Publisher's Note: Diane Rufino has supplied us with a most interesting concept: Should individual states ever consider secession as a last resort to seek remedy?
It is a rather long treatise on the subject so I have broken it into chapters. This is the third chapter. Reading the first chapter and the second chapter is a prerequisite to understanding the third.
The Declaration of Independence wasn't intended as a one-time "Get Out of Jail Free" card !!
QUESTION: Didn't the Civil War establish the rule that secession is not an option for any State?
--> Absolutely not. As mentioned earlier, questions of constitutional law cannot be settled on a battlefield. And again, Jim Ostrowski said it best: "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."
--> The Civil War only showed that violent coercion can be used to rob men of their very lives, liberty, and property. It showed that a President, unchecked, can overstep his constitutional bounds by waging war against a non-threatening, peaceful nation. The Confederate States withdrew from the Union lawfully, civilly, and peacefully, after enduring several decades of excessive and inequitable federal tariffs (taxes) which were heavily prejudiced against Southern commerce and decades of hostility over slavery. Refusing to recognize the Confederate secession, Lincoln called it a "rebellion," "anarchy," and a "threat" to "the government" (without ever explaining exactly how "the government" was "threatened" by a lawful, civil, and peaceful secession) and acted outside the lawfully defined scope of either the office of president or the U.S. government in general, to coerce the South back into the Union.
QUESTION: What reasons did the Southern States give for secession?
--> South Carolina: It seceded basically over two abuses by the federal government and the hostile Northern states, acting in violation of the Constitution and improperly through the federal government. (Violations of Article IV, Section 2 of the US Constitution regarding the Fugitive Slave clause and the Fugitive of Justice clause). South Carolina's Declaration of Secession is a wonderful restatement of the reasons the states sought to "form a more perfect Union" and establish the US Constitution. "We affirm that those ends for which the government was instituted have been defeated and the government itself has been made destructive of them by the action of the non-slaveholdng States. Those states have assumed the right of deciding upon the rights and property of our state and upon the propriety of our domestic institutions... On the 4th of March, the Republican Party (ie, Lincoln) will take possession of the government. The guarantees of the Constitution will then no longer exist; the equal rights of the states will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy.... We therefore solemnly declare that the Union between this State and the other States of North Carolina is dissolved and South Carolina has resumed her position among the nations of the world as a separate and independent State."
[Remember that the Treaty of Paris, signed by Great Britain on Sept. 3, 1783, officially ending the Revolutionary War and acknowledging our independence, stated in Article I - " His Britannic Majesty acknowledges the said United States, viz: New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be FREE, SOVEREIGN AND INDEPENDENT STATES; that he treats with them as such; and for himself, his heirs and successors, relinquishes all claims to the government, propriety and territorial rights of the same and every part thereof."]
--> Mississippi: It essentially seceded over the issue of slavery (property rights) and the hostility by the North to the South because of the issue. The Mississippi state convention listed out the several reasons for secession (as Jefferson had done in the Declaration of Independence for our separation from England). "Utter subjugation awaits us in the Union, if we should consent longer to remain in it. It is not a matter of choice, but of necessity. We must either submit to degradation, and to the loss of property worth four billions of money, or we must secede from the Union framed by our fathers, to secure this as well as every other species of property. For far less cause than this, our fathers separated from the Crown of England."
--> Florida: No reasons given. "The State of Florida hereby withdraws herself from the confederacy of States existing under the name of the United States of America and from the existing Government of the said States; and that all political connection between her and the government of said States ought to be totally annulled, and the State of Florida is hereby declared a sovereign and independent nation."
--> Alabama: It also essentially seceded over the issue of slavery (property rights) and the hostility by the North to the South because of the issue "This is an ordinance to dissolve the union between the State of Alabama and the other States united under the compact titled 'The Constitution of the United States of America'....... The election of Abraham Lincoln and Hannibal Hamlin to the offices of president and vice-president of the United States of America, by a sectional party, avowedly hostile to the domestic institutions and to the peace and security of the people of the State of Alabama, preceded by many and dangerous infractions of the Constitution of the United States by many of the States and people of the Northern section, is a political wrong so insulting and menacing as to justify the people of the State of Alabama to withdraw from the Union."
--> Georgia: It also essentially seceded over the issue of slavery (property rights) and the hostility by the North to the South because of the issue The Mississippi state convention listed out the several reasons for secession (as Jefferson had done in the Declaration of Independence for our separation from England) as well as a detailed history of the events pitting the pro-slavery South and the anti-slavery North leading to the election of Abraham Lincoln. For the last ten years we have had numerous and serious causes of complaint against our non-slaveholding confederate States with reference to the subject of African slavery. They have endeavored to weaken our security, to disturb our domestic peace and tranquility, and persistently refused to comply with their express constitutional obligations to us in reference to that property (by not returning slaves to their Southern owners), and by the use of their power in the Federal Government have striven to deprive us of an equal enjoyment of the common Territories of the Republic (frustrating the spread of slavery into the western territories). This hostile policy of our confederates has been pursued with every circumstance of aggravation which could arouse the passions and excite the hatred of our people, and has placed the two sections of the Union for many years past in the condition of virtual civil war."
--> Louisiana: No reasons given. "We declare that the State of Louisiana hereby resumes 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; and that she is in full possession and exercise of all those rights of sovereignty which appertain to a free and independent State."
--> Texas: Texas' Declaration of Secession is in a special class by itself - with its language. Like South Carolina and Georgia, it lists several reasons for secession and goes into great detail. "By the disloyalty of the Northern States and their citizens and the imbecility of the Federal Government, infamous combinations of incendiaries and outlaws have been permitted in those States and the common territory of Kansas to trample upon the federal laws, to war upon the lives and property of Southern citizens in that territory, and finally, by violence and mob law, to usurp the possession of the same as exclusively the property of the Northern States.... The Federal Government has for years almost entirely failed to protect the lives and property of the people of Texas against the Indian savages on our border, and more recently against the murderous forays of banditti from the neighboring territory of Mexico; and when our State government has expended large amounts for such purpose, the Federal Government has refuse reimbursement therefore, thus rendering our condition more insecure and harassing than it was during the existence of the Republic of Texas...
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."
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."
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 United 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."
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."
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."
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."]