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Did the South Have the Right to Secede?

Posted on April 19, 2012 at 1:00 PM

Michael T. Griffith 2004 @All Rights Reserved

 

I believe the evidence is clear that the South had the right to secede. None other than Ulysses S. Grant, the commanding general of the Union army for much of the Civil War and later a president of the United States, admitted he believed that if any of the original thirteen states had wanted to secede in the early days of the Union, it was unlikely the other states would have challenged that state’s right to do so. Grant also conceded he believed the founding fathers would have sanctioned the right of secession rather than see a war “between brothers.” Said Grant, If there had been a desire on the part of any single State to withdraw from the compact at any time while the number of States was limited to the original thirteen, I do not suppose there would have been any to contest the right, no matter how much the determination might have been regretted. . . .If they [the founding fathers] had foreseen it, the probabilities are they would have sanctioned the right of a State or States to withdraw rather than that there should be war between brothers. (The Personal Memoirs Of Ulysses S. Grant, Old Saybrook, Connecticut: Konecky & Konecky, 1992, reprint of original edition, pp. 130-131).  There is nothing in the Constitution that prohibits a state from peacefully and democratically separating from the Union. Indeed, the right of secession is implied in the Tenth Amendment, which reads, 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. The Constitution does not give the federal government the power to force a state to remain in the Union against its will. President James Buchanan acknowledged this fact in a message to Congress shortly before Lincoln assumed office. Nor does the Constitution prohibit the citizens of a state from voting to repeal their state’s ratification of the Constitution. Therefore, by a plain reading of the Tenth Amendment, a state has the legal right to peacefully withdraw from the Union.  Critics of the Confederacy cite certain clauses in the Constitution about the supremacy of federal law or about states not being allowed to enter into treaties with foreign powers, etc., etc. However, it goes without saying that such clauses only apply to states that are in the Union. There’s simply nothing in the Constitution that says a state can’t peacefully and democratically revoke its ratification. If a state’s citizens were to vote in a legitimate democratic process to revoke the state’s ratification of the Constitution, either by direct vote or by convention, then that state would no longer be bound by the Constitution. The citizens of each state are the ultimate sovereign, not the federal government. The federal government is supposed to be servant of the people, not their master. Even Lloyd Paul Stryker, who opposed secession, admitted the Southern states had an “arguable claim that no specific section of the Constitution stood in their way,” i.e., no section of the Constitution prohibited peaceful, democratic separation (Andrew Johnson: A Study in Courage, New York: The Macmillan Company, 1930, p. 447). The great early American constitutional scholar William Rawle said a state had the right to secede. Rawle was a contemporary of founding fathers Thomas Jefferson and James Madison and was appointed by George Washington as the first U.S. Attorney for Pennsylvania. Rawle’s book A View of the Constitution of the United States was used as a legal textbook at a number of universities, including West Point, Dartmouth, and Harvard. To this day, scholars who debate legal issues relating to the First and Second Amendments refer to Rawle’s work. On the issue of secession, Rawle said, It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed. This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood. . . . (A View of the Constitution of the United States, 2nd Edition, 1829, Vol. 4, p. 571). 

Another early American legal giant, George Tucker, also said a state had the right to secede. Like Rawle, Tucker was a contemporary of Thomas Jefferson and James Madison and corresponded with the former. Tucker came to be known as the “American Blackstone.” Tucker was a professor of law at the University of William and Mary. He served as the chief justice of the Virginia supreme court and was appointed as a federal district court judge by James Madison. Tucker’s 1803 edition of Blackstone’s Commentaries, which he annotated to American law, was widely used for the teaching of law in the United States for years. On the issue of secession, Tucker wrote that the states’ participation in the Union was voluntary and that each state had the right to resume to “the most unlimited extent” the functions that it had delegated to the federal government.  The federal government, then, appears to be the organ through which the united republics communicate with foreign nations and with each other. Their submission to its operation is voluntary: its councils, its engagements, its authority are theirs, modified, and united. Its sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the situation require, to resume the exercise of its functions as such in the most unlimited extent. (Tucker, editor, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States, Volume 1, Philadelphia: William Birch and Abraham Small, 1803, Appendix: Note D, Section 3:IV). 

The Union was never meant to be held together by force. The Southern states joined the Union voluntarily, and they should have been able to leave it voluntarily. A key principle of Americanism is the sacred right of self-government, that government should only govern “with the consent of the governed.” This noble idea is expressed in the Declaration of Independence. America came into existence by secession from England. There was only a war because England wouldn’t allow the American colonies to leave in peace. George Washington’s secretary of state, Timothy Pickering of Massachusetts, rightly said that America was founded on the principle of secession. Thomas Jefferson, the author of the Declaration of Independence and the third president of the United States, said in a letter to William Crawford in 1816 that if a state wanted to leave the Union, he would not hesitate to say “Let us separate,” even if he didn’t agree with the reasons the state wanted to leave.  The principle of peaceful separation was as American as apple pie. But Lincoln, relying on an utterly erroneous understanding of the founding of the Union, declared that secession was “treason,” “insurrection,” and “rebellion.” If Lincoln had been alive during the Revolutionary War and had used the same kind of reasoning that he used against Southern secession, he would have sided with the British.

The South had no desire to overthrow the federal government. The South seceded in a peaceful, democratic manner, with the support of the overwhelming majority of Southern citizens. The Southern states used the same process to secede that the original thirteen states used to ratify the U.S. Constitution, i.e., by voting in special conventions comprised of delegates who were elected by the people. The one exception was Tennessee, which, instead of holding a convention, passed a secession resolution in the state legislature and then held a referendum in which secession won by a margin of more than two to one. Furthermore, most Southerners believed secession would be peaceful. In fact, it’s revealing that the early correspondence of the first Confederate secretary of war, Leroy Walker, "clearly indicates he did not expect war" (Rembert Patrick, Jefferson Davis and His Cabinet, Louisiana State University Press, 1944, p. 106)

 

 

 

 

 

 

Categories: Essays

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