Does a state have the right to secede from the union? | Eastern North Carolina Now

    With respect to the sovereign powers "retained by the States," (10th Amendment), Lincoln believed that the power or right to secede was not one of them. According to Lincoln, secession was not such a power since it is "a power to destroy the government itself." To leave the Union would be to destroy the government.

    Lincoln also cited two other constitutional sources for his belief that secession is illegal - The Supremacy Clause and the Guarantee Clause. The Supremacy Clause, in Article VI, states: "The Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Perhaps Lincoln saw secession as violating federal law, particularly the law against acts of treason.

    Article IV, Section 4, clause 1 (The Guarantee Clause), states that "The United States shall guarantee to every State in this Union a Republican Form of Government." This clause was cited by President Lincoln to justify a war to prevent secession.

    So, those were Lincoln's reasons to ignore the fact that the Southern states had seceded from the Union and formed a new sovereign nation - the Confederate States of America - and then to wage war to bring those states back into the Union. I had always been told that Lincoln was a brilliant man, a brilliant attorney, and a brilliant thinker. I think perhaps I will just think of Abraham Lincoln, our 16th President, as one of the finest speechwriters and orators in history. His Gettysburg Address, his letter to the grieving mother who lost five sons, his First Inaugural Address, and his Second Inaugural Address will always be among the most eloquent in our history. But I have serious problems in his legal and Constitutional justifications for the Civil War. A list of some challenges includes the following:

    1). Lincoln believed the Constitution to be a contract that and that for one party (one State) to get out of that contract, all the other parties (States) had to agree. Lincoln represents contract law incorrectly. Parties are only concerned about mutual consent to dissolve the contract when they wish to be relieved of any remaining obligations. (That is, when they don't wish to be liable for breach of contract damages). There is absolutely no principle or tenet in contract law which says that a party is required to remain committed to an agreement it no longer wishes to be. In contract law, there are such plausible defenses such as "frustration of contract" where the goal of the contract have been rendered no longer necessary by some act unrelated to the conduct of one of the contracting parties. Furthermore, a party is relieved of the contract when one of the contracting parties does something intentional to devalue the value of that contract. There is nothing requiring a state to remain loyal to a constitution that has become destructive of the ends for which it was created. (Who wouldn't argue that the conduct of government today is out of control and bears like resemblance to the one that was created by compact in 1787-1790?

    2). Lincoln asserted that secession amounts to anarchy or even despotism. Anarchy is defined as "without government or laws; lawlessness. The South quickly established a new Constitution and laws. There was no period of lawlessness or a lack of government, either for the United States of America or for the Confederate States of America. Anarchy is what we have now with the federal government refusing to enforce the laws it was entrusted by the American people to enforce. It is what we have in Arizona and in every sanctuary city for illegal immigrants. It is what is responsible for the killing and slaughter of citizens at the hands of illegal drug traffickers and illegal immigrants, who have no business being here. [This alone is ample grounds for the sovereign people or even the States to dissolve their compact with the federal government today].

    3). Lincoln asserted that the states could never leave the Union because the Union is perpetual. He went even further to say that "Perpetuity is implied, if not expressed, in the fundamental law of all national governments." (1861). I question whether Lincoln never read the Founding Fathers or read about our founding history. We know his position on 'immortality' is both incorrect and illogical because our Founders, in fact, wrote plenty on the topic of dissolving one's bonds with government. Our founding colonists understood their fundamental right to sever bonds with a government that becomes tyrannical and abusive. In explaining the reasons for our formal separation from Great Britain in the Declaration of Independence, Thomas Jefferson first made a grand statement of individual liberties, one being "that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government." We all understand that the Declaration explicitly supports the right of a people to alter or abolish government. John Locke, the English philosopher who wrote extensively on the design and role of government, and on whose works our Founders most relied, also acknowledged the right of a people to abolish a government that becomes illegitimate. Locke wrote: "The people "are absolved from obedience when illegal attempts are made upon their liberties or properties" because "self-defense is a part of the law of Nature."

    4). Furthermore, William Rawle, the author of the leading constitutional-law treatise of the early-nineteenth century, entitled A View of the Constitution, wrote: "To deny this right [of secession] would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they are governed." [Note that William Rawle, a lawyer from Philadelphia, taught classes on the Constitution at West Point, including the topic of secession. He taught from this book. Ulysses S. Grant and Robert E. Lee were two of his students].

    5). None of our Founders believed governments were intended to be perpetual. If Lincoln had been around during the American Revolution, and if his logic prevailed, then we would all still be Englishmen.

    6). If governments were intended to be perpetual, then how could Lincoln have even justified the Constitution? Wouldn't he have considered the "perpetual" Articles of Confederation to be the one true instrument and government? Furthermore, if governments were meant to be never-ending, as Lincoln reasoned, then it would follow that our current Union is illegitimate, and we must revert to the arrangement under the Articles of Confederation? (I think most states and even the People might like that idea !!)

    7). If compacts are perpetual, how were the States able to withdraw from the Articles of Confederation? In adopting the Articles of Confederation, the States had withdrew from the Articles of Confederation. Surely Lincoln noticed that all of the states, over a period of three years, did so despite clearly stated wording that their Union was perpetual. (North Carolina and Rhode Island were the last to ratify, in Nov. 1789 and May 1790, respectively). After all, the Articles clearly stated that "the Union shall be perpetual." Why didn't Lincoln suggest the Articles to be, in fact, the legitimate compact? How was Lincoln able to rationalize the fact that states withdrew from the Articles (without an agreement or firm assurances from all states that they would re-form under the US Constitution)? Didn't they, in fact, destroy the government in doing so? The Founders required unanimous consent by the thirteen States before making any changes to the Articles of Confederation. Yet in spite of this requirement, and just seven years after its ratification, nine of the thirteen States tacitly this 'perpetual' Union when they ratified the Constitution.

    8). Lincoln cites the fact that the Articles of Confederation uses the word "perpetual" several times in describing the Union. Article II of the Articles apparently contrasted the phrase "perpetual union." It stated: "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." [Article II of the Articles was the equivalent of and precursor to the 10th Amendment of the Constitution].

    9). Just because parties aspire to a 'perpetual' union doesn't mean that it will in fact happen. Men and women take a vow of marriage with the expectation that their union will be perpetual, and we know how that plays out in many cases.

    10). While many elements of the Articles made it into the final Constitution, the word "perpetual" was noticeably not included. Lincoln rationalized that the phrase "a more perfect union" referred to the "perpetual union" created by the Articles. However, there was absolutely no evidence to support his claim. The Founders never offered any definition for their words "to form a more perfect Union." The fact is that Gouverneur Morris wrote the Preamble on his own, almost as an afterthought. It was not debated in the Convention. He wanted a statement setting forth the reasons why the Constitution was drafted for the People. The better conclusion is that the word was intentionally disregarded. It can be argued that the Founders felt "a more perfect" Union was a better expression of their intentions and expectations in creating the Constitution. Perhaps the Founders felt it was more likely than not that a government would eventually outlive its usefulness and would be replaced by one better suited to the needs of the people.

    11). The recurrent fatal flaw in Lincoln's logic is that the withdrawal of a State would destroy the Union. It was upon this premise that he was so determined to preserve the "perpetual union." It was for this reason that he was not willing to read the power or right of secession in the 10th Amendment ("it is a power to destroy the government itself") He made this assertion often. .. that it would destroy the government. Lincoln repeatedly made this assertion that the withdrawal of a State would destroy the Union. This argument was flawed for two reasons: (i) there is nothing in the Constitution that requires the number of states to remain constant; and (ii) secession of even 13 states did not dissolve the Union. (How useless or ineffective could it have been rendered if it won the war?)

    12). Even if we fully accept Lincoln's theory of a perpetual Union, allowing States to secede does not change the perpetual nature of the Union--unless of course, ALL the States dissolve the compact. The only way that would happen if there was uniform frustration with that compact. . As long as the withdrawal of States did not dissolve the Union, the number of States remaining in the Union would not change its perpetual nature. New States could join the Union and other States could secede from that Union. A perpetual Union would not demand that the same number of states remain the same. If that were the case, then wouldn't we be limited to only thirteen states today?

    13). Lincoln believed that the power or right to secede was not one of the rights left to the States in the 10th Amendment. According to Lincoln, secession was not such a power since it is "a power to destroy the government itself." To leave the Union would be to destroy the government. Was the government destroyed even after 13 states seceded from the Union? Lincoln's reasoning was therefore proved flawed. If the government was destroyed, as Lincoln contended it would be with the secession of even one state, then what institution - what sovereign - ordered a million troops to fight the South? Which one issued the Emancipation Proclamation? Lincoln made his frequently repeated assertion that the withdrawal of a State would destroy the Union. This was his fatally-flawed argument because there is States could leave and the Union would still remain viable.

    14). Lincoln claimed to have power to preserve the Union (wage war) under the Supremacy Clause of the Constitution. However, the supremacy of the Constitution and laws made in pursuance thereof is only a valid argument if the Constitution actually requires a state to remain part of the Union or if the state is in the Union. If the Constitution doesn't (our Constitution is in fact silent on the subject), or if a state has separated from the Union, then the seceding state has no allegiance to the US Constitution.

    15). Lincoln also claimed legal authority to invade the South based on the Guarantee Clause. As with the Supremacy Clause, the Guarantee Clause only applied to a state that is in the Union.

    16). Lincoln asserted that the power to secede was not a power the Founders intended for the States (for, according to Lincoln, that would be the power to destroy the government). If the Founders didn't intend the right of the People or States to abolish their bonds with government, then why was the Second Amendment included in our Bill of Rights? The Second Amendment was designed to guarantee the right of the people to have "their private arms" to prevent tyranny and to overpower an abusive standing army or select militia.

    17). Lincoln apparently liked to cherry-pick which Constitutional provisions he liked and which he just intended to ignore (like the fundamental rights to writs of habeas corpus !!). He cited Article IV, Section 4, clause 1 to support the war against the South (Guarantee Clause - "The United States shall guarantee to every State in this Union a Republican Form of Government."), yet in the same breath, he was willing to violate the very next clause, which states: "The United States shall protect each of them (the States) against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence." (Article IV, Section 4, clause 2).

    18). Actually, I'm having a very hard time understanding at all how Lincoln could justify invasion with the Guarantee Clause. By invading the South, the federal government, acting under the Supreme law of the land, breached its obligation to "guarantee to each state a republican form of government" by destroying those very governments. If Lincoln believed that the states were merely in rebellion and engaging in anarchy rather than having seceded (because according to him, states don't have that power or right), then as President, didn't he have a duty to protect them from any violence, not to engage them in violence?

    19). It is my opinion that Lincoln's very act of war against the Confederate states is an acknowledgment under Article IV, Section 4 that the states had legally left the Union. The decision to invade rather than "protect from invasion" would seem to me an act of war. War is waged on an aggressor (which the South clearly wasn't) or on another sovereign under a manifest destiny type mentality (or moral crusade).

    20). Slavery was doomed to fail. It was a matter of time. Just like communism in Soviet Russia. Compare the actions of two Presidents, Lincoln and Ronald Reagan. Ronald Reagan didn't just believe that the Soviet Union and communism could fail, he believed it was inevitably destined to fail. Rather than wage war on a debilitated and economically fragile Soviet Union and endure human casualties, he helped accelerate that process through peaceful means and sound economic policies. Couldn't Lincoln have pursued the same path and spared the lives of 600,000 Americans and the ravaging of the South? Why didn't the government purchase the freedom of the slaves and then pursue policies to help modernize southern agriculture (to end the dependence on human servitude)?

    21). Lincoln claimed the Supremacy Clause of Article VI justified his position that secession was impermissible. Again Lincoln uses selective justification for the War. He used the Supremacy Clause as grounds to save the Union but ignored it while the government was growing hostile to southern interests by disregarding the Fugitive Slave Clause [Article IV, Section 2, Clause 3 - " No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."] In other words, he ignored the Supremacy Clause when it was obvious that the government's position on the Fugitive Slave Clause was putting the Union on a course for division, but yet invoked it to invade the South to save the Union. All of a sudden, Lincoln decided to claim the supremacy of the Constitution.

    22). Questions of constitutional law cannot be settled on a battlefield: "If indeed secession was a state and a people's right, all the Union's victory proved was that the stronger party in a constitutional conflict may violate the law with impunity." (JIm Ostrowski) In the case of the Civil War, the Union's victory not only violated the Constitution, but it violated natural law. as well. Remember, the right to "negate secession" is not a power delegated to the federal government and the right secession is not prohibited to the States by the Constitution. Therefore, secession is a right retained by the States. In the alternative, the issue of secession is a political question and political questions are outside the jurisdiction of federal courts.

    23). We Americans generally believe that the Gettysburg Address is the greatest and most stirring speech given by a US President. But did Lincoln get his facts right? Those who understand the causes of the Civil War and have read the Declarations of Secession know that it was the South, not the North, that was fighting for a government of the people, by the people and for the people. As American journalist, H. L. Menchen (1880-1956), commented on Lincoln's Gettysburg Address: "The Gettysburg speech was at once the shortest and the most famous oration in American history...the highest emotion reduced to a few poetical phrases. Lincoln himself never even remotely approached it. It is genuinely stupendous. But let us not forget that it is poetry, not logic; beauty, not sense. Think of the argument in it. Put it into the cold words of everyday. The doctrine is simply this: that the Union soldiers who died at Gettysburg sacrificed their lives to the cause of self-determination -- that government of the people, by the people, for the people, should not perish from the earth. It is difficult to imagine anything more untrue. The Union soldiers in the battle actually fought against self-determination; it was the Confederates who fought for the right of their people to govern themselves."

    24). Lastly, I criticize once again Lincoln's ability to cherry-pick the fundamental principles he wished the government to recognize. On the one hand, he read the Declaration's promise that "All Men are Created Equal" as a mandate to end slavery, yet on the other hand, he chose to ignore the equally important principle that "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

    Looking at things from a state sovereignty point of view, saying that Lincoln saved the Union by winning the Civil War is like saying a man saved his marriage by beating his wife into submission.

   Chapters One and Two are complete. To be continued in Future Chapters.

    Diane Rufino has her own blog For Love of God and Country. Come and visit her. She'd love your company.