Every so often I come across an argument relating to the civil war in which the Confederate states are claimed to have acted “illegally.” But is that really true? Can a state not secede from the union?
The constitutionality of secession can be broken down into three main arguments. If either of these three arguments hold, then secession is constitutional. The first argument has to do with the very nature of the constitution. The second argument is related to the first and has to do with the sovereignty of individuals and states, in relationship to states and the federal government respectively. The final argument has to do with what the constitution says, or rather does not say, about secession.
Nature of the Constitution
A compact is an agreement between two or more entities, which is voluntarily maintained. A contract is an agreement, between two or more entities, which is legally binding. There are no repercussions, aside perhaps social criticism, to breaking a compact. There are repercussions to violating a contract.
The constitution is a compact, rather than a contract. Why? Contracts are legally binding. There must therefore be a legal framework in place, which is external to the contract, otherwise there is nothing to enforce it. This is not the case with the constitutions, as the constitution defines the validity of law, within the “many states.” The constitution therefore must be a compact, and as such as voluntarily maintained.
Sovereignty
Losing one’s sovereignty means becoming a slave, and accepting that reality. We therefore do not lose our sovereignty, except under extreme duress, and only once we “give up.” At all other times, we merely defer to others, who act on our behalf. For American citizens, those agents are the many states. The states likewise have deferred their decision making process to an agent: the federal government. But individuals can always choose to take back their decision making authority. When a state decides to leave the union, it can do so, as long as its principals, allows it to, and the federal government has no authority to stop it, because the federal government is merely the agent of that state.
Article IV
How does another nation become a state in the union? Congress must vote to allow the nation to become a state. This is clearly written in ARTICLE IV, SECTION 3, CLAUSE 1 (Article IV). However, there is nothing in the constitution about how a state can go about leaving the union. Neither is there anything in the constitution saying that a state cannot leave the union. Therefore, as per the tenth amendment, the federal government has no authority on the matter, and it is the decision is left to each individual state.
Validation of Sovereignty
Through the Civil War, and following its end, there were various actions taken which validated the sovereignty of the Confederate States of America. The CSA made treaties with other sovereign nations: specifically certain Native American tribes. Britain refused to enforce Lincoln’s blockade against the CSA. In fact, the blockade itself was, in some ways, a recognition of sovereignty, as a blockade is used against foreign powers. Following the war, actions taken by Lincoln, and congress, during reconstruction, further reaffirmed the sovereignty of the CSA.
In 1863, Lincoln defined certain requirements in order for states to regain their constitutional protections, as defined in Article IV (Proclamation of Amnesty and Reconstruction, December 8, 1863). Specifically, for any state, which was part of the Confederacy, to have its government recognized, and in order for it to be protected from foreign invasion or domestic violence, at least ten percent of its eligible voters had to swear an oath.
Now, there are three potential explanations for this. The first explanation is that the federal government can, in at least some cases, refuse to provide Article IV protections. This doesn’t exactly seem reasonable. The next possibility is that Lincoln knowingly violated the constitution. This is certainly possible. The final interpretation is that Lincoln really believed that the states had seceded from the union, and had to be readmitted. Similar requirements were put in place by Congress as well.
So we have multiple actions from a wide range of sources which act as supporting evidence that the CSA was indeed recognized as a sovereign nation, even as the United States of America demanded that it was not. What’s more impressive is that the argument to the contrary is far more limited in nature.
Rebuttals
Implied Powers
Now, perhaps one might argue that it is implied. But making such an argument would actually be quite the uphill battle, as any text, in the constitution, which could be implied as granting the federal government the authority in such matters, would also grant the federal government the authority over acceptance of states into the union, and that would make the aforementioned clause on congressional admittance redundant.
Supreme Court Ruling
Another argument that is made is that the courts already ruled on this issue. True. However the courts are not always right. Their past rulings have been overturned before. But it would not be right to ignore their ruling, because perhaps they made an argument that is valid, and which can undermine my argument. So what argument did they make and when? The decision was addressed in Texas v. White. The Supreme Court opinion relied on the supposed perpetual nature of the union. Whence did they obtain this idea? The Articles of Confederation. Indeed, the formal name of this document is “The Articles of Confederation and Perpetual Union.”
The perpetual nature of the union, under the Articles of Confederation, is addressed in section XIII in the following phrase: “And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual…” (Page on yale.edu). The ruling also made use of the preamble of the Constitution, something rarely done. But I guess all bets are off, when you are relying on the Articles of Confederation to support your constitutional argument. Specifically, the ruling made use of the fact that the Constitution was an attempt to “form a more perfect union” (Preamble).
Utilizing on these two ideas, Supreme Court Justice Chase asked “What can be indissoluble if a perpetual Union, made more perfect, is not?” (LII / Legal Information Institute) One question that must be asked is “why must a perpetual union be inherently the most perfect kind of union?” More to the point, as the preamble of the constitution points out, the union under the Articles of Confederation was not perpetual at all. This so called “perpetual Union” survived for less than a decade, proving that such a union was not perpetual at all. So under what logic is its replacement truly indissoluble?
Contract vs Compact Debate
The argument used by the confederacy was the constitution was a compact between the many states, and therefore the states could decide to leave at all. The counter argument is that the constitution is a contract between the people, and the states could not just decide on whether or not to leave. Both are correct, and both are wrong. First, whether or not an agreement is a compact or a contract is not dependent on who the principals happen to be, but rather on whether or not the agreement is enforceable by law. As mentioned already, there is no extra-constitutional law which can enforce the constitution, and therefore the constitution cannot be a contract. It must be a compact.
As to the nature of the principals, there is a false dichotomy. The constitution is quite clear. The union is a compact between the many people of the United States. It establishes a federal government, which acts as their supreme agent. But the states are agents of the people as well, and it is through the decisions of the states that the constitution was established. When a state chooses do leave the union, it does not do so on its own authority. It does so on the authority of its principals: the citizens of that state. And therefore, regardless of the fact that the members of the state did not directly choose to secede, the secession is still an action agreed upon by the people, as any action taken by an agent would be.