Did the South have a right to Secede?

Question

I am not interested in modern interpretations of the matter; we all know the North won and rewrote everything, including voiding the secession clause Texas had been careful to clearly and explicitly set in its Union treaty.

What I'd like to know is, according to the applicable legal texts (declaration of Independance, Union treaties, the Constitution, whatever...) as they stood in 1860, did the Southern States have a case for maintaining that they could step out of the union?

My research up to now seems to indicate they did, since secession is never mentioned, and it is stated that powers not otherwise delegated to the federal authorities remain in the hand of the people. This means that elected State governments, or at worst an explicit manifestation of the will of the people, such as by a poll, would have legally been able to negate the union with the US.

Now, I am not American, and I may only have a partial view of the matter, so, what do you folk know about it?

Answer 1

A note on Southron's response -- the argument that the Union's eventual methods of "total war" were morally unjustified is a legitimate matter for discussion, but has nothing at all to do with the "right to secede" question. (I happen to very much disagree with his assessment and much of his information, but again that's not the issue here.)

So what IS that question all about, and was there anything to it?

1) To begin with, we must acknowledge, that there WAS much serious discussion and debate of the idea of secession at many points in the first half of the 19th century, and not always initiated by Southerners. Note --"DEBATE" -- which is to say, there was certainly no simple agreement that such a right existed! So while those who dismiss the whole idea are mistaken, those who seem to take if for granted that the was some sort of an acknowledged right are also mistaken (and I believe, in the end much more seriously so).

2) The first question about secession as relates to the Civil War (and there are OTHERS --see points #3 & 4!) is NOT that of whether, under some circumstance or other secession may be legitimate, but whether, allowing that such a grounds might sometimes exist, the grounds on which the Confederate states actually DID secede was legitimate.

Looking at the actual circumstances and statements the Southern states made, I think the answer is 'No!'

In particular, note that this action was taken NOT as a direct response to some sort of abuse by the North, as is often implied. Rather, many in the South had threatened to secede IF the Presidential election ended up choosing a Republican (ANY Republican) as President. Note it had nothing to do with claims that someone "rigged" the elections nor, more importantly, was it because a Republican administration had taken ANY action at all against them (and specifically against slavery)... that government hadn't even been inaugurated yet!! Nor did the platform, or Lincoln, or anyone else I can find, ever declare any wish or intention to take such actions! The South did FEAR (thanks to a lot of fear-MONGERING by some of their leaders) that Republicans would, eventually, attempt to outlaw slavery. But, and this is important, the ACTION of secession (at least for the original seven states to secede) was based on not getting the results they wanted in a fair election that was completely Constitutional!

Here is where I believe one of the great arguments of Lincoln and others against this specific action (and not just against the abstract idea of a right to secede) is dead on. The threat of secession, not to mention its implementation, to try to force people to vote for or against a specific candidate (or bill for that matter) is what is undemocratic and contrary to the Constitution. The fact that the Southern states in fact did just so undercuts all their claims to be acting on Constitutionally recognized rights.

The other point that is important here is found in the specific formal statements the various Confederate states issued to explain and justify their actions. They make much of "states rights" and claim that the North has violated theirs. But in what respect? Again, they all specifically outline concerns about SLAVERY. . . . contrary to modern day Neo-Confederate claims.

Don't take my word for it. Read, for starters, the Declarations of Causes of Seceding States for South Carolina, Mississippi, Georgia and Texas:
http://members.aol.com/jfepperson/reasons.html


3) I would suggest that the REAL argument for secession as the Confederacy carried it out would have to be on the basis of a "right of revolt", NOT on the ability to "revoke" their acceptance of the Constitution. In fact, many in the South did appeal to this, and compared their actions to those of the Revolutionary generation. Thus they appealed to the argument of the Declaration of Independence. Leaving aside the issue of whether they in fact had any similar basis (any similar 'train of abuses'), which I find highly doubtful (note again that they responded to a free ELECTION result, not to Republican policies or actions), we can at least admit such a right to revolution in extreme cases.

But in the case of REVOLUTION, who would argue that the one against whom the revolution is being attempted are somehow obligated to quietly sit back and allow it, rather than oppose it. So, even if the South HAD such a right, the Union ALSO had the right to fight its very dismemberment! Oddly, James Buchanan insisted that the South did NOT have the right to secede (here I agree), but ALSO that there was nothing the other states could legitimately do about it! Lincoln, needless to say, thought otherwise.

4) More specifically, whatever "right" the South was seeking to exercise, Lincoln himself argued that his very OATH OF OFFICE required him to oppose this breakup of the Union. So again, even if these states had a "right" and were truly exercising it in this case (not just using it as a smokescreen), that does not imply that the other side must sit still. In fact, it implies a DUTY to do otherwise!

In short, even if we conclude that the Southern states HAD a right to secede and or/revolt
a) this does NOT imply they were properly exercising that right (esp. that of secession)
b) this does not remove the right or even obligation of Lincoln and the Northern states to counter this action

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I do believe you've been researching this subject, and commend you for it. But do be aware that much of what you'll find--esp. more recently-- is the pro-secession argument. That's understandable given that that view did not prevail, so that those who advocate it feel much more need to present the case than those on the other side. (And those who do write against the idea tend to do so more in passing.) So do recognize that there is a great imbalance in the literature on the subject.

If you want a good, careful summary of the question of the right of secession, and esp. of Lincoln's arguments on this point from someone who concludes there is NOT such a right, but seeks to be fair, not dismissive, of contrary views, I highly recommend Daniel Farber's book *Lincoln's Constitution* (2003). This is one of the main points he discusses in the book. Unfortunately, I can't attempt to unpack his detailed discussion here.

Answer 2

Actually, it is fairly widely recognized that the founders believed the union was a voluntary one, and that any state that chose to do so was free to leave at any time. Furthermore, the subject came up when South Carolina passed an act of Nullification, which was subsequently found invalid by the courts; my recollection was that it was then widely agreed that although no state could nullify an action of the federal government, a state could accomplish the same result by secession, but at significant cost.

Certainly the President had the legal authority and obligation to work against secession, but Acts of War against the South would be inappropriate without a Declaration of War by Congress. That didn't happen. That was the first, but by no means the only, violation of the Constitution perpetrated by the president during his time in office. But that one was expensive, and we are still paying the bill.

He based his military action on Fort Sumter, which was in a controlling position in a seceding state, and which fort he refused to surrender to the state which had seceded, and sought to reprovision by force over the objections of the state authority which had demanded its surrender.

I believe the legal authority for secession is fairly clear and straightforward from the Constitution itself. The arguments against seem based upon an assertion that someone did something incorrectly at some point in the process, but these arguments are weak. There is no doubt that within the South there was virtual unanimity of opinion. It is important to observe that the unanimity of opinion was a consequence of a half century of perceived abuse within the south as a consequence of economic and political domination by northern business and political interests. Although this could have been worked out peacefully if everyone involved was interested in doing so, the situation had evolved to a point where that was unlikely to occur without significant intervening events and/or the passage of time. Northern power was best served by war, hence it came to pass.

Under the circumstance, the existing order could be maintained only by force, and Lincoln was certainly willing to do that. The founders would not have approved; the number of deaths was predictable, and far too great. And that war led DIRECTLY to the trauma we face in this country today.

Answer 3

The confederates fired on Fort Sumter AFTER South Carolina s declaration of secession. They demanded the northern troops leave their soil, and they only fired on the north when they refused to leave. The logic that the south had no right to break away, is the same logic England used in the Revolutionary War. The north called the south rebels and traitors and accused them of treason. England did the exact same thing to the colonies.

The argument about slavery is a red herring. Some of the northern states had made slavery illegal, but the US federal government hadn t made slavery illegal yet when the Civil War started. Even the emancipation proclamation only freed slaves in the Confederate states. Lincoln didn t really care about black people (he said he would prefer they be shipped back to Africa instead of live in the US). Freeing the slaves in the southern states was a purely strategic move on Lincoln s part, to win the war. I believe slavery is wrong, but I also believe slavery would ve eventually been abolished in the South anyway. Granted it wouldn t have happened overnight, but it didn t happen overnight in the North either. There were already free black men in the South too - some of whom fought in the Confederate army.

Technically it wasn t even a "civil war." A civil war is when one side tries to overthrow the standing government. The south didn t try to overthrow D.C. They simply wanted to break away. The correct name for it should be the War for Southern Independence, just like the "revolutionary war" was the War for American Independence.

Lincoln took an oath of office to protect and defend the Constitution. The 10th Amendment clearly 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."
There was nothing in the Constitution that gave the US power over matters of state secession, nor was there anything prohibiting it. It was reserved to the States or the people. Confederate troops firing on Fort Sumter were simply driving out foreign troops, who were occupying their sovereign soil as of the date South Carolina seceded. Lincoln then violated his oath and invaded the sovereign states to the south.

The real reason for the South seceding was not slavery. It was because the North imposed unjust tariffs on the South. Congress, dominated by Northern interests, enacted stiff tariffs on imported goods, thus raising the price of the clothing made from the Southern cotton. In 1833, the national government had a huge (for those days) surplus in the treasury, which the Congress, dominated by Northern interests, doled out to the states of the North with not one penny going to any Southern state. The discrimination was so obvious that President Buchanan observed in a speech to the Congress in 1858, “The South has not had her share of money from the Treasury, and unjust discrimination has been made against her.”

These few examples show us that economic strangulation of the South was the intent of Congress. By 1860 it was clear to the Southern states that there was no Congress for the entire United States — only Northern interests were considered.

The southern states weren t getting proper representation in Washington, and they were getting fed up. That is why the South seceded - and rightly so. This should sound familiar. Does the American "Revolutionary War" ring a bell?

Answer 4

Everything is interpretation especially someone who is foreign to the situation. And yet none of us were alive. If you are studying wars in our country I suggest you study the French/Indian wars promoted by other countries to grab out land. We as American people seem to be arogant at times but very friendly indeed. And we assume that everyone is like us so in the case of the South and North they were not evolved enough into the civilization of being a true American for they had many foreign allegiances. Germany, Britain, France,Greece, Italy, Turkey, Persia, Mexico, etc., So with relatives and money and that accompanied by politics made for many strange bedfellows. Partnerships in the cotton industry, for instance, grain, tobacco, etc., Gold was a major trade as well, silver mines, copper mines, and many other things made the difference in the exchange. The only orderly way was the Union in order to defeat the outsiders, obviously. And the powers that were, knew that, 10 years before the war (Calhoun).
People were definately tired of fighting amongst themselves and not accomplishing anything. The slave trade was creating a real threat to us because of the foreign element. After all why should we be supporting them with our fields of cotton? Regardless they were taking more than their share and the North being Americans were not benefiting from their own country and the South at that time were really very selfish because they were heavily influenced by the foreign trade. Sound familiar?

Answer 5

Look, slavery was as wrong as it could it, downright evil. Every race was a slave at one point in history. But the fact is that not only did the southern states not vote for Lincoln, he wasn't even on the ballot for them to vote for him. THEY COULDN'T IF THEY WANTED TO. That should be a wakeup call that you have NO say in your government. Brings no taxation without representation to mind. Slavery is evil, but the issue doesn't matter if you don't have a say in your own government. That's why we adopted the electoral college, so that a majority vote could still lose out to the wishes of the country as a whole.

Answer 6

The issue doesn't apply to the people, rather to the states' rights themselves. I don't find anything in the Constitution that says states can't secede, but the Southern states (or at least South Carolina) violated the Constitution in other ways.

At one point, South Carolina attempted to impose tariffs, which is prohibited Article I, Section 10 (it's reserved to the federal Congress), they apparently established an army, also in violation of Section 10 (being it attacked Fort Sumter, they must have had it).

The will of the people was ignored in Missouri. The state of Missouri voted on secession and voted to remain in. The majority of the population was located in St. Louis, which was pro-Union, the rest of the state was pro-Confederate. The governor, also pro-Confederate, rounded up his supporters, left Jefferson City, ran off to Neosho to establish a new state capital, and voted on secession (no surprise, it passed). The Confederacy, of course, recognized Missouri's secession, the Union didn't.

Answer 7

~If they had the "right" to secede, they would not have had to go to war to try to do so. The southern states declared the war and fired the first shots with the stated goal of overthrowing and separating from the union. Secession is not mentioned in the constitution because it was a given that, have just gained independence and forming a new nation, the states would constitute and remain in a new, single nation. Separation or secession would have to be expressly constitutionally permitted, pursuant to stated constitutional procedures, to have been legal. Treason is mentioned in the constitution and any action which would tend to attack and destroy the duly organized government (eg: secession) is treasonous. If the confederate states believed they had a legal right to secede, their recourse would have been, at least in the first instance, to bring suit in the Supreme Court. They knew no such right existed (except Texas who reserve the right to reclaim independent nation status when agreeing to join the union) and thus, declared war.

Answer 8

That question was a sticky problem at the time. During the Mexican War, Lincoln argued that secession was the right of all people who were found themselves in a major disagreement with their government.

In his interpretation, the position of the south was invalid because they claimed "states rights" but only white people could vote. The opinions of the black people were not represented, hence the claim of being denied their rights (the south's) fell apart. It is a logical absurdity to claim your rights to representation as a human being are being violated when you hold other human beings in slavery.

He maneuvered the south into striking first to justify taking up arms against it.

One interesting oddity that resulted from the war was that not all the slave states joined in the rebellion, and slaves captured during the war became the property of the U.S. Government. Prior to the emancipation of the slaves in 1863 the government of the U.S. became the largest single slave owner in the history of the world with the exception of ancient Egypt.

Answer 9

For the millionth time, would someone please tell me in ANY foundational document of the United States where the right to dissolve the union by act of secession is mentioned, or even implied? And you better be specific about where you get your information, because I want to be able to go right to the citation.

And another thing. Stop mentioning Texas. Texas never had the right to secede. Its not mentioned in the 1844 annexation treaty that was voted down, and its not mentioned in the 1845 joint resolution that was approved. Know why? Because it was never there!!!!!!!!!!

The Supreme Court ruled definitevely on this issue in Texas v. White (1869). No state ever had, nor DOES HAVE, the right to secede from the Union.

Answer 10

* How could the North claim it was fighting for freedom when it was trying to crush an independence movement? To put it another way, how could the North claim it was fighting for freedom when it was trying to conquer eleven states that had left the Union in a peaceful, democratic manner, that had made every effort to establish friendly relations with the North after they had seceded, and that simply wanted to be left alone?




* How could the North claim it was justified in fighting to preserve the Union when the original Union was a voluntary compact between the states, and when the founding fathers had prohibited the federal government from using force against any of the states? Even President James Buchanan, who was president when the Deep South states seceded, said the federal government had no authority to use force against the seceded states. How can one rightfully attempt to preserve a voluntary Union by waging war to force eleven of its members to remain against their will?
* Wasn’t the North’s use of force against the Southern states fundamentally contrary to the Declaration of Independence’s statement that governments derive their just powers "from the consent of the governed" and that people have the right to form a new government if they feel they must do so?


A key argument has always been the South did not deserve to be independent because slavery existed within its borders. Critics argue that not only was the South's position inconsistent, but that the Southern states had no moral right to be independent and that the North's invasion was justified.

Did the South have no moral right to be independent because it permitted and upheld slavery? There's no doubt that slavery was wrong and that it needed to be abolished. But, if the Southern states had no right to form their own government because slavery existed within their borders, then the American colonies had no right to form their own government either, since slavery existed in the colonies and since some of the colonies upheld and grew rich from the slave trade. British leaders noted this inconsistency during the American Revolution. They pointed out that some of the colonial leaders who were loudly demanding "freedom and independence" were slaveowners. If the existence of slavery within a nation's borders means that nation has no right to exist, then America had no right to exist in the first place.

The North was home to a cruel form of wage slavery where factory workers, especially those who were immigrants, worked in terrible conditions for wages that were barely sufficient for basic existence. These workers were usually cast aside as soon as they ceased to be productive.

Given these and other facts, I don't believe the existence of slavery in the South justified the North's use of force to deny the South its independence. I don't believe that Southern slavery justified the brutal form of "total war" that Northern armies waged against the South. This brand of warfare included the needless destruction of thousands of private homes and public buildings, the large-scale theft of private belongings, the burning of priceless Southern libraries, the killing of thousands of farm animals (even in remote areas), and the shelling of defenseless towns.
Some idea of the brutality that was inflicted on the South is indicated by the fact that about 50,000 Southern civilians died in the war .Nor do I believe that Southern slavery justified Lincoln's policy of blocking medicines from reaching the South. This cruel policy caused the needless deaths of tens of thousands of Confederate soldiers and of thousands of Southern civilians. This policy also caused the deaths of thousands of Union soldiers who were being held in Confederate prisoner of war camps. When the South tried to buy medical supplies from the North to care for Union prisoners, Lincoln wouldn't even reply to the offer.


God Bless You and The Southern people