This subject came up in the post beneath (A Tale of Two Countries) about the 14th Amendment. Was the South legally justified in seceding from the United States? BMSeattle left a comment that summed up my attitude on the question, here. Of course it was justified! Voluntary going in, voluntary going out.
My only thought about the violent response was what we now call “Balkanization,” or the fragmentation of a large region or country into smaller countries, as happened with Yugoslavia after the death of Marshall Tito. While it may seem a normal and legitimate process, it is usually accompanied by warfare. I was once years ago listening to Larry King on radio late at night, not being a good sleeper. He had on a CIA analyst, and he commented on the United States. I paraphrase: “The remarkable thing about this country is that it has held together as long as it has, and not fragmented.”
Well, I thought, a certain Civil War had something to do with that. Surely Lincoln knew that if the South got away, in due time Ohio would secede, and Missouri, the Carolinas and Florida would leave the South. Texas had already fought a war against Mexico to maintain its own slave holding rights, little understood fact about that rebellion.** The US had successfully ‘acquired’ what we now call the Southwest along with Colorado and California and parts of Wyoming. Holding it all together required that the South not succeed in its ambitions. If the South got away, the entire continent would be perpetually involved in internecine warfare.
So I could understand why the North felt strongly that the South not be allowed to secede. But was it legal? I am again going to rely on Edward James Snowden on this matter, as he deals with the topic at length in his book Everything You Know About the Constitution is Wrong.*
Here’s Snowden on the subject as he first embraces it:
Southern secession occurred according to this exact pattern states variously declared their independence from the United States by seceding. The Continental Congress of sorts met in Montgomery, Alabama, on February 4, 1861, consisting of delegates from South Carolina, Florida, Alabama, Mississippi, Georgia, and Louisiana. It created a temporary Constitution. A month later a revised Constitution was presented to the States. Again, in state conventions composed of the People, the decision was made to approve the new Constitution. On this ground alone, the principle of popular sovereignty, the Confederate cause was justified. Which is to say, it was no less justified than of those who ratified the United States Constitution.
Bear with me, however, as Snowden has much more to say on this subject. Federalism, as existed then but not now (post-14th Amendment) severely limited the power of the federal government to exert power over individual states.
If the federal government was only to come in to play in the interstices, in the cracks between the States and when dealing with foreign nations, that meant that the sovereignty of the States had to be favored in the end over the supremacy of the federal government. After all, the States had territory and citizens that belong directly to them. The federal government had no territory other than what was ceded to it by the States in certain cases, or frontier territories that would eventually become States. The federal government was an agency whose powers were triggered when issues crossed state boundaries or national boundaries. It could reasonably be said that there is no territory called the United States of America save in relation to other countries, those who might wish to invade or determine their boundaries vis-a-vis United States of America.
Snowden claims that the South might have had a right to secede based on popular sovereignty, but that it confused the issue by thinking that to be identical to states’ rights.
Popular sovereignty as a basis for secession, then, is undeniable, at least within the American model of federalism. But here the South confused itself and its cause by appealing to states’ rights. It certainly followed that if the States had the power to secede on account of popular sovereignty, then this was the same thing in principle as stressing the radical autonomy of the States. But the “right” to secede and states’ rights in general are two different things. The first involves popular sovereignty directly; the second involves a vision of federalism in which the States have the “legal” right to nullify laws or secede.
It was something for lawyers and constitutional scholars to bat about, but Snowden states the matter of illegality clearly below.
Nothing could be more obvious than that the States had no “legal” right to secede. There was no legal mechanism included in the United States Constitution for secession. Had there been a prescribed method, perhaps putting to majority vote among States, then there would be a legal right to secede because there was a legal mechanism. The South cited the words of the Founding Fathers and even Abraham Lincoln himself when it came to the right of revolution. Jefferson Davis in his later memoirs would gleefully quote a pre-presidential Lincoln on that right.
The fact is, however, that there is never a legal right to revolution. Consider this hypothetical amendment to the Constitution: “The People, from time to time, will have the right to act illegally.
Having a legal right to act illegally is a contradiction in terms.
It happens occasionally that people throw off tyrannical governments. The United States could use such a revolution this moment. But it would not be legal, and the federal government as now comprised would be completely within its rights to violently reassemble its wayward states. In 1861 the federal government was powerless to act in that manner. Only the States acting collectively could do so. Nonetheless Lincoln asserted that he had legal authority to hold the Union together, and to wage war to make it so.
Of course, in those days a weak executive would have to assemble Congress and get approval and financing, and the states had to assemble their own troops. Part of the reason why the North was initially so ineffective on the battlefield was this disjointed nature of collective action.
In the end, Lincoln would abolish habeas corpus, shut down newspapers, illegally imprison dissidents, and rule slavery illegal in those parts of the South not yet conquered. He became quite the tyrant, but he did what he felt necessary to win.
He also became the spitting image of the modern chief executive of the United States.
*By the way, I am unable to learn anythings about Snowden, as in the search engines he is hopelessly confused with Edward Joseph Snowden, the alleged whistleblower. The “About the Author” section of the book is merely a lamentation about that (the arrest of Edward James Snowden had been ordered at one time). I know nothing of this guy other than he writes with depth and authority.
**Mexico outlawed slavery in 1824, and tensions immediately arose between the government and its Texas holdings, which was a cotton-growing state that depended on slaves. By 1836, Texas was split from Mexico, and in 1851 Texas joined the United States.