The U.S. Civil War and secession

[etv78]

It's often claimed that the Civil War put ot rest any idea of the legality of states seceding. If that's true, why wasn't it codified in a Cpnstitutional Amendment?

[waterj2]

Originally Posted by etv78

It's often claimed that the Civil War put ot rest any idea of the legality of states seceding. If that's true, why wasn't it codified in a Cpnstitutional Amendment?

To codify it later would be (sorta) admitting that it was OK before the amendment. The Supreme Court ruled in Texas v. White in 1869 that no state had the right to secede and that all acts of secession were "absolutely null".

[etv78]

Texas v. White settled the issue then. Thanks!

[Polycarp]

There is of course the joke that the illegality of secession was settled even before Texas v. White was handed down in the Supreme Court building, by the decision in Grant v. Lee handed down at Appomattox Court House.

[Elendil's Heir]

The question's been answered, although I note that the Supreme Court did leave the door for secession open a teensy little bit when it mentioned in passing in Texas v. White that a state still might leave the Union "through revolution or through consent of the States." Presumably Congress could pass a bill voluntarily permitting a state to leave. Very, very unlikely to ever happen, but the court at least seemed to concede that it might.

[smiling bandit]

Originally Posted by Elendil's Heir

Very, very unlikely to ever happen, but the court at least seemed to concede that it might.

Not that unlikely - if the seccessionists had honestly just refused to have anything to do with the U.S., ignored the government peacefully, and kept it up for years, they'd have probably got their way. They themselves realized (and said), however, that the people were excited by events and would calm back down and drop the whole nonsense. This was the major reason why Fort Sumter got shelled: and it is did its job, persuading Virginia to join in the heat of the moment.

[dolphinboy]

It's hard to imagine a situation where a majority of the states would decide to let a state secede peacefully. What would a state have to do for the rest of the states to say "get lost, we don't need or want you anymore"? I can't imagine it.

[howye]

Originally Posted by dolphinboy

It's hard to imagine a situation where a majority of the states would decide to let a state secede peacefully. What would a state have to do for the rest of the states to say "get lost, we don't need or want you anymore"? I can't imagine it.

Now? You are probably correct.

In the 1860's? Less than a hundred years had passed since the revolution, much less the Constitution. A peaceful withdrawal by a few states at a time might have worked. How history goes from there is anybody's guess.

[barbitu8]

Originally Posted by smiling bandit

Not that unlikely - if the seccessionists had honestly just refused to have anything to do with the U.S., ignored the government peacefully, and kept it up for years, they'd have probably got their way. They themselves realized (and said), however, that the people were excited by events and would calm back down and drop the whole nonsense. This was the major reason why Fort Sumter got shelled: and it is did its job, persuading Virginia to join in the heat of the moment.

It would be kind of hard for the CSA to ignore the USA's government, primarily because the USA was occupying a fort which the CSA (at that time SC) insisted belonged to SC. SC demanded that the federal troops leave. The federal troops did not voluntarily leave, and the CO of the fort, General Anderson, had orders not to leave. SC could not declare itself a sovereign state and have foreign troops occupy a building (especially a fort) claimed by her.

[Skammer]

Originally Posted by Elendil's Heir

The question's been answered, although I note that the Supreme Court did leave the door for secession open a teensy little bit when it mentioned in passing in Texas v. White that a state still might leave the Union "through revolution or through consent of the States." Presumably Congress could pass a bill voluntarily permitting a state to leave. Very, very unlikely to ever happen, but the court at least seemed to concede that it might.

Through "revolution or through consent"? Wasn't that what the CSA was trying to do, secede through revolution?

[Lasciel]

Originally Posted by Skammer

Through "revolution or through consent"? Wasn't that what the CSA was trying to do, secede through revolution?

I always thought the court was simply acknowledging that if the revolution had succeeded, the ability of the US Court system to say "oh no you didn't" would likely not be recognized by the now separate states/country.

I could also be totally wrong on that.

[barbitu8]

Originally Posted by Skammer

Through "revolution or through consent"? Wasn't that what the CSA was trying to do, secede through revolution?

There's a difference between secession and revolution. The Colonies had no voice in the government.("No taxation without representation.") The southern state did have a voice, since they were part of the government. The colonies could not secede, but could rebel. The southern states could not rebel, but could secede.

[smiling bandit]

Originally Posted by barbitu8

It would be kind of hard for the CSA to ignore the USA's government, primarily because the USA was occupying a fort which the CSA (at that time SC) insisted belonged to SC. SC demanded that the federal troops leave. The federal troops did not voluntarily leave, and the CO of the fort, General Anderson, had orders not to leave. SC could not declare itself a sovereign state and have foreign troops occupy a building (especially a fort) claimed by her.

That's roughly my point. The secessionists wanted revolution (or counter-revolution, really) immediately - which was not legal under any reasonable interpretation of American law. Had they been patient and resolute they would have surely gotten their way.

[Tom Tildrum]

Originally Posted by Skammer

Through "revolution or through consent"? Wasn't that what the CSA was trying to do, secede through revolution?

I think the implication is successful revolution.

[Twoflower]

I assume "consent" would be a matter of a constitutional amendment, passed in the normal manner, that either set up a process for secession, or specifically relieved certain states of their membership in the union.

[Lumpy]

Originally Posted by Twoflower

I assume "consent" would be a matter of a constitutional amendment, passed in the normal manner, that either set up a process for secession, or specifically relieved certain states of their membership in the union.

Or if the rest of the states had simply acquiesced to the secession. Remember, the Constitution and the Supreme Court had been completely silent on the question before the war.

[Askance]

Originally Posted by barbitu8

SC could not declare itself a sovereign state and have foreign troops occupy a building (especially a fort) claimed by her.

Doesn't seem to have done Cuba, Spain, or Morocco (among others, no doubt) any measurable harm.

[Elendil's Heir]

Originally Posted by barbitu8

...the CO of the fort, General Anderson, had orders not to leave....

Nitpick: He was a major at the time. He was a major general by the end of the war, though, and returned to Ft. Sumter four years later to the day, to again hoist the flag he'd once lowered in surrender: http://www.clevelandcivilwarroundtab...leston1861.htm

[Koxinga]

Originally Posted by dolphinboy

It's hard to imagine a situation where a majority of the states would decide to let a state secede peacefully.

I can imagine it, if there were a genuine movement for independence among a majority of the people of the state as confirmed by legitimate referendums, and especially if they had some legitimate grievances and outbursts of civil unrest. (I'm thinking Hawaii, or possibly Puerto Rico if it first were admitted for statehood). A very big if, of course, but assuming it were true, what's the alternative--stationing Federal troops throughout the state and risking another Kent State on the news every week?