More than 150 years have passed since the end of the Civil War, but controversies surrounding Confederates statues in public places have brought this bloody conflict back to the national dialogue.
The students in my Civil War class just spent three weeks reading dozens of primary documents, articles and book chapters on the formation of the Confederacy, focusing on whether or not the South was right to secede from the Union. In light of our ongoing public conversation about the Civil War, sparked primarily by these controversies surrounding Confederate statues, I thought it would be beneficial to share some of my students’ findings with you.
1. Does the US Constitution allow for secession?
Yes, the Constitution does allow for secession, through the amendment process. If a state or group of states wish to legally leave the Union, such a departure must be approved by the people of the United States through the process laid out in the Constitution for amending that document. The Constitution was ratified by “we the people,” not the states, and thus is not a compact of states but rather a perpetual union that can only be legally and peacefully severed by the people as whole, not one or more of the states. James Madison, the “Father of the Constitution,” considered “the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution.”[i]
2. Doesn’t the 10th Amendment indicate that the states retained their sovereignty?
Indeed, the 10th Amendment, which stipulates that any powers not delegated to the federal government by the Constitution remain with the states and/or the people, does indicate that the states retained much, but not all, of their sovereignty.
The Constitution, which declares itself and all federal laws to be “the supreme law of the land,” gave the federal government exclusive right to fulfill the duties associated with being a sovereign, independent political entity. With ratification, the states could no longer engage in foreign relations, declare war, keep an army or even tax imports. In a true confederation, like the United Nations, member entities retain these rights because they are hallmarks of full sovereignty.
Article V of the Constitution indicates that the sovereignty of individual states is limited. Neither an individual state nor a minority of states can modify or contravene “the Supreme law of the land.” For example, if a state convention rejects a proposed constitutional amendment, but the amendment is ratified by the requisite number of states, the state that rejected it is nevertheless obligated to submit to it.[ii]
3. Didn’t the Founding Fathers think a state could unilaterally secede from the Union?
Some Founding Fathers, such as James Madison and Thomas Jefferson, indicated that the states retained much of their sovereignty and could even defy the federal government at times, but there is no evidence that the Founding Fathers believed that a state or group of states could leave the Union on their own accord. Indeed, many Founding Fathers, led by George Washington, repeatedly emphasized that the American people had created a permanent “perpetual Union.”
If any Founding Fathers personally or privately sanctioned unilateral secession, there is no question whatsoever that they would reject losing a presidential election as sufficient justification for a state seceding. However, that is precisely why South Carolina (the first state to secede) began the process of leaving the Union immediately after Abraham Lincoln won the election of 1860. In its “Declaration of Secession,” South Carolina identified as one of its grievances “the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery.”[iii]
There were contentious presidential elections conducted during the lifetimes of many of the Founding Fathers, and none of them ever suggested that states dissatisfied with the result of that presidential election could leave the Union. They knew there would be no Union in very short order if states could leave it for such a reason.
4. If we believe the colonies were right to revolt from England in 1776, then shouldn’t we also believe it was right for the southern states to secede from America in 1861?
The right of revolution (people revolting against a governing authority) is generally acknowledged as a right, but the reasons that prompt such an act determine whether it is justifiable. In the case of the American revolutionaries, their right to revolt is generally upheld because they were being denied rights that belonged to them as Englishmen (to be taxed only by governments in which they had a voice) and because that government began to use deadly force against them (the massacres in Boston, Lexington and Bunker Hill, all carried out before July 4, 1776).
However, the Confederates’ reasons for revolting clearly do not approach those of the American Revolution. Their primary grievance was that Northern states were allegedly violating the Constitution’s Fugitive Slave Clause by passing laws prohibiting state officials from participating in the apprehension and return of escaped slaves. No resident of the South was being deprived of his or her constitutional rights as Americans, nor were they being oppressed (much less massacred) by the federal government. Rather, at worst, Northern states were exercising their states’ rights in passing such laws, and leaving it to the federal government to fulfill its constitutional duties to capture fugitive slaves.
Yet even if the grievances of the Confederates could be shown to measure up to those of the American Revolutionaries, and thus make their cause just as legitimate as that of the American Revolution, it must be pointed out that no one questions whether England was justified in seeking to suppress the rebellion and re-assert its authority over the break-away colonies. Likewise, the Union was justified in seeking to re-assert its authority over the break-away states. The right of revolution is accompanied by the right of governing authorities to seek to suppress revolutions.
After studying the issue of Southern secession, my students concluded that the South was wrong to secede and that the North was right to fight against the Confederacy. The seceding Southern states could not be allowed to destroy the Union, for not only did they lack the legal basis or moral justification for doing so, but also because once the precedent is set that the states in a republic can leave it at will, then no republic is safe or destined to last long, as constituent parts of it – be they states, regions or even cities – will inevitably find themselves aggrieved to some degree at some point, and thus be tempted to further fracture what is left of the republic. To safeguard republican governments for future generations in America and beyond, Abraham Lincoln and the Union fought a bloody war against Southern secession.
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[i] Notes on the Debates in the Federal Convention of 1787, Madison speaking on July 23.
[ii] For more on this topic, see Akhil Reed Amar, “Abraham Lincoln and the American Union,” Yale Law School, Faculty Scholarship Series (January 1, 2001), page 1124.
[iii] See Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union.