# Was the secession of the Confederacy legal? **URL:** \ **Category:** Cecil's Columns/Staff Reports\ **Created:** [May 16, 2008, 11:29am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537 "2008-05-16T11:29:15Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 22, 2008, 12:14am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/21 "2008-05-22T00:14:18Z")
When the southern states seceded, one of the legal arguments made by the United States was that the population of those states were American citizens and by seceding, the state governments were denying them their rights as such. The same argument would preclude the federal government from selling off any state. If it sold Maine to Canada, it would be taking away the citizenship rights of all of the people in Maine. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [May 28, 2008, 4:01pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/22 "2008-05-28T16:01:56Z")
I’m sorry; I forgot to leave a thank-you for the answers. Appreciate it. ---
**Author:** ![Daljo628](https://avatars.discourse-cdn.com/v4/letter/d/ec9cab/32.png) [@Daljo628](https://boards.straightdope.com/u/Daljo628)\ **Post date:** [May 29, 2008, 12:58am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/23 "2008-05-29T00:58:24Z")
One of the most interesting perspectives that I’d ever read on the “Right to Secede” was an [article](http://www.capmag.com/article.asp?ID=1543) penned by Walter Williams, current chair of the Economics department at George Mason University. He comes down much more clearly on the affirmative side, (A libertarian myself, I agree with his views on many issues). A Northerner myself, and having always grown up being told that ‘we’ were right, and the ‘south’ was wrong, I’ve since changed my mind, and now indeed view it as “The War of Northern Aggression” ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 29, 2008, 2:22am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/24 "2008-05-29T02:22:54Z")
That article by Williams was actually a review of a book _The Real Lincoln_ that was written by Thomas DiLorenzo. Williams and DiLorenzo are both selling the Libertarian viewpoint with little pretense of objectivity. This [site](http://members.aol.com/jfepperson/dilorenz.htm) offers a long lists of errors in DiLorenzo’s books. So does [this one](http://positiveliberty.com/2006/01/sovereignty-lincoln-sense-and-nonsense.html) and [this one](http://www.encyclopedia.com/doc/1G1-92049028.html) and [this one](http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=27346) and [this one](http://www.historycooperative.org/journals/jala/24.1/belz.html) and [this one](http://www.declaration.net/ed/notes14.asp) and [this one](http://www.claremont.org/publications/crb/id.736/article_detail.asp). ---
**Author:** ![John\_W.Kennedy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_w.kennedy/32/1031_2.png) [@John\_W.Kennedy](https://boards.straightdope.com/u/John_W.Kennedy)\ **Post date:** [May 29, 2008, 2:37pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/25 "2008-05-29T14:37:34Z")
Not to mention that DiLorenzo couldn’t get anyone better to write the back-cover blurb on his book than well-known neo-Nazi, conspiracy theorist, and all-around nutbag, Joseph Sobran. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [May 29, 2008, 6:34pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/26 "2008-05-29T18:34:17Z")
[QUOTE=Tom Tildrum] Or a variant: Can Congress sell US land to another country? Could it sell the Aroostook forest in NW Maine to Canada? If so, could it sell all of Maine to Canada, even without revoking its statehood? (Assume that the treaty provides for private citizens to retain personal title to their land; I’m only positing a transfer of jurisdiction.) ETA: I assume not, but I haven’t thought through the particulars as to why not. [/QUOTE] Some of the later posts on this thread address the issue of land that is already part (or all) of an existing state. As for non-state territories, there are a few precedents – e.g. the US giving up its claim to the northern section of the Oregon Country (“54-40 Or Fight” rhetoric nothwithstanding), the US granting independence to the Philippines. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [May 29, 2008, 8:21pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/27 "2008-05-29T20:21:54Z")
[QUOTE=Daljo628] One of the most interesting perspectives that I’d ever read on the “Right to Secede” was an [article](http://www.capmag.com/article.asp?ID=1543) penned by Walter Williams, current chair of the Economics department at George Mason University. He comes down much more clearly on the affirmative side, (A libertarian myself, I agree with his views on many issues). [/quote] Not at all. He says that _at the time_, i.e. in 1860, most people thought that states had a right to secede. However, check his opening lines. > [@](#): > > Do states have a right of secession? That question was settled through the costly War of 1861. That’s exactly what everybody here has said. Since the Civil War nobody can argue successfully that states have a right to secede. The matter is settled. > [@](#): > > A Northerner myself, and having always grown up being told that ‘we’ were right, and the ‘south’ was wrong, I’ve since changed my mind, and now indeed view it as “The War of Northern Aggression” I’ve read very extensively on the period and my view is just the opposite. The South was wrong in every conceivable way. I don’t want to debate the issue, but I’m curious how you can possibly argue otherwise. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 30, 2008, 5:09am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/28 "2008-05-30T05:09:43Z")
One of the quotes Williams mentions that he claims proves that secession was widely recognized as legal was by James Madison. This pretty much makes everything else in that article suspect. The legality of secession was a debated issue in Madison’s lifetime and he did record his opinions on the subject - and he clearly stated that he did not believe states had the right to secede from the United States. So anyone claiming to cite Madison in support of secession is either very ignorant of the subject or is knowingly lying. ---
**Author:** ![John\_W.Kennedy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_w.kennedy/32/1031_2.png) [@John\_W.Kennedy](https://boards.straightdope.com/u/John_W.Kennedy)\ **Post date:** [May 30, 2008, 4:52pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/29 "2008-05-30T16:52:59Z")
One might observe that the Confederacy itself evidently regarded it as a little chancy, for the Confederate constitution added an explicit secession clause. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [May 30, 2008, 7:23pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/30 "2008-05-30T19:23:55Z")
[QUOTE=John W. Kennedy] One might observe that the Confederacy itself evidently regarded it as a little chancy, for the Confederate constitution added an explicit secession clause. [/QUOTE] I don’t believe it did. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [May 30, 2008, 8:59pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/31 "2008-05-30T20:59:59Z")
[Here’s the complete text](http://www.yale.edu/lawweb/avalon/csa/csa.htm). I don’t see a secession clause, explicit or implied, in it. ---
**Author:** ![Alex\_Dubinsky](https://avatars.discourse-cdn.com/v4/letter/a/dbc845/32.png) [@Alex\_Dubinsky](https://boards.straightdope.com/u/Alex_Dubinsky)\ **Post date:** [June 1, 2008, 7:27am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/32 "2008-06-01T07:27:23Z")
[QUOTE=Exapno Mapcase] That’s exactly what everybody here has said. Since the Civil War nobody can argue successfully that states have a right to secede. The matter is settled. [/QUOTE] That’s seems a dumb argument to me. It’s even dumber than the concept of case law. Case law: if a judge thinks one way once, it’ll be Right forever. What you’re saying: if we kick someone’s ass once, our back-justification will be Right forever. Arguing over this is stupid. The law clearly doesn’t apply. This was just revolution/subjugation, pure and simple. England lost, the North won. We didn’t spew some legal bullshit about how it was ok for us to say fuck you to England, so why are we spewing legal bullshit how it wasn’t ok for the South to say fuck you to us? It’s just empty air to make the victor feel better about himself, to pretend that it wasn’t war pure and simple. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 1, 2008, 1:32pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/33 "2008-06-01T13:32:20Z")
[QUOTE=Alex\_Dubinsky] Arguing over this is stupid. [/QUOTE] Well, arguing about it this way is less productive than it would be if you cited some authority for what you say, but as they say, “you’ve gotta dance with what you brought.” > [@](#): > > The law clearly doesn’t apply. How so? What basis do you have for making this claim? > [@](#): > > This was just revolution/subjugation, pure and simple. Revolutions are just about always illegal under municipal law. > [@](#): > > England lost, the North won. Mkay. > [@](#): > > We didn’t spew some legal bullshit about how it was ok for us to say fuck you to England, 😕 > [@](#): > > When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. > > * * * > > But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world. > > He has refused his assent to laws, the most wholesome and necessary for the public good. > > He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them. > > He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them, and formidable to tyrants only. > > He has called together legislative bodies at places unusual uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures. > > He has dissolved representative houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people. > > He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining, in the mean time, exposed to all the dangers of invasions from without and convulsions within. > > He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands. > > He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers. > > He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries. > > He has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance. > > He has kept among us, in times of peace, standing armies, without the consent of our legislatures. > > He has affected to render the military independent of, and superior to, the civil power. > > He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation: > > For quartering large bodies of armed troops among us; > > For protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states; > > For cutting off our trade with all parts of the world; > > For imposing taxes on us without our consent; > > For depriving us, in many cases, of the benefits of trial by jury; > > For transporting us beyond seas, to be tried for pretended offenses; > > For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries, so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies; > > For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments; > > For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. > > He has abdicated government here, by declaring us out of his protection and waging war against us. > > He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people. > > He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation, and tyranny already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation. > > He has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands. > > He has excited domestic insurrection among us, and has endeavored to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions. > > In every stage of these oppressions we have petitioned for redress in the most humble terms; our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people. [http://www.yale.edu/lawweb/avalon/declare.htm](http://www.yale.edu/lawweb/avalon/declare.htm) And see David Armitage, _The Declaration of Indepence: A Global History_ (2007). ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [June 1, 2008, 4:23pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/34 "2008-06-01T16:23:02Z")
[QUOTE=Alex\_Dubinsky] That’s seems a dumb argument to me. It’s even dumber than the concept of case law. Case law: if a judge thinks one way once, it’ll be Right forever. What you’re saying: if we kick someone’s ass once, our back-justification will be Right forever. Arguing over this is stupid. The law clearly doesn’t apply. This was just revolution/subjugation, pure and simple. England lost, the North won. We didn’t spew some legal bullshit about how it was ok for us to say fuck you to England, so why are we spewing legal bullshit how it wasn’t ok for the South to say fuck you to us? It’s just empty air to make the victor feel better about himself, to pretend that it wasn’t war pure and simple. [/QUOTE] Alex, you’re asserting again. When has that ever worked for you? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 2, 2008, 5:25pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/35 "2008-06-02T17:25:26Z")
[QUOTE=Alex\_Dubinsky] Arguing over this is stupid. The law clearly doesn’t apply. This was just revolution/subjugation, pure and simple. England lost, the North won. We didn’t spew some legal bullshit about how it was ok for us to say fuck you to England, so why are we spewing legal bullshit how it wasn’t ok for the South to say fuck you to us? It’s just empty air to make the victor feel better about himself, to pretend that it wasn’t war pure and simple. [/QUOTE] Except, I think you’re misunderstanding what the argument is. Sure, had the Confederacy won the war, they would have been independent. Revolution writes its own laws. But what the Southern states that seceded claimed was that their secession was legal under US law. They didn’t just say, “We’re being mistreated and we have a natural right to secede.” They said “We have a legal right to secede”. So, it’s ok to analyze that according to US law, because that’s the standard they used. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 3, 2008, 4:44pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/36 "2008-06-03T16:44:59Z")
What about a simple application of the tenth amendment? A power to secede is (obviously) not granted to the national government, nor is it prohibited to the states (in any text of the constitution). Therefore the power to secede is reserved to the states respectively, or to the people, no? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 3, 2008, 5:14pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/37 "2008-06-03T17:14:30Z")
> [@](#): > > What about a simple application of the tenth amendment? A power to secede is (obviously) not granted to the national government, nor is it prohibited to the states (in any text of the constitution). Therefore the power to secede is reserved to the states respectively, or to the people, no? That’s begging the question. You’re making the unspoken assumption that a right to secede exists by saying the issue is whether it’s a state or federal right. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [June 3, 2008, 5:18pm UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/38 "2008-06-03T17:18:45Z")
[QUOTE=jtgain] What about a simple application of the tenth amendment? A power to secede is (obviously) not granted to the national government, nor is it prohibited to the states (in any text of the constitution). Therefore the power to secede is reserved to the states respectively, or to the people, no? [/QUOTE] I equate _Texas v White_ with _Roe v Wade_ in that the ruling may be correct from a legal standpoint, but the SCOTUS decision is so poorly written and reads more like “this is what the law **SHOULD** say” that it is hard to accept it as case law. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 4, 2008, 12:47am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/39 "2008-06-04T00:47:02Z")
[QUOTE=Little Nemo] That’s begging the question. You’re making the unspoken assumption that a right to secede exists by saying the issue is whether it’s a state or federal right. [/QUOTE] I don’t think I am. Secession is a “power”, is it not? It may be illegitimate or unrecognized in modern times, but why shouldn’t it be considered a power for tenth amendment purposes? In other words, under your thoughts, what would be some hypothetical powers that fall under a tenth amendment analysis? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 4, 2008, 1:36am UTC](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537/40 "2008-06-04T01:36:17Z")
[QUOTE=jtgain] I don’t think I am. Secession is a “power”, is it not? It may be illegitimate or unrecognized in modern times, but why shouldn’t it be considered a power for tenth amendment purposes? [/QUOTE] Well, Madison, who one would assume knew something about the bill of rights, was of the opinion that it wasn’t. From his response to essays: > [@](#): > > But the ability and the motives disclosed in the Essays induce me to say in compliance with the wish expressed, that I do not consider the proceedings of Virginia in ’98-’99 [the Virginia Resolution-CA] as countenancing the doctrine that a state may at will secede from its Constitutional compact with the other States. A rightful secession requires the consent of the others, or an abuse of the compact, absolving the seceding party from the obligations imposed by it.. . . > > The case of a claim in a State to secede from its union with the others is a question among the States themselves as parties to a compact… > > The characteristic distinction between free Governments and Governments not free is, that the former are founded on compact, not between the Government and those for whom it acts, but between the parties creating the Government. Each of those being equal, neither can have more rights to say that the compact has been violated and dissolved, than every other has to deny the fact, and to insist on the execution of the bargains. An inference from the doctrine that a single state has a right to secede at will from the rest, is that the rest would have an equal right to secede from it; in other words, to turn it, against its will, out of its union with them. Such a doctrine would not, till of late, have been palatable anywhere, on nowhere less so than where it is not most contended for. [Previous page](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537.md?page=1) [Next page](https://boards.straightdope.com/t/was-the-secession-of-the-confederacy-legal/449537.md?page=3)