Does a State have the right to secede?

[Jim Garrett]

James Swanson in "Bloody Crimes" makes a very valid point. Jefferson Davis was held captive for roughly 2 years, but never brought to trial. There was no certainty that a conviction was a pre-determined outcome. If Davis was found guilty of being a traitor, he would very likely become a great martyr, not unlike his union counterpart. But if he was found not guilty, WOW, that would have meant that the Southern states DID have a right to secede. Very dangerous ground.

[wsanto]

(08-22-2013 05:59 AM)RJNorton Wrote:  I do not feel adequate to enter this discussion, but I do have a question in case anyone would like to respond. Are "nullification" and "secession" two separate concepts, or are they essentially the same overall concept? The reason I ask is that courts look for precedents when they make decisions, and Lincoln was a lawyer. Nullification was an issue in 1832, and Andrew Jackson issued a proclamation regarding nullification. Just one paragraph of it reads:

The Constitution of the United States, then, forms a government, not a league, and whether it be formed by compact between the States, or in any other manner, its character is the same. It is a government in which all the people are represented, which operates directly on the people individually, not upon the States; they retained all the power they did not grant. But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union. To say that any State may at pleasure secede from the Union, is to say that the United States are not a nation.

Does anyone know if Lincoln looked at this as a precedent? Did this help him decide his own position on secession?

Thank you for any possible responses.

Roger,

I found this excerpt from a letter written by Madison, the Father of the Constitution. He was alive during the Nullification Crisis and further clarified his opinion on nullification and secession.

Montpellier, Decr 23, 1832.

Dr. Sir I have received yours of the 19th, inclosing some of the South Carolina papers. There are in one of them some interesting views of the doctrine of secession; one that had occurred to me, and which for the first time I have seen in print; namely that if one State can at will withdraw from the others, the others can at will withdraw from her, and turn her, nolentem, volentem, out of the union. Until of late, there is not a State that would have abhorred such a doctrine more than South Carolina, or more dreaded an application of it to herself. The same may be said of the doctrine of nullification, which she now preaches as the only faith by which the Union can be saved.

I partake of the wonder that the men you name should view secession in the light mentioned. The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater fight to break off from the bargain, than the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of –98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a single party, with the parties to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created. In the Virginia Resolutions and Report the plural number, States, is in every instance used where reference is made to the authority which presided over the Government. As I am now known to have drawn those documents, I may say as I do with a distinct recollection, that the distinction was intentional. It was in fact required by the course of reasoning employed on the occasion. The Kentucky resolutions being less guarded have been more easily perverted. The pretext for the liberty taken with those of Virginia is the word respective, prefixed to the “rights” &c to be secured within the States. Could the abuse of the expression have been foreseen or suspected, the form of it would doubtless have been varied. But what can be more consistent with common sense, than that all having the same rights &c, should unite in contending for the security of them to each.

It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, vol. 2,1 with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject.

My view is along Madison's argument that no state had the right to secede from the compact they joined in creating the Union. And there was no "intolerable abuse of the power" that justified the South's natural rights to rebellion and revolution.

[Hess1865]

OK, can someone explain to me whats going on now in the state of Colorado?
I heard part of the state wants to secede and form a new state.

[Jim Garrett]

(08-24-2013 09:04 PM)Hess1865 Wrote:  OK, can someone explain to me whats going on now in the state of Colorado?
I heard part of the state wants to secede and form a new state.

There is always part of Maryland that wants to separate from the state. Usually the Eastern Shore of Md wants to secede from the state. That usually comes up every few years. Recently, Western Maryland has been beating the drum. Frederick County and west does not feel the state government represents their interests in any way, shape or form. So maybe someday, we will have East Maryland, Maryland, and West Maryland. If that were ever to occur, I would ask Frederick County to annex Barnesville.

[wsanto]

(08-25-2013 07:51 AM)Jim Garrett Wrote:  

(08-24-2013 09:04 PM)Hess1865 Wrote:  OK, can someone explain to me whats going on now in the state of Colorado?
I heard part of the state wants to secede and form a new state.

There is always part of Maryland that wants to separate from the state. Usually the Eastern Shore of Md wants to secede from the state. That usually comes up every few years. Recently, Western Maryland has been beating the drum. Frederick County and west does not feel the state government represents their interests in any way, shape or form. So maybe someday, we will have East Maryland, Maryland, and West Maryland. If that were ever to occur, I would ask Frederick County to annex Barnesville.

No part of a State can secede to form a new State without the State's legislature petitioning the US Congress to allow the formation of a new State within its borders. Neither step ever has a chance in modern day politics.

[LincolnMan]

I'm just reading this thread because its been awhile since I've visited the Forum. I just wanted to join in with the others who have expressed how appreciated Bill's input into the discussions here have been.

[Thomas Thorne]

(08-24-2013 08:21 PM)wsanto Wrote:  

(08-22-2013 05:59 AM)RJNorton Wrote:  I do not feel adequate to enter this discussion, but I do have a question in case anyone would like to respond. Are "nullification" and "secession" two separate concepts, or are they essentially the same overall concept? The reason I ask is that courts look for precedents when they make decisions, and Lincoln was a lawyer. Nullification was an issue in 1832, and Andrew Jackson issued a proclamation regarding nullification. Just one paragraph of it reads:

The Constitution of the United States, then, forms a government, not a league, and whether it be formed by compact between the States, or in any other manner, its character is the same. It is a government in which all the people are represented, which operates directly on the people individually, not upon the States; they retained all the power they did not grant. But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union. To say that any State may at pleasure secede from the Union, is to say that the United States are not a nation.

Does anyone know if Lincoln looked at this as a precedent? Did this help him decide his own position on secession?

Thank you for any possible responses.

Roger,

I found this excerpt from a letter written by Madison, the Father of the Constitution. He was alive during the Nullification Crisis and further clarified his opinion on nullification and secession.

Montpellier, Decr 23, 1832.

Dr. Sir I have received yours of the 19th, inclosing some of the South Carolina papers. There are in one of them some interesting views of the doctrine of secession; one that had occurred to me, and which for the first time I have seen in print; namely that if one State can at will withdraw from the others, the others can at will withdraw from her, and turn her, nolentem, volentem, out of the union. Until of late, there is not a State that would have abhorred such a doctrine more than South Carolina, or more dreaded an application of it to herself. The same may be said of the doctrine of nullification, which she now preaches as the only faith by which the Union can be saved.

I partake of the wonder that the men you name should view secession in the light mentioned. The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater fight to break off from the bargain, than the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of –98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a single party, with the parties to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created. In the Virginia Resolutions and Report the plural number, States, is in every instance used where reference is made to the authority which presided over the Government. As I am now known to have drawn those documents, I may say as I do with a distinct recollection, that the distinction was intentional. It was in fact required by the course of reasoning employed on the occasion. The Kentucky resolutions being less guarded have been more easily perverted. The pretext for the liberty taken with those of Virginia is the word respective, prefixed to the “rights” &c to be secured within the States. Could the abuse of the expression have been foreseen or suspected, the form of it would doubtless have been varied. But what can be more consistent with common sense, than that all having the same rights &c, should unite in contending for the security of them to each.

It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, vol. 2,1 with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject.
8
My view is along Madison's argument that no state had the right to secede from the compact they joined in creating the Union. And there was no "intolerable abuse of the power" that justified the South's natural rights to rebellion and revolution.

Madison's views on secession are fascinating given that he and his political tag team partner,Thomas Jefferson ,were respectively the secret authors of the Virginia and Kentucky Resolutions of 1798 which introduced "Interposition" and "Nullification" into the political world, words which laid the foundation for secession.

While Madison believed that application of these doctrines, refusal of states to obey a Federal law because of its perceived unconstitutionality in their eyes, could not be done by an individual state, many devotees of the Virginia and Kentucky resolutions believed an individual state could do so. George Washington feared for the safety of the Union if one or more states nullified a federal law. A famous biographer of Thomas Jefferson feared that Jefferson would have been charged with treason if his authorship of the Kentucky Resolutions had been known..

A majority of states c. 1800 rejected these doctrines and suggested the US Supreme Court be the arbiter of the constitutionality of Federal laws, a function Chief Justice Marshall happily assumed in Marbury vs Madison in 1803.

Many people think that antebellum extreme doctrines of States Rights was an exclusive Southern monopoly. They are wrong.

When Jefferson had the Embargo passed in 1808 against European trade to the ruination of New England's commerce, Yankee elites cited the Virginia and Kentucky resolutions as proof they could ignore the law. Generations of American children were taught the fiery nationalistic speeches of Massachusetts statesman Daniel Webster and were never taught about Webster's early belief that the State of Massachusetts could prevent its troops from being called into Federal service during the War of 1812.

In the 1850's a few Northern states with strong abolitionist support cited the Virginia and Kentucky resolutions in their fight against the 1850 Fugitive Slave Act and wrote Personal Liberty laws, which not only prohibited state and local officials from participating in enforcement of the Fugitive Slave Act but sought to prevent Federal enforcement of that odious law. The US Supreme struck down such laws in 1859 in Abelman V Booth.

Tom
.

[L Verge]

Excellent post, thank you.

[wsanto]

(08-28-2013 01:54 AM)Thomas Thorne Wrote:  Madison's views on secession are fascinating given that he and his political tag team partner,Thomas Jefferson ,were respectively the secret authors of the Virginia and Kentucky Resolutions of 1798 which introduced "Interposition" and "Nullification" into the political world, words which laid the foundation for secession.

While Madison believed that application of these doctrines, refusal of states to obey a Federal law because of its perceived unconstitutionality in their eyes, could not be done by an individual state, many devotees of the Virginia and Kentucky resolutions believed an individual state could do so. George Washington feared for the safety of the Union if one or more states nullified a federal law. A famous biographer of Thomas Jefferson feared that Jefferson would have been charged with treason if his authorship of the Kentucky Resolutions had been known..

A majority of states c. 1800 rejected these doctrines and suggested the US Supreme Court be the arbiter of the constitutionality of Federal laws, a function Chief Justice Marshall happily assumed in Marbury vs Madison in 1803.

Many people think that antebellum extreme doctrines of States Rights was an exclusive Southern monopoly. They are wrong.

When Jefferson had the Embargo passed in 1808 against European trade to the ruination of New England's commerce, Yankee elites cited the Virginia and Kentucky resolutions as proof they could ignore the law. Generations of American children were taught the fiery nationalistic speeches of Massachusetts statesman Daniel Webster and were never taught about Webster's early belief that the State of Massachusetts could prevent its troops from being called into Federal service during the War of 1812.

In the 1850's a few Northern states with strong abolitionist support cited the Virginia and Kentucky resolutions in their fight against the 1850 Fugitive Slave Act and wrote Personal Liberty laws, which not only prohibited state and local officials from participating in enforcement of the Fugitive Slave Act but sought to prevent Federal enforcement of that odious law. The US Supreme struck down such laws in 1859 in Abelman V Booth.

Tom

Tom, thanks for the excellent post. I am a novice when it comes to understanding this history and all the posts in this thread have been very educational for me.

It's clear that politics hasn't changed much--with politicians and activists supporting laws, doctrines, etc. when they suit their current purpose and then decrying them later when it is politically expedient.

That being said, it seems rather clear to me what Madison thought of nullification and secession. He describes his position with regard to the 1798 Virginia Resolution in the letter previously posted. It seems he felt that the collective of the states in the Union held the power to check the Federal Government from abusing its authority in making laws that a particular state or states thought were unconstituional. He goes so far to say that it was a delibrate use of the plural (States) to dissuade the notion that any one state (and I presume a minority of states) held the power to act unilaterally against the central government and ,by extension, the other states. And he even sites an example of Jefferson taking the position that the central government has authority to use force when a State is delinquent in upholding their compact to the other states.

It seems to me that, though Kentucky and Virginia (i.e Jefferson and Madison) authored and passed resolutions against the Alien and Sedition Act, these resolutions were more political theory and formal protests and they were never put into any force in those States. And the law was executed in their states under their protest but with no interposition or nullification. Please correct me if this is wrong.

Thanks--

Bill C

[HerbS]

Wild Bill,What are you doing to yourself? Now back to the topic.Albert Castel[my mentor]said,"What Nation would ever put a suicide clause in thier Constitution and allow a State to secede"?

[LincolnMan]

Herb: that was also Lincoln's viewpoint. I like what the Pledge to the flag says: "...one nation, under God, INDIVISIBLE (emphasis mine)..."

[David Lockmiller]

(08-22-2013 05:59 AM)RJNorton Wrote:  I do not feel adequate to enter this discussion, but I do have a question in case anyone would like to respond. Are "nullification" and "secession" two separate concepts, or are they essentially the same overall concept? The reason I ask is that courts look for precedents when they make decisions, and Lincoln was a lawyer. Nullification was an issue in 1832, and Andrew Jackson issued a proclamation regarding nullification. Just one paragraph of it reads:

The Constitution of the United States, then, forms a government, not a league, and whether it be formed by compact between the States, or in any other manner, its character is the same. It is a government in which all the people are represented, which operates directly on the people individually, not upon the States; they retained all the power they did not grant. But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union. To say that any State may at pleasure secede from the Union, is to say that the United States are not a nation.

Does anyone know if Lincoln looked at this as a precedent? Did this help him decide his own position on secession?

Thank you for any possible responses.

Mr. George Thompson, the English anti-slavery orator, delivered an address in the House of Representatives, to a large audience, April 6, 1864. The folllowing morning, Mr. Thompson and party called at the White House.

Mr. Lincoln thereupon said:

"Mr. Thompson, the people of Great Britain and of other foreign governmnents were in one great error in reference to the conflict. They seemed to think that the moment I was President, I had the power to abolish slavery, forgetting that, before I could have any power whatsoever, I had to take the oath to support the Constitution of the United States, and execute the laws as I found them. When the rebellion broke out, my duty did not admit of a question. That was, first, by all strictly lawful means to endeavor to maintain the integrity of the Government. I did not consider that I had a right to touch the 'state' institution of slavery until all other measures for restoring the Union had failed. The paramount idea of the Constitution is the preservation of the Union. It may not be specified in so many words, but that this was the idea of its founders is evident; for, without the Union, the Constitution would be worthless. It seems clear, then, that in the last extremity, if any local institution threatened the existence of the Union, the Executive could not hesitate as to his duty. In our case, the moment came when I felt that slavery must die that the nation might live! . . . ."

[LincolnMan]

Love the Lincoln quote- thank you for posting it.

[Don1946]

(08-20-2013 05:44 PM)Rob Wick Wrote:  According to Texas v. White, no they don't. Before that, the Constitution was silent. It neither prohibited nor allowed it.

Lincoln's points on secession are clear, and in my opinion, valid.
...

Best
Rob

Good points. Lincoln really joined issue with this question in the first inaugural and it remains one of the most forceful practical, as opposed to legal, arguments against secession as a practice.

"It is safe to assert that no government proper ever had a provision in its organic law for its own termination," he stated. He might have added that the CSA debated and rejected the idea of making secession legal in their own constitution. Interesting.

There was, Lincoln admitted, a revolutionary right to dissolve the Union or overthrow the government of any nation. This was an extra-legal natural right, according to the philosophy embedded in the Declaration of Independence. "no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances."

Lincoln was intent on first denying the legal right to secede and then denying that there was any just cause for revolutionary action. That is what led him to guarantee the safety of slavery in the states, a position he would have to walk back as the rebellion continued.