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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 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The power to secede was not granted to the Federal government. Therefore...it is reserved for the States. –  JoeHobbit May 18 '12 at 19:41
By this "logic," the states have the power to do anything not specifically mentioned in the constitution. –  Evan Harper Jul 26 '12 at 14:07
A fabulous discussion. Thank you all. –  user1520 Nov 14 '12 at 18:41
@GarrettAlbright I suggest reviewing the latest answer by Mark C. Wallace. I, like you, agreed with E1Suave's reasoning, but the Force Bill clearly establishes secession as illegal. –  called2voyage Jan 22 '14 at 17:08
There is one hint that the South 'evolved' on this issue...read up on how they felt about New England states threatening secession in the War of 1812... –  Oldcat May 6 '14 at 0:10

15 Answers 15

up vote 27 down vote accepted

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


The principle of legality is the legal ideal that requires all law to be clear, ascertainable and non-retrospective. It requires decision makers to resolve disputes by applying legal rules that have been declared beforehand, and not to alter the legal situation retrospectively by discretionary departures from established law.

No crime can be committed, nor punishment imposed without a pre-existing penal law, nulla poena sine lege. This principle is accepted as just and upheld by the penal codes of constitutional states, including virtually all modern democracies.

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).

  1. A law previously implemented to prohibit secession
  2. A previous Supreme Court ruling prohibiting secession
  3. "Clear text" within the Constitution (no grey area)

    • In this case as pointed out by T.E.D. "secession is part of what the Civil War was fought over" pointing out that certainly a "grey area" was present within the text of the Constitution which is one of the primary reasons the Supreme Court would later be involved in 1869.

      An example of "clear text" within the Constitution:

    • Article II - The Executive Branch Note Section 1 - The President Note1 Note2 … neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and ... in this case it is without confusion that a 21 year old can not be President of the United States.

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+1 for pointing out that at the time of the Civil War it was NOT illegal. –  Steven Drennon May 15 '12 at 16:13
The 1869 ruling doesn't imply that unilateral secession was previously legal. In theory, Supreme Court rulings interpret the Constitution and existing law; if the 1869 ruling was correct, it would have been equally correct before the Civil War (unless it was based on the 14th Amendment, which was ratified in 1868). –  Keith Thompson May 15 '12 at 21:13
@KeithThompson I have edited my answer to include my comments on wether the secession was illegal at the time in which it took place. Simply put my comments were way to long :–). As for the 14th amendment, it does not appear to me that this amendment would have influenced the 1869 ruling. –  E1Suave May 15 '12 at 22:58
It's bizarre to argue that secession was legal in 1861, when the exact finding by the Supreme Court in Texas v White was that Texas' ordinance of secession in 1861, and subsequent acts of her legislature, were "absolutely null" and "utterly without operation in law" ie illegal. On what basis can we say it was legal, when the Supreme Court says it was illegal? The primary support for secession was "Compact Theory", and that had been rejected by the Court over 40 years prior to secession. –  JimZipCode May 7 '14 at 16:40
@nicodemus13 Suspension of Habeus Corpus was totally valid under the Constitution. Article 1 section 9 explicitly allows it "in cases of rebellion." Ambiguity arises because it was the executive (Lincoln) who ordered the suspension, rather than Congress. But Congress was not in session; and when they convened they backed him up. So no Constitutional question arises. –  JimZipCode May 7 '14 at 16:47

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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That's a footnote in the Elk Grove opinion; I wouldn't call it an important part of the finding. Scalia's remark looks off-the-cuff, and is anyway conditional. The text of the Texas v White decision is clear and unambiguous; the Union was perpetual from inception. It's also consistent with prior Court rulings, eg Chisholm v Georgia, Martin v Hunter's Lessee, McCulloch v Maryland. It's quite an extraordinary to claim that secession was legal, when the Court found it was not. –  JimZipCode May 7 '14 at 16:52

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):

Section. 3.New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

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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I upvoted this answer and downvoted the currently selected. This answer makes clear for me that the secession was illegal. –  Anixx May 19 '12 at 14:21
@Anixx Please read the additional information on the principle of legality and nulla poena sine lege I have now provided in my answer. This explains how at the time (1861) it was not illegal. –  E1Suave May 19 '12 at 17:14
@E1Suave - I think you're confusing my answer with Keith's perhaps? I didn't mention any laws. –  T.E.D. May 20 '12 at 3:43
@T.E.D. I feel that the question is presenting the opportunity for multiple interpretations. Though I was under the impression that the OP was asking if it was illegal at the time prior to the Civil War (1861) hence the addition of "legality" to my answer. As for my comment, I apologize, I was intending it for Anixx. –  E1Suave May 20 '12 at 13:44

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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You've got some ammunition here, since the Chief Justice in Texas v White had served on Lincoln's cabinet. The majority opinion could have been transcribed directly from some of Lincoln's speeches: the victors literally wrote the law. The saving grace is, the Court's decision was straight in line with prior Court decisions (referenced in other comments). In fact it's the opposite finding that would have been extraorinary, a violation of the judicial principle of Stare Decisis. So, you can rest your cynicism in this instance. :-) –  JimZipCode May 7 '14 at 17:10

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.


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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This has been discussed in great detail throughout our chat chat.stackexchange.com/rooms/3447/… –  E1Suave May 17 '12 at 18:26
The court held that the Constitution did not permit states to unilaterally secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were "absolutely null". .(1869) –  E1Suave May 17 '12 at 18:26
However, this by no means indicates that in 1861 (which be be prior to 1869's ruling) it was illegal. It was decided later in 1869 that the acts of seceding states should not be held up in court due to the lack of Constitutional merit for seceding, but in 1861 this ruling did not exist. Laws/rulings/statues can not travel through time and become enacted. –  E1Suave May 17 '12 at 18:26
Therefore 1861 = not illegal. 1869 and on (unless possible new interpretation/review by court) = illegal. The mess caused by the secession of the Southern states needed the 1869 review and ruling in order to "set things right" (Specifically Texas) as decisions needed to be made, but again this does not mean that at that time in 1861 it was illegal. –  E1Suave May 17 '12 at 18:26
As the judicial branch cannot create laws, but only interpret them, then it would seem to me that Mr Thompson is correct here; what the court ruling was, in effect, was a decision that the act that occurred in 1861 was contrary to laws that existed at that time, and that any secession which happened before or after that was also contrary to the same law. Is this not a correct understanding of how the judicial system in the US works? –  Garrett Albright May 20 '12 at 11:07

The 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The 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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Welcome to History SE! Thanks for your answer. +1 to get you going. –  American Luke Oct 10 '12 at 17:56
That seems to make sense at a superficial level. But when you dig more deeply, it turns out that at the time the Constitution was ratified, the states did NOT have the power to secede, so could neither delegate them nor reserve them. The Articles of Confederation explicitly say that the Union is perpectual (article 13). This is some of the substabce of the ruling in Texas v White. –  JimZipCode May 7 '14 at 17:20

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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Of course, that just begs the question if a state (or presumably some other entity) can unilaterally withdraw from the US in the perspective of the US's federal government. This has been discussed elsewhere in this post, and it doesn't seem to be the case with current laws - see my accepted answer. –  Garrett Albright Jan 17 '13 at 7:38

It is simple, secession was and is legal. Look to the ratification documents from Rhode Island, New York and Virginia, three of the last four to ratify the Constitution. They state specifically, that the State can reassume the powers delegated through the ratified Constitution by the State in cases where they feel they are being injured or abused. This is a quote from the Virginia ratification document for reference.

DO in the name and in behalf of the people of Virginia, declare and make known that 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, and that every power not granted thereby remains with them and at their will:. . . Ratification of the Constitution by the State of Virginia

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Interesting text in the Virginia one. It agrees with the early Supreme Court decisions, that the Constitution "derived from the people of the US." That's probably unintentional, because paradoxically it's part of the argument that states DON'T have the power to secede. The Constitution gets its power from the people of the US, ie NOT from the states, and therefore the states are bound to it. See Chisholm v Georgia. –  JimZipCode May 7 '14 at 17:37
So under your theory that a state can remove itself unilaterally, does that mean that the US can expel a state unilaterally? Congress can just rule to expel Rhode Island, and poof they're out? –  JimZipCode May 7 '14 at 17:37

I had originally answered yes; then I discovered the force bill. Section 5 of the force bill permits the President to use whatever force is necessary to preserve the Union. The US Congress had considered seccession, and explicitly authorized the preservation of the Union by military force.

UPDATE: @Garrett Albright asks a pertinent question. I grant you that my argument is indirect, but if the United States authorized military force to preserve the Union, then implicitly any effort to sever the Union is illegal.

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This seems to me to provide just cause for the use of force in response to the secession, but not necessarily affect the legality of the secession itself. –  Garrett Albright Jan 22 '14 at 18:40

The secession of the southern states was a violation of Section 10 of the US Constitution, to which all of those states had agreed. That part of the Constitution reads:

No State shall enter into any Treaty, Alliance, or Confederation; ..

By creating the Confederacy, they obviously were breaking this clause of the constitution to which they had previously agreed.

Of course, at the sovereign level there is no such thing as "illegal". Laws are for consenting communities that agree to live together under a fixed set of rules. When the communities fight, those laws are no longer valid. From the answers above you can see that the US Congress and Supreme Court, ex post facto, passed a bunch of "laws" that it was "illegal" for a state to succede, but at the end of the day, there are no laws, just force.

For example, lets say Congress passes a law that makes it "illegal" for anyone in Somalia to mine tin. Does that mean it is illegal for Somalis to mine tin. I suppose so, in the eyes of Congress, but probably not in the eyes of the Somalis.

For a law to have just force, the court must have jurisdiction. When a group seccedes, they may argue there is no longer any jurisdiction over them. For example, William Wallace, after being captured, was charged with treason, but he argued, correctly, that there was no treason because he was not a subject of the English king, Edward. That didn't stop Edward from killing him though.

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I always found the Confed's obsessive desire to rebel like Washington yet be 'legal' in the end to be very amusing. It's like Luke wondering if blowing up the Death Star was against the law. –  Oldcat May 6 '14 at 0:07
"At the sovereign level there is no such thing as illegal." It's a nice claim. But by the Civil War era, the Court had already rejected the notion that the Consitution was a "compact of sovereigns" in at least 3 other cases: Chisholm v Georgia (1793), Martin v Hunter's Lessee (1816), and McCulloch v Maryland (1819). That was 40+ years before secession. –  JimZipCode May 7 '14 at 17:04
@JimZipCode Jim, you become sovereign as soon as you start shooting people. –  Tyler Durden May 7 '14 at 17:18
@Tyler Durden What if you only stab them or hang them? –  JimZipCode May 7 '14 at 17:45

We can go into these long winded discussions on Supreme Court decisions and the law about secession. A document that is more important than the Constitution is being overlooked. The Declaration of Independence. Does this not give a state the right to break away from a government that has become destructive to the people. What did we do when be declared independence from England. Did the Southern states in succeeding declare independence from the United States. Here in the south you can see on some grave stones of Soldiers inscriptions stating they were fighting for Southern Independence. To say that the southern states, or any other state for that matter would have the right to declare independence. If secession is illegal then we committed an illegal act when we broke away from England. Also these decisions were decided after the war. What other way would they have went. I guess at the end of the day right and wrong are decided at the end of a barrel and bayonet.

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This is an argument, not an answer. Furthermore, there is no doubt that the Declaration of Independence was illegal under British law; it was treason. –  Mark C. Wallace Jul 4 '14 at 13:19

Of course secession is legal.

The only way that states join the United States is via a ratification of the Constitution in which they VOLUNTARILY agree to join.

Therefore, if they later reject that Constitution ("un-ratify" it, if you will) then they are no longer bound by its laws.

Secession is simply that process of rejecting the original ratification.

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Tell that to Rhode Island, which only ratified the constitution under threat of being treated as a foreign power. –  Mark C. Wallace Sep 30 '13 at 16:24
and the confederate states, who choose to secede and found themselves invaded, then forced back into the union with their state constitutions demolished. –  jwenting Jan 21 '14 at 20:28
Let's say I'm a homeowner, and you're a carpenter. We enter into a contract: you are going to get some lumber and other materials, and build an addition onto my house; I am going to pay you $20,000. Then you go off and buy some lumber, maybe engage some subcontractors to do some shaping. A little bit of time passes. Can I just unilaterally change my mind and undo the contract? And not owe you any money? Of course not. Contracts can't be broken unilaterally; requires both parties. The process of "un-ratifying" is the same. Requires both parties; can't be done unilaterally. –  JimZipCode May 7 '14 at 17:26

No its not legal they did not gain permission to secede and so thus they broke the law if they were to secede they would have had to go through several different courts and several different government actions would have to happen. They illegally withdrew from the u.s. and they had to pay the consequence for there actions.

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H:SE prefers answers that are based on evidence, scholarship and research. Do you have any evidence to support your opinion? –  Mark C. Wallace Mar 11 '14 at 1:12

The Articles of Confederation that the original colonies/states signed meant they joined the federal government in "perpetual union". But they different states would always threaten to leave the union if they did not get their way- meaning each state was it's own basic nation, just in an agreement to help one another more or less. However, seeing this problem keep coming up, they then decided to write the US Constitution- which in effect threw the Articles away and bound the states together under one goverment with the states holding certain rights of the own, but limiting their ability to operate as a free county on their own. Now in the event of armed rebellion but the PEOPLE of the state, not the governments, as well as the PEOPLE voting to leave the Union, not just the government making the choice for them- which is very much what happened in the Civil War when the state broke away, they did not do so at the full will of the people, but as the governmnet reprsentaives, who stood to gain power by breaking away, and not the best interest of the people. So yes, but doing the break away in that form, the South DID break away illegally, where as if put to a vote (just like Scotland did this week)where the people really effected go to choose, then that would ahve been legal had they left the union and then the Northern attacks would have been the illegal act. But after Reconstruction and the states rejoining the nation, State Rights were vastly limited by readmission and even in the states that did not leave, that is one fall out from the Civil War, that it allowed the Constitution to be changed without really anyone to stop them.

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Do you have a source for seceding by referendum being legal? –  Semaphore Sep 20 '14 at 6:05
Do you have a source for the notion "they then decided to write the US Constitution"? That is contrary to most histories I've read. –  Mark C. Wallace Sep 20 '14 at 11:32
"they did not do so at the full will of the people" this isn't actually correct, at least in Virginia. virginiamemory.com/online_classroom/union_or_secession/unit/10/…. –  lazarusL Oct 9 '14 at 0:12

Yes, the secession of the Confederate states was illegal.

Secession was not strictly, or merely, a "legalistic" matter (see the last section, esp the concluding two paragraphs). However, to the extent that it was, the "legalistic" aspect is straightforward. In three sections: the law of the land, the arguments in support of the legality of secession, and why those arguments fail. Then two follow-up sections, on historiography and later legal commentators.

The Law of the Land

Secession has been illegal since the Articles of Confederation. No one ever mentions this, but the full title of that document was the "Articles of Confederation and Perpetual Union". (Emphasis added, obviously.) Article 13 said "And the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State."

The Articles created a much weaker national government, than the Constitution did. It follows that the "more perfect Union" created by the Consitution is, if possible, even more perpetual than the Perpetual Union created by the Ariticles: certainly not conditional, or "less perpetual". That's the exact reasoning used by the Supreme Court in Texas v White. The Constitution says it is the supreme law of the land: there's no room for a state government to suspend or nullify it.

The debates at the Constitutional Convention don't have much to say about secession – probably because the issue was already settled by the "perpetual" nature of the existing Union. There is a letter from Madison to Hamilton on the topic, from the Ratification era. Madison says "a reservation of the right to withdraw... is a conditional ratification... it does not make N. York a member of the New Union... she could not be received on that plan." (Letter to Hamilton)

Buchanan (of all people) made a similar argument. He pointed out some pretty strong negative evidence: in the long fight for Constitutional ratification, no one ever tried to persuade reluctant states by arguing that "the moment that any state felt herself aggrieved she might secede from the Union. ... What a crushing argument would this have proved against those who dreaded that the rights of the States would be endangered by the Constitution!" (From Buchanan's 4th annual message.) The absence of counter-evidence is not the same thing as evidence; but this actually is a strong point. Constitutional ratification was protracted and difficult, with extensive discussion by the leading political minds of the day. They didn't just FORGET to mention a right to withdraw, if one existed.

The argument in support of secession

The basic argument is that the states agreed to enter into the US Constitution, so they could decide to leave. But by itself that argument is severely flawed. Either party can opt NOT TO ENTER a contract; entering into a contract is voluntary. But once a contract is entered into, it takes BOTH parties to dissolve it. One party can't dissolve a contract unilaterally.

To support unilateral secession, supporters invoke what is called "Compact Theory": the Union is not a national government, but instead a compact of independent sovereigns, somewhat like a League of Nations. Nations can unilaterally rescind treaties. Compact Theory had a long and respectable pedigree in American politics. Jefferson and Madison were both proponents.

This is really the entire argument. The states are sovereign, they entered into a compact, and they can withdraw from at will.

Why the argument fails

Compact Theory had already been rejected by the Supreme Court in 1816, 44 full years before South Carolina seceded. The case was Martin v. Hunter's Lessee (1816). By the way, 4 of the 6 Justices who participated in that ruling were Southern (one of them was George Washington's nephew). The ruling was that the Constitution was not an agreement between the states at all; rather, as the preamble says, it was ordained and established directly by the people.

This decision was reiterated in McCulloch v. Maryland (1819); still 41 years before secession. 5 of the 7 sitting Justices in that case were Southern (still including the nephew); and the decision was unanimous. McCulloch extended Martin, saying that "the constitution and the laws made in pursuance thereof are supreme ... they are binding on the states and cannot be controlled by them."

Both cases draw a distinction between the Articles of Confederation, which were a "Compact" between sovereign states, and the Constitution, which is not. You can actually go back to Chisholm v. Georgia (1793) to see compact theory get its first beating from the Court. This was the original Court appointed by George Washington. That ruling was that the People directly established "a Constitution by which it was their will that the State governments should be bound." 1793! The 11th amendment undid part of Chisholm; but it conferred Sovereign Immunity, not Sovereignty. No justification for Compact Theory.

It's very straightforward. By 1820, Southern majorities of the Supreme Court had already rejected the only argument in support of the legality of secession, THREE TIMES. That's well before secession, and Texas v White.


If you're serious in asking the question (I suspect you are not), it's important to understand that in the historiography of the Civil War, this question is one of the Southern Apologist arguments. Saying that secession was legal until the Court issued its 1869 ruling in Texas v White, implies that there was no legal basis for the Court's ruling, ie it's pure judicial fiat. That's a pure Southern Apologist argument. The rest of the logic goes: "secession was not illegal until 1869, therefore secession was LEGAL up until 1869, therefore Lincoln's use of armed force to put down the slaveholders rebellion was illegal." The line of argument is used to paint Lincoln as a criminal, an aggressor, a dictator.

And it's not true. Texas v White was pure Stare Decisis: the law underpinning the decision had been settled back in 1816.

Later Legal Commentary

There is some discussion about whether later legal commentary contradicts the argument from the 1816 and 1819 rulings. At least three times since 2000, judges have stated that the question of a state's ability to secede was unsettled prior to the Civil War. That has occurred in a Supreme Court ruling, in a Supreme Court justice's correspondence, and in a state supreme court ruling.

"At the time, the phrase 'one Nation indivisible' had special meaning 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). )

"If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."

  • In 2010 the Alaska state supreme court wrote 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, and Lincoln's belief in a perpetual Union is reflected in what we have described as 'a plenitude of Supreme Court cases holding as completely null' the acts of secession by Confederate states."

Is there a contradiction here?

No. It's important to note that none of these jurists (except for the second half of Alaska, after the word "subsequent") reference any legal action or court rulings. SCOTUS 2004 does NOT say, "the question whether a state could secede was unresolved prior to Texas v White." Scalia does not write, "the constitutional issue resolved by Texas v White is that there is no right to secede." The Alaska court does not say, "a state's ability to secede was unsettled before Texas v White." What they all mention is the war. All of these jurists are saying that the Civil War itself settled the question. Not any court ruling: the actual war.

And that's the truth. Secession was not a legalistic question that the courts could settle, by examining the Constitution and accumulated Supreme Court precedent. Look at the Dred Scott ruling: that was intended to settle the question of slavery in the territories, and of "negro" citizenship. It did not come anywhere close to doing that. Likewise secession. Secession was a political (and military!) question. It took the war to settle the matter.

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"Article 13 explicitly stated "the Union shall be perpetual."" Is this a full quote from the article 13? –  kubanczyk May 4 '14 at 16:09
The full sentence reads: "And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State." Here's one source for the Articles: Univ of Minnesota –  JimZipCode May 4 '14 at 22:36

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