Isabella Carter
The legality of secession has been a highly debated topic in the United States, with some arguing that it is legal for a state to unilaterally secede, while others claim that it is an illegal act of war. The Confederate States of America, commonly known as the Confederacy, existed from 1861 to 1865 and their secession from the United States sparked controversy over the legality of such an act. While the Constitution does not directly mention secession, the Supreme Court has ruled on specific cases, such as Texas v. White in 1869, declaring unilateral secession unconstitutional. Despite this, the question of whether Southern states possessed the legal right to secede remains a subject of discussion, with some arguing that the Tenth Amendment implies a right to secede.
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What You'll Learn
The Supreme Court's stance on secession
The Supreme Court has historically interpreted the Constitution as an indestructible and perpetual union. This stance was largely developed during the Post-Civil War period. The Articles of Confederation explicitly state that the Union is "perpetual", and the U.S. Constitution declares its purpose is to form a "more perfect union".
In the Texas v. White case of 1867, the Supreme Court ruled that unilateral secession was unconstitutional, commenting that revolution or consent of the states could lead to a successful secession. The case involved a claim by the Reconstruction-era government of Texas that U.S. bonds owned by the state since 1850 had been illegally sold by the Confederate state legislature during the American Civil War. The court ruled that Texas was and remained a state of the United States ever since it joined the Union in 1845, despite later joining the Confederate States of America.
The Supreme Court's ruling in Texas v. White set a precedent for interpreting the Constitution as an indestructible union. The court found that Texas's ordinance of secession and all the acts of its Rebel government were "absolutely null", and that Texas never ceased to be a state in the Union. This ruling affirmed the Union armies' invasion of the South during the Civil War, as it recognised the federal government's legal right to employ military power to suppress insurrections.
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The Tenth Amendment
The text of the Tenth Amendment is as follows: "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." In other words, the Tenth Amendment explicitly states that the federal government's powers are limited to those granted in the Constitution. Any powers not delegated to the federal government are reserved for the states or the people.
While the Tenth Amendment clarifies the limited powers of the federal government, it does not explicitly address the issue of secession. The Constitution itself does not directly mention secession, and the legality of unilateral secession has been a subject of debate. Some have argued that the Tenth Amendment implies a state's right to secede, as it reserves certain powers for the states and upholds state sovereignty. However, Articles I, V, and VI of the Constitution prohibit secession as a power granted to the states, and the Supreme Court has consistently interpreted the Constitution as an "indestructible" union.
In summary, the Tenth Amendment to the United States Constitution emphasizes federalism and limited federal government powers, reserving certain rights for the states and the people. While it does not directly address secession, it has been a point of contention in debates about the legality of unilateral secession by states.
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The Declaration of Independence
The right to secede was considered inherent in governing bodies and the states themselves. Thomas Jefferson, the primary author of the Declaration of Independence, supported secession. In the Kentucky Resolution of 1798, he wrote, "the several states who formed that instrument (the U.S. Constitution), being sovereign and independent, have the unquestionable right to judge of its infraction...". This view was echoed in the 19th century when the legality of secession was hotly debated, particularly during the War of 1812 and the build-up to the Civil War.
The Constitution, however, does not directly mention secession. While it does declare a purpose to form a more perfect union, the exact legal status of secession remained ambiguous. It was only in 1869, with the Texas v. White decision, that the Supreme Court firmly rejected the constitutional right of secession, emphasizing the historical argument that the Union was not a purely artificial creation but had grown organically from the colonies and had been strengthened by war and the Articles of Confederation.
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The Civil War
Those who supported secession argued that the legal basis for secession could be found in the Tenth Amendment to the Constitution, which states that any power not delegated to the federal government by the states and not prohibited to the states by the Constitution remains a right of the states or the people. They also pointed to the fact that the Constitution is silent on the question of secession and that the states never delegated to the federal government any power to suppress secession. As a result, they argued that secession remained a reserved right of the states.
On the other hand, those who opposed secession argued that the Constitution and US laws remain supreme law, and that an ordinance of secession passed unilaterally by a state is contrary to the Constitution and US law. They also pointed to the Articles of Confederation, which explicitly state that the Union is "perpetual," and the purpose of the US Constitution is to form a "more perfect union" than the Articles of Confederation.
The Supreme Court of the United States weighed in on the secession issue in Texas v. White in 1869, declaring it unconstitutional. However, many Americans, including legal historian Cynthia Nicoletti, did not think that this case had completely or fairly resolved the issue. Nicoletti argued that failing to try and execute Confederate President Jefferson Davis for treason left questions about secession's legality. She claimed that the Union thought there was a strong possibility that putting Davis on 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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The Articles of Confederation
In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and on 17th September, they recommended the adoption of the Articles of Union, known as the Constitution of the United States. The Constitution was to be submitted to the several sovereign States, and when nine of them agreed, the compact was to take effect among those concurring. The General Government, as the common agent, was then invested with their authority.
The case of Texas v. White in 1869 is often cited as a precedent for the unconstitutionality of secession. The Supreme Court rejected the argument for a constitutional right of secession, stating that the Union "began among the Colonies" and was strengthened by the necessities of war and the Articles of Confederation. The Court's decision stressed the historical argument that the Union was not a "purely artificial and arbitrary relation".
Despite the legal and scholarly consensus that unilateral secession is illegal, some individuals and groups have continued to advocate for it. For example, South Carolina declared its secession from the Union in 1860, citing the institution of slavery as a prominent reason for its course of action.
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Frequently asked questions
The Constitution does not directly mention secession, but the Supreme Court has interpreted it as an "indestructible" union. The Articles of Confederation also state that the Union is "perpetual". In 1869, the Supreme Court ruled that unilateral secession was unconstitutional, and this stance has been upheld ever since.
The Constitution declares its purpose is to form a "more perfect union", implying that secession would be contrary to this goal. The Constitution is based on the principle of co-equality, meaning that all states are equal in dignity and rights, and no state can have more rights than another. Therefore, if some states have the right to secede, all states must have that right.
The Tenth Amendment states that "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 implies that if the power to secede was not granted to the federal government, it is then reserved for the states. Additionally, the Declaration of Independence can be interpreted as giving states the right to break away from a government that has become destructive to the people.
