The Legality of Secession
by George Desnoyers
October 13, 2005
When they originally ratified the U.S. Constitution, at least three states – New York, Virginia, and Rhode Island - included clauses asserting the right too secede from the Union at a future time. Of the three states, the ratifications by New York and Virginia were considered necessary for the Union to have a chance to succeed. The debates within those two states received great attention. Both were large states, and their ratifications were uncertain for several months. Virginia’s ratification (with a vote of 89 to 79) came on June 25, 1788 and New York’s (with a vote of 30 to 27) on July 26, 1788. Even though the ratifications by Virginia and New York occurred after the ratification of the Constitution by the necessary ninth state, New Hampshire, on June 21, 1788, they were nevertheless still viewed as crucial. When the ratifications of Virginia and New York finally occurred, confidence was high that the new nation would at least have a fighting chance to succeed.
Rhode Island’s clause asserting its right to secede is often overlooked due to its being the last of the original thirteen states to ratify. Rhode Island’s first attempt to ratify the Constitution, by referendum, had failed on March 4, 1788. The state finally ratified the Constitution (with a vote of 34 to 32) on May 29, 1790. This was nearly two years after the ratifications by New Hampshire, Virginia, and New York, after the swearing in of George Washington as President, and after the House of Representatives had passed a Bill of Rights (September 25, 1789). [Ten of the twelve Amendments passed by the House were ratified by the states and were incorporated into the Constitution as “The Bill of Rights” on December 15, 1791.]
Some important facts should be pointed out.
First, the ratifications of the Constitution by New York, Virginia, and Rhode Island were not given conditionally upon those states being granted the right to secede by the other states. Had that been the case, the ratifications would have been invalid. Ratifications of the Constitution had to be unconditional. Those who voted to ratify the Constitution in New York, Virginia, and Rhode Island simply put into writing a right they thought naturally belonged to their respective states. The states were voluntarily joining the Union, and most people believed the same principles toward self-governance that gave states the right to join the Union also gave states the right to withdraw from the Union. [It’s sometimes said that the way people think regarding that last point may be determined by whether they view a state’s joining the Union as making a contract or as joining a treaty. The right to unilaterally withdraw from treaties is generally accepted. The right to unilaterally withdraw from contracts is not generally accepted.]
Second, the ratifications of Virginia, New York, and Rhode Island were unanimously accepted as valid. Those states’ claims to the right of secession was understood and agreed to by the other ratifiers, including George Washington who presided over the Constitutional Convention and served as a delegate from Virginia.
Third, many lawyers believe that the acceptance of these three ratifications (New York, Virginia, and Rhode Island) as valid guarantees all states the right to secede. This conclusion is based on the principle that whatever rights are held by some states must be held by all states. [Exceptional rights have been granted to some states in order to encourage them to join the Union. But those special rights were understood by all states already in the union at the time the states granted special rights were accepted.]
Fourth, other states might have included clauses asserting their right to secede. However, they thought it unnecessary since the Constitution did not forbid secession and because it was believed that states’ rights were preserved wherever the Constitution did not expressly transfer states’ powers to the new federal government. (On December 15, 1791, this idea was incorporated into the Constitution as the Tenth Amendment which states, "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 belief of the Constitution’s ratifiers was that the states were entering into a voluntary association and not giving up their sovereignty. One of the Federalist Papers expressing the ideas that were persuasive in convincing states to join the Union is Federalist Paper #45. That publication, addressed to the “People of the State of New York,” said, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
Fifth, several writings of the founders referred to the formation of the Union under the Constitution as an experiment. Although many people clearly hoped the new Union of states would long endure, very few people expressed great confidence that it would. More widespread were expectations that states would withdraw from the Union if the arrangement were found to be unsatisfactory.
Sixth, for nearly seven decades, from the ratification of the Constitution to shortly before the Civil War, very few people questioned the right of states to secede from the Union. Most people took the right to secede for granted, and secession had occasionally been considered by states in different regions of the country. After all, the country had been formed largely through secession from British rule. Secession has not incorrectly been called, “as American as apple pie.”
Seventh, President Lincoln gave several arguments against the legality of secession. His first inaugural address contained four. A lot has been written about Lincoln’s arguments; some people accept their validity, while other people reject them. As the likelihood of secession increased, most folk thought secession might be sad – or tragic, but not evil. But Lincoln’s arguments acquired greater appeal with the emotionalism produced by the attack on Fort Sumter on April 12-13, 1861.
Eighth, some, and perhaps even most, Americans believe that the issue of whether secession was legal was settled on the battlefield when the forces of the Union defeated the South. But, clearly, the issue could not be settled that way! Americans accept that it is improper and unjust to settle matters of legality through the use of force.
Ninth, one frequently repeated (maybe because Lincoln used it) – but very weak – argument involves comparing the reference to a “perpetual union” in the Articles of Confederation to the reference to forming a “more perfect union” in the Constitution. It is claimed that the “more perfect union” under the Constitution would necessarily have to include the “perpetual” quality of the union under the earlier Articles of Confederation. This argument makes little sense! It could just as well be argued that Union under the Constitution is “more perfect” because it is not deemed necessarily perpetual, but recognizes (by the absence of prohibition) the right of states to secede. What makes this argument all the weaker is the fact that the Articles of Confederation refer to the "perpetual" nature of the Union no less than five times. In light of such importance in the Articles of Confederation, it must be considered intentional that the Constitution has not even one reference the Union being "perpetual." Furthermore, the present Union is not “perpetual” in the sense that – as has happened in the past - new states can be formed from parts of existing states. An agreement was reached at the time of the annexation of Texas that Texas may ultimately be carved into five separate states. The truth is that many points within the Articles of Confederation were abandoned in the new Constitution. During the Constitutional Convention, most people believed that the failures of the Articles of Confederation made a new Constitution imperative.
Tenth, when simple concepts of self-determination and self-governance of peoples are discussed, people generally agree that decisions – including the most basic decisions - regarding governance have to be open to all generations of peoples, and not just to generations of peoples that lived decades or centuries ago. Lincoln's "democracy argument” offered that since the Constitution itself permits almost any kind of amendment (it prohibits only two kinds), the right to secede has been replaced by the right to [try to] amend the Constitution. But, suppose that in some generation, as happened before during Lincoln’s, the people in some state(s) are not satisfied with ultimately leaving crucial matters of governance up to the whims of others, many of whom are perceived as not sharing sufficient common interests with themselves. Unlike Lincoln, those folk might find the right to [try to] amend the Constitution a totally inadequate replacement for the right to secede. Shouldn’t they be able to decide that question for themselves?
Eleventh, while Lincoln and much of his cabinet thought and gave lip-service to the idea that legal secession was impossible, and for that reason often refused to recognize states as actually having "seceded" (done the impossible), they certainly acted toward those states as though real secessions had in fact occurred, both by taking Constitutional rights away from the seceded states, and (Lincoln excepted, since he was dead) by making them go through a re-admittance procedure following the Civil War.
Twelfth, some scholars say that the Supreme Court's decision in Texas v. White did not settle the legality-of-secession question on the "con" side as firmly as many people have claimed. For one thing, the court did allow some possibility of legal secession by saying:
The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States. (Emphasis mine.)
What was Texas v. White about? During the Civil War, the secessionist government of Texas had sold U.S. bonds after passing an ordinance repealing a requirement that the governor of Texas endorse the bonds before redeeming them. (The governor had refused to endorse secession and had been dismissed.) Following the war, Texas sued to recover the bonds that had been transferred to George W. White and several others. However, Texas’ re-admittance to the Union had been delayed by the state’s failure to satisfy Congress’s demand that Texas ratify the Fourteenth Amendment. The issue of whether or not Texas was a state of the United States had bearing on whether or not the Supreme Court had jurisdiction in the case. Since the legality of secession was not the main issue between Texas and the purchasers of the bonds, many people feel that the legality-of-secession issue was far from fully argued and adequately considered. The Supreme Court’s decision in Texas v. White has remained very controversial.
Thirteenth, secession could occur in the U.S. by a Constitutional amendment. But an interesting point has been raised about how (rather than whether) mutually agreed-upon secession could be made legal through a Constitutional amendment (assuming unilateral secession is not already legal). If the Constitutional amendment allowing for secession followed the same process as all the other amendments so far, which states would be allowed to vote on the question in the two houses? It has been argued that only the states not wishing to secede should be allowed to vote. Otherwise, it could not be guaranteed that secession by Constitutional amendment would be mutually agreed-upon. Obviously it could not be considered mutually agreed-upon if the total vote among only the states wishing to remain in the Union was against the secession.
[On August 20, 1998, Canada's Supreme Court ruled that a province (Quebec was the province considered) had no right to unilaterally secede, either under Canadian law or under international law. However, the Court held that the desire of a province to secede obligated Canada's national government to negotiate with the province that desired to secede. Such negotiations would be conducted according to standards that would at the start neither guarantee secession nor rule out mutually agreed-upon secession. This seems to recognize in Canada a real possibility of mutually agreed-upon secession, i.e., of a secession having the approval of both the seceding province and the remaining portion of Canada.]
Best Argument Against the Legality of Secession
Perhaps the best argument against the legality of secession is the one that rests upon secession being an “insurrection." Section VIII of Article 1 of the Constitution gives Congress the power to call forth the militia to “suppress insurrections.” However, many people would argue that secession is not an insurrection. They see secession as the withdrawal of recognition of an authority as lawful rather than the refusal to obey recognized lawful authority. In addition, secession is not in itself an aggressive action taken against the residue of states left within the Union. It is a point often overlooked, but some states that seceded during the Civil War are very proud of the fact that they did not declare war - or fight an offensive war - against the Union, but only fought a defensive war in order to be able to govern themselves as they saw fit. Northerners should remember this if they wish to understand the thinking of many in the South.