Is there any way a state can secede from the United States? Why was the secession of the Confederate states illegal?
Because the Union had a much larger army.
A few things…
In Article 6 Section 3 of the Constitution it clearly states that “the states shall be bound by oath or affirmation to support this Constitution.” They agreed to be part of the Union forever. By seceding, they were breaking the oath they took 72 years ago.
In Article 1 Section 10 of the Constitution it says “No state shall enter into any treaty, alliance, or Confederation.” In order to secede from the Union and form their own country, they needed to make treaties and alliances with other states. Article 1 Section 10 also says that “No state shall, without the consent of Congress, keep troops, or ships of war in times of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger.” The South was keeping troops, and they attacked and captured Fort Sumter, which was basically an act of war against the United States.
In Article 4 Section 3, it states that “Congress will make rules and regulations for territories and for property of the federal government.” The state or territory on its own cannot create the rules for itself. Therefore, when the South seceded, they were taking the property of the federal government since they didn’t get permission from Congress to secede or buy the land.
The South believed that Lincoln would abolish slavery if elected president. They had no reason to think this. In his inaugural speech, he said, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” This proves that Lincoln wasn’t a threat to slavery. The South was being irrational to assume that Lincoln would abolish slavery. He also said, “The states have their status in the Union and they have no other legal status. If they break from this, they can only do so against law and by revolution.” Lincoln is clearly stating that secession is illegal.
As a side note, when Texas joined the union, we reserved the right to break up into multiple (I believe 5 states) at our discretion…
Hope this helps…
D.
Yes, up to 5 states. Of course, that provision doesn’t really grant Texas anything that they wouldn’t have had from Article IV, Section 3 of the Constitution anyway.
But the Constitution gives Congress the right to create new states by dividing or joining existing ones, and Daylon was claiming (AFAIK falsely) that Texas has a unique right to divide itself at its own discretion.
Daylon pointed out the Constitutional reasons why it’s clearly illegal. It also means that the federal government does not have the right to “kick out” a state that’s causing trouble.
If we wanted to allow states to secede, we would have to amend the Constitution to define a legal process which would allow them to do so.
It’s a fine point, and technically you’re correct. The federal government has to approve it, but we can begin the process under the agreement Texas made when joining the Union.
Third – New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution; and such states as may be formed out of the territory lying south of thirty-six degrees thirty minutes north latitude, commonly known as the Missouri Compromise Line, shall be admitted into the Union, with or without slavery, as the people of each State, asking admission shall desire; and in such State or States as shall be formed out of said territory, north of said Missouri Compromise Line, slavery, or involuntary servitude (except for crime) shall be prohibited.
D.
But there’s nothing unique to Texas about that. Any state could petition Congress to be divided into any number of segments. The final authority to split any state belongs solely to the US Congress.
The part of the annexation resolution that’s significant (historically and legally speaking) is not the four-new-states bit, it’s the part whereby Texas agrees to have the would-be successor states abide by the Missouri Compromise. This mattered a lot in the 1840s.
Since the Missouri Compromise was declared unconstitutional in the Dred Scott case, and since it’s a moot point anyway because no one has slaves anymore, it’s since become an oddball curiosity that’s morphed into part of a larger urban legend that Texas somehow has special privileges that no other state has. They don’t.
Nothing in this clause implies perpetuity. It can plausibly be read as meaning, basically, so long as you’re part of the Union, you have to pledge fealty to the Constitution.
Not true; they could secede first, and then form alliances. Alliances are not a necessary precursor to secession.
This is irrelevant to the question of secession. One can plausibly argue that, if secession is legal, then the attack on Fort Sumter was an attack on the remaining United States, for which retaliation was justified. And, of course, if secession is legal then the proscripton on keeping troops is null and void.
This is simply bizzare, given that the states aren’t “territories,” and the whole point of the clause you cite is to distinguish between states and territories and the powers of the federal government regarding them. The feds pretty much have plenary power over the territories, but in the states most aspects of governance are ceded exclusively to the state governments.
As for the property clause, again, this is irrelevant to the question of secession. One can plausibly argue that Union facilities like Fort Sumter were property of the federal government and that their taking demanded compensation or retaliation, but that is a separate question from the legality of secession itself.
The real reason that secession is illegal is the one posited by Ozymandius. The simple fact is that, Texas v. White notwithstanding, the Constitution is silent on the issue of a state departing from the Union. The reason it is illegal is because the Union had more guns and troops. Had the situation been reversed, there would be no doubt that secession was perfectly legal.
BTW, secession is not without precedent: early in the history of the Republic, some New England states toyed quite seriously with the idea of leaving. No one at the time, AFAIK, contended that they were considering a forbidden idea.
Texas State Waters extend out to the 3 League Line (~10 miles) as opposed to the three mile limit accorded other coastal states. What else there might be, I don’t know off the top of my head.
But wasn’t that agreement voided by the readmittance process following the war?
And I agree that once one gets past the nit-picking, the real reason is the one stated by Ozymandius.
As others have correctly pointed out, there is nothing here that implies the union to be perpetual. It merely requires that the states must abide by the laws as long as they are in the union.
Again the withdrawal from the union came first. It one accepts that secession is legal, any alliances made after the fact with other legally seceded states are moot.
If secesion was a legal act, any army the Confederacy enlisted was irrelevant as the Constitution no longer applied to those nations.
One could argue that, by stationing hostile forces in another nation’s territory, the United States was commiting the act of war. Lincoln maneuvered South Carolina into firing the first shot for the court of public opinion.
Regardless, South Carolina wanted nothing more than to expel the U.S. soldiers from her territory. When the United States launched her invasion of Virginia, it was no doubt an act of war.
Though a president, Lincoln was no Constitutional scholar, so I fail to see the relevance of his opinion on the question of legality. Based on his actions as president, one could argue that, like Andrew Jackson, he had little regard for the Constitution when it ran counter to his policies.
Lincoln is refuted by a respected Constituional scholar of the early nation.
“William Rawle published his View of the Constitution in Philadelphia in 1825. Rawle’s book is now principally remembered because he expressed in it the view that any state of the Union could constitutionally secede if the unequivocal voices of the state’s people so determined. Rawle’s text was used for instruction at West Point when the men who came to lead the Confederate armies in 1861-1865 were cadets.” Commentaries on the Constituion, Joseph Story, 1968
Rawle was U.S. Attorney for the Pennsylvania District and a founder of the Philadelphia Bar.
The strongest arguments for the legality of secession are the Declaration of Independence, the previous secession from the Articles government, and the Bill of Rights.
The Declaration of Independence’s reason for being is to make an argument for a people’s right to secede from existing political bonds.
“That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”
It is difficult to reconcile this notion of consent of the governed with the actions of the United States in the aftermath of Southern secession.
The Constitutional government itself was created by secession from the Articles of Confederation. The Articles did claim to be permanent.
“[T]he Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.” Article XIII
That did not stop the secession of nine states with New Hampshire’s ratification of the Constitution in 1788. Virginia, New York, and North Carolina followed shortly thereafter, but Rhode Island did not enter the union until neighboring states made threats of force.
The Constitution itself, in contrast to the Articles, does not mention secession. As the right to prohibit secession is not an enumerated right of the federal government, it would seem that secession is covered by the 9th and 10th Amendments.
9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
10th Amendment: “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.”
It is difficult to argue that secession is not legal under the 9th and 10th Amendments. It is difficult to picture the delegates to the Constitutional Convention, many of whom refered to their home state as their “nation” even after ratification, entering into an agreement that they did not believe they would later be able to exit.
All of this brings me back to my original response. The only thiing that made secession illegal was a determined leader and the full might of an industrial society brought to bear on a smaller, agrarian neighbor.
I stand corrected on this point. Here’s a cite for the three league line. Interesting story.
However, boundary disputes aside, I still stand by the spirit of my original statement. The most commonly cited alleged “Texas exceptions” to federal law are:
- That Texas has a special right to unilaterally divide itself into up to five states.
- That Texas has a unique right to secede from the union if they so choose. (snopes)
- That the US Flag Code allows for the Texas state flag (and only the Texas flag) to fly at the same height as the US flag. (snopes)
All of these are myths, of course, and I don’t think that discrepancies that came about due to the absorption of quasi-independent nations as US states (like the three-league line) are quite the same category.