Glenn W. LaFantasie
December 19, 2010
Secession is making a comeback. Tomorrow is the 150th anniversary of South Carolina’s secession from the Union, a political act that set in motion the events that led to the Civil War, but one needn’t look very far into the past to hear the rumblings of disunion and the rhetoric of states’ rights. In April 2009, Rick Perry, the Republican governor of Texas, suggested that his state might ponder secession if "Washington continues to thumb their nose at the American people." In response, the audience began to chant, "Secede, secede," hoping, one assumes, that everyone there would soon begin to party like it was 1860. The Texas House of Representatives quickly passed a resolution that seemed to threaten secession, and Gov. Perry just as quickly endorsed the resolution.
Yet if you think that all this secession bluster is only a symptom of some peculiar Texas Tea Party madness, you need only Google the word "secession" to find that the radical right believes, apparently in growing numbers, that the Constitution does not prohibit secession and that states can leave the federal union whenever they want. Worse, a Middlebury Institute/Zogby Poll taken in 2008 found that 22 percent of Americans believe that "any state or region has the right to peaceably secede and become an independent republic." That’s an astounding statistic, one that means that nearly a quarter of Americans don’t know about the Civil War and its outcome. Sadly, it also means that for 1 out of every 4 Americans, the 620,000 of their countrymen who died during the Civil War gave their lives in vain.
If by defeating the Confederacy during the Civil War, the Union did not prove conclusively that secession could not be legally sustained, the point was made emphatically clear in the 1869 U.S. Supreme Court decision, Texas v. White. In the majority opinion, written by Chief Justice Salmon P. Chase (a Republican appointed by Lincoln), the court ruled that under the Articles of Confederation, adopted by the states during the American Revolution, "the Union was solemnly declared to ‘be perpetual.’ And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained ‘to form a more perfect Union.’ It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?" Chase, of course, was an activist judge, like his modern Republican successor John G. Roberts, but Lincoln had earlier made the same point about secession in his distinctively simple and disarmingly coherent style: "It is safe to assert that no government proper, ever had a provision in its organic law for its own termination." In his mind, secession was nothing short of anarchy. It was also treason. "No State, upon its own mere motion" he said in his first inaugural address, "can lawfully get out of the Union, -- that [secession] resolves and ordinances to that effect are legally void; and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary."
Surprisingly enough, secessionist extremists (called fire-eaters in the parlance of the times) in the South agreed -- at least at first. In 1858, William Lowndes Yancey of Alabama proclaimed that the time had come to "fire the Southern heart -- instruct the Southern mind -- give courage to each other, and at the proper moment, by one organized, concerted action we can precipitate the cotton States into a revolution." After Lincoln’s election in November 1860, Sen. Judah Benjamin of Louisiana told a political ally that "a revolution of the most intense character" was moving forward and that it could not be "checked by human effort" any more than a prairie fire could be extinguished "by a gardener’s watering pot." When South Carolinians decided unanimously in their secession convention to leave the Union, the Charleston Mercury declared: "The tea has been thrown overboard. The revolution of 1860 has been initiated." One of the delegates admitted that the convention worked "to pull down our government and erect another." In Louisiana, a broadside declared: "We can never submit to Lincoln’s inauguration; the shades of Revolutionary sires will rise up to shame us if we shall do that." Many Southerners saw themselves as carrying the banner of their ancestors who had fought a revolutionary war against a tyrannical king; by rebelling against the United States, secessionists believed they were engaged in a revolution to restore the principles of 1776. When Texas left the Union on Feb. 1, 1861, the secessionists there proudly announced that "for less cause than this, our fathers separated from the Crown of England."
But talk of revolution was dangerous. Alexander Stephens, who would become the Confederacy’s only vice president, warned that "revolutions are much easier started than controlled, and the men who begin them, seldom end them." In many of the Southern states, Unionist sentiment remained strong, and several secession conventions were divided among those who wanted to leave the United States immediately, those who wished to wait for the Southern states to cooperate together by jointly seceding, and those who sought to prevent disunion entirely. Eventually the fire-eaters prevailed by whipping up passion -- that prairie fire mentioned by Benjamin -- and using fear tactics (e.g., Lincoln was an abolitionist bent on destroying the Southern way of life, meaning slavery) to convince moderates and conditional Unionists that secession was their only political option. By the time the Confederate government was formed in Montgomery, Ala., in February 1861, many Southerners -- like Jefferson Davis, the new Confederate president -- jettisoned the extremist rhetoric and espoused moderation, denying at the same time that secession constituted revolution. "Ours is not a revolution," Davis maintained. "We are not engaged in a quixotic fight for the rights of man; our struggle is for inherited rights." He claimed, in fact, that the Southern states had seceded "to save ourselves from a revolution."
His statement has led some historians to conclude that Southern secession was less a revolution than a counterrevolution -- a dubious interpretation that relies solely on taking Davis and some other Southerners at their word, when, in fact, what these Confederates were really attempting to do was justify secession by relying on the right of revolution articulated in the Declaration of Independence (or on the Lockean theory of "natural rights") rather than on anything found in the Constitution. In other words, Davis and his brethren did not want to be called traitors, even though they were leading a blatant political (and later an armed) rebellion against the existing government. To call secession a counterrevolution amounts to saying that Lincoln’s election to the presidency, which was accomplished legitimately under the law, was in itself a revolution. That proposition is, of course, preposterous.
More to the point, Confederate Vice President Stephens plainly asserted in March 1861 that the "present revolution," which had brought about the creation of the Confederate States of America, "is founded ... on the great truth that the negro is not equal to the white man; that slavery -- subordination to the superior race -- is his natural and normal condition. This, our new government, is the first in the history of the world based upon this great physical, philosophical, and moral truth." Other Confederates cringed at the persistent description of their revolution as a revolution (but not at the admission that the preservation of slavery was their primary motive for seceding) and turned instead to defending their actions by arguing that secession was, in fact, legal and not revolutionary at all. Harking back to the Virginia and Kentucky Resolutions of 1798, written by James Madison and Thomas Jefferson in response to the Federalist Party’s enactment of the draconian Alien and Sedition Acts, Southerners advanced the idea that the Union under the Constitution consisted of simply a compact among the states and that any state, by means of its retained sovereignty, could divorce itself from the Union if it ever desired to do so. Confederates also based their rationalization of secession on John C. Calhoun’s notion of nullification, which held that a state could declare a federal law null and void. But Calhoun -- a South Carolinian who had served in Congress, as secretary of war under Monroe, as vice president under John Quincy Adams and Andrew Jackson, and later as the South’s most famous (or infamous) senator -- went further in his states’ rights arguments than Jefferson or Madison had ever done. In his view, states were not only sovereign, they were virtually independent; thus states were simultaneously in the Union and out of it. In 1832, President Andrew Jackson, a fellow Southerner, forced South Carolina to nullify its nullification of a federal tariff. Instead of reinforcing the idea of a perpetual Union, the nullification crisis simply laid the groundwork for the South’s later secession.
For many Southerners, the Union created under the Constitution was never meant to be a nation in perpetuity; they regarded it, instead, as a voluntary federation of autonomous states. To reach such a conclusion, of course, required tortured logic, since there was nothing in the Constitution that hinted at the possibility of a state seceding from the Union, just as there was nothing in the newly established Confederate Constitution that enabled any of its member states to secede. (The Confederate Constitution mimicked the U.S. Constitution in most of its particulars, except for legalizing slavery, limiting the president to a single term of six years, and giving the executive a line-item veto on budget matters.) What could be found in both constitutions, however, was a provision allowing for powers not delegated to the central government, "nor prohibited by it to the States," to be reserved to the states or to the people "respectively" (U.S. Constitution, Tenth Amendment; Confederate Constitution, Article VI, Section 6).
Not surprisingly, South Carolina in part based its secession on what it regarded as inherent rights granted by the Tenth Amendment. Modern secessionists like Rick Perry and other neo-Confederates (some of whom call themselves "Tenthers") also look to the Tenth Amendment to justify their disunionist -- and sometimes anarchic -- rants. The problem is, however, that if one is to be a consistent Jeffersonian in these matters, then a strict construction of the Tenth Amendment does not allow for any reading between the lines. Unfortunately for South Carolina in 1860 and Tenthers in 2010, the Constitution -- and especially the Tenth Amendment -- is silent on the issue of secession. The silence, despite all the hyperbole of secessionists old and new, does not mean that the Constitution condones the right of secession.