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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
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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 at 17:08
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11 Answers

up vote 23 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

Legality:

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
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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
    
@E1Suave: I didn't say that secession was legal before the 1869 ruling, I said that the ruling didn't imply that it was legal before 1869. In theory, Supreme Court rulings do not create new law; only Congress can do that. The substance of the ruling (which I haven't specifically researched) would have been that secession was unconstitutional all along. I'm well aware that theory and practice don't always match. –  Keith Thompson May 15 '12 at 23:41
    
@KeithThompson my apologies I misread your comments. Either way an extended answer I believe makes for a more complete answer. Thanks for the clarification. :–) –  E1Suave May 16 '12 at 0:14
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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 at 1:12
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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 at 18:40
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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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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 at 20:28
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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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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
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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.

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
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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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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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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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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
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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
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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):

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
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