Unfortunatelly, we have no examples from the constitution as to what these rights were, which would leave them up to interpretation. Would that be in the State court or the Federal court? Chief Justice Taney (of Dred Scott fame) was not very friendly toward the slaves so this argument may have just opened up a can of worms. Ironically in the articles of secession for South Carolina all the complaints of having their rights violated were covered by Federal Law. The main one was covered under the fugitive slave act. So South Carolina would have the Federal government invade a northern state to enforce Federal Law yet hollar about her states rights? In the end I guess no slaves, no war.

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"It Happens"
Forrest Gump

It said that the Union shall be perpetual which means that it was not a ten year compact or a twenty year compact but rather unlimited in duration. And the Articles were to be observed by every State in the Confederation. As a comparison, a State Constitution might say that the State will be perpetual and the State law will be observed by every person, but can we construe that to mean that no person could leave the State and move to another?

It makes no sense to me that the States would fight a war of secession only to create a new frame of government which denied the right to secession. Of course, if it actually said there was no right to secession and the States all agreed, then that would be different. But I think that it says nothing of that sort, and that the States would never have signed away their sovereignty like that.

The Articles said that:

"Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."

I find it less of a stretch to construe this to mean that there was a right to secession.

How do you square the declarations of an inalienable right to alter/abolish government with the idea that there is no right to secession?


I don't think it was ironic, I think it just shows how the North was defying the Constitution and the South was in the right.

States have reserved rights in our federal system, but that does not mean that a State can just defy the US Constitution. I see no discrepancy between SC believing in States' rights and at the same time believing that the feds should enforce the constitution.

To begin with, it's not valid to make a comparison between two things unless you can establish that they are alike with respect to the pertinent question. An individual leaving a nation is not like a state/province/whatever leaving a nation in a very significant way: the individual takes none of the territory with him when he goes. Nations are defined geographically. The U.S. government has jurisdiction, defined by law, within the borders of the United States, in U.S. territories, and in U.S. embassies. A U.S. citizen on foreign soil is not under U.S. jurisdiction, although he remains a U.S. citizen. Thus, for the seceding states to leave the Union in the same way that an individual leaves a state, it would have been necessary for their populations to emigrate, leaving all of the territory under U.S. control. Obviously that's not what happened.

Your interpretation of the "union shall be perpetual" clause assumes some unstated language which it is not logical to assume. That is to say, the default position was not that the agreement was for a limited time only and therefore a statement to the contrary needed to be inserted. On the contrary, when a nation lays down a constitution for itself, the default idea is that the union shall be ongoing; that does not need to be specified. The more reasonable and logical interpretation of the clause is the one I presented: that the union is literally perpetual and may not be voided by a state unilaterally.

If the idea was that states could void the agreement and leave the union at will -- and this applies to the Constitution as well -- then language specifying how that should be done would need to have been incorporated. For example, the document(s) could have said, "A state may dissolve its participation in the United States upon the legislature of the state voting to do so, and upon the people voting their approval in a referendum called by the legislature. In the event of secession, the state shall return to the United States all movable federal property located within the borders of the state, and shall compensate the United States for all federally-owned land within the borders of the state at fair market value."

The default position, as I said, is that nations are not soluble by their parts unilaterally. Lacking any language stating one way or another specifically, we go with the default. The fact that neither the Constitution nor the Articles contained language like the hypothetical above means that there was no right of secession from the union, just as is the normal assumption with any nation.

Perhaps you are unaware that during the convention that created the constitution of the Confederate States, a motion to include a provision guaranteeing the right of secession was defeated.

The War of Independence was not fought for the right to secede. It was fought because independence from Great Britain was desired for specific, not general reasons. Moreover, the rebellious colonists knew very well they had no legal right to do what they were doing, that it made them outlaws, and that they would have to fight a war to make it stick.

True, Jefferson's famous document did assert a natural right to overthrow a government that fails to secure the rights of the people, but this concept of a "natural" right is not the same as one of legal rights. Jefferson was not asserting that the colonies had the right at law to declare independence from Britain; he and all the other delegates knew very well that that was not true. The seceding states certainly had the same "natural" right to secede as their ancestors had had in 1776, but again, this does not imply a right at law. One must expect to have to fight for this "natural" right, and the Confederacy did, and they lost.

The same argument has been made based on the 10th Amendment to the Constitution, which has similar language to this. But one must recognize that there are limits to the powers that may be held by EITHER the federal OR the state governments; the fact, for example, that the Constitution does not give the federal government the authority to kill every resident of the state of Georgia, does not mean that the state of Georgia has that authority by virtue of the 10th Amendment. Neither the federal government nor the government of Georgia has any right to do that.

Similarly, the fact that the Constitution doesn't give the federal government the authority to unilaterally kick a state out of the Union, does not mean automatically that the states retain this power. It may mean -- and I think it does mean -- that neither the federal government nor the state government has any such authority, just as with killing all of a state's residents.

There is, in fact, a way in the Constitution for a state to secede, or indeed for the union to be completely dissolved. It can be done through the amendment process. If the state of California wanted to secede, for example, then Nancy Pelosi (or some other CA rep or Senator) could introduce a Constitutional amendment removing statehood from California. If it passed Congress by a two-thirds vote, and if three-quarters of the states ratified it, then California would be an independent nation. But there is no mechanism aside from this that I can see. A state that secedes unilaterally is throwing the Constitution over altogether, declaring a revolution in effect, and as always when one revolts one must expect to have to fight. One doesn't always, to be sure. But that's the norm.

See above re natural versus legal rights.

First of all, there was no provision in the Constitution protecting slavery, except for the temporary ban on Congress interfering in the slave trade, and that had expired. Secondly, the Fugitive Slave Act (which was a federal statute, not part of the Constitution) was on the books and could be enforced in court; the slave states had remedies available at law and did not need to step outside the law. If the FSA was imperfectly enforced by the northern states, that was a legitimate complaint perhaps, but not grounds for secession. Nor was it the reason for secession.

No, while the problems enforcing the FSA were no doubt annoying to slaveowners, the real motive for secession was not that. It was the growing abolitionist sentiment in the country. There was a lot of territory in the west, seized from Mexico in the U.S.-Mexican War, that would soon achieve statehood. The growth of the Republican Party, which was committed to stopping the spread of slavery, and especially the election of Lincoln in 1860, meant that these new states would most likely be free states, not slave states. That would mean a free-state majority in the Senate, and probably in the House as well. The writing was on the wall. In other words, they seceded for reasons of politics.

Precisely. Now think about what you just said. If seceding from the Union, and declaring the Constitution null and void within a state's territory, isn't defying the Constitution, tell me, what is?

Are we talking about states rights as applies to the constitution or the articles of confederation? Try to stay on topic.

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What do you think about this?

On June 26, the engrossed Form of Ratification was read again, signed by President Edmund Pendleton, and transmitted to the Confederation Congress. The opening reads like this:


We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon 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: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes ...

The committee of five that wrote the ratification was Edmund Randolph, George Nicholas, James Madison, John Marshall, and Francis Corbin -- all of them Federalists and Madison and Randolph, of course, members of the Constitutional Convention that had met in Philadelphia in 1787.

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This was the ratification that accepted the constitution - what do you think it means?

__________________
"Those who will not reason, are bigots, those who cannot, are fools, and those who dare not, are slaves." ~ Lord Byron

I was responding to this:

This was a reference to the Articles of Confederation, was it not? And a mistaken one.

Two things. One, that all powers not granted to the federal government by the Constitution are retained either by the states or by the people. And two, that (as Jefferson said) the people have the right to alter or abolish a government that fails to secure their rights. However, only the first is a reference to a legal right; the second is a moral or natural right and has no force of law.

Certainly it was not a statement that Virginia believed a legal right of secession existed.

It was not my intent to say that a person leaving a State is perfectly analogous to a State leaving a Union. My point is that a State Constitution could say that the State is perpetual and that the law will be observed by all the constituents, but I don't think we could construe that to mean that no person could leave the State ... in comparison, a declaration that the Union is perpetual and to be observed by the members doesn't seem to me to be a declaration that no State can leave the Union. Or is it your assertion that the word "perpetual" takes on some special meaning when it regards the Union?


But were the Articles a constitution, or can they be seen as a treaty? I reckon there are ten year treaties, twenty year treaties, and perpetual treaties. I am not reading anything not there, it says perpetual and I read that to mean not ten years or twenty years but perpetual like it says. From my perspective, reading it to prohibit secession is the more liberal construction, and the less reasonable and less logical one.


Quite the contrary, if the intent was to prohibit secession, then that needed to be declared. The lack of a declaration one way or the other is not a prohibition.

There is a point to be made that free government is not absolute and that for example a State Government has no right to murder all of the residents ... and another principle of free government is that the people of a free State have a right to alter/abolish their government ... I don't see how we can twist it around and say that there's no right to alter/abolish government just like there's no right to murder everyone.


The US is not a national government it is a federal government, a federal government is a compact between sovereign States, and sovereign States are the final authority over their destiny. In contrast, if the US was one big sovereign nation/State, such that the State/federal relationship was like the county/State relationship, then your assertions would begin to make sense to me. But that is not our frame of government.


Secession is not something that you need permission to do, we seem to miss the whole idea. The US is a compact between sovereign States, and sovereign States are the final authority over their own destiny.


Does a legal right require a law, or is there a legal right to do whatever is not illegal? It seems to me that since secession is not prohibited, then it is legal.


The Fourth Article says that a "person held to service or labour in one State ... escaping into another ... shall be delivered up on claim of the party to whom such service or labour may be due". In Lincoln's first Inaugural Address, he said that "It is scarcely questioned that this provision was intended by those who made it for the reclaiming of what we call fugitive slaves".

Yankees turned against this part of the US Constitution, and that justified secession. Of course that wasn't the only reason for secession, but any question of the legal right to secession was settled by New England defying the compact - when one party defies a contract, the other parties are then free to drop out. That was the theory.

I do not see how a State is defying the US Constitution by secession when the US Constitution does not prohibit secession. Personally, I have some question about the right to just secede for no reason, but that's not what we're talking about. New England turned against the US Constitution, specifically they refused to return fugitives, and IIRC there were blacks who committed murder in Virginia and went up North and were sheltered in defiance of the US Constitution. Again, the US Constitution does say that fugitive slaves will be returned, and it does not say that secession is prohibited. So harboring fugitive slaves defied the US Constitution, secession did not.

Who fired the first shots?

The South.

It was a war of southern aggression.

It was also a war of southern intransigence, stupidity, ignorance, paranoia, and reactionism, but at the end of the day southern violence is what took it from a legal and political battle (which the south knew they were going to lose) to a military battle (which the south, inexplicably, though they would win).

And I wasn't "reduced' to claiming anything. It was a statement of fact and in the 19th century might did make right - everywhere in the world.

If LOLing at that makes you feel better about your region getting its poor, backward, ignorant, oppressive, unproductive ass kicked then I guess you better keep laughing away...

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...Old Europe, a once-dominant region now reduced to sucking at the geopolitical teat of America... they spent the better part of the last millennium conquering the world and taking the good stuff home with them... And what do they get for their troubles? Ungrateful colonies demanding their independence. And after you taught them how to play cricket!...

-Jon Stewart

My point was that this comparison was invalid. A person is free to leave a state because the state has jurisdiction not over a population but over a territory, and over the people living in it only because they live in it. If a person living in the state leaves the state, the state's jurisdiction is undiminished; it has lost none of its territory. If a state decides to leave the union, however, the union has lost a portion of its territory. The two cases are dissimilar in a crucial way, and so it's not proper to reason from one to the other.

A constitution. We may see this from the following:

These provisions deny to the States the defining powers of sovereignty: the power to conduct diplomacy with other sovereign states, and the power to keep military forces and wage war. As such, and despite the words at the beginning of the document, the Articles of Confederation defined the states as non-sovereign governments. Ergo, it was a constitution, not a treaty.

Of course, the U.S. Constitution, which was in force at the time of secession, not the Articles, was unambiguously a constitution. But I point this out for purposes of establishing the historical precedent and logic.

It depends on what would be considered the default position. Throughout history, it has been the norm that a government cannot be sundered unilaterally by its constituent part. That's as true in a federation such as the United States as it is in a unitary government such as France; the only difference is that in a federation, the powers of the central government are seen as limited and bestowed by the states upon it, whereas in a unitary government the regional governments are seen as having powers delegated to them by the central government. But such relations exist only within the federation. They do not imply a right to leave the federation, and if a state decides to try that, then it is tossing all its rights under the Constitution into the sea along with the provisions it has a problem with.

It's normal to assume that a nation is insoluble by its parts. That's the way it usually works. There's nothing impossible about a government being constituted on a different basis, with the parts or regions or provinces or states or what have you able to leave freely, but this would step outside the norm, go against what people would normally assume, and so would need to be specified.

Legally, there IS no right to alter or abolish government. As I said, there's a distinction to be drawn between legal rights and what Jefferson called "natural" rights. Break all the pretty language down to practicalities, and what a "natural" right is, is simply an action that one feels morally entitled to take, or that one judges another to be morally entitled to take. It has nothing to do with law whatsoever.

If you think there is a legal right to alter or abolish the United States government, and you take action outside the normal channels to do so, the police and the courts will quickly disabuse you of the notion.

Indeed -- StateS -- PLURAL -- not State, singular. The states can certainly alter or abolish the United States Constitution. There is a procedure specified in the document for how to do this. It doesn't require the cooperation of any branch of the federal government, either, although that method has never actually been used to amend the Constitution. But this can only be done by the states acting together, or by three-fourths of them anyway. It is not something that a single state acting alone is privileged to do. To say otherwise, would be to condemn the United States to splitting apart, because it's a given that there is friction between the states today. Perhaps not so great as existed in 1860, but sufficient to cause secession if that were seen as a legal right.

Very well, I stand corrected on that point. It doesn't change the legal calculus in any way, however.

LOL ... you forgot to assert that Southerns are ugly and cannot count past ten with their shoes on.

The assertion that it was a war of Southern aggression does not even merit discussion.

You continue to miss the point. We might run a fancy hotel and say that a bowl of fruit will perpetually be displayed in the lobby, but that does not mean that no piece of fruit can be removed from the bowl, that is not what the word "perpetual" means. Now, please don't tell me that a fruit bowl is not comparable to a Union, because I am aware of that. My point is that the word "perpetual" does not mean "never changing in its constituent parts".


It said "Each state retains its sovereignty", and you say "despite the words the States were defined as non-sovereign". And on the other hand you construe "perpetual" to mean "there is no right to secession". Sorry, but I can't help but get the impression that we are reading things to say what we want them to say ... despite the words.

Perhaps we're thinking that a State cannot delegate certain powers, such as the war power, without surrendering its very sovereignty for all time. But the 2nd Article of Confederation and the Tenth Amendment to the US Constitution specifically prevent such a construction.

The Articles refer to themselves as "a firm league of friendship", and Webster's handy 1828 dictionary says that a league is " An agreement, league or contract between two or more nations or sovereigns". This is what a league or confederacy is, it is a compact between sovereign States, and to claim that any league or confederacy eliminates the sovereignty of the parties defies the definition and intent.


Rather than asserting over and over that there is no legal right, please show me where secession is made illegal. Yes, if a State tried to exercise its legal right to secede, the US would probably attack, but that doesn't mean it is illegal, it just means that the US left the law behind in the 1860's.

The individual States are sovereign, and that means that they are the final authority. A fear of the US breaking up does not justify construing everything to prevent that.

Doesn't it? If one party turns against a contract, are the other parties still bound?

I don't miss the point, I simply disagree with it. There was no need to say that the union was perpetual if the meaning was only that it wasn't for a fixed length of time. The assumption when one is constituting a new government is that it is perpetual in that sense.

Look, suppose that a salesperson were to say that a car he was trying to sell you had "almost never been driven." But then you find that the odometer said it had over 100,000 miles on it, and there was visible wear and tear on the engine, and the tires were completely threadbare. Would you say yourself that the car had almost never been driven?

The Articles may say that each state retained its sovereignty, but they also specifically denied to the states the powers that define sovereignty. Those two statements are in conflict, and since the denial of those powers was a reality and the assurance that each state retained its sovereignty a polite nothing, I no more believe it was true than I would the salesperson. If each state retained its sovereignty in fact rather than in fiction, then each state would have the power to maintain its own military, conduct its own diplomacy, and declare war or peace independently, because that's what "sovereignty" means, and without those powers it does not exist.

Sure it can -- if it delegates those powers only temporarily. But at minimum, it surrenders its sovereignty temporarily. And the delegation in the Articles or in the Constitution was not temporary, it was permanent.

As I said, the need is rather to show where secession is made legal. On the other hand, if you can show that a right to secede from a government is normal and expected, the common practice of governments through the world and throughout history, then the default would indeed be that secession was legal and you would be right. But that's not so. The right to secede from a government does not normally exist, even in federations. We assume, absent evidence to the contrary, that the United States is normal in this respect.

There's another bit of negative evidence in that secession is necessarily a complicated affair involving defining who owns what. As you know, the dispute over who owned the federal Fort Sumter led to the battle that started the Civil War. If secession were a legal right, then the law should have spelled out how to divide federal from state property, and what compensation the state owed the federal government if it chose to secede, just as family law specifies the rules for dividing of joint property in the event of a divorce. The lack of any such provision in the Constitution is itself evidence that a right of secession was not contemplated by the framers.

I disagree with both statements. The individual States are NOT sovereign, in that they cannot conduct their own separate diplomacy or make war and peace separately, and these are the powers that define sovereignty. And a fear of the US breaking up DOES justify construing everything to prevent that, or if one cannot, then it justifies changing the law so that one can, given what a calamity such a breakup would be. We have had one war between the states and it was a horror. I do not care to contemplate a series of such wars without visible end.

Depends on the terms of the contract. In this case, yes. There were remedies at law, but secession was not one of them.

One cannot in any case use contract law to decide the question, because contract law exists at the level of federal or state statute, below the Constitution and not above it. The Constitution is the supreme law of the land, and there is no superior law by which it may be judged, except (to an extent) the usual and normal and customary practice of nations. And that, as I said above, holds that no right of secession exists. Which would not hold true if the Constitution itself said to the contrary, but it does not.

I'm going to add another thing here. I'm rather curious as to the motivations of those who defend the right of the southern states to secede. I understand the reasoning, even though I disagree with it, but what I don't understand is why one gives a damn. The issues that propelled the secession are dead issues today. Slavery is gone, and there is no longer a planter elite in conflict with the commercial elite. And whatever the reality in the 1860s, we can be sure that no legal right of secession exists now. So what's the point?

Is it simply a historical identification with the society of one's ancestors? (I feel no such identification although I was born and grew up in Texas. I like to say that Texas is a good place to be from: because, if you're from Texas, that means you aren't in Texas.) Of course, Texas is only sort of Southern, even though it was part of the Confederacy. Maybe the mystique is stronger in Virginia or the Carolinas or Georgia.

Is it a barely-concealed racism, as I sensed in Impugn's and Dammitboy's posts?

Is it a feeling that one is living in a foreign country by being an American? A desire to break away and establish a society more to one's liking? I confess I sometimes feel estrangement from the way a lot of Americans think, but it doesn't lead me to want California to be an independent country; much as its policies would be (as, within the limits of state authority, they are) more progressive than those of the U.S., the diplomatic, economic, and all-too-probable military consequences of going it alone would be dire and I'm not foolish enough to think otherwise.

Why does it matter? I am genuinely curious.