Was secession "legal"?

[ironfoot]

This topic has been discussed in the "Reb or Yank" thread.
But it probably deserves its own thread.
Here is an article to start it off:

http://college.hmco.com/history/readerscomp/rcah/html/ah_091400_websterhayne.htm

[ironfoot]

The Constitution does not expressly address the issue of secession, so both sides can read what they want into it and make lawyerly arguments about it. But if any state could secede because it did not like the results of a presidential election, how could a Constitutional democracy hope to survive? Can the blue states legally secede now because they did not want George W. Bush to be president? If a state could legally secede because it did not like the results of an election, then elections become meaningless. Do nations normally allow a part to secede, or is it implicit that secession and other forms of dissolution are not generally acceptable?

Lincoln addressed the legality of secession in his first inaugural address, in a tone similar to a lawyers argument. He addressed the issue again in the Gettysburg Address, in a more idealistic and practical way, when he said:

"Four score and seven years ago our fathers brought forth upon this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure...."

[El Confederado]

Here are sonme things to read also, as intended by the Founding Fathers, not Lincoln a man who was in politics long after the Fathers set up this nation.



The Right of Secession

by Gene H. Kizer, Jr.

        There is no evidence that secession was illegal or prohibited by the Constitution, and in fact there is almost overwhelming evidence to the contrary, that secession was a legal, constitutionally sanctioned act, the right of which was mandated by the Founding Fathers, the Revolution itself, the Declaration of Independence and the Constitution. Historian Kenneth M. Stampp, in his book The Imperiled Union, maintains that it is impossible to say that secession was illegal because of the ambiguity of the original Constitution as to state sovereignty and the right of secession. He points out that "the case for state sovereignty and the constitutional right of secession had flourished for forty years before a comparable case for a perpetual Union had been devised," and even then its logic was "far from perfect because the Constitution and the debates over ratification were fraught with ambiguity."1 It appears that the original intention of an unquestioned right of secession was established by the Founders and took root, as Stampp pointed out, and "flourished for forty years," then later a "perpetual Union" counter-argument developed out of political necessity when Northern states began realizing their wealth and power was dependent on the Union and its exploitation of the South.
        There had to be a specific constitutional prohibition on secession for it to be illegal. Conversely, there did not have to be a specific constitutional affirmation of the right of secession for it to be legal. Why? Because the 10th Amendment to the United States Constitution 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 no constitution prohibition on secession, nor was there a constitutional sanctioning of any kind of federal coercion to force a state to obey a federal law because to do so was to perpetrate an act of war on the offending state by the other states, for whom the federal government was their agent.
        The arguments for the right of secession are powerful and convincing. There is the constitutional right, based on the Constitution as a legal compact - the Compact Theory - and there is the revolutionary right, premised on the idea that a free people have the right to change their government any time they see fit. The constitutional right is based largely on the aforementioned 10th Amendment to the U.S. Constitution, while the revolutionary right is based on the Declaration of Independence and the philosophy of Thomas Jefferson and John Locke, that

whenever any form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute new government, . . .

These words come directly from the Declaration of Independence. This passage was also used, verbatim, in South Carolina's Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union. A similar sentiment was expressed by Abraham Lincoln in 1847 on the floor of the United States House of Representatives:

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.2    

        Horace Greely's New York Daily Tribune published a long, detailed, emotional editorial on December 17, 1860, the day South Carolina's Secession Convention began, strongly supporting the right of secession on the revolutionary basis. The Tribune used the exact same passage used in South Carolina's Declaration of Immediate Causes from the Declaration of Independence, reiterating that the "just powers" of government come from the "consent of the governed" and "'whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and institute a new government,' &c., &c.", adding that

We do heartily accept this doctrine, believing it intrinsically sound, beneficent, and one that, universally accepted, is calculated to prevent the shedding of seas of human blood. And, if it justified the secession from the British Empire of Three Millions of colonists in 1776, we do not see why it would not justify the secession of Five Millions of Southrons from the Federal Union in 1861.3

The Tribune goes on to say it "could not stand up for coercion, for subjugation," because "We hold the right of self-government sacred," and if the Southern states want out, "we shall feel constrained by our devotion to Human Liberty to say, Let Them Go!", because self-government is one of the "Rights of Man."4    
        The State's Rights Hartford Convention of New England, aggrieved by the financial losses of New Englanders in shipping during the War of 1812, met in 1815 and seriously discussed seceding from the Union. The Convention selected representatives to go to Washington to present its grievances to the government. It even chose a military leader should their grievances be ignored. Also, arrangements were made for the calling of a second convention, if necessary, to make specific plans to secede. Commissioners were sent to Washington but upon arriving found that the War of 1812 had ended, therefore it was not necessary to air their grievances. The Journal of the Hartford Convention bristles with references to state sovereignty, and with States' Rights language such as the right of a state to decide for itself when a violation of the Constitution occurred. One quote from the Hartford Convention Journal, justifying secession, sums it up:

Whenever it shall appear that these causes are radical and permanent, a separation by equitable arrangement, will be preferable to an alliance by constraint, among nominal friends, but real enemies, inflamed by mutual hatred and jealousy, and inviting by intestine division, contempt and aggression from abroad.5

        Some excellent constitutional arguments are summarized in an article entitled "The Foundations and Meaning of Secession," by Mr. H. Newcomb Morse, in the Stetson Law Review, which is a publication of the Stetson University College of Law.6 Morse writes that the War Between the States did not prove that secession was illegal because

many incidents both preceding and following the War support the proposition that the Southern States did have the right to secede from the Union. Instances of nullification prior to the War Between the States, contingencies under which certain states acceded to the Union, and the fact that the Southern States were made to surrender the right to secession all affirm the existence of a right to secede . . .7

He adds that the Constitution's "failure to forbid secession" and amendments dealing with secession that were proposed in Congress as Southern states were seceding strengthened his argument that "the Southern States had an absolute right to secede from the Union prior to the War Between the States."8
        Briefly, Morse argues that because the Constitution did not forbid secession, then every state acceding to the Constitution had the implied right to secede from it. He says that if men of the caliber of Madison, Hamilton, Wilson and the others meant to forbid secession, they definitely would have said so, and the omission of a prohibition on secession in the Constitution is strong proof that the right of secession existed, and was assumed. He quotes James Madison from The Madison Papers, who wrote "a breach of any one article by any one party, leaves all other parties at liberty to consider the whole convention as dissolved."9 Vermont and Massachusetts, he points out, nullified with statutes, the Fugitive Slave Law of 1793, and those two breaches of the compact alone were enough for the South to consider the compact dissolved.
        There were many other violations of the Constitution discussed throughout the secession debate including the Northern Personal Liberty Laws which, in effect, nullified the Fugitive Slave Law of the Compromise of 1850, as well as Article IV, Section 3 of the Constitution, which dealt with fugitive slaves. At least ten Northern states had statutes that nullified those laws. Other breaches of the Constitution included the harboring of fugitives from justice in the North, specifically two of John Brown's sons who had been with him and participated in insurrection and murder along with him. They were wanted in Virginia for participation in Brown's attempted slave insurrection at Harpers Ferry, and were being harbored in Ohio and Iowa. Other violations included the North's attempted obliteration of Southern "domestic tranquility" by sending incendiary abolitionist material in the mail that encouraged slave revolt, and by Northerners who had financed John Brown. There was also the Republican publishing of 100,000 copies of Hinton Helper's The Impending Crisis, which called for slave revolt. The Republicans endorsed it in Congress and used it as a campaign tool.
        To prove the right of a state to determine for itself when the Constitution has been violated, Morse quotes Jefferson's Kentucky Resolutions which point out that if the government had the right to determine when the Constitution was violated, then the government would be the arbiter of its own power and not the Constitution. The Kentucky Resolutions also reaffirm state sovereignty and independence.10
        Morse demonstrates that congressional discussions and proposed legislation during the secession of Southern states indicated that Congress believed the right to exist. One piece of legislation was introduced to deal with the disposition of federal property within a seceding state, as well as a seceding state's assumption of its share of the national debt. Another scrambled to forbid secession unless approved by two-thirds of the members of both Houses of Congress, the president, as well as all the states. Morse then points out that thirty-six years earlier, Chief Justice John Marshall, in Gibbons v. Ogden wrote that "limitations of a power furnish a strong argument in favor of the existence of that power. . . .11 He concludes this part of his argument with:

What would have been the point of the foregoing proposed amendments to the Constitution of the United States prohibiting or limiting the right of secession if under the Constitution the unfettered right of secession did not already exist? Why would Congress have even considered proposed amendments to the Constitution forbidding or restricting the right of secession if any such right was already prohibited, limited or non-existent under the Constitution?12

        Morse goes on to discuss the conditional ratification of the Constitution by three of the original thirteen states, who carefully reserved the right of secession. They were Virginia, New York, and Rhode Island. Virginia used the exact wording of her conditional ratification of the U.S. Constitution, in her Ordinance of Secession. Morse points out that since the other states, which had unconditionally ratified the Constitution, consented to Virginia's conditional ratification, then they "ostensibly assented to the principle that Virginia permissibly retained the right to secede." He adds that with the additional acceptance of "New York's and Rhode Island's right to secede, the existing states of the Union must have tacitly accepted the doctrine of secession." Further, Morse states that according to the Constitution, all the new states that joined the Union after the first thirteen also had the right of secession since new states entered on an equal footing with the exact same rights as the existing states.13
        Southerners during the secession debate knew and understood this argument. Senator Judah P. Benjamin of Louisiana, a brilliant legal mind who was later Attorney General, Secretary of War and Secretary of State of the Confederacy, in his farewell speech to the United States Senate on February 5, 1861, said:

The rights of Louisiana as a sovereign state are those of Virginia; no more, no less. Let those who deny her right to resume delegated powers, successfully refute the claim of Virginia to the same right, in spite of her expressed reservation made and notified to her sister states when she consented to enter the Union.14

        Morse skips forward to Reconstruction, and points out that "the Northern occupational armies were removed from Arkansas, North Carolina, Florida, South Carolina, Mississippi, and Virginia only after those former Confederate States had incorporated in their constitutions a clause surrendering the right to secede." Morse then argues brilliantly that

by insisting that the former Confederate States surrender their right to secede, the United States government had implicitly admitted that those states originally had the right. How could they surrender a right, unless they had it in the first place?15

        To summarize, Morse points out that before the war, under Virginia's conditional ratification of the Constitution, when the people decided that government power had been "perverted to their injury or oppression," they had the right to secede. When Northern states passed Personal Liberty Bills and other statutes nullifying the fugitive slave laws of the Constitution (Article IV, Section 3), a "perversion" occurred which gave the Southern states the right to secede. Reinforcing that "perversion" even further was the Federal government's not forcing those Northern states to abide by the Constitution, therefore

the Northern States conceivably "perverted" national law to the "injury or oppression" of the people of the Southern States. Thus, the reassumption of the powers of government by the people of the Southern States was a natural consequence of the Northern States' conduct and the federal government's failure to prohibit that conduct.16

        The only other issue, according to Morse, was whether the Southern states conducted their act of secession legally. Morse points out that the people are the sovereign, having supreme, absolute and perpetual power, therefore secession would have to be accomplished by the people of each state rather than even the legislatures. He says "convention delegates elected by the people of the state to decide one question constitute authority closer to the seat of the sovereign -- the people themselves," therefore a convention in each Southern state would be necessary as a "special agent of the people of the state." Did the Southern states conduct themselves legally and therefore perfect their acts of secession and independence? Morse says:

When the Southern States seceded from the Union in 1860 and 1861, not one state was remiss in discharging this legal obligation. Every seceding state properly utilized the convention process, rather than a legislative means, to secede. Therefore, not only did the Southern States possess the right to secede from the Union, they exercised that right in the correct manner.17

Morse's conclusion is that "conceivably, it was the Northern States that acted illegally in precipitating the War Between the States. The Southern States, in all likelihood, were exercising a perfectly legitimate right in seceding from the Union."18

        Other evidence of the right of secession abounds. The Southern view is well represented by Albert Taylor Bledsoe, who wrote in 1866 what is thought to be the best book ever written on the right of secession: Is Davis a Traitor; or Was Secession a Constitutional Right Previous to the War of 1861? Dr. Richard M. Weaver, who was, during his lifetime, a professor and author of several noted books on the South, called Is Davis a Traitor? "the masterpiece of the Southern apologias." Weaver described it as a "brilliant specimen of the polemic" out of the entire, "extensive body of Southern political writing."19
        Dr. Clyde N. Wilson, long time professor of history at the University of South Carolina, goes even further. In the Introduction to a 1995 reprint of Is Davis a Traitor?, Dr. Wilson lists the top seven books defending the South and the right of secession and says "Bledsoe did it first and best," his argument for the right of secession being "absolutely irrefutable to any honest mind."20 The other six works that best defend the South and right of secession according to Dr. Wilson are the two-volume work A Constitutional View of the Late War Between the States by Alexander H. Stephens, The Rise and Fall of the Confederate Government by Jefferson Davis, A Defence of Virginia and Through Her of the South by Robert L. Dabney, The Creed of the Old South by Basil L. Gildersleeve, The Southern States of the American Union Considered in their Relations to the Constitution of the United States and the Resulting Union by Jabez L. M. Curry, and The Lost Cause by Edward A. Pollard.
        According to Dr. Wilson in the Introduction, pages i-viii, Bledsoe was born in Frankfort, Kentucky, in 1809. He graduated from West Point in 1830 and had been there part of the time with Robert E. Lee, Jefferson Davis, Leonidas Polk and Albert Sydney Johnston. He loved mathematics and theology, but practiced law for nine years in Springfield, Illinois, as part of a bar that included Abraham Lincoln and Stephen A. Douglas. Dr. Wilson writes that "it was said that Bledsoe won six out of eleven cases tried against Lincoln," and that he had given Lincoln lessons, at one point, on using a broadsword because Lincoln had been challenged to a duel. After his legal career, Bledsoe taught astronomy and mathematics at the University of Mississippi, acquiring a "legendary" genius for mathematics. In 1854, he began teaching mathematics at the University of Virginia. During the war, Bledsoe served briefly as the colonel of a regiment of infantry from Virginia, then later in the Confederate War Department, and finally he was sent to Europe by President Davis on what is thought to have been a secret diplomatic mission to influence public opinion in Britain. After the war, until his death in 1877, Bledsoe published The Southern Review, in which he continued to argue the justice and truth of the Southern cause.
        Bledsoe began working on Is Davis a Traitor? while in England and published it just after the war "as a part of the campaign of Davis's defense." The Confederate President was in a Yankee prison, Fortress Monroe, where he spent a miserable two years waiting to be tried for treason. He was in irons with a light shining brightly in his cell twenty-four hours a day and with Union guards marching back and forth. The bright light was an additional measure of Yankee viciousness since it was known that Davis had never been able to sleep except in total darkness.
        Davis wanted to be tried for treason because he was confident he could prove the right of secession. However, he never got his chance, and that denial of Jefferson Davis' trial on the charge of treason by the Northern government is additional evidence of the right of secession, and is tied to Bledsoe's book. In talking about the effectiveness of Is Davis a Traitor?, Richard Weaver writes that

Bledsoe witnessed some practical result of his labor when Robert Oulds and Charles O'Conor, attorneys for Jefferson Davis, made use of the book in preparing their defense; but the Federal government, apparently feeling the weakness of its legal position, allowed the case to be dismissed.21

Here was the North's big chance to prove the South wrong once and for all, in a solemn and dignified court of law, in the eyes of the entire world and for all of posterity, but they refused to take it. Why? They certainly had not suddenly had a change of heart toward the South. It was Reconstruction, the body of the assassinated Lincoln was barely cold in the ground while the hateful Charles Sumner, no doubt still smarting from his caning by Preston Brooks, along with Thaddeas Stephens and other South hating radical Republicans were ascending in Congress. Northern troops were in control of every Southern government while large numbers of former Confederates were disfranchised. This was exactly the time the federal government would have wanted badly to convict the Southern president if it had had a case. The federal government was willing to kill hundreds of thousands of Southerners on the battle field, so there can be no doubt it would have relished humiliating Jefferson Davis in a courtroom. It is a virtual certainty that if the North's case had been strong they would have taken it to trial and vindicated their war against the hated South once and for all. That the Federal government did not go to court against the Confederate president after keeping him in jail for two years charged with treason, is more strong evidence that there was indeed a legal right of secession and the South had exercised it properly. There were no other treason trials against former Confederates because any one trial would likely prove the legal right of secession, and imminently practical Northerners were not about to lose in a court of law what they had won on the battlefield.
        Bledsoe's "irrefutable" argument in Is Davis a Traitor?" begins with the Constitution as a compact, or legal agreement among the members to the compact. The reason Bledsoe starts here is because any member that has acceded to (agreed to) the terms of a compact, can secede from that compact if the terms are broken by one of the other members. Bledsoe produces the writings and statements of the strongest opponents of the Constitution as compact - Daniel Webster and others - who have admitted that if the Constitution is a compact, then states can secede from it; but who deny that the Constitution is a compact.22 Webster was the great spokesman for the North with the credibility and reputation to go along with it. Bledsoe writes:

Thus, the great controversy is narrowed down to the single question -- Is the Constitution a compact between the States? If so, then the right of secession is conceded, even by its most powerful and determined opponents; by the great jurist, as well as by 'the great expounder' (Webster) of the North.23

        The evidence that the North had broken the specific terms and spirit of the compact, if it was a "compact," was substantial. Northern states had statutes on their books nullifying the Constitutional and Congressional law with regard to fugitive slaves. Many other specific breaches of the Constitution by the North existed in many areas besides slavery. Many in the North for over two decades believed, as Seward had clearly stated, that they were operating according to a "higher law" than the Constitution. The more radical had long called the Constitution a "covenant with death and agreement with hell."24 So the North's having broken the compact virtually guaranteed that secession was legal if, indeed, the Constitution was a compact that was "acceded to" by the original makers. Did the original states "accede" to a compact?
        Bledsoe attacks the arguments of Webster and the others one at a time taking on the strongest, most salient parts of their arguments. For example, Webster had said "words are things, and things of mighty influence."25 At one point, in the Senate, Webster had railed against the Constitution as compact. Webster had said that saying "the States acceded to the Constitution" was "unconstitutional language."26 Of course the reason he felt that way was because, if the states had acceded to the Constitution, then it was only logical that they could secede from it. Discrediting the single word, "accede," was very important to Webster, so Bledsoe researched in great detail the words of the founders and finds that in the Constitutional Convention of 1787, "Mr. James Wilson . . . preferred 'a partial union' of the States, 'with a door open for the accession of the rest.'" However, "Mr. Gerry, a delegate from Massachusetts, was opposed to 'a partial confederacy, leaving other States to accede or not to accede, as had been intimated.'" Father of the Constitution, James Madison, "used the expression 'to accede' in the Convention of 1787, in order to denote the act of adopting 'the new form of government by the States.'" Virginia Governor Randolph, also at the Convention of 1787, had said "That the accession of eight States reduced our deliberations to the single question of Union or no Union." Patrick Henry had said that if the Constitution "be amended, every State will accede to it." Mr. Grayson asks if Virginia will gain anything from her prominent position "by acceding to that paper." Benjamin Franklin, who Bledsoe says was next in importance at the Constitutional Convention to Washington, later said "Our new Constitution is now established with eleven States, and the accession of a twelfth is soon expected." George Washington, as he watched states join the Constitution, said "If these, with the States eastward and northward of us, should accede to the Federal government . . .". Chief Justice John Marshall used the word "accede" in reference to joining the Constitution, and even Mr. Justice Story, a staunch opponent of the belief in Constitution as compact, in agreement with Webster, said "The Constitution has been ratified by all the States; . . . Rhode Island did not accede to it, until more than a year after it had been in operation;".27
        Webster had attacked the word "accede" as something invented by proponents of the Constitution as compact. His intention was to discredit his opponents by discrediting the language they were using, but his plan backfired. Bledsoe points out that Webster's attack on the word "accede" by calling it a "new word," was ill founded and incorrect because "accede" had precisely been "the word of the fathers of the Constitution" with Washington "at their head." They had all used the word "accede" in reference to states joining the Constitution, and of course, the converse of the word "accede," is "secede."28
        Over and over Bledsoe demolishes each and every argument that maintains secession was not legal or a right. To those like Webster, who tried to say the Constitution was not a compact, Bledsoe offers the words of the Father of the Constitution, James Madison, in the Virginia Resolutions of 1798, "That this assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government as resulting from the compact, to which the States are parties." Bledsoe further mentions a letter from Madison to a Mr. Everett in 1830 in which Madison says that the Constitution is "'a compact among the States in their highest sovereign capacity.'" Bledsoe then uses Webster's own words against him, quoting Webster admitting that the Constitution was a compact in a debate three years earlier, on "Foote's resolutions."29 Bledsoe says:

that Mr. Webster himself, had, like everyone else, spoken of the Constitution as a compact, as a bargain which was obligatory on the parties to it. "it is the original bargain," says he, in that debate; "the compact -- let it stand; let the advantage of it be fully enjoyed. The Union itself is too full of benefits to be hazarded in propositions for changing its original basis. I go for the Constitution as it is, and for the Union as it is."30

        Perhaps the strongest argument against the right of secession, is based on the wording in the Constitution's Preamble: "We the people." Those who argue that the Constitution is not a compact, but is a national document, believe that "We the People" means all of the American people in one body, and not in their sovereign states. This, says Bledsoe on page 61, "is the great stronghold, if it has one, of the Northern theory of the Constitution. The argument from these words appears in every speech, book, pamphlet, and discussion by every advocate of the North. It was wielded by Mr. Webster in his great debate with Mr. Calhoun, in 1833, . . .". If the Constitution was written as a document for all of the American people in one body, then individual states had no right to withdraw from it. The committee on style of the Constitutional Convention of 1787 was headed by Gouverneur Morris of Pennsylvania. Notwithstanding the Northern nationalist rhetoric, this is what Gouverneur Morris said was the meaning of the Constitution and those words, "We the people," that he had authored:

The Constitution was a compact not between individuals, but between political societies, the people, not of America, but of the United States, each enjoying sovereign power and of course equal rights.31

        The "United States" means just that: states that are united. Morris himself believed in the right of secession and supported New England's move to secede during the War of 1812 which culminated in the Hartford Convention.32 Bledsoe quotes The Madison Papers and refers to some 900 pages of the proceedings of the Constitutional Convention of 1787 on which are recorded the debate over method of ratification. He points out that nowhere in that vast record is there a discussion of the "people" as meaning the entire American people outside of their states. The big debate was over whether the legislatures of each state would ratify the Constitution, or the "people" of each state in special convention. It was clearly "legislature vs people in convention" of each state. It was decided by the Constitutional Convention that since a later legislature might rescind the ratification of an earlier legislature, it would be a more sound foundation to have the people of each state ratify the Constitution in special conventions called for the purpose of ratification.33 This is exactly how the South seceded, by secession conventions called for the single purpose of deciding the issue of secession. And, as Mr. H. Newcomb Morse said in the Stetson Law Review, "not one state was remiss in discharging this legal obligation."
        There was another problem in that nobody knew how many states, or which ones, would ratify the Constitution, therefore listing the specific states in the Preamble could not be done, as it had been done in the body of the Articles of Confederation. If all the states had been listed and one refused to ratify, then the document would be invalid. The number "nine" was decided on, as the number of states necessary to put the Constitution into effect, but in debating the issue, it was brought up that the Constitution could only apply to those states ratifying it, therefore no references could be made to "all" of the American people. Bledsoe writes that Rufus King suggested adding "between the said states, so as to confine the operation of the government to the States ratifying the same."34 The words were cleaned up and found their way into the Constitution in Article VII which starts out:

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

        Bledsoe further clarifies by writing that "when it was determined that the Constitution should be ratified by 'the Conventions of the States,' and not by the legislatures, this was exactly equivalent, in the uniform language of the Convention of 1787, to saying that it shall be ratified by 'the people of the States.' Hence, the most ardent friend of State rights, or State sovereignty, saw no reason why he should object to the words, 'We, the people of the United States,' because he knew they were only intended to express the mode of ratification by the States . . . in their sovereign capacity, as so many political societies or peoples, as distinguished from their legislatures."35
        Bledsoe goes on by pointing out that the Federal government had no legal right whatsoever to coerce a state into following its laws therefore it had no right to force a seceding state back into the Union. President Buchanan had stated in his lame duck period between Lincoln's election of November 6, 1860, and March 4, 1861, when Lincoln would be inaugurated, while state after state was seceding, that as president of the United States, he had no power to coerce a state, even though he denied that secession was legal. Bledsoe notes the contradiction in Buchahan's position and writes "if we say, that coercion is a constitutional wrong, or usurpation, is not this saying that the Constitution permits secession, or, in other words, that it is a Constitutional right?" He says "Coercion is unconstitutional . . . wrong . . .strikes down and demolishes the great fundamental principle of the Declaration of Independence, -- the sacred right of self-government itself." About secession, he says "Secession, on the other hand, asserts the right of self-government for every free, sovereign, and independent State in existence."36
        Bledsoe discussed the views of credible foreigner observers and writes that Alexis de Tocqueville, in Democracy in America, said:

The Union was formed by the voluntary agreement of the States; and in uniting together they have not forfeited their nationality, nor have they been reduced to the condition of one and the same people. If one of the States choose to withdraw from the compact, it would be difficult to disprove its right of doing so, and the Federal Government would have no means of maintaining its claims directly either by force or right.37

To Tocqueville, Bledsoe adds "Mackay, and Spence, and Brougham, and Cantu, and Heeren," then he goes on "as well as other philosophers, jurists and historians among the most enlightened portions of Europe, (who) so readily adopt the Southern view of the Constitution, and pronounce the American Union as a confederation of States."38
        Bledsoe continues with more persuasive argument, the words of Thomas Jefferson and Alexander Hamilton, who assert, beyond doubt, that the Constitution is a compact and the states, sovereign. He discusses William Rawl of Philadelphia and his book, A View of the Constitution of the United States, which stresses the right of secession and was used at West Point during most of the antebellum era, and the State's Rights Hartford Convention of New England states, which strongly supported the right of secession. These are but a few of the arguments found in Bledsoe's persuasive book.
        The Southern states did not rush headlong into secession. They had enormous grievances against the North that were much greater than even Northern violations of the Constitution. The unfairness of taxation, which had been the huge issue of the Revolution, was worse for the antebellum South because three-fourths of the taxes were paid by the South, while three-fourths of the tax money was spent in the North. It had held down the development of Southern industry for a half-century and Southerners were tired of it. Southerners felt the North was already at war with them in many ways. They saw Northern emissaries sent South to encourage slave uprisings, murder and rapine, then being applauded in the North for their grisly successes, especially John Brown. Southerners saw Hinton Helper's book, The Impending Crisis, which was full of errors on its economics, call for bloody slave revolt, yet be enthusiastically adopted by the Republicans in Congress as a campaign document. With the election of Republican Lincoln, Southerners believed those same Republicans would now put into effect the principles of Helper's book, and there was nothing they could do about it. For their own safety, Southern states began debating secession. They did so peacefully and with great intellectual vigor and in the end, the people of the South struck for independence and self-government, just as their fathers in the Revolution had.
        The North, however, had become wealthy manufacturing, shipping, and financing for the captive Southern market, which was rich itself because of King Cotton. The North could not let the South go without a complete economic collapse, which was well underway during the secession winter and spring of 1860-1861. All the noble rhetoric of the Horace Greelys in 1860 about the "just powers" of the government coming from the "consent of the governed" was cast aside due to the specter of economic collapse and financial ruin, thus the war came.

[El Confederado]

Or how about this , said by Jefferson, one of those fathers and a President.

Thomas Jefferson in his First Inaugural Address said, "If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it." Fifteen years later, after the New England Federalists attempted to secede, Jefferson said, "If any state in the Union will declare that it prefers separation ... to a continuance in the union ... I have no hesitation in saying, ‘Let us separate.'"

Or how about James Madison, I guess he didnt know what he was saying either,

At Virginia's ratification convention, the delegates said, "The powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression." In Federalist Paper 39, James Madison, the father of the Constitution, cleared up what "the people" meant, saying the proposed Constitution would be subject to ratification by the people, "not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong." In a word, states were sovereign; the federal government was a creation, an agent, a servant of the states.


In Federalist Paper 45, Madison guaranteed: "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." The South seceded because of Washington's encroachment on that vision


Or how about newspapers of the time,

Just about every major Northern newspaper editorialized in favor of the South's right to secede. New York Tribune (Feb. 5, 1860): "If tyranny and despotism justified the Revolution of 1776, then we do not see why it would not justify the secession of Five Millions of Southrons from the Federal Union in 1861." Detroit Free Press (Feb. 19, 1861): "An attempt to subjugate the seceded States, even if successful could produce nothing but evil -- evil unmitigated in character and appalling in content." The New York Times (March 21, 1861): "There is growing sentiment throughout the North in favor of letting the Gulf States go."


So I guess these two great men knew less about the document they help put together than Mr Lincoln did, come on, give it up, read.

[ironfoot]

No state can legally leave the Union.  What is called "the right of secession" has no existence.  It means the right of revolution, which belongs to every people....If the revolution succeeds, history justifies them; if they fail, it condemns them, even while not condemning their motives of action....If South Carolina should rebel,--and secession is rebellion,--and if other states should join her, it would be the duty of the general government to compel them to observe the law....    

 

--Boston Daily Traveler, 1860

[ironfoot]

George Washington believed in a strong union:

http://historynet.com/ah/blgwashington/

[ironfoot]

the Minnesota legislature thought secession was not allowed:

http://members.aol.com/jfepperson/gopher.html

[El Confederado]

Ironfoot,
I see that even the written words of the men who wrote the Constitution will ever sway you and thus you must have a closed mind on the issue and therefore how can you disscuss this topic?

[williamlayton]

Define "Right" as you mean it.
Blessings

[ironfoot]

Ironfoot,
I see that even the written words of the men who wrote the Constitution will ever sway you and thus you must have a closed mind on the issue and therefore how can you disscuss this topic?

El Confederado
Whether the Constitution provides for, prohibits, or simply states no position, on whether a state has a right to secede, has been argued for 200 years.
Good legal and equitable arguments can be made either way.
So if I do not agree with your perspective, I have a closed mind?
Can't you discuss the topic without trying to attack and insult people who do not agree with you?

[ironfoot]

El Confederado's long post includes a summarization of the pro-secession argument that was made by author Stampp in his book "The Imperiled Union".
Here is a link to a review that does not agree with Stampp's analysis:

http://www.h-net.org/reviews/showrev.cgi?path=27307963434872

Here is a quote from the link:

"As Kenneth Stampp explained years ago, the framers left the secession issue unanswered in order to get wavering states to ratify the Constitution. That the framers left the question unanswered, however, did not mean that they endorsed secession; they simply made the question a political and philosophical one instead of a strictly legal one. By no means does this make Lincoln legally or morally wrong to have defended the Union."

[El Confederado]

Ironfoot,
When did I insult you?
All I said was , that is what the men that wrote the Constitution said, period, not what you think or I think or Mr Lincoln, but the men that wrote the Constitution. Last time I checked they wrote it in English and the meanings have not changed. So to put it simply, if one reads what the Fathers wrote and still says that is not what was ment, then I would say that person has a closed mind, wouldnt you?

All I did was post the thoughts and writtings of some of the Fathers, now if for some reason you dont agree with them about what they wrote, I think you might want to do some soul searching in your feelings about the Constitution and the men who wrote it.I realy think it is as simple as reading what was wrote pard, no offence ment.

[ironfoot]

El Confederado
You:
"All I did was post the thoughts and writtings of some of the Fathers, now if for some reason you dont agree with them about what they wrote, I think you might want to do some soul searching in your feelings about the Constitution and the men who wrote it.I realy think it is as simple as reading what was wrote pard, no offence ment."
Me:
What, it appears, that you did was cut and paste an argument made by Gene H. Kizer, Jr.

I suspect you got the language from here:

http://www.bonniebluepublishing.com/

Here is a link to a lecture series in which Kizer is associated:

http://www.dixienet.org/ls-homepg/videos.htm

It appears that Kizer's works are distributed by an organization called dixienet:

http://www.dixienet.org/


Kizer is one voice. There are many others. They do not all agree with Kizer or you.

[ironfoot]

El Confederado

You:
Ironfoot,
When did I insult you?

Me:
When you wrote:
"...you must have a closed mind on the issue and therefore how can you disscuss this topic?"

Me (again):
I think that declaring somebody has a "closed mind" and is therefore not entitled to express their opinion is insulting.
You did not like it when another poster made similar accusations toward you.

[ironfoot]

Here is a link to another view:

http://www.claremont.org/writings/bookshelf/commentaries.html

And here is a quote from that link:

Harry V. Jaffa, Original Intent and the Framers of the Constitution: A Disputed Question


The author argues that the Constitution cannot be understood without reference to the natural law principles of the Declaration of Independence. The Framers and Lincoln — their greatest advocate — agreed with this view. Today, many interpreters of the Constitution, including many conservatives, reject the original understanding in favor of a doctrine of states' rights or majoritarianism. These scholars and judges are descended from the father of the confederacy, John C. Calhoun, not the Founding Fathers.

[ironfoot]

The Federalist Papers were published in order to convince the American people that the Constitution should be adopted. You can find the Federalist Papers here:

http://www.law.ou.edu/hist/federalist/

One of the authors of the Federalist Papers was James Madison. James Madison is widely recognized as the author of the Constitution. He went on to become a two term President.

Here is the beginning of the first Federalist Paper authored by Madison:

FEDERALIST No. 10
--------------------------------------------------------------------------------
The Same Subject Continued
(The Union as a Safeguard Against Domestic Faction and Insurrection)
From the New York Packet.
Friday, November 23, 1787.
MADISON

To the People of the State of New York:

AMONG the numerous advantages promised by a wellconstructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction....


Madison argued for a strong Union.

Now, El Confederado, since you will not argue with a founding father (nay...THE founding father) can we all assume you will concede that the Constitution Madison authored did not provide for termination of that Union by means of state secession?

[El Confederado]

Ironfoot,
Where has Madison ever said secession was illegal?Again, I will say that the Constitution never says secession is illegal and challenge anyone to show otherwise.Does the Constitution say secession is legal, not realy, but it has Amendment 10, which gives those powers not given to the Federal government to the States and thus the People, seems simple to me.
I realy fail to understand, and trust me pard, I am realy trying to understand, how anyone can missunderstand what is written in the Constitution, this is why I ask the same questions and to this date nobody can give me an answer, just more of the same talk in a circle stuff.Now did some of the founding fathers argue for a strong central government, yes, however, many also argued for states rights, thus the Bill of Rights, aka, the first 10 amendments of the Constitution. These first 10 amendments spelled out the rules and rights that no central government could take away.So again, in that document, where does it say secession is illegal?Help me understand your thoughts, I am trying.

[El Confederado]

Hey since we are talking about Madison, didnt he also say this --

"A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound"

in 1787 at the Constitutional Convention

[El Confederado]

Here is some more reading  for those who whish to read it.





The Constitutional Right of Secession
           
         by James Spence



Secession is by no means a novel doctrine. In the first session of Congress under the new Constitution, it was threatened in the first serious contest that arose; and this in the presence of several of the framers of the Constitution. Again, when Washington expressed reluctance to be elected as President for a second term, Jefferson wrote to urge his assent; and the weightiest reason he assigned, in proof that the country required experience at the head of affairs, was this -- that the coming election would involve great danger of a "secession from the Union" of those who should be defeated. It can hardly be supposed that this right would have been openly declared by members of Congress, or that the probability of the event would have been thus urged on Washington had it been regarded by public opinion as an illegal or treasonable act. It seems rather to be inferred that there existed in the minds of those, who with the facts so recent were most competent to judge, a conviction that the right existed and might be exercised -- that able and just government would avoid it -- but still that it was there.

         The doctrine, indeed, has been maintained and loudly declared, both in the North and South, at frequent periods in the history of the Union. Jefferson, in his Ana, refers to that occasion of its being first raised in Congress, and observes that it was the Eastern, that is, the Northern States, who especially threatened to secede. He describes a walk with Hamilton, in which the latter painted pathetically the danger of the secession of their members, and the separation of the States. And the Northern States were the first to raise it practically. The war of 1813 was highly unpopular in that district, and when called upon by the President to supply their quotas of militia, they absolutely declined. In the words of Jefferson to Lafayette: "During the war four of the Eastern States were only attached to the Union, like so many inanimate bodies to living men." But they went far beyond inaction. They called a Convention at Hartford, of which the proceedings were suppressed, but the object is well known; a flag appeared with five stripes, secession was threatened in the loudest terms, nor can there be a doubt in the mind of any one who studies the events of that period, that the New England States would have seceded from the Union had the war continued.

         The State of Massachusetts has threatened, indeed, on four separate occasions to secede from the Union. First, in the debates referred to on the adjustment of the State debts; secondly, on the purchase of Louisiana and its admission into the Union; thirdly, during the war of 1813; and fourthly, on the annexation of Texas, when, we believe, one chamber of her legislature actually passed a vote of secession. On these occasions it was no mere act of excited individuals, but the general voice of the community. Yet this State is now the loudest in denouncing it, when inconvenient to herself; and a bastile is now said to be preparing in the vicinity of Boston, for the incarceration of those as political prisoners, who simply utter the opinions which, when it suited, this very State has so often and so vehemently expressed.

         It has been a popular illustration with the advocates of the Union, that if a State may secede, so may a county from a State, or a town from a county, until society break up into chaos. The fallacy of this is very obvious. A State claims to secede in virtue of her right as a sovereignty. When a county becomes a sovereignty it may prefer an equal claim, but then it cannot be a county. The comparison fails in other respects. The secession of a State from others is the case of men who separate; the secession of a county would be that of a limb torn from the body. There is also no such practical danger as that which has been described. The secession of a single State would be suicidal; it would be surrounded with custom-houses, cramped with restrictions, and crushed under the expenses involved. North Carolina and Rhode Island, after refusing to join the Union, and holding out for more than two years, were at last constrained to accede, by the same causes which will always prevent any State from attempting to stand alone. Practically the right could not be exercised, even if conceded, except by a number of States together, sufficient in resources to enable them to maintain their position, and to endure the heavy cost of a separate government. Indeed, if justly governed, it is by no means clear why there should be any desire to secede.

         A much more subtle argument was used by Jefferson, since often repeated. He observed that if one State claimed the right to secede from the rest, the others would have equal right to secede from one State, which would amount to turning it out of the Union. The argument is based on the assumption that a State, claiming the one, and objecting to the other, would exhibit a conflict of principles. But a State would protest against ejection because it involves compulsion; and she claims a right to retire, because if compelled to remain, that is equally a compulsory restraint. Both really involve the same principle; ejection and imprisonment are equally acts of compulsion: and this principle is alike objected to in both cases.

         It has been argued that a State would thus claim the right to exercise her will against the others, whilst denying them the right to use their will as against herself. But the case is not one of will within the limit of individual action, but of compulsion extending to, and exercised over, another. A State compelled to go or to remain has a forcible restraint imposed on its will; but in seceding it imposes no restraint on the will of others -- they remain free to follow, or continue as before.

         It has been urged that reasonable men would not have formed a system exposed to ruin at any time by the secession of its constituents. But the question is not whether the terms of the compact were wise or prudent, but simply what those terms are, and the force they possess. Men make injudicious wills, but these cannot be disputed on the ground of their narrow wisdom. The argument ignores, too, the facts which surrounded the framing of the Constitution. It was the result of a series of compromises. Hence that which may appear unreasonable for any community to have enacted for itself, is reasonable enough when viewed correctly, as the best system it was possible to compass under the circumstances.

         Much stress has been laid on the term "supreme," as applied to the federal laws. In reality their only supremacy is in extent -- in extending throughout the whole country, whilst the action of a State law is confined within its boundaries. Apart from this, the State is as supreme as the federal law. No question exists of relative rank, of any superiority; each is supreme in its own department, both are equally powerless beyond it. The Federal Government has indeed no absolute law-making power; for all its laws are liable to be declared void by the Supreme Court. That court declared null and void the most important law ever passed by the federal legislature -- the Missouri compromise. It sits not merely as the interpreter, but as the judge of the law.

         It has been argued that the present Constitution differs in principle from the Articles of Confederation, in enabling the Federal Government to act directly on individuals, instead of doing so through the State governments. The inference is drawn that the sovereignty of the States has been surrendered by this concession. Had such a right been committed to a foreign Government, or to any substantive power, this might have been a natural inference. But the Federal Government has no substantive power, and is only the joint agent of the States. These act directly on their own citizens, each through its special government or agent, in the great majority of cases. They agree to act on them through the Federal or common agent in certain other specified cases. This is simply a more effective manner of procedure, a question of detail, greatly improving the administration, but affecting in nowise the question of sovereignty. Further, it was pointed out by Madison in the Convention that the principle itself was not new, but existed under the Articles of Confederation, in several cases which he specified.

         A federal republic is a partnership of republics. It has been argued that, admitting this to be the case, still, when once formed, it could not be dissolved by one without the consent of the others. But a very common form of partnership, in this and other countries, is partnership at will; from this any one party may retire without consulting the rest. And it seems to have escaped observation, how much wider are the powers of a sovereign State than those of a private individual. To a partnership of States the words of Madison apply: "When resort can be had to no common superior, the parties to the compact must themselves be the rightful judges, whether the bargain has been pursued or violated."

         It has, indeed, been contended that the principles of a partnership at will could not apply, because this was to last for ever. On the point of duration the Constitution is silent, except in what is merely the expression of a desire, in the preamble, "to secure the blessings of liberty to ourselves and our posterity." On this subject there is no enactment or injunction. But on turning to the previous Articles of Confederation, we find in the title the words "perpetual union," and in the body, the express injunction -- "And the union shall be perpetual." On this point they clearly possessed greater force than that of the Constitution; yet, notwithstanding this, they were terminated at the end of a few years, and that, too, with liberty to any State to leave the Federation altogether. The Union has, therefore, proved, by its own act, that terms of this nature have no force of law, but simply indicate the intention and the desire of the parties at the time. We find, too, that the Federal Government entered into a close alliance with France, the terms of which strongly enjoined that it should last for ever; yet these terms were held to be no obstacle to annulling it, without the consent of the other party.

         On turning to the Constitution, it causes surprise to find that no prohibition of secession exists in it. Those who framed it were men well versed in public affairs, surrounded by angry passions, employed in the very act of breaking up a Constitution, if, indeed, it may not be said, of seceding from one of the States, for Rhode Island continued to adhere to it. They provided for a State dividing into two or more -- for several uniting into one -- for the admission of States yet to come into existence. Why, then, this remarkable omission? A contingency far more probable than these was that of a State becoming dissatisfied, and desiring to separate. Was such an omission the result of negligence, of inability to foresee so probable an event, or was it the result of design?

         It has been contended that it would have been improper to forbid a State to withdraw -- that it would have been "futile and undignified" to have added to a law, "And be it further enacted that the said law shall not be violated." But this is just what all law has to do; and that which does it not, is not law. Who had the powers of a lawgiver over independent, sovereign States, entering into a compact of their own free will? And where is the law, either to be violated or obeyed? There is a provision for a State separating into pieces, and this appears quite as undignified as to provide against a State, whole and intact, separating from the rest. There is provision against the treason of individuals; and if a State can also commit treason, it would be strange law that provided against crime on a small scale, omitting to deal with it when on a large one. The men who framed the Constitution were eminently practical men. It cannot be supposed that they would slight so formidable a danger. Why, then, the omission? For the soundest and wisest reasons, which we have on record from their own lips.

         In the first place, had there been inserted in the Constitution a compulsory clause of this nature, it would have been impossible to obtain the ratification of the States. Very difficult, at the present day, would it be to obtain the assent to such a clause even of the Northern States. Theoretically nothing would be easier, but when it came to the point, it would hardly be possible to prevail upon Massachusetts, even at this day, to abandon, for ever, her often-asserted independence and sovereignty, and accept, in reality and truth, that position in which she is said now to exist -- that of the province of a wider power. And if there would now be such practical difficulty, with the State whose present professions are those most favourable to the step, how great would have been the obstacles when all the States were to be included, many hostile to, and jealous of, the rest, and when the task was regarded, and proved to be, all but impossible, without this further and strong element of repugnance?

         In the next place, the framers of the Constitution perceived, that should they forbid the retirement of a State, they must provide means to prevent it; otherwise it would be an idle precept, a mere solicitation to remain. Other questions might be referred to the Supreme Court, but a retiring State withdrew from its jurisdiction. Other forms of delinquency could be visited on individuals, but here was the action of a whole community. Goodwill must have died out before it could occur; argument would be vain; there could be no appeal except to force. But no force was to be created, adequate to an undertaking of this nature. The first act under the Constitution for regulating the military establishment, provided for a standing force of only 1,216 rank and file. True, in case of need this might be increased; but a cardinal principle with the people was to distrust standing armies; a subject on which their feeling was jealous in the extreme. It was impracticable to run counter to this, even so far as to provide the framework of an army equal to such an object. The only possible force would be that of the remaining States, to be employed in coercing those that desired to secede. On such a proposition the views of the two chief framers of the Constitution are on record. In the Convention, on the 31st May, 1787, Madison declared that "the use of force against a State would be more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked, as a dissolution of all previous compacts; a union of States containing such an ingredient seemed to provide for its own destruction." Again, on the 8th June, he observed: "Any government formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress."

         Hamilton, in that great authority the Federalist, after showing the futility of employing force against a State, concludes thus:

When the sword is once drawn the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extreme to avenge the affront, or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union.


In one of the debates in the New York State Convention, Hamilton made use of these words: "To coerce a State would be one of the maddest projects ever devised. No State would ever suffer itself to be used as the instrument of coercing another." His far-seeing description in the Federalist is but too applicable to the events of the present day; and remarkable it is that he, the master spirit of the Unionists, should have denounced as "madness" that coercion which is adopted by his followers at the present day.

         But there was a consideration of still higher import. The Constitution was a voluntary act, framed on the principles of free, mutual assent, and common belief in its advantages. To introduce force as a means of maintaining it, would be repugnant to these principles. It would be a commencement on the voluntary system, to be continued under compulsion. Force is an attribute of monarchy; the throne represents and wields the strength of the nation. Each part is subservient to the whole, and none can revolt without foreknowledge of this force to encounter and overthrow. But the basis of a Federal Republic is the reverse of all this. It stands upon consent, which is the abnegation of force. In place of submission of part to the whole, the parties are co-equal. Compulsion is not only inapplicable, but opposed to the principle of the system. And the men of that day were too logical to be unaware of this; they declined to incorporate with the structure they were rearing a principle directly antagonistic to it.

         There is another great constitutional authority, the fountain head of American politics -- the Declaration of Independence -- of which the first clause bears directly on this question:

We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that amongst these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive to these ends, it is the right of the people to alter, or abolish it.

These are the constitutional principles for the guidance of every citizen. When the people of Georgia, left in doubt by the silence of the Federal compact on the subject of secession, refer to these to enlighten them, to what conclusion must they come -- what hesitation can they feel? They are told that the "pursuit of happiness" is "an inalienable right of man"; they feel that the government over them has become "destructive of this end"; they read that thereupon "it is the right of the people to alter or abolish it." It will, indeed, be said that the people referred to, are the whole people of the whole country, but this is not the fact. That, indeed, may promote the happiness of Georgia, which produces woe in California, at a distance of three thousand five hundred miles. By what arithmetic can the balance of happiness be adjusted between them? Further, the Declaration of Independence did not speak for all the people under the rule it denounced, but for a small portion of them only; nor did it speak for the people of the United States as a single people, but as separate colonies now claiming to be independent, the respective, original States. Clearly, then, this language is adopted by the people of each separate colony now a State, having a form of government over it of which it is to judge, and which, whenever so disposed, it may abolish.

         Again, governments are unjust unless their powers are based on the "consent of the governed." Here the same question arises, Who are the governed who are to consent? Are the people of the State of Georgia to refrain from dissenting until they agree with the people of Oregon, more remote than England from Arabia? But this principle also was enunciated, like the last, for the guidance of each separate, distinct community. Upon these principles we can arrive at no other conclusions than these -- that according to the Constitutional doctrines of America, whenever a State decides by the vote of a majority of its people, that the government over it has become destructive to the ends of its welfare and happiness, and no longer exists in its consent, such State has a right to abolish that government, so far as it concerns itself, or, in other words, has a right to secede from the Union.




--------------------------------------------------------------------------------


--------------------------------------------------------------------------------


OBSERVATIONS
1.) The Independence of the States -- In the first place, each State was, at the time of the adoption of the Constitution, a sovereign and independent State, and acted as such in adopting the Constitution. This is manifest -- from the Declaration of Independence, which proclaims the several States to be "free and independent States" -- from the second of the Articles of Confederation of 1778, which declares that "each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not thereby expressly delegated to the United States" -- from the treaty of peace with Great Britain, after the close of the war of the revolution, recognising each State by name as a "free, sovereign and independent State" -- and finally, by the sanction of the Supreme Court of the United States, in the early history of the Union, in the case of Ware vs. Hylton, 3d Dallas' Rep., 199, in which it is held by Judge Chase, that the effect of the Declaration of Independence was "not that the united colonies jointly, in a collective capacity, were independent States, but that each State of them was a sovereign and independent State" -- a doctrine recognised by numerous subsequent decisions of that Court. (SECESSION: CONSIDERED AS A RIGHT IN THE STATES COMPOSING The Late American Union of States, AND AS TO THE GROUNDS OF JUSTIFICATION OF THE SOUTHERN STATES IN EXERCISING THE RIGHT.)

2.) The Federal Constitution a voluntary Compact between Sovereign States -- In its nature and character, the Constitution was a compact between the States, and the Union formed under it, was Federal. This is clear, from the following considerations:

(1.) It was formed by the States acting in their political capacities, and not by the aggregate mass of the people of all the States; and it was ratified and acceded to in the same manner by each State for herself; those not acceding to it being wholly free from its operation and remaining independent sovereign States.
(2.) It declares, in the 7th article, that the ratifications of the Conventions of nine States should be sufficient to establish it "between the States" so ratifying it -- which clearly shows that the States as such were the parties to it, and that it was a compact between them as such.
(3.) Amendments to it are to be acted on by each State in her political capacity, by her Legislature, or by a convention appointed by her and under her own laws, each acting separately.
(4.) The powers not delegated are reserved to the States or to the people, by the 10th amendment--that is, to the States, so far as their exercise may be matter of political power; and to the people of each State, so far as the same may be matter of individual right, under the Constitution and laws of the State.
(5.) It was denominated a Federal Constitution by its advocates in recommending its ratification --(see Federalist passim)-- the Union formed by it was called a Confederate Republic --(Federalist, No. 9)-- and it was characterized, in the more essential and controlling points of the foundation and the extent of its powers, as Federal; while in the minor matter of the execution of its granted powers only, it was said to be national.--Federalist, No. 39. It was received in popular acceptation and called a Federal Constitution -- an idea so universally received and so popular that it was assumed as the name of the great party which came into power upon the organization of the government, and held it until that party proved to entertain principles and views subversive of the true spirit of the Constitution, and in the meantime laid the foundation of doctrines which have led to its prostration.
(6.) It was received and adopted by the States as a compact between each other. While this is manifest from the history of the ratifications of all the States in their conventions, it is expressly stated in the ratifications of Massachusetts and New Hampshire, and was, in a few years thereafter, also expressly declared by Virginia, Kentucky, and several other States, in the memorable contest which arose upon the alien and sedition laws in 1798.
The doctrine is well established, that "several sovereign and independent States may unite themselves together by a perpetual confederacy, without each, in particular, ceasing to be an independent State. They will form together a Federal Republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may, in certain respects, put some constraint on the exercise of it, in virtue of voluntary engagements." Vattel, Law of Nations, book 1, chap.


It is sufficient, on this point, to refer to the declarations of Mr. Madison, in the Federalist, No. 39. Speaking of the ratifications by the States, he says: "This assent and ratification is to be given by the people, not as individuals composing an entire nation, but as composing the distinct and independent States to which they respectively belong. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act." (Ibid.)
3. The States' right to Withdraw established as a constituent condition of Ratification -- But this right does not stand alone upon the nature and character of the Union, nor upon the general reservation of rights and powers in the Constitution--clear and unquestionable as it is on these grounds. It was matter of express and positive reservation by several of the States in the ratifications of the Constitution, and was plainly intended to be reserved by all. New York, in her resolutions of ratification, declared -- "That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: that every power, jurisdiction and right, which is not, by said Constitution, clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several States, or to their respective State Governments."--1 Elliott's Debates, 361. Rhode Island, in her ratification, declares -- "That the powers of government may be resumed by the people whensoever it shall become necessary to their happiness." -- Ibid, 369. (Ibid.)

4.) The States being Independent and Sovereign, they are the sole arbiters of the Right to Secede -- A federal republic is a partnership of republics. It has been argued that, admitting this to be the case, still, when once formed, it could not be dissolved by one without the consent of the others. But a very common form of partnership, in this and other countries, is partnership at will; from this any one party may retire without consulting the rest. And it seems to have escaped observation, how much wider are the powers of a sovereign State than those of a private individual. To a partnership of States the words of Madison apply: "When resort can be had to no common superior, the parties to the compact must themselves be the rightful judges, whether the bargain has been pursued or violated." (Posted Article)

5.) The Right of Expatriation guaranteed by the Treaties of the United States -- The right of expatriation, which is simply a right of personal secession, is an acknowledged American right and has ever been since Jefferson directed the affairs of the nation. We fought over it in the War of 1812 and incorporated it in the Burlingame treaty with China. This right is absolutely inconsistent with the description of the Southern peoples as rebels and traitors and the calling of them to return to their "allegiance" to the Federal Government. The idea of "allegiance" is that of the relation of an inferior to a superior and not of the citizens of a republic to their republican society. (A Vindication of the South and Defense of Secession by Paul S. Whitcomb

If this right, which enjoys the endorsement of Treaty Supremacy under the Constitution, be true of one man, it is true of two. If true of two, it is true of twenty. If true of twenty, it is true of a State.

6.) The Secession of the South accomplished on the same legal grounds as her Ratification -- Since the acts of secession were first approved by state legislatures, then ratified by conventions whose delegates were elected by the people of those states, there is no conflict between the Ninth and Tenth Amendments in authorizing Confederate secessions. (Morse, supra at 435-436.)

7.) The delegation of Force to the Federal Government for the punishment of a recalcitrant State considered, and expressly rejected and denied to the Federal Government, by the Framers -- 28 The right to prevent secession is not "delegated" to the United States. In fact, the Constitutional Convention considered and rejected a provision that would have authorized the use of Union force against a recalcitrant state. On May 31, 1787, the Convention considered adding to the powers of Congress the right: "to call forth the force of the union against any member of the union, failing to fulfil its duty under the articles thereof." The clause was rejected after James Madison spoke against it:


"A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."
Neither is the right to secede expressly "prohibited" to the States. (AN ANALYSIS OF PRESIDENT LINCOLN'S LEGAL ARGUMENTS AGAINST SECESSION by James Ostrowski)

The only possible force would be that of the remaining States, to be employed in coercing those that desired to secede. On such a proposition the views of the two chief framers of the Constitution are on record. In the Convention, on the 31st May, 1787, Madison declared that "the use of force against a State would be more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked, as a dissolution of all previous compacts; a union of States containing such an ingredient seemed to provide for its own destruction." Again, on the 8th June, he observed: "Any government formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress."

Hamilton, in that great authority the Federalist, after showing the futility of employing force against a State, concludes thus:


When the sword is once drawn the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extreme to avenge the affront, or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union.
In one of the debates in the New York State Convention, Hamilton made use of these words: "To coerce a State would be one of the maddest projects ever devised. No State would ever suffer itself to be used as the instrument of coercing another." His far-seeing description in the Federalist is but too applicable to the events of the present day; and remarkable it is that he, the master spirit of the Unionists, should have denounced as "madness" that coercion which is adopted by his followers at the present day. (Posted Article)

[IntrepidWizard]

Now tell the folks who and what Jim Spence is.

[El Confederado]

IntrepidWizard,
To be honest pard, what does it matter, hell he could be Stalin grandson for what I care. I just posted it to be read by those who wanted to read it.To be honest I am begining to think you and Ironfoot are the same person :-D , oh well if y'all are. It's just something to think about. So do ya have something to offer to the discussion or are ya just checkin out our little topic and lookin to start trouble? :-D

[ironfoot]

More on Madison's viewpoint on the Constitution and secession:

Any federal republic by its very nature invited challenge to central control, a danger that James Madison recognized. He sought at the convention a clause that would prohibit secession from the proposed union once the states had ratified the Constitution. In debate over other points, Madison repeatedly warned that secession or "disunion" was a major concern. The Constitution as framed and finally accepted by the states divided the exercise of sovereign power between the states and the national government. By virtue of the fact that it was a legal document and in most respects enumerated the powers of the central government, the division was weighted toward the states. Yet much of the charter was drawn up in general terms and was susceptible to interpretation that might vary with time and circumstance.

http://college.hmco.com/history/readerscomp/rcah/html/ah_077600_secession.htm

[IntrepidWizard]

What I care about is the Truth and now days it is bent severly by people with agendas,just because Babra Striesand says it does not make it so as with Jimmy the flack Spence.

[ironfoot]

This James Spence?

http://www.crownrights.com/books/constitutional_right_secession.htm

He published a book in 1862.
He wasn't a founding father was he?
Just another guy with an opinion.


Can't you just post the link instead of all the text?

[El Confederado]

Ironfoot, Intrepidwizard,

I posted that for people to read , no more, no less, so get over it.
Ironfoot, I dont like posting links, to me it makes the poster look lazy, I always thought that one should make it as easy as possible for folks to read the information.I am sorry that you dont like me or my style, but last time I checked most folks had no problem with the way I run things ,except a few folks , of which you seem to be one of.Anyhow, it was posted as an opion , just as you and I have. Again I am still waiting for the part of the Constitution of which you speak that says secession is illegal.Talk to ya soon

[ironfoot]

El Confederado
You:
Again I am still waiting for the part of the Constitution of which you speak that says secession is illegal.
Me:
And I am still waiting for the part of the Constitution that says secession is legal.

The Constitution had a provision for adding states. It had no provision for losing states.

If secession was allowed in the Constitution, why wouldn't the document state the procedures to be followed?

You do not believe that anything not specifically prohibited in the Constitution is "legal" do you?

Say the legalistic arguments both for and against secession were compelling. Who decides which is right? In a democracy, the elected leaders do. The elected leader in this case was Lincoln. The country was obligated to follow his interpretation. The South did not have the right to "take the law into its own hands."
The South's secession was in response to it not liking the outcome of the election of Lincoln. Allowing secession in such a case would make preservation of a constitutional democracy impossible. The South had no right to unilaterally destroy the union which it helped to create.

[ironfoot]

Here is a link to Daniel Webster's speech of March 7, 1850 where he argued that there could not be secession without war:
http://www.bartleby.com/268/9/4.html
One of the points he made was that the country was developing to the west, and would soon cover the Mississippi River valley. Free states to the North would not tolerate the mouth of the Mississippi being controlled by a different country.

[ironfoot]

El Confederado
You:
Ironfoot, I don't like posting links, to me it makes the poster look lazy, I always thought that one should make it as easy as possible for folks to read the information.
Me:
Posting the link allows the reader to see the whole article, and its source. I think it also makes the thread less cluttered, and easier to follow. If you would rather cut and paste long sections of dialogue, that is your choice. My suggestion that you post links instead was just a suggestion.

[williamlayton]

I hate to say it but I am really enjoying this. I just put Murphy's curse on it an it will go away.
Both make some good points.
I tend to side with the mobil impaired ( I laughed out loud at that observation of another concerning the nickname--I hope it was/is not in truth a reality. ) Iron foot.
Blessings

[ironfoot]

Best as I can determine, the country could not agree on how to deal with some issues, such as slavery and secession, so they did not provide details in the Constitution on those matters. So, each side could later argue its view was the better one, and they wound up fighting about it.