The Right to Secede

The debate over the legal right of secession has been disputed prior to and after the War Between the States (a more accurate term for the Civil War, since “a civil war is a conflict between two or more factions trying to take over a government,” and the South was only reasserting their independence from the Union).[1] Before that bloody war, secession had been threatened by the States over several issues besides slavery. Both the Northerners and Southerners contemplated secession over the issues of high protectionist tariffs, newly acquired land from the Louisiana Purchase and the Mexican War, and due to economic concerns over the disruptions to trade during the War of 1812.[2] Except for the colonies secession from Great Brittan during the Revolutionary War, only the theory of secession or the right to secede had been debated on up until several States actually seceded in 1861. The legality of the right of secession is often overshadowed by the evils of slavery when the War Between the States is discussed today, but it is still a topic addressed by modern day scholars.

In 1776, Thomas Jefferson penned the Declaration of Independence and the colonies declared that they had a right to secede from Great Britain on the premise that when “any Form of Government becomes destructive…it is the Right of the People to alter or to abolish it.”[3] What would later become known as the United States of America was established on a principle that people have the natural right to secede from tyrannical rule. For seventy-eight years after independence was declared, citizens from the various States would generally accept that they had a right to secede as a last resort when all other appeals to constitutional law failed. There would also be opponents to the idea of secession and their numbers would grow as the war for Southern independence neared. In the book, A Platform for All Parties, written in 1860, the argument on the legality of secession was clearly being debated: “Some say they have no right to secede, and they must be prevented by force from seceding. Others say they have a right to secede, and ought not to be prevented in any way. Mr. Buchanan says they have no right to secede, and we have no right to prevent them. The ‘Tribune’ says they have no right to secede, and we have a right to prevent them, but it will be inexpedient to exercise it.”[4]

Even after 150 years, there are still debates over whether the South or any state had a right then or even now a right to secede from the Union. Division over the meaning of the government and its role or power has been debated ever since its establishment after the Revolutionary War. As the role and purpose of government has changed over time, so has the philosophy of the right to secede. Today’s scholars of history and law are also divided over this argument.

Daniel A. Farber, has agreed with one lawyer, Abraham Lincoln, in that the States never had a right to secede in 1861 or any time after the citizens of the colonies gained their independence from England. In his article, “Much Older than the Constitution”: Lincoln’s Theory of Nationhood, he recounts Lincoln’s argument that the “Union is older than any of the States; and, in fact, it created them as States.”[5] Lincoln would use the argument that the Union existed before the States, thus they were never sovereign and never had a right to secede. Farber also points out that Lincoln would argue that the creation of the Constitution to replace the Articles of Confederation was to create a “more perfect Union.”[6] This point would give Lincoln the precedence he needed to say that secession would destroy that perfect union, and thus it was illegal. The lawyer from Illinois would create a chicken or the egg debate over State’s rights and secession.

 On the contrary opinion, Wesley Riddle, would argue in his article, Secession and the Moral Compact, that “No state ever voluntarily joined the Union to destroy what was unique about itself.”[7] He acknowledges that the Founders saw government as a necessary evil that needed to be limited in its power. The founding generation carefully chose the word federalism to describe the government during the constitutional convention for its Latin meaning of covenant. A covenant is a contract between two parties, and in this case, a contract between the federal government and the State governments. As with any contract, if either side was to break the agreement, the contract would dissolve. Riddle continues to illustrate why any State, which felt that if the original contract was broken, would be justified in withdrawing from the Union. “States joined to enhance or secure their uniqueness and to improve social conditions voluntarily over time…joining the national political Union was meant to insure societal independence. States were supposed to govern themselves differently, because their people and their circumstances differed.”[8]

In the case of a broken contract, often the matter is reviewed in a legal setting to determine the validity of the claim and to conclude a settlement. There were individuals in the antebellum period that agreed with the right of secession, but felt that no State would be justified in seceding without first there being a review of their claim of an infraction. John Thompson Brown spoke on this particular issue to the House of Delegates of Virginia and said, “When a State, alleging a wilful and material breach of the compact, should determine to secede, it would devolve on the twenty-three co-states to decide for themselves, whether they had, through their agent, the General Government, violated the compact to such an extent as to justify the withdrawal of the complaining State.”[9] This philosophy that all efforts must be taken to resolve the matter, especially political matters, through serious review and discussion before swords are drawn, is consistent with the role of the ancient Roman Fetials. The Greek historian, Plutarch, said that the duty of these special priests were to “put a stop to disputes by conference and by speech; for it was not allowable to take up arms until they had declared all hopes of accommodation to be at an end.”[10]

Attempts were made between the North and South to reconcile their differences and uphold the contract established through the Constitution; but a culmination of issues from perceived infringements of civil liberties, unconstitutional abuses of government authority, and uncompromising politicians would close the doors to further discussions. This came during the second session of the Thirty-sixth Congress when they formed the Committee of Thirteen, with the sole purpose to find a resolution to the growing problems between the North and South.[11] The committee primarily considered the compromise proposed by John J. Crittenden, Senator from Kentucky, to extend the Missouri Compromise line to California effectively extending slavery into the newly acquired territories.[12] On this issue, the Republican Party would not bend and inch; but not necessarily for humanitarian beliefs that all men are created equal, since Illinois Senator Lyman Trumball declared that “we, the Republican Party, are the white man’s party. We are for the free white man, and for making white labor acceptable and honorable, which it can never be when Negro slave labor is brought into competition with it.”[13] Southerners would see this as an attack against property rights, which the Constitution protected.

There were many attempts to reconcile the various issues from high protectionist tariffs, slavery, central banking, etc. over the years since the ratification of the Constitution; but by 1860, with the election of a Republican Party president, whose party’s first act was to pass the Morrill Tariff bill, “which proposed raising the tariff rate by as much as 250 percent on some items,”[14] many in the South had had enough. Regardless of all the complex issues, this uncompromising attitude would be the last straw for many in the Deep South. South Carolina and the other six States of the Deep South felt that the federal government and the various Northern States had violated their agreed upon contract.

Clearly, the topic of the right of a State to secede is still as hot a topic as it was during the War Between the States and before. There are people on both sides of the aisle contesting both viewpoints, and even though the smoke from the battlefield has cleared nearly 150 years ago, the war of words on the issue continue. Even Lincoln himself would reside on either side of the argument: “Any people, anywhere, being inclined, and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right—a right which, we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own of so much of the territory as they inhabit.”[15] 

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[1] Walter E. Williams, "States should challenge federal acts,"  Human Events 54, no. 49 (1998): 17.

[2] H.W. Croker III, The Politically Incorrect Guide to the Civil War (Washington D.C.: Regnery Publishing, Inc., 2008), p. 19.

[3] “The Declaration of Independence,” The National Archives, accessed on January 1, 2014, http://www.archives.gov/exhibits/charters/declaration_transcript.html.               

[4] Austro Borealis, A Platform for All Parties, (Baltimore: J.P. Des Forges, 1860), 13.

[5] Daniel A Farber, "’Much Older than the Constitution’: Lincoln's Theory of Nationhood," OAH Magazine Of History 21, no. 1 (2007): 14.

[6] Ibid.

[7] Wesley Allen Riddle, "Secession and the moral compact," Vital Speeches Of The Day 61, no. 20 (1995): 636.

[8] Ibid.

[9] John Thompson Brown, Speech of John Thompson Brown (of Petersburg,) in the House of Delegates of Virginia, in Committee of the Whole, on the State of the Relations Between the United States and South Carolina, (Richmond: Thomas W. White, 1833), 27.

[10] Steve Bonta, The Rise and Fall of the Roman Republic: Lessons for Modern America, (Appleton, The John Birch Society, 2006), 5.

[11] William J. Cooper, Jr., "The Critical Signpost on the Journey Toward Secession," Journal Of Southern History 77, no. 1 (2011): 8.

[12] Ibid.

[13] Crocker, The Politically Incorrect Guide to the Civil War, 10.

[14] Thomas J. DiLorenzo, The Real Lincoln, (New York: Three Rivers Press, 2002), 127.

[15] David W. Bartlett, The life and public services of Hon. Abraham Lincoln: to which is added a Biographical Sketch of Hon. Hannibal Hamlin, (New York: A.B. Burdick, 1860), 332.