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Putting aside their reasons for wanting to do so and all the emotional responses they would provoke, was the secession of states from the Union to eventually form the Confederacy an illegal act in itself? Was it just something that nobody was sure of until somebody bothered to try it? If it wasn't illegal per se then, is it now? Did the post-war Union act to make it more difficult for states to secede in the future? |
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The United States Supreme Court ruled unilateral secession unconstitutional while commenting that revolution or consent of the states could lead to a successful secession NOTE: The Supreme Court ruling was after the Civil War
At the time of the Civil War it was not illegal as the ruling by Supreme Court came later in 1869 (after the war) that unilateral secession was unconstitutional. Discussions and threats of secession have often surfaced in American politics, but only in the case of the Confederate States of America was secession actually declared. The United States Supreme Court ruled in Texas v. White, 74 U.S. 700 (1869) that unilateral secession was unconstitutional while commenting that revolution or consent of the states could lead to a successful secession. The topic of secession was hotly debated by both sides prior to Civil War with some proudly pro Union, some pro secession and some even hovering over middle ground which would include the president in 1860. President James Buchanan (D, 1857-61) did not take action to stop the states from seceding; although he argued that secession was not legal, he also claimed that the federal government did not have the constitutional right to stop the South from doing so. There where many who had an opinion in regards to secession and many of whom interpreted the Constitution including President Lincoln. Lincoln's first publicly denounced the proposed secession in his first Inaugural Address However, the speech also did not impress other states who were considering secession from the Union. Indeed, after Fort Sumter was attacked and Lincoln declared a formal State of Insurrection, four more states—Virginia, North Carolina, Tennessee and Arkansas—seceded from the Union and joined the Confederacy. After the Confederate states began to leave the Union, Lincoln had an even greater need to prove secession was Unconstitutional and strong incentive to make his views against secession known to the American people in order to secure their support for the onerous war which was made necessary by his opposition to secession. So, as you can see, in 1861 no law existed in terms of prohibiting secession just multiple interpretations of the constitution none of which were interpretations from the Supreme Court in the sense that a ruling was made. This ruling would not be until legislature was reviewed (Texas v. White) in 1869. The 1869 ruling would be law after 1869 (until a new ruling is made) but not representative of law prior to 1869. Without one of the following three things secession, prior to the Civil War, would not have been unanimously agreed upon as illegal and in regards to law could not have been illegal (in 1861).
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In 2 court rulings this century the pre civil war secession situation was described as either unresolved or unsettled, not illegal nor unconstitutional. In 2004 the SCOTUS observed that inclusion of the word “indivisible” in the Pledge of Allegiance was significant because “the question whether a State could secede from the Union had been intensely debated and was unresolved prior to the Civil War.” ( Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6 n. 1, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). ) In KOHLHAAS v. STATE OFFICE OF LIEUTENANT GOVERNOR http://ak.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20100115_0000025.AK.htm/qx, The Alaska Supreme Court ruled in a case involving the right to seceede, that “While a state's ability to secede was an unsettled question before the end of the Civil War, subsequent United States Supreme Court opinions have concluded that secession is clearly unconstitutional, “ Also Justice Scalia in a letter http://www.newyorkpersonalinjuryattorneyblog.com/uploaded_images/Scalia-Turkewitz-Letter-763168.jpg observed "If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede." This seems to indicate that the interpretation of Texas v. White as addressing antebellum law may not be correct. |
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There's nothing in the Constitution specifically allowing it. The closest any part really comes to addressing seccession is the following (from Article 4, Section 3):
The logical conclusion of this is that the disposition (eg: selling or seccession) of USA territory has to involve Congress. So if a state wants to take its territory out of the USA, it would have to get Congress to agree. In reality though, the legality of seccession is part of what the Civil War was fought over. The South lost, so no it wasn't legal. :-) |
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My answer is similar to E1Suave's, but my interpretation is different. Texas v. White, 1869, explicitly addressed this issue. The US Supreme Court ruled that the Texas secession of 1861 was unconstitutional, and had never been valid. The ruling was based on the US Constitution (not on any amendments ratified after 1861). According to the ruling, secession was illegal both at the time of the ruling (1869) and at the time Texas attempted to secede (1861), and in fact at any time after Texas joined the union in 1845. The actual substance of the case involved some US bonds that were held by the State of Texas and were sold by the Confederate state legislature. The court resolved the issue by ruling that the action of the Confederate state legislature was invalid, and the bonds were still owned by the State of Texas. I've thought of another argument, one that the court did not use as far as I can tell. The Constitution defines the procedure for admitting new states. It defines no such procedure for secession, which if it were legal would require various actions by the Federal government, such as removing Senators and Representatives. Since the Constitution does not grant Congress the power to accept secessions, one could argue that it has no such authority, and therefore states cannot legally secede. The authors of the Constitution could easily have established a procedure for secession if they had wanted to. One could certainly argue that Texas v. White was decided incorrectly, but the current legal precedent is clearly that states may not unilaterally secede, and that precedent states that unilateral secession has always been illegal. EDIT : I think there's been some confusion about the word "illegal". It commonly refers to an act that is punishable under criminal law, but the question regarding unilateral secession is whether it's authorized by the Constitution. We commonly refer to unconstitutional actions as "illegal"; perhaps that's insufficiently precise. I'd say the real question here is whether unilateral secession is permitted by the Constitution. Given that question, the principal of nulla poena sine lege is irrelevant, since it's not a matter of a criminal law for which violators may be punished. For example, there is no punishment specified for passing a law that restricts free speech, but any such law is invalid. Texas V. White clearly expressed the Supreme Court's opinion that unilateral secession was illegal in 1861, when Texas attempted to secede. There is no ambiguity in the Court's ruling. There are valid arguments that the Court's ruling was incorrect, but any such arguments should start with an acknowledgement of what the ruling actually said. |
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My cynical reasoning is that it's illegal because the pro-union side won. Laws are often changed and legal justification can be found for most things after or before the fact. Legal experts are rarely 100% in agreement in everything (even now, supreme court judgement have various different opinions). Sometimes people ask these questions because they equate "legal" with "moral" and "illegal" with "immoral". Sometimes people will hunt around for legal justification for/against an act to try to show how it was moral/immoral. |
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The 10th Amendment:
The power to secede was not granted to the Federal government. Therefore, it is reserved for the States. Well it seems that the power to be the United States is delegated to the United States! However, the case of succession was tried, trial by combat (honorable medieval method methinks), and the case was decided by the barrels of guns in the negative. |
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The US Constitution applies only to the territory within the US. If a state withdraws from the union it no longer is obligated to comply with the demands of said constitution. "Legality" is in the eye of the beholder or rather the entity that prescribed the law. Those laws no longer apply to a withdrawn state any more than they do to an African nation. |
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