Was Secession Constitutional?

One of the questions sure to spark a sharp debate is the question of whether secession was constitutional at the time of the secession crisis of 1860-61.  Yes, I know there’s an argument on whether secession’s constitutional today, but, frankly, that’s a different argument, given a few events such as Texas v. White (1869).  To this day, however, people flatly declare that secession is or is not constitutional, followed by comments that suggest that they question the sanity if not the intelligence of anyone who holds a contrary view.

As a historian, what’s important to me is that Americans in 1860-61 disagreed over whether secession was constitutional.  Some people said yes, some people said no.  There had been much discussion of this issue ever since the framing of the Constitution itself, and no one emerged with an argument that was satisfactory to all.  Moreover, even those people who argued for nullification, interposition, and ultimately secession offered a somewhat different procedure than that used in 1860-61, which was, basically, a preemptive first strike by the original seven seceding states, followed by muddled (and sometimes simply ignored) procedures in several other states that either seceded or contemplated it.  Moreover, to cite the Hartford Convention as some sort of justification for what happened in 1860-61 is bizarre, because the Hartford Convention was not a secession convention and its participants were largely discredited.  Then again, people who cite the Hartford Convention as an example of secession are basically advancing the argument that fringe Federalist New Englanders = Federalist New Englanders = New England = the “North,”  much like they argue that Pro-Democratic Irish immigrants in New York = the North when they cite the Draft Riots of 1863 as an example of northern racism, or that Lincoln’s remarks at Charleston = Grant’s ownership of a slave = the war was not about slavery.  Then again, I’ve seen the revolution of colonies equated with secession, which simply isn’t a very good comparison, but then I hope that by now you are beginning to learn that historical accuracy is not behind these arguments.

If we are interested in historical accuracy, we’d have to conclude that Americans disagreed about the constitutionality of secession.  But what if they had agreed?  Well, much depends on the nature of what is agreed.  If Americans had agreed that secession was constitutional, then the odds are that the Southern Confederacy would have gone off, seven states strong, and eventually found itself an economic colony of Great Britain, before the discovery of alternative sources of cotton drove the Confederacy into a major crisis and implosion between the increasing number of enslaved humans, the lack of new territory, and the decline in cotton prices.  Oh well.

What, then, if Americans had agreed that secession was unconstitutional?  In that case, I still see a case made for southern separation in the 1850s.  Having lost control of the House and now having lost control of the executive branch, and with northern Democrats divided from their southern partners, I can easily see white southerners arguing for independence.  The nature of the impending crisis would not be different.  Arguments for self-determination and tyranny would have held greater sway.  The emergency of the moment would still be the same.

That said, the historical fact is that Americans in 1860-61 disagreed over the constitutionality of secession.  Advocates on both sides employed the language of the Constitution in different ways.  Indeed, both sides rested their arguments on particular interpretations of various clauses.  So it remains today when people revisit that argument.

Of course, you may disagree … but isn’t that my point?

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