalist Party, feeling threatened by the rising power of Thomas Jefferson's Democratic-Republican Party, briefly considered secession. However, secession became predominantly associated with Southern states as the North's industrial power increased. The Southern states' position on secession was strongly linked to the institution of slavery, which they sought to preserve.

Nationalists for Union in antebellum America argued against secession, claiming that the new Constitution inherited perpetuity from the Articles of Confederation and other pre-Constitutional actions. They based their argument on interpretations of the country's history, inferences from the Constitution, and the writings of the Founding Fathers. Gouverneur Morris, a primary author of the Constitution, claimed that "secession, under certain circumstances, was entirely constitutional."

The Supreme Court's stance on secession has evolved over time. In 1869, the Court ruled that secession was unconstitutional in Texas v. White. However, this decision did not fully resolve the issue for many Americans, and it took subsequent generations for the debate to fade from constitutional discourse. In modern times, the Supreme Court interprets the Constitution as an "indestructible" union, a position that gained traction in the Post-Civil War period.

The lack of a clear constitutional mention of secession has had a significant impact on the political discourse and legal debates surrounding state sovereignty and the permanence of the Union. The question of secession's legality remains a complex and contested issue, with scholars pointing out that sovereignty is often an "extralegal" question, influenced by historical context and political dynamics.

Secessionists argued that the federal government violated the Constitution

The concept of secession has been a contentious issue in American history, with debates often centred around the interpretation of the Constitution and the legality of secession. While the Constitution does not directly mention secession, the interpretation of certain clauses and the intentions of the Founding Fathers have been used to argue for and against the right of states to secede.

Secessionists, particularly those from the South, argued that the federal government had violated the Constitution and infringed upon the rights of the states. They believed that the federal government had overstepped its authority and interfered with the sovereignty of individual states. This was a significant factor in the lead-up to the Civil War, as Southern states felt that their way of life and interests, particularly regarding slavery, were under threat.

One example of this was the 1798 Alien and Sedition Acts, which John Taylor of the Virginia House of Delegates argued were violations of the rights of the states. Thomas Jefferson, while sitting as Vice President in 1799, expressed his conviction in the "reservation of rights" in response to these acts, suggesting that states had the right to secede if the federal government overstepped its bounds. This sentiment was echoed by other Jeffersonian Republicans, who felt that the federal government had violated foundational agreements between the original 13 states.

In the lead-up to the Civil War, the issue of slavery further exacerbated tensions between the North and the South. Southern states felt that their slave-holding rights were being threatened by the increasing power of the North and the federal government. They argued that they had ratified the Constitution and agreed to join the nation with the understanding that they retained the power to cancel the agreement if their interests were not upheld. The Missouri Compromise of 1820, which established lands west of the Mississippi as slave territory and those north of the line as free, only temporarily eased the conflict. As abolitionist groups gained traction in the North, Southerners felt that their way of life was under attack and that slavery was necessary and beneficial.

During this tumultuous period, President James Buchanan's stance was accommodating to the views of the secessionists and the slave states. In his final State of the Union address in 1860, he stated that the South would be "justified in revolutionary resistance to the Government of the Union" if peaceful and constitutional means failed to address their grievances. He acknowledged that secession as a constitutional remedy would require the understanding that the federal government was a voluntary association of states, which could be dissolved at the will of any contracting party.

While the Supreme Court eventually declared secession unconstitutional in Texas v. White in 1869, the issue remained a complex and divisive one in American history, with ongoing debates about the interpretation of the Constitution and the rights of states.

The Union avoided trying Confederate President Jefferson Davis for treason

Confederate President Jefferson Davis was captured by Union forces near Irwinville, Georgia, on May 10, 1865. He was imprisoned at Fort Monroe, Virginia, for two years. Initially, he was suspected of being involved in the assassination of President Abraham Lincoln. However, investigators could not establish a connection between Davis and the Lincoln assassins. Subsequently, he was charged with treason.

Davis was never tried for treason, and there are several reasons posited for this outcome. One reason was the concern that Davis would argue that his actions were legal as his United States citizenship had been removed when Mississippi seceded from the Union in 1861, and treason is a crime of loyalty requiring citizenship. This defence could have raised troubling questions about the constitutionality of secession and the legitimacy of the Union's war effort.

Another factor was the location of the trial, which was to be held in Richmond, the capital of the Confederacy. Prosecutors worried that they might not be able to find a jury in Richmond that would convict Davis. Furthermore, African Americans may have been part of the jury pool, and it was uncertain if residents with Confederate sympathies had been excluded, despite the requirement of an oath of loyalty to the nation.

Additionally, Davis had a good lawyer, and public sentiment towards him was mixed, with some calling for harsh punishment while others advocated for a conciliatory approach or no punishment at all. The potential for creating a martyr out of Davis and reversing progress in the nation's healing process may have influenced the decision to ultimately drop the charges.

In 1878, Jefferson Davis's US citizenship was posthumously restored by the Senate through Joint Resolution 16. This was described by President Jimmy Carter as "an act of reconciliation" reuniting the people of the United States. However, Davis's legacy remains controversial, with some arguing that memorials in his honour legitimise the white supremacist and slaveholding ideology of the Confederacy.

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The Union's official acts may have legitimised secession

The concept of secession has been a contentious issue, with various theories and interpretations emerging over time. One perspective argues that secession can be justified as a constitutional remedy if the Federal Government is viewed as a voluntary association of states, allowing any contracting party to dissolve the union. However, others vehemently disagree, stating that no state possesses the legal right to secede.

While the Union's official stance was against secession, some of its acts preceding and during the war may have inadvertently bolstered the argument for secession's legitimacy. For instance, the Union allowed for prisoner swaps and observed the rights of foreign governments under the law of nations. These actions could have been interpreted as implicitly recognizing the Confederacy as a separate entity, thereby legitimizing secession.

The case of Confederate President Jefferson Davis further complicates the matter. Davis was never tried for treason, despite strong public sentiment against him, due to concerns that his trial would raise questions about the constitutionality of secession. The Union feared that an acquittal would signal that their war efforts were unjustified and potentially create a martyr out of Davis.

Additionally, the Union's response to secessionist movements, such as South Carolina's semi-secession movement during Andrew Jackson's presidency, may have inadvertently legitimized secession. Jackson threatened to use force to suppress the movement, but his vice president, John C. Calhoun, supported the movement and resigned, becoming the first US vice president to do so. This mixed message from the Union could have been interpreted as a recognition of the legitimacy of secession.

In conclusion, while the Union officially opposed secession, its actions may have inadvertently provided ammunition for those arguing for the legitimacy of secession. The complex interplay between legal interpretations, political calculations, and the dynamics of war influenced how secession was perceived and addressed during this tumultuous period in American history.

The Supreme Court declared secession unconstitutional in 1869

The concept of secession has been a feature of American politics almost since the country's birth. The legality of secession was hotly debated in the 19th century, with some arguing for secession as a constitutional right and others as a natural right of revolution. The Constitution does not directly mention secession, but the Articles of Confederation, which the Constitution aimed to improve upon, explicitly state that the Union is "perpetual".

The Supreme Court weighed in on the issue of secession in Texas v. White in 1869, declaring unilateral secession unconstitutional. The case was argued before the Supreme Court during the December 1868 term, with arguments made over three days in February 1869. The complaint filed by Texas claimed ownership of certain bonds and requested that the defendants turn them over to the state. Texas disputed the legitimacy of the Confederate state legislature that had allowed the bonds to be sold. The Court's decision, delivered on April 15, 1869, ruled that Texas had never been outside the Union and that any state actions taken to declare secession or implement the Ordinance of Secession were null and void.

The Court wrote that the validity of acts establishing an independent government depends entirely on its ultimate success:

> "If it fails to establish itself permanently, all such acts perish with it; if it succeed and become recognized, its acts from the commencement of its existence are upheld as those of an independent nation."

The decision in Texas v. White was not without controversy. Many Americans felt that the case had not completely or fairly resolved the issue of secession, and it took another generation or two for the issue to fade from constitutional discourse. Some scholars, while not necessarily disagreeing that secession was illegal, point out that sovereignty is often de facto an "extralegal" question. Had the Confederacy won, any illegality of its actions under U.S. law would have been rendered irrelevant, just as the undisputed illegality of the American rebellion under British law in 1775 was rendered irrelevant.

The question of secession's legality was further complicated by the Union's decision not to try Confederate President Jefferson Davis for treason. According to legal historian Cynthia Nicoletti, this was because the Union feared that a trial would raise troubling questions about the constitutionality of secession and that an acquittal would signal that the Union's war effort had been unjustified.

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