Is Secession Treason?

[whorfin]

@Algher

If someone gave up their citizenship BEFORE committing the so-called treasonous acts, I would not consider them a traitor. They might still be a criminal, an enemy combatant, etc. - but not a traitor in my eyes.

There is a fairly good argument that the surrender of citizenship was invalid under U.S. law–that Jefferson Davis was a citizen and a traitor when he made war on the U.S. government.

How? Let me answer in the form of a question:

Which office do you go to in the U.S. Courthouse in Richmond, Va., to give up your citizenship?

…
The answer is that there is no such office. There is no way to voluntarily surrender U.S. citizenship while on U.S. soil. If you want to give up citizenship, the first thing you need to is leave the country.

I could (I won’t, because I have no reason to), yell as loudly as I want that I give up my citizenship, I could do so in the middle of the courthouse, I could do so in the face of a federal judge. I could sign a long, legal-sounding declaration to that extent. It wouldn’t matter a whit. I cannot give up my citizenship while still in the U.S.

Now, I might say that I’m not really in the U.S.–that my house, and the little lot it’s on, are the new state of Yoyodynia–and so I could give up my citizenship there. I think you can guess that I don’t think that matters–I have no right to have my house leave the Union-and so it remains U.S. soil.

As we’ve already discussed, I would argue that the U.S. constitution does not contain any provision that allows a state to legally secede. If that is true (and it is at least the position the Federal Government took), the south could not legally secede -and so any southerner trying to give up his citizenship would be trying to do so on U.S. soil. Hence, I would argue that means the attempt to give up citizenship wouldn’t have any effect. (IANAL, or even a legal historian, but my understanding is that the rule that you can’t give up citizenship of X while in X is fairly general–and would have applied in 1860).

The question of secession is not whether Jeff Davis (to pick one) had the right to leave, and no longer be governed by the Federal Government. I agree that he did. Where we disagree is whether he had a right to do so without leaving the territory of the United States–and specifically, whether he could legally take the State of Virginia, and the assorted state and Federal property therein with him.

[Tim_T-Bonham.net]

States became part of the US by petitioning Congress to pass an act admitting them into the union. For example, Alabama was admitted by Congress in December, 1819.

Presumably, the proper way to leave the union would be to follow the same constitutional procedure in reverse: to introduce a bill into Congress removing Alabama from the union, and have it pass by majority vote in both branches, and be signed by the President. Then Alabama and its’ residents could have legally become their own country, joined another country, or whatever.

The problem, of course, is that Alabama would not have been able to get enough votes in Congress to pass such a bill. The free states of the North & West had more votes, and this lead was growing as more of the territories in the midwest & west were becoming states. That was one of the underlying factors in the Civil War – the slave states had previously had the population & votes to keep slavery, but with the growth of the country & population shifts, that ability was slipping away.

[UltraVires]

@whorfin

As we’ve already discussed, I would argue that the U.S. constitution does not contain any provision that allows a state to legally secede.

It doesn’t have to say that. The states retained all of the powers that they didn’t explicity give up to the national government, which was a creation that flowed from the powers of the individual states.

Unless there is a strict prohibition of something to the states in the constitution, then they hold that power themselves. In fact, the 10th amendment says just that.

Instead of the analogy you used, I would use a different one:

Let’s say that we all live on the same street in a suburban neighborhood. It so happens that we are afraid that some rough guys from a few streets over might bother us when we are sleeping so we form a group and appoint a board of commissioners to protect us.

We also decide that, since it is impractical for all of us to do it ourselves, that this board is responsible for paving the streets, keeping the drains clear and things that only affect how we relate to each other.

Slowly, but surely the board starts encroaching on our family lives. One day the board starts telling us what time we should eat dinner and that lights are out at 10pm! Finally some of say that it is enough; we’ve had it with the board and we want rid of them.

The rest of the neighbors say, “Too bad, you signed up for it, so now you can’t get out of it”. “But,” we say, “we only signed up for mutual protection and other small things! We never agreed to all of this intrusion!”

“In fact, when did we agree to have this Board of Directors for all time, and never be rid of them if we choose?”

The neighbors then use force to compel us to eat our dinner and go to bed at 10pm.

[Ravenman]

Actually, in your example, you would say that you wanted out of the neighborhood association because they looked down on your barbaric practice of, say, beating your children. Rather than trying to find a reasonable solution, upon the election of a new association chairman that you didn’t support, before he basically does anything, you decide that he can’t tell you what to do and you go throw bricks through his window.

[whorfin]

@jtgain

It doesn’t have to say that. The states retained all of the powers that they didn’t explicity give up to the national government, which was a creation that flowed from the powers of the individual states.

Unless there is a strict prohibition of something to the states in the constitution, then they hold that power themselves. In fact, the 10th amendment says just that.

To be frank, that’s a pitiful argument in this context. It’s totally inconsistent with the way the tenth amendment is understood by the supreme court, and with the very concept of what the constitution is doing.

That being said, I will (against my better judgment, and the longstanding interpretation of that amendment by the Supreme Court) address it in the context of a strong tenth amendment.

The constitution does explicitly provide for the states giving up some powers to the federal government. You say so yourself.

As Prez. Buchanan notes, those powers include “the highest attributes of national sovereignty.” For example, the treaty power is delegated to the president and the senate. Art. II, Section 2. Making treaties is a pretty important sovereign power.

By seceding, the states take back those powers, yes? The president no longer has the power to make treaties that bind Virginia.

Now, let’s look to the tenth amendment. It says:

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.

There’s no need to paraphrase, as you have done.

So, the states have given up certain powers to the united states. (for example, the power to make treaties).

Those powers are not reserved to the states–as the tenth amendment does not apply to powers delegated to the united states.

Could the tenth amendment possibly mean that the states could take back those powers on demand, without the consent of the federal government? No. If it did, the delegation of that power to the Federal government would be meaningless.

Further, the tenth amendment is by its own terms not a tool for clawing power back from the federal government. It addresses who possesses the powers not allocated by the constitution. By its own terms, it does not grant, or reserve to the states, or the people any power reserved to the federal government.

So if you interpret the tenth to allow secession, you interpret it to allow the states to use the tenth amendment to take back powers explicitly granted to the federal government by the constitution. But that is the very thing the tenth amendment says it does not do.

Instead of the analogy you used, I would use a different one:

Let’s say that we all live on the same street in a suburban neighborhood. It so happens that we are afraid that some rough guys from a few streets over might bother us when we are sleeping so we form a group and appoint a board of commissioners to protect us.

We also decide that, since it is impractical for all of us to do it ourselves, that this board is responsible for paving the streets, keeping the drains clear and things that only affect how we relate to each other.

Slowly, but surely the board starts encroaching on our family lives. One day the board starts telling us what time we should eat dinner and that lights are out at 10pm! Finally some of say that it is enough; we’ve had it with the board and we want rid of them.

The rest of the neighbors say, “Too bad, you signed up for it, so now you can’t get out of it”. “But,” we say, “we only signed up for mutual protection and other small things! We never agreed to all of this intrusion!”

“In fact, when did we agree to have this Board of Directors for all time, and never be rid of them if we choose?”

The neighbors then use force to compel us to eat our dinner and go to bed at 10pm.

First of all, I didn’t use an analogy in my previous posts. But I will use one now, as Ravenman did.

You’re so right! It’s just so wrong for an overbearing “board of directors” to to dominate the personal lives of others… intrusion on, and control over other people’s personal lives is just wrong. The board would be acting like people’s master–and the people in the neighborhood, they’d be just like slaves. Thank god you’re showing me how the 1860-era south was really fighting against the power of others to make them obey in every aspect of their lives, to more or less ‘own’ them.

[The_Second_Stone]

Was there probable cause to try the person or persons for treason? Then yes. In the case of both Washington and Davis, there would have been probable cause. Washington never got caught, and Davis was not prosecuted. But either could have been charged.

[wmfellows]

@villa

I don’t know if George Washington swore a voluntary oath of allegiance to the Crown. If he had, then traitor.

Voluntary oath doesn’t enter into it, he was born a subject of the Crown, he was by definition a traitor relative to English law of the time. Not a value judgement, mind you, but a legal fact. He also served as an officer with the Royal Army of the day, commissioned by the Royal Gov of Virginia. I should think that removes any question.

Now being a traitor isn’t always bad, mind you. That kind of depends on the reason for the act of treason.

Quite right.

Re Canada, Australia

@Hypnagogic_Jerk

This happened over a long period, and mostly through acts of the British Parliament, so I think they consented.

Indeed, the Canadian and Australian evolutions were quite consensual (note that the Monarch remained their head of state, if rather symbolic).

@Hypnagogic_Jerk

This is the thing. Treason is widely considered abhorrent and immoral, with reason, but sometimes it’s justifiable. If you sell military secrets to an enemy power, without regard to the fact that your fellow citizens will die because of your action, it is treason and morally little better than any other common crime. If you take arms against your government in order to liberate your people, and attempt to restrict as possible your use of tactics that could be considered terroristic, then it is also treason, and it is a crime, but definitely a political crime. It can be morally justifiable.

Well, even taking your military secrets example, let us take the example of a German in 1941 selling military secrets to the Allies. Treason? Yes. “Little etter than any other common crime.” Certainly not. Treason is not, I should think to be confounded with common crime if it is political or morally motivated (versus treason simply for money). As such, the Americans and British who betrayed their respective nations and sold secrets to the Soviets I would consider fundamentally fools and traitors - and wrong - but not in any way in the same category as those who committed treason merely for monetary gain.

I’d say that George Washington was a traitor, since he did take up arms against his country. But it is usually Benedict Arnold who’s seen as the traitor, and he actually rejoined the “legitimate” side. They both were, but one of them had a much stronger claim to moral legitimacy.

Well, each were traitors to a certain perspective, not mutually exclusive conditions. I don’t know I’d lay greater or lesser moral legitimacy although perhaps I’m not familiar enough with Benedict Arnold.

Taking up arms to effect secession is treason. Whether it’s justified depends on the specific case, and there can be disagreement over this. And of course, secession can also be effected without arms and without any action that would fall under the definition of treason.

Also agreed.

@Algher

Sure, but if they have renounced their citizenship, how can they be traitors? The Germans and the Japanese levied war against us, but we don’t call them traitors.

The last bit is simply errant nonsense. German and Japanese action against the USA are not treason for the simple and self evident reason that they don’t meet the bloody meaning, Germans and Japanese fighting as citizens of another sovereign power were very simply foreigners. One can’t commit treason against a Sovereign that you owe no loyalty to AND NEVER owed loyalty to (to address the somewhat silly renunciation argument).

@Algher

Would Canada & Australia becoming independent nations count?

No, utterly irrelevant. Except insofar as they demonstrate a theoretical legal path to negotiated independence that demonstrates “secession” can be achieved without treason.

[Algher]

@Ravenman

Actually, in your example, you would say that you wanted out of the neighborhood association because they looked down on your barbaric practice of, say, beating your children. Rather than trying to find a reasonable solution, upon the election of a new association chairman that you didn’t support, before he basically does anything, you decide that he can’t tell you what to do and you go throw bricks through his window.

Can we please keep the issue of slavery out of this, and stick to secession / treason?

[UltraVires]

@Ravenman

Actually, in your example, you would say that you wanted out of the neighborhood association because they looked down on your barbaric practice of, say, beating your children. Rather than trying to find a reasonable solution, upon the election of a new association chairman that you didn’t support, before he basically does anything, you decide that he can’t tell you what to do and you go throw bricks through his window.

Except in this neighborhood, all of the neighbors beat their children at the formation of the Board of Directors. It was understood at the time of this formation that child beating was acceptable, but throughout the years, some neighbors began to change their views on child beating and imposing those changed beliefs on the other neighbors.

I guess that I am hijacking the thread and I don’t mean to. Of course slavery was terrible, but I think that bring the slavery question in only serves to blur what the OP is trying to determine, or blur what the first hijack was in trying to determine whether slavery was right or wrong.

What if it was for the opposite? What if the south was the one gradually freeing the slaves and the north insisted on keeping slavery so the south decided that they could no longer be a part of a nation that endorsed such a barbaric practice? Would that make our arguments for/against secession and more or less valid?

[whorfin]

@jtgain

Except in this neighborhood, all of the neighbors beat their children at the formation of the Board of Directors. It was understood at the time of this formation that child beating was acceptable, but throughout the years, some neighbors began to change their views on child beating and imposing those changed beliefs on the other neighbors.

I guess that I am hijacking the thread and I don’t mean to. Of course slavery was terrible, but I think that bring the slavery question in only serves to blur what the OP is trying to determine, or blur what the first hijack was in trying to determine whether slavery was right or wrong.

What if it was for the opposite? What if the south was the one gradually freeing the slaves and the north insisted on keeping slavery so the south decided that they could no longer be a part of a nation that endorsed such a barbaric practice? Would that make our arguments for/against secession and more or less valid?

I don’t want to address slavery to any significant extent–for the reasons many have already addressed. So I’ll try to tie this back to secession.

First, I think being the good guys always helps your situation in, at least, the court of public opinion–and among foreign powers (whose support and recognition is essential, and may well be the factor that moves you from a seceding state to an independent nation).

However, that is a practical question–about what a seceding state must do to be de facto independent.

That is, again, a different question from whether secession is legal–both as to whether that law governing the nation seceded from permits secession, (Whether that law is constitutional, stautory, common law, or international law that binds the nation), and whether the seceding state has actually done what it was required to under that law.

That doesn’t mean that state X can’t leave country Y if, under the laws of country Y, secession is forbidden. It just makes it a revolution, not a secession–an act that isn’t in compliance with the laws that form the nation seceded from. It also makes the people doing the seceding traitors under the law of the nation they’re seceding from.

That, as many people point out, may or many not be a good thing–and that’s where I think we get to Jtgain’s question of whether a state is seceding to be free from a unlawful, horrendous practice, or to continue that practice against the wishes of the lawfully-formed government of their former nation.

We had a revolution in 1776, and many considered it just–we certainly didn’t secede, as I don’t know if there even was a formal process under British Law for a colony to leave, but I’m sure we didn’t follow it if there was. To the brits, George Washington surely was a traitor–and I think all will agree that in hindsight, we should be very glad that he was.

[villa]

@wmfellows

Voluntary oath doesn’t enter into it, he was born a subject of the Crown, he was by definition a traitor relative to English law of the time. Not a value judgement, mind you, but a legal fact. He also served as an officer with the Royal Army of the day, commissioned by the Royal Gov of Virginia. I should think that removes any question.

Well obviously I am not making a legal argument. I don’t think opposing your country of birth makes you a traitor in any real sense, because you haven’t made a voluntary commitment to it. Now, the fact that he was an officer of the army is relevant, as I assume he wasn’t conscripted.

Lee, Davis, Stuart, Jackson etc were all West Point grads and U.S. Army officers, who had chosen to take an oath of allegiance they later broke. Hanging every one of them would have been pretty justifiable IMHO. Or, well, locking them up for life, because I’m not into that whole hanging thing.

[psikeyhackr]

Yes, but isn’t brainwashing children into being patriotic a violation of human rights to begin with?

How can you have free will and indoctrination at the same time?

psik

[UltraVires]

I always thought that a key component of being a traitor was the pretense of still being a loyal citizen. Benedict Arnold is the obvious example; the Rosenbergs, and that dude that worked for the State Department but sold secrets to the Russians.

I thought that if you were open and honest about your opposition that it didn’t count anymore. Under this definition neither Washington, Lee, or Davis would be traitors…

[Ravenman]

I think you’re confusing espionage and treason. It is entirely possible to commit espionage without treason, or treason without espionage. It just so happens that the cases you mention would probably involve a healthy dose of both…

(I’m setting aside the question of whether Arnold could commit treason against a country that sort of, but didn’t really exist…)

[wmfellows]

@jtgain

I always thought that a key component of being a traitor was the pretense of still being a loyal citizen. Benedict Arnold is the obvious example; the Rosenbergs, and that dude that worked for the State Department but sold secrets to the Russians.

Pretence doesn’t enter into, the concept of treason is separate from espoinnage. Arnold was not a traitor relative to his original Sovereign.

I thought that if you were open and honest about your opposition that it didn’t count anymore. Under this definition neither Washington, Lee, or Davis would be traitors…

That is most certainly not how treason is understood and applied in most of the world. You seem to be confusing at least the Anglo Saxon concept of Loyal Opposition with Treason.

@villa

Well obviously I am not making a legal argument. I don’t think opposing your country of birth makes you a traitor in any real sense, because you haven’t made a voluntary commitment to it.

Well that is an idiosyncratic personal definition. Voluntary commitment isn’t any kind of standard that stands up to reason or practice.

Now, the fact that he was an officer of the army is relevant, as I assume he wasn’t conscripted.

Officers are rarely conscripted and in that period normally one bought one’s commission. In any case, as I understand it, Washington sought an officer’s commission with the Crown, and won said appointment, although as I recall he faced significant discrimination against the Colonial versus UK born commissioned officer. This doubtless had much to do with his turn against the Crown.

Lee, Davis, Stuart, Jackson etc were all West Point grads and U.S. Army officers, who had chosen to take an oath of allegiance they later broke. Hanging every one of them would have been pretty justifiable IMHO. Or, well, locking them up for life, because I’m not into that whole hanging thing.

In the end Treason is Treason. Certainly it carries more sting for the state if it is somehow involving parties who had previously explicitly sought position and sworn to defend the Sovereign, whatever it might be - Crown or Republic - but that is not a necessary factor.

[Never_Say_Dice]

@stuthehistoryguy

On its face, Secession certainly seems to be as treasonous as it gets. In legal circles, however, allegiance to a foreign power is necessary for treason. What say you all? Were Washington and Jeff Davis traitors, or do they get a pass?

I’m not a fan of Washington, a guy who got wealthy through manipulating land grants. And a slave owner. But Davis was just a zero. A figurehead. Putting them in the same category is wrong. Although I personally wish the Union had just let the south go. They would have dropped slavery on their own, like every other country, and we would be rid of them.

[Hypnagogic_Jerk]

@wmfellows

Well, even taking your military secrets example, let us take the example of a German in 1941 selling military secrets to the Allies. Treason? Yes. “Little etter than any other common crime.” Certainly not. Treason is not, I should think to be confounded with common crime if it is political or morally motivated (versus treason simply for money).

Well, by “selling” I was implying it was mainly money-related. But even there you can find a moral grey zone. Few are those who’ll betray a country they’re happy in and whose leadership they like, even for good money. It’s easier to convince yourself you’re not really betraying the country, but making a stand against your government. And getting paid for it.

Well, each were traitors to a certain perspective, not mutually exclusive conditions. I don’t know I’d lay greater or lesser moral legitimacy although perhaps I’m not familiar enough with Benedict Arnold.

My understanding is that Arnold’s wife was a Tory and convinced him to switch sides. The British also promised him good money to surrender West Point to them. According to his Wikipedia article, he also opposed the US’s alliance with France. So he probably convinced himself that he was doing what was right, and the money only sweetened the deal. He falls in the moral grey zone I described earlier. But plenty of bad acts you can try to justify, and it doesn’t make them right. Rare are those who’d say they did wrong just for the sake of it.

No, utterly irrelevant. Except insofar as they demonstrate a theoretical legal path to negotiated independence that demonstrates “secession” can be achieved without treason.

Just a nitpick, but Canada and Australia becoming independent doesn’t really fall under “secession” since they weren’t part of the UK. They were colonies and then dominions, that is, dependent/partly independent countries, but still separate countries. This was the model the UK usually used for its colonies. I believe France, on the other hand, tended to consider its “colonies” as part of its national territory.

@villa

Well obviously I am not making a legal argument. I don’t think opposing your country of birth makes you a traitor in any real sense, because you haven’t made a voluntary commitment to it.

You have to follow the laws of your country of residence, even if you haven’t “chosen” it by virtue of simply being born in it. So yes, it makes you a traitor. If you want to fight your country without being a traitor, you must first move abroad and take allegiance to another country. (I agree it’s a problem if you’re in a country that doesn’t allow you to leave.)

@Ravenman

(I’m setting aside the question of whether Arnold could commit treason against a country that sort of, but didn’t really exist…)

In the American legal theory, the US existed. If they’d caught him, they’d have tried him and hanged (shot?) him.

[Aelita_Daystar]

Unless there is some kind of provision for succession or those in power act to allow it, then I think it most certainly is treason. However, I don’t think you can argue that treason is always wrong. So, if one is arguing whether or not it’s right, the question of whether or not it’s treason is basically moot.

[whorfin]

@Hypnagogic_Jerk

In the American legal theory, the US existed. If they’d caught him, they’d have tried him and hanged (shot?) him.

More importantly, Arnold was an officer (a general) in the Continental army. He, I would argue, gave up any claim that the US doesn’t really exist the day he became an officer in its army.

[wmfellows]

@Hypnagogic_Jerk

Just a nitpick, but Canada and Australia becoming independent doesn’t really fall under “secession” since they weren’t part of the UK.

They were Crown possessions. Breaking away in an “illegal” fashion would have been secession under I think the ordinary sense of the word, secession from a Sovereign authority.

I believe France, on the other hand, tended to consider its “colonies” as part of its national territory.

France only adopted that position relatively late and only with respect to certain territories. Algeria was most significant, but also the island leftovers of the colonial empire. I do not believe this was anything more than a legal fiction in the end.

@Aelita_Daystar

Unless there is some kind of provision for succession or those in power act to allow it, then I think it most certainly is treason. However, I don’t think you can argue that treason is always wrong. So, if one is arguing whether or not it’s right, the question of whether or not it’s treason is basically moot.

Well, it seems to me that many are confusing the moral question of treason with the technical act of treason. Treason is not always “wrong” in a global moral perspective.