I have read the answers about the legality of southern secession - very helpful; thank you. In light of those, I have another question: Did the Southern States make any attempt to secede from the Union, prior to 1861, through an act of Congress? If not, what diplomatic/peaceful means were attempted?
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1You have two questions in one. I would delete the part after "If the Compact Theory does not hold water..."– Tom AuCommented Jan 27, 2015 at 19:29
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3How could you secede through an act of congress? "Secession" is a rejection of the government and its institutions because the government and institutions are fundamentally and uncompromisingly unacceptable. Of course the government will say no. (If the government were to say "yes", that means you have a majority and secession is not needed). Why ask when the answer is guaranteed to be no?– MCW ♦Commented Aug 18, 2015 at 16:28
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1"How could you secede through an act of congress?" By Congress passing a law saying that a particular state is no longer a state. The constitutionality of such a law might be questionable, but Congress could certainly pass it.– Keith ThompsonCommented Aug 20, 2015 at 4:07
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1@MarkC.Wallace Why try politically? Because the alternative is war. Peaceful disunion has succeeded (or nearly succeeded) in other countries before. Witness the peaceful Scottish Independence referendum of 2014 agreed upon by the UK parliament. In addition, a Constitutional amendment would have sufficed. There was a Northern contingent who would have been happy to get rid of the South.– SchwernCommented Aug 23, 2015 at 0:32
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@Schwern it is true that peaceful secessions have happened, but are rare. The modern example you have of Scottish independence is true, but i would argue is an entirely different case than the American civil war; Because on the head, Scotland is and was essentially its own nation and had a national culture and one different from that of England or Wales. While the southern states were not really all that different culturally from the North. It would have been viewed as if it was a rebellion breaking out in several counties, not a nation leaving an alliance.– AlexandreCommented Aug 23, 2015 at 18:20
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6 Answers
No, they didn't.
From their point of view there was now a hostile anti-South majority in Congress. Any attempt by themselves to do things to protect slavery through US Congressional action was doomed to failure. So there was no reason to bother trying.
The closest thing they had was allied Copperheads, Northern Democrats who felt the issue wasn't worth going to war over.
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Their problem was worse than that. Several times secessionists had seen their attempts to break away fizzle in the 1830s and 1850s. They knew that time to think would hurt their cause, so they moved quickly to escalate to acts the North would see as unsupportable. And seeing themselves as revolutionaries, of course filing papers and checking boxes was a waste of time.– OldcatCommented Jan 29, 2015 at 0:02
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1@Oldcat - that's completely wrong. The catalyst was the election of a President who they felt would abolish slavery. The Confederates weren't gunning for a separate state until they felt certain that the Republicans would attempt to abolish slavery. Despite Lincoln's protestations that he was not going to abolish slavery, the southerners refused to accept Republican rule. There was no reason to secede until Lincoln because the slaveholders pretty much had what they had wanted. Without Abolition there was no raison de etre for secession.– AnarylCommented Jan 30, 2015 at 0:27
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1There was no threat of abolition on Lincoln's election. The Republicans only got a house majority when Southern congressmen defected and left. They did fear the Republicans and Free Soil Democrats "encircling" them mostly for irrational reasons, which is why they defected.– OldcatCommented Aug 18, 2015 at 17:47
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1@Oldcat: And yet the Southern states asserted this fear in their Acts of Secession: "[Lincoln] has declared that that 'Government cannot endure permanently half slave, half free,' and that the public mind must rest in the belief that slavery is in the course of ultimate extinction...On the 4th day of March next, this party will take possession of the Government. It has announced that the South shall be excluded from the common territory...and that a war must be waged against slavery until it shall cease throughout the United States." Commented Mar 3, 2016 at 2:32
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2From the slaveholder point of view, failure to maintain balance in slave vs. free states meant eventually they would be powerless to stop something like the 13th amendment. So in the long run, not allowing slavery in new states in their minds was just a delayed-action abolition.– T.E.D. ♦Commented Mar 3, 2016 at 21:50
First I will acknowledge it is difficult to write on this topic neutrally, even 150 years later, as the scar of the Civil War still runs through the country. I'll do my best to remain factual.
Did the Southern States make any attempt to secede from the Union, prior to 1861, through an act of Congress?
I cannot find any record of a serious attempt, no.
If not, what diplomatic/peaceful means were attempted?
The long running battle of States Rights and the idea of Nullification could be seen as this. At its head is the argument over Compact Theory, which has been rejected multiple times by the Supreme Court before and after the Civil War.
At the heart of the Nullification and Secession legal argument is Compact Theory, the idea that the US Federal Constitution is a compact between the states and any state can withdraw at any time. The foundations of the argument in favor are the Tenth Amendment which states that
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 argument against is based on the idea that the Constitution is a document between the people and the Federal government, the states are not a party. This relies on the preamble which says "We the People" not "We the States".
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Furthermore, it is "We the People of the United States", acting as a body, not the people of each state deciding on their own. Various attempts by states to show local majority support for nullification relied on Compact Theory to be considered valid.
Compact Theory was ultimately shot down by the Supreme Court long before the Civil War. Chisholm v. Georgia (1793) upheld that Federal courts could hear disputes between states (immediately voided by the 11th amendment). Martin v. Hunter's Lessee (1816) ruled that states did not have the power to re-interpret Federal treaties. McCulloch v. Maryland (1819) upheld Federal authority to create a bank. All rejected arguments based on Compact Theory, but its use as a justification for nullification and secession persisted.
This came to a head in The Nullification Crisis of 1832. Had it not been resolved diplomatically, it could have lead to secession.
Mostly southern states, losing influence in the House of Representatives due to a declining share of the population, tried a new tactic. They argued they could selectively ignore Federal laws which their state felt were in violation of the Federal Constitution. This argument bypassed the Constitutional authority of the Supreme Court to make that decision. This all came to a head in 1832 over federal tariffs which the South did not like since they depended so much on cotton trade with Great Britain.
The rhetoric got hot and South Carolina passed legislation declaring the tariffs null and void within its borders on February 1st, 1833. Militias was raised to defend against Federal troops. They had a right to be afraid, the threat of Federal troops had been used against states to enforce Federal law before. Troops threatened New England states which refused to provide men for the War of 1812. Before that, the Whiskey Rebellion of 1791 was put down.
In the end, Congress negotiated a compromise tariff which satisfied both sides enough to back down. The particular issue was resolved, but the basic problem remained.
Similar negotiated issues which may have lead to secession include the Compromise of 1850 and the disastrous Kansas-Nebraska Act.
By the time 1861 rolled around the political and legal arguments had been gone over without resolution for decades.
What about various attempts by the southern states to poll their own people? While this may be peaceful, it is not diplomacy. As explained earlier in discussion Compact Theory, the Federal government rejected the idea that a state, or even its people, could decide alone to secede. Declaring you're going to ignore Federal decisions is not diplomacy, it is the end of diplomacy.
No, they did not use peaceful or legal means. Often the secession commissions used did not even fully represent the population of the state seceding. Southerners only started worrying about supposed legality after they lost the war and wanted to look better after the fact.
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1This answer could use citations. @Anaryl Do you have any counter citations?– SchwernCommented Aug 22, 2015 at 23:19
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The secession's themselves were peaceful enough, it was only after that things got violent. Commented May 21, 2016 at 15:56
No, they did not. If they did, most likely they could get peaceful separation (considering that the Corwin Amendment passed Congress even without the votes of seven seceding states).
Instead, they recalled representatives from Congress, and demanded recognition from presidents (Buchanan and Lincoln), who did not have the constitutional power to change state legal status.
This power belongs to Congress, and the President must consider any state still in the Union, unless Congress recognized secession. And it is questionable that Congress could do this without the affected state(s) formally initiating this process. Also, it looks like voting a state out of the Union without this state's representatives participating in this vote is not constitutional - and seceding states representatives left Congress.
Seceding states could consider themselves out of the Union, and thus Union laws did not apply to them. However, if they wish legal recognition and peaceful separation, they better consider the way which does not require Union officials to break the laws.
answered Aug 18, 2015 at 16:02
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1The Corwin Amendment is an interesting side note. However, your assertion that the power to allow a state to leave belongs to Congress needs backup. Article IV, Section 3, Clause 1 gives Congress the power to form new states, but there's nothing about allowing or forcing a state to leave. Do you have a law, SCOTUS ruling or other precedent?– SchwernCommented May 23, 2016 at 22:03
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Article IV, Section 3, Clause 1 gives Congress the power to declare land of any State (unspecified part of it) out of this state jurisdiction – with this state consent. In the broader sense, this clause gives Congress (and only Congress, considering Article IV, Section 6) the power to change territorial entity federal status. Secession is the change of territorial entity federal status, only act of Congress makes it legal and recognizable by executive branch. Introduce secession bill to the Congress could take some time and efforts, but hardly four years and hundreds thousands lives. Commented May 25, 2016 at 20:46
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IV.3.1 is limited to creating States from other States and silent on doing it for any other purpose. Such an expansion of Congressional authority would require a SCOTUS ruling. Closest I could find is Texas v White stating "There was no place for reconsideration or revocation [of perpetual union], except through revolution or through consent of the States", but that's in 1869 after the war, it was only addressing whether Texas ever left the Union (it didn't), and it's unclear what form that consent would take.– SchwernCommented May 25, 2016 at 22:00
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"Secession is the change of territorial entity federal status" No, that's a misreading of IV.3.2, the Property Clause (there is no IV.6). "Territory" means Federal lands and the article says they're controlled by Congress. This does not extend to land owned by the States. This applies to things like whether States can tax Federal lands within their own borders (they can't).– SchwernCommented May 25, 2016 at 22:10
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“A territorial entity is an entity that covers a part of the surface of the Earth with specified borders”; it is not limited to US Federal lands. Country, state, federal land, county, region are territorial entities. Louisiana Purchase changed federal status of this entity from none to federal territory. Accepting independent Texas as state changed its federal status from none (or foreign) to state Texas. Accepting Main as state changed its status from state Massachusetts subdivision to state Main. Commented May 26, 2016 at 2:48
Yes, North Carolina was attempting to secede on or around 1820. In fact a few states have attempted secession long before the Civil War.It was done by congressional bills drafted by the seceding states, and via diplomacy..the usual.
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I believe that it was South Carolina that tried to secede, and the year (to the nearest decade) was about 1830.– Tom AuCommented Aug 12, 2016 at 20:52
The answer is: It depends on your point of view.
In regard to 'resolving the conflict peacefully' - The Southerners never fully believed initially that the North would go to war for the sake of abolition.
The issue of the day was: Did secession require an act of Congress to legalise it? The Constitution never mentions secession at all or even a perpetual Union. I believe this is what's referred to as 'state's rights' or 'compact theory'.
The belief was the various states delegated certain responsibilities to the central (federal) government, and everything else was pretty much left up to them. As the Constitution made no mention of the right to secede, and thus the States felt that annulling ratification of the Constitution was a legal right not delegated to the central government. Simply put, the Constitution made no explicit mention of secession, ergo that right rested with individual states.
The States did ratify their secession through the popular vote through electoral conventions held in early 1860 and 1861. So there was a legal and parliamentary procedure that was followed that was consistent internally with due process.
In regards to 'peaceful means' - the Confederate States had indeed hoped that the North facing of a difficult 'end state': fighting the Confederacy and occupying a vast amount of territory would simply be happy to see the slaveholding states go their own separate way. It was Lincoln at the urging of Douglas who categorised the secession as an 'attempt to overthrow the United States government'.
Was this tantamount to a declaration of war? Or was the occupation of Fort Sumter a declaration by the Confederates? Was the refusal of Union troops to relinquish what Confederates saw as their land an act of war? Whilst slavery is a charged issue, when you remove it from the equation, it's quite easy to see Lincoln as the aggressor. He mustered a large army, and in the early days of the war seemed intent on taking the offensive (despite how disastrous this turned out to be).
In a modern context (say Israel or Sudan) we would definitely consider the Northerners the aggressors. The Confederates were by popular vote now an independent entity and Lincoln was fully prepared to use force to bring them back into the fold. In regard to the legal argument (re: Act of Congress) the issue is: Did the States need Congressional approval? Given that the Constitution never expressly forbade secession one would lean towards, well, no.
It's ultimately a matter of perspective, though. I think a lot of Americans see the war as justified because of Abolition. However, the debate at the time was more about the preservation of the Union and states rights versus federal ones with Abolition being an important issue but not necessarily always the central one.
Source: The West Point History of the (American) Civil War
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3The residents of East Tennessee and West Virginia would argue against the logic that their views were fairly represented in the succession debate. Many secession votes failed, and were re-voted in rump sessions once violence had started. The forcible seizure of US property and troops is hardly non-violent, even if you hope to get away with it. But regardless, the actual Southerners who did the acts were not nearly as scrupulous as they wrote later. They knew they needed to start violence to get any state but South Carolina to back out.– OldcatCommented Jan 29, 2015 at 0:00
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2No. I downvoted because your statement that slavery was not behind secession is incorrect. Many states published their reasons for secession and slavery is heavily mentioned in all of them. The agitation in the 1850s was all about slavery, the war in Kansas was over slavery. An a majority were NOT for secession until the fighting stated, which is why the upper South did not secede until after Ft. Sumter was taken. There are many fascinating works on the road to secession and the state of mind of Southerners that give a better picture than this "single mind" model.– OldcatCommented Jan 30, 2015 at 21:58
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1Downvoted for inaccuracies bordering on propaganda spread liberally thruout. Can only respond to a couple here. 1: Firing on a fort so obviously an Act of War, it's difficult to take any of the rest of this obfuscation seriously. 2: Of course secession required an act of Congress to legitimize. If joining the Constitution is a contract between two parties, any one state and the Fed, then it requires agreement of BOTH parties to dissolve it. The opposite position is Compact Theory, which was rejected by Southern majorities of SCOTUS in 3 separate rulings, 40+ years before the Civil War. Commented Apr 20, 2015 at 16:12
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2@Anaryl - If you have sources for some of this, as a matter of strategy it would be smart to include them in your answer (using the edit tools). Posting content with no links and no verbage like "historian X says", is just begging for downvotes. Doubly so if the topic happens to be controversial somewhere.– T.E.D. ♦Commented Apr 22, 2015 at 20:01
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1westpointhistoryofwarfare.com It is a paid source. So it will upset those who source "what they heard in American History 101" ten years ago in high school.– AnarylCommented Apr 22, 2015 at 22:39