Secession: Does a State Have a Right to Secede From the Union? Part III | Eastern North Carolina Now

    The Northern States have deliberately, directly or indirectly violated the 3rd clause of the 2nd section of the 4th article [the fugitive slave clause] of the federal constitution, and laws passed in pursuance thereof; thereby annulling a material provision of the compact, designed by its framers to perpetuate the amity between the members of the confederacy and to secure the rights of the slave-holding States in their domestic institutions - a provision founded in justice and wisdom, and without the enforcement of which the compact fails to accomplish the object of its creation. Some of those States have imposed high fines and degrading penalties upon any of their citizens or officers who may carry out in good faith that provision of the compact, or the federal laws enacted in accordance therewith.

    In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon an unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color - a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

    For years past this abolition organization has been actively sowing the seeds of discord through the Union, and has rendered the federal congress the arena for spreading firebrands and hatred between the slave-holding and non-slaveholding States. By consolidating their strength, they have placed the slave-holding States in a hopeless minority in the federal congress, and rendered representation of no avail in protecting Southern rights against their exactions and encroachments....

    The People of Texas dissolve all political connection with the government of the United States of America and the people thereof."

    -> Virginia: No reasons were given. "The people of Virginia in their ratification of the Constitution of the United States of America, adopted by them in convention on June 25, 1787, having declared that the powers granted under said Constitution were derived from the people of the United States and might be dissolved whensoever the same should be perverted to their injury and oppression. The Federal Government has perverted said powers not only to the injury of the people of Virginia, but to the oppression of the Southern slave-holding States. Therefore, We the People of Virginia, do declare that the union between the State of Virginia and the other States under the Constitution is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong and appertain to a free and independent State. And they further declare that said Constitution of the United States of America is no longer binding on any of the citizens of this State."
    -> Arkansas: No reasons given. "We declare that the State of Arkansas hereby resumes to herself all rights and powers heretofore delegated to the Government of the United States of America; that her citizens are absolved from all allegiance to said Government of the Unites States, and that she is in full possession and exercise of all the rights and sovereignty which appertain to a free and independent State." (same wording as Louisiana).
    -> North Carolina: No reasons given. [It is believed that North Carolina really didn't want to secede but it felt that it would be positioned as a Union state stuck between two Confederate states and would therefore suffer terrible casualties of war]. " We declare that the union now subsisting between the State of North Carolina and the other States, under the title of the United States of America, is hereby dissolved, and that the State of North Carolina is in full possession and exercise of all those rights of sovereignty which belong and appertain to a free and independent State."
    -> Tennessee: No reasons given. " We, the people of the State of Tennessee, waiving any expression of opinion as to the abstract doctrine of secession, but asserting the right, as a free and independent people, to alter, reform, or abolish our form of government in such manner as we think proper, declare that all the laws and ordinances by which the State of Tennessee became a member of the Federal Union of the United States of America are hereby abrogated and annulled, and that all the rights, functions, and powers which by any of said laws and ordinances were conveyed to the government of the United States, and to absolve ourselves from all the obligations, restraints, and duties incurred thereto; and do hereby henceforth become a free, sovereign, and independent State."
    -> Missouri: It seceded over the hostile invasion of the South and the government's hostility to the Southern states. " Whereas the Government of the United States, in the possession and under the control of a sectional party, has wantonly violated the compact originally made between said Government and the State of Missouri, by invading with hostile armies the soil of the State, attacking and making prisoners the militia while legally assembled under the State laws, forcibly occupying the State capitol, and attempting through the instrumentality of domestic traitors to usurp the State government, seizing and destroying private property, and murdering with fiendish malignity peaceable citizens, men, women, and children, together with other acts of atrocity, indicating a deep-settled hostility toward the people of Missouri and their institutions; and whereas the present Administration has utterly ignored the Constitution, subverted the government as constructed and intended by its makers, and established a despotic and arbitrary power instead thereof: Therefore, all political ties of every character new existing between the Government of the United States of America and the people and government of the State of Missouri are hereby dissolved, and the State of Missouri resumes its sovereignty and again takes its place as a free and independent republic amongst the nations of the Earth."
    -> Kentucky: It seceded over the hostile invasion of the South and the brutal treatment of Kentucky citizens and property because of its sympathetic position to the fifteen independent Southern states. "We hereby forever sever our connection with the Government of the United States and declare Kentucky to be a free and independent State, clothed with all power to fix her own destiny and to secure her own rights and liberties."

   QUESTION: Didn't the Supreme Court settle the question of secession in Texas v. White, 74 U.S. 700 (1869)?

    -> The Court held that while a state doesn't have the right of unilateral secession, there is an exception for secession "through revolution, or through consent of the States."

    The decision is actually unsettling or curious because at it turned out, the actions of President Ulysses S. Grant were in contradiction to the Court's holding.

    This case deals with title to $10 million worth of US bonds issued by the government to the state of Texas in 1851 as compensation for a border dispute, to be redeemable in 1864. Well, in 1861, Texas seceded from the Union and took up arms in defense of the Confederacy. Five years later, in 1866, the reconstruction government tried to reclaim the bonds. (It filed suit with the Supreme Court under Article III original jurisdiction, as a State filing suit against a citizen of another state).

    Facts: In 1851, Congress authorized the transfer of $10 million worth of United States bonds to the state of Texas as compensation for her claims in connection with the settlement of her boundary. The bonds were payable to the state or bearer and were to be redeemable in 1864. On February 2, 1861, a Texas state Convention drafted and adopted Articles of Secession and on Feb. 23, that document was ratified by a majority of the voters of the State. The convention, which had adjourned before the vote was taken, reassembled on March 2 and instructed the delegates already sent to the Congress of the seceding States to apply for admission into the Confederation and to assent to its provisional constitution.

    Texas also proceeded to make the necessary changes in its State constitution to reflect its new status. The words "United States" were stricken out wherever they occurred and the words "Confederate States" substituted, and all members of the legislature, as well as other officers of the State, were required by the new constitution to take an oath of fidelity to this new Confederate Constitution and the laws of the new confederacy. Officers of the State of Texas were required to appear and formally take an oath of allegiance to the Confederate States. [The governor and secretary of state, refusing to comply, were summarily ejected from office]. Members of the legislature took the oath without incident and then proceeded on April 8 to provide by law for their choice of electors for President and Vice President of the Confederate States. The representatives of the State in the Congress of the United States were withdrawn, and, as soon as the seceded States became organized under a constitution, Texas sent senators and representatives to the Confederate Congress.

    "In all respects, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up and new relations to a new government were established for them."

    In 1862, during the Civil War, when Texas joined the rebellion against the United States, a Texas legislature authorized the use of the bonds to purchase war supplies. Four years later, in 1866, the reconstruction government tried to reclaim the bonds.

    As the Court then asked: "Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?"

    Questions Presented: Could Texas constitutionally reclaim the bonds? Could it avail itself of Original Jurisdiction before the Supreme Court?

    The decision would turn on whether Texas, as a consequence of its acts of adopting Articles of Secession and fighting against the United States, ceased to be a State, for if the State of Texas was not, at the time of filing its suit or even when it came before the Supreme Court, one of the United States, it would have no jurisdiction over the suit and would be dismissed.

    Decision: In a 5-to-3 decision written by Chief Justice Salmon Chase, the Court held that Texas did indeed have the right to bring suit and that individuals such as White had no claim to the bonds in question. The Court held that individual states could not unilaterally secede from the Union and that the acts of the insurgent Texas legislature, even if ratified by a majority of Texans, were "absolutely null." Even during the period of rebellion, however, the Court found that Texas continued to be a state. According to Chase, entry of Texas into the United States was its entry into "an indissoluble relation" and only through revolution or mutual consent of the state and the other states could that state legally leave the Union.
[Concise: While a state doesn't have the right of unilateral secession, there is an exception for secession "through revolution, or through consent of the States."]

    Chief Justice Chase wrote:

    "The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, 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?

    But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government, by the States. Under the Articles of Confederation, each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still all powers not delegated to the United States nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term that the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence, and that, "without the States in union, there could be no such political body as the United States." Not only, therefore, can there be no loss of separate and independent autonomy to the States through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.

    Therefore, when Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

    Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.

    Our conclusion therefore is that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.

    ..... While Texas was controlled by a government hostile to the United States, and in affiliation with a hostile confederation, waging war upon the United States, senators chosen by her legislature, or representatives elected by her citizens, were entitled to seats in Congress, or that any suit instituted in her name could be entertained in this court. All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended. The government and the citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequences of rebellion.

    There being then no government in Texas in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government. But the restoration of the government which existed before the rebellion, without a new election of officers, was obviously impossible, and before any such election could be properly held, it was necessary that the old constitution should receive such amendments as would conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State...... The President of the United States issued a proclamation appointing a provisional governor for the State and providing for the assembling of a convention with a view to the reestablishment of a republican government under an amended constitution, and to the restoration of the State to her proper constitutional relations. A convention was accordingly assembled, the constitution amended, elections held, and a State government, acknowledging its obligations to the Union, established.

    The power exercised by the President was derived from his constitutional functions, as commander-in-chief, and, so long as the war continued, it cannot be denied that he might institute temporary government within insurgent districts occupied by the National forces, or take measures in any State for the restoration of State government faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws.

    But the power to carry into effect the Guaranty Clause is primarily a legislative power, and resides in Congress. 'Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.'

    The action of the President must therefore be considered as provisional... The governments which had been established and had been in actual operation under executive direction were recognized by Congress as provisional, as existing, and as capable of continuance..... The necessary conclusion is that the suit was instituted and is prosecuted by competent authority.

    .... Title of the State was not divested by the act of the insurgent government in entering into this contract."

    Texas v. White, 74 U.S. 700 (1869).
    [Note that Salmon Chase was appointed by Abraham Lincoln as a cabinet member and was a leading Union figure during the war against the South].

    It is noteworthy that President Lincoln considered Texas, but no other state, to have "been a State out of the Union." [He argued that that the original 13 states "passed into the Union" even before 1776; united to declare their independence in 1776; declared a "perpetual" union in the Articles of Confederation two years later; and finally created "a more perfect Union" by ratifying the Constitution in 1788].

    It is also noteworthy that two years after that decision, President Grant signed an act entitling Texas to U.S. Congressional representation, readmitting Texas to the Union.

    Either the Supreme Court was wrong in claiming Texas never actually left the Union or the Executive (President Grant) was wrong in "readmitting" a state that, according to the Supreme Court, had never left.

    Both can't be logically or legally true.

    To be clear: Within a two year period, two branches of the same government took action with regard to Texas on the basis of two mutually exclusive positions -- one, a judicially contrived "interpretation" of the US Constitution, argued essentially from silence, and the other a practical attempt to remedy the historical fact that Texas had indeed left the Union, the very evidence for which was that Texas had recently met the demands imposed by the same federal government as prerequisite conditions for readmission. If the Supreme Court was right, then the very notion of prerequisites for readmission would have been moot -- a state cannot logically be readmitted if it never left in the first place.

    This gross logical and legal inconsistency remains unanswered and unresolved to this day.

    QUESTION: What of Justice Antonin Scalia's Letter Stating that there is NO right of Secession?

    In 2006, one of the two most conservative members on the Supreme Court, Justice Antonin Scalia (the other is Justice Clarence Thomas) penned a brief letter to a screenwriter who had written to him asking for background information for a script he was preparing. Scalia's response was this: "I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit. I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay."

    I talk to people about the Constitution all the time and the one thing that I hear, especially from liberals and young people, is that the Constitution needs to be a "Living Document" because there is no way that 18th century colonists could have predicted the problems and advances we would have today. They point to the internet, the high divorce rate, the increase in homosexuality and their "rights" to be married, the increase in diversity, the increase in the number of atheists in the country, the increase in poverty and unemployment, and more. Unfortunately, these people have no idea how much our Founding Fathers knew because human nature tends to be predictable under similar circumstances. Arguably, however, the only thing that they couldn't have fathomed is the internet. As bad as things are now... as crazy as things are with people exploring all kinds of lifestyle choices and sexual preferences and making all kinds of individual statements, our Founders have studied cultures far worse. There is nothing in this country that our Founders didn't appreciate from looking at the Roman Empire, the Greeks, the Egyptians, the Saxons, the Normans, medieval England.... In fact, I wrote a paper now that makes the argument that it is precisely because our Founders studied the fates of almost all the regimes of history that they uniquely understood that power must always remain in the people's hands and they must always have the power over the life and death of their government (particularly when it becomes oppressive). For that reason, they gave us a government grounded on timeless principles. These principles were announced in the Declaration and were embodied within the framework of our Constitution.... principles such as the sovereignty of the Individual (inherent, inalienable rights), the fact that government serves the people and not vice versa, and the right to abolish a government that becomes destructive of the rights and interests of the people. Our Constitution is not a "living document" because it's foremost goal is to protect these fundamental principles. And so, very simply but eloquently and brilliantly, our Founders gave us a limited government, with several checks and balances so that it can always be in service of and accountable to the people. Believing that our Constitution is no longer a strict document but one that "lives and breathes" is an undisciplined license to chip away at all those protections that are given to us as against our government.