Yes, it would have been wrong. Although, as **silenus **points out, the real answer is on the battlefield. If people are willing to go to war to secede, it doesn’t much matter if the country they’re waging war against believes it’s legal. It matters if you win or lose the war.
It’s worth noting the Civil War was not the first time the matter had arisen in the United States. Several New England states talked about after the Louisiana Purchae, which they perceived as being a move to dampen their influence, and especially during the War of 1812, which was about as popular in New England as pubic lice; there was serious talk of merging with the Canadian colonies.
The reaction of other states to this was clear; it was illegal and they would oppose it ferociously.
A federal state that allows unilateral secession is not a nation-state. It cannot possibly survive because any subdivision could simply demand its own way, and devolution of powers, or else threaten to secede. You just can’t run a country that way. Bilateral secession - an agreed-to deal - is a different matter, since it puts ths question to both sides.
The Confederates seceded unilaterally. It was an act of treason, full stop. No country could contenance such an act or else it would simply never end; had they let the CSA go, the next time Ohio got pissed off about not getting their way they’d have left. Or California would have said “well, hell with it, we’re our own country now.” Or the New England states, or whatever.
Look at the nature of our Constitution. It’s one of limited powers that are—somewhat warily—given up by sovereign states. Had they intended for the Union to be permanent and unbreakable, they would have included something to that effect in the Constitution. Ah, you say, but they said nothing about secession either. In English jurisprudence, one always interprets a law liberally, to allow that which is not proscribed. The very nature of the rest of the Constitution makes it quite clear that the Framers didn’t intend the states to be bound in any way not explicitly spelled out.
Before Gettysburg, the United States were much more like the United Nations or the European Union than the United Kingdom.
The Constitution specified that new states could be admitted to the nation. It did not specify details of the process, but there had been many states admitted, with a similar process: basically, an act approving the admission passed in Congress by a majority vote. (As opposed to the Articles of Confederation, which required a 70% majority in favor.)
While nothing was mentioned in the Constitution about withdrawing from the nation, it seems logical that the same process in reverse would apply: the state would petition Congress for de-admission to the nation, if that bill passed by a simple majority vote than the state could leave.
The Supreme Court even hinted that such a course would have been legal, in Texas vs. White. But the southern states did not follow this path, they simply unilaterally chose to secede. With little Constitutional justification (and little success).
I think if there was a right of secession, then mechanisms for it would be explicitly included in the Constitution or similar document. People have brought up the EU - it has explicit mechanisms for leaving.
Gadfly in the ointment question: If the CSA was trying to make a point about the right to secede, why was that point not made in their Constitution? They didn’t justify it in their Preamble, nor (upon an admittedly very quick read) do they seem to have provided for such a mechanism as regards their own member states. On the other hand, they were very, very specific about making sure slavery was on the agenda [Article IV, Sec. 3 (3)].
Funny way of making a point, keeping silent about it…
I’m saying no. At the time of the Declaration of Independence, I’d say the states were all separate and independent powers but I wouldn’t say they had the power to secede from the United States because they hadn’t formed the United States at this point. It’s as moot as asking if Earth has the power to withdraw from the United Federation of Planets.
The United States was formed as a union in 1781 when the Articles of Confederation was adopted. At this time, the United States existed which made it possible for states to secede from it. Now this is a grey area. Because the text of the Articles describe each state as a sovereign entity and normally that would imply the states were free to leave the union if they wished. But the Articles specifically described the Articles as forming a “perpetual union”. So that phrase seems to explicitly contradict the implicit meaning of the rest of the document - and I figure the explicit overrules the implicit. So the states that joined the United States under the Articles of Confederation were voluntarily joining a perpetual union. (Although I guess you could make the argument that the Articles listed the states by name that were forming a perpetual union. So in theory if other states had joined the United States later, the perpetual part wouldn’t have applied to them.)
As for the Constitution, I’ve never seen a reasonable argument that supports the right of secession. As I argued above, the states had already surrendered the right to secede to the United States in 1781. So the new Constitution enacted in 1789 wasn’t taking that right away - it was already gone. The Constitution didn’t need to deny the right to secession anymore than it needed to declare independence from Britain. The questions of independence and secession had already been resolved by earlier documents.
But beyond that, I’d point out that opponents of the Constitution argued that adopting it would be a surrender of state sovereignty. I say take them at the word. The Constitution was adopted over the objections and that means that state sovereignty was surrendered.
James Madison was asked his opinion about secession and he clearly stated that no such right existed in the Constitution. And I don’t see how anyone can claim they know more about the implied meaning of the Constitution that Madison did. If Madison said something wasn’t in the Constitution, he knew what he was talking about.
And there’s a legal argument that the states had no authority over the Constitution. The Constitution was adopted by conventions not by acts of the state legislatures. It was the people of Delaware and the people of Pennsylvania and the people of South Carolina and so on who enacted the Constitution not the governments of those states.
So the government of South Carolina in 1860 had no legal authority to take away the constitutional rights that belonged to the people of South Carolina. The Constitution was an agreement between the people of the states and the federal government. So the United States government was legally obligated to protect the constitutional rights of the people of the seceding states from being unlawfully taken away by their state governments.
Exceptio probat regulam in casibus non exceptis. The fact that the Constitution included a procedure for admitting new states but didn’t include a procedure for states to leave proves that states were allowed to join but not allowed to leave.
The people of one state do not have the legal authority to take apart my country. Ohio does not belong only to the people who live there, it also belongs to all Americans.
Of course they should have had the right. Such is the meaning of sovereignty.
I hope that the UK will be able to leave the EU without this sort of trouble.
No, but I would heartily endorse allowing them to leave now.
Thank you!
I don’t think the history of the Civil War has anything to do with whether they had the right to secede. (I can never spell that word.) The North clearly didn’t want them to secede, and was able to use force to prevent them, but I’m surprised at how many people are willing to use the physical outcome of the Civil War as an intellectual justification.
I’d agree that they didn’t have the right to unilaterally secede; it’s something that the other states would have had to approve. Imagine this text:
The Government of the United States of America recognizes that the State of Vermont is no longer one of these United States, but a separate and sovereign nation, and all entitlements and entanglements between Vermont and the United States of America are hereby abrogated in favor of the subsequent diplomatic relationships to be established by Congress.
If the Vermont legislature and Congress passed this and the president signed it, how would it be unconstitutional?
Which would be a more likely scenario for the secession of Vermont? A peaceful process or a bitter fight to assert independence?
Personally, I thought Harry Hawk displayed remarkable comic timing in the lead role, which saved an otherwise forgettable script.
Under what legal theory?
Must a citizen of Ohio get permission to emigrate to another state? To another nation?
Grant v Lee 1865
Little Nemo, the bulk of your post is spot on. I am a Historian, and your points about the ratification of the Constitution being done by the PEOPLE and NOT the states is spot on. The Conventioneers were aware that what they were doing was verboten under the Articles of Confederation (technically the Convention was only authorized to propose amendments to the AoC. In order to be adopted, any amendments had to be approved unanimously by all the state delegations. RI was usually the trouble maker). As they re-conceived their duty as writing an entirely new organic law, they had to return to the practice of the popular ratification (lockean contract theory of Government).
Part of why they were able to sort-of ignore the state governments (who would probably voted it down anyway) was because the union of the people PRECEDED the formation of the states.
Beginning in late 1775 it became increasingly obvious to even the most obtuse American Patriot / Rebel that the relationship with Great Britain was all but certain to lead to ever more tyranny (The Colonists had throughout the Imperial Crisis from 1765-1775 appealed to the King to protect them from what they-incorrectly- perceived to be an attempt by the Lords and Commons of Parliament to oppress them. According to American understanding of the British Constitution of 1689- the ‘Whig’ constitution, each of the three divisions of the government had a check to keep the others in balance, if their were attempts to impose tyranny. In 1765, in the Stamp Act Crisis, the Americans appealed to King George to help them. When the SA was repealed, NYC erected a statute of George III as the defender of their liberty.) When in Late-Summer, early Autumn on 1775 the Continental Congress sent one last appeal to the king to end the tyranny of Parliament, the so-called Olive Branch Petition, the King refused to even admit the messenger to his throne room, proving once and for all, the vaunted defender of liberty, the checks and balances of the tripartite British constitution DID NOT AND COULD NOT protect the Americans from London. Americans were confused and unsure as what to do.
Then came Thomas Payne and Common Sense In which the Caribbean bastard (technical term) pointed out that Americans had had liberty for 150 years, on their own. They didn’t need Lords, Commons, and King to protect their liberty. This little pamphlet hit like a bombshell- and quickly spread across all the colonies. Virginia finally authorized their delegation to propose independence in the Congress.
The Union of the people, formed in 1775 by the seating of the Second Continental Congress, then ordered the formation of new State governments. A fine point to be sure, but critical. The Union came before the states. The people formed the Union, who then reconstructed the colonies into states. This was in Spring- and finally, on July 2 the congress approved Independence (the accepting of the document Declaring that fact happened 2 days later) This idea was critical in the ratification of the new constitution in 1788. Under the Articles, it was technically treason. But if the Union preceded the Confederation of 1781 (and it did) and the states who were the represented bodies in the Congress, then a new organic law could be ratified by the people whose union preceded the existence of the states. Problem of ratification solved.
When NE discussed (NEVER proposed formally) secession in 1814, SC threatened to go to war with them to keep them in the Union. When SC threatened nullification (which would have made the Federal Government pointless) NC native, Revolutionary war veteran President Andy Jackson (of Tennessee) threatened to invade, and hang a nullifier from every tree in SC if need be.
Southern Secession was purely and simply about protecting slavery. The South controlled the presidency in 13/16 of the administrations (Adams I & II and Lincoln excluded) Northern presidents like Buchanen were pro-southern. As long as the South was needed to win the presidency, the south made harsh demands about committment to slavery, its defense and expansion. But by 1856 the North had grown to the point where their electoral votes alone could win the presidency. The Republicans realized this and formed a party that was not at all willing to kow-tow to southern pro-slave ideology. When Lincoln won the presidency that the South had relied upon to defend slavery (and name pro-southern pro-slave justices to the Federal benches and Supreme Court- 1860 6/9 were die-hard pro-slavery men; see Dred Scot case- the south saw that, in the long run, their cause at the federal level was lost. and they seceeded.
BUT that’s not how democracy works. The North had lived under the southern rule (won, fair-and-square in legal, free elections) for decades. Even in the crisis years 1849-1860. And the mechanisms the South used to secure ordinances of secession were decidedly undemocratic in most states, but especially in SC (which was effectively a fiefdom of five families). Add to this the fact that the Union was of the people, and preceded the states, no STATE could undo unilaterally what had been formed by the people. Now, if a referendum had been held in the Union about the dissolution of the said Union, and had the South won the said referendum (extremely unlikely, most Southerners were probably not activly rebellious), then secession would have to be considered legal. It wasn’t held, and it wasn’t legal.
This is a distillation of about 7-8 weeks of lectures, which are far more detailed. But I think y’all get the point!
Mr. Downtown,
No permission to leave a state or enter a state is required, because yes, Ohio belongs to all citizens of the United States. See SS1 of the fourteenth Amendment, to wit:
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
No permission is required, as citizenship in Ohio is inferior to citizenship in the United States, indeed citizenship in the state is predicated upon citizenship in the Union. If one is not a citizen of the United States, one is not a citizen of any of the constituent states or other territories.
Declaration of Independence (bolding mine):
Sounds like a “yes” to me.
The US Supreme Court has issued the following judgments:
Seems to be saying that normally, no, you can’t secede, unless, of course, you can make it stick. 