The Irrelevance of the Debate over Secession’s Constitutionality

In the comments section to a recent post one can find a spirited debate over the constitutionality of secession. I find such arguments tiresome and ultimately futile in terms of historical understanding (as opposed to, say, an argument over whether secession is constitutional today … much, it seems, depends on the process to be defined).


Simple. What we know is that people at the time of the Civil War disagreed over whether secession was constitutional. Pretending to arrive at a “correct” answer doesn’t change that fact; nor would a conclusive determination, one way or another, change anything that happened some 150 years or so ago. There would be no retrospective alteration of the outcome. Saying “Whoops! Guess we were wrong!” doesn’t get us anywhere … and it will be a long time before we get agreement on that score, anyway … if ever.

Once can examine the various arguments concerning secession (pro and con) to learn much about what Americans in the first hundred years of the republic thought about nationhood, the Constitution, political institutions, and the like. One will find that the argument for or against secession rests upon particular constructions of particular clauses of the Constitution as well as other evidence. That people spent so much time debating over the notion of secession as a right when it was freely conceded that a right of revolution existed tells us a great deal about the ways in which the language and concept of constitutionalism shaped political discourse, because in the end what advocates of secession really wanted was their opponents to concede that they were seeking recourse in a process that was legitimate and thus acceptable. Once that concession was made, the reasoning went, then there could be no legitimate resistance to secession. However, the concession was never secured.  Render secession illegitimate as a process and one could make a claim that it was legitimate to resist it.

Most interesting to me, however, is the fact that many of the same people who argue for the rightness of secession (as in “we were right … and you were wrong”) deplore the same sort of judgmental approach when it comes to slavery.  Then it is always a case of crying “political correctness” or some such nonsense, or seeking to highlight racism (and even slavery) in the North as if somehow that absolves the South of any culpability or responsibility for slavery. I’d say that argument is also flawed, resting as it does on argument as moral indictment, but then some people are more interested in declaring who was right and who was wrong as opposed to understanding what happened and why. We see the same inconsistency (and even hypocrisy) in people who whine about “evilizing the South” while doing their best to “evilize” the North as well as people they don’t like (or in speculations on who hates who, a rather clear case of projection in several instances).  In these cases, moreover, people confuse understanding the past with pointing fingers in the present.

Oh, I know … this won’t stop those discussions. Just understand that I don’t put too much stock in them. I think the contours of the discussion tell us a great deal about the people who engage in such discussions (now as then), but they don’t bring us closer to a final determination as to the constitutionality of secession.

140 thoughts on “The Irrelevance of the Debate over Secession’s Constitutionality

  1. John Foskett October 10, 2012 / 11:10 am

    Much of the secession debate is unfortunately not really about whether it was “constitutional” in 1860 or reasonably seen as such at the time. Like so many of these other ‘debates” which crop up about the ACW (almost always from a certain side), it’s a stalking horse for modern political stances – in this instance, whether secession is “constitutional” today. Sort of like “Black Confederates” or the war was caused by “Big Government”, etc.

    • Rob Baker October 11, 2012 / 6:51 am

      Absolutely John. It’s a modern political debate within a fringe element of society that is projecting the current political climate onto the past. They are looking for justification in their current stances.

      • peterjprice2012 October 11, 2012 / 9:31 am

        The United States Lives by a “Mafia Mentality”. You can Join the Union “Voluntarily”, but oh By the Way, If you Decide to Leave, YOU ARE GOING TO DIE…

        • wgdavis October 11, 2012 / 12:15 pm

          Well, if you would read the real history you would see that the Coinstitutional Convention, set up by the Congress of the Articles of Confederation, constructed not only the Constitution, but also the path by which it would be put in place. Now, perhaps you could show us what the path was for leaving, please?

  2. Lyle Smith October 10, 2012 / 11:18 am

    I agree with this.

  3. michael confoy October 10, 2012 / 11:36 am

    I am certainly not going to waste anymore time arguing with the brain dead.

  4. Mark October 10, 2012 / 2:25 pm

    Very well said.

    >> However, the concession [that secession was legitimate] was never secured. Render secession illegitimate as a process and one could make a claim that it was legitimate to resist it.

    One could, but since the Unionists accepted the right of revolution one could deny that it was legitimate to resist secession on Constitutional grounds while also saying it was legitimate on moral grounds–the natural right to revolution–and therefore maintain it legitimate to resist secession on other grounds. There must be a natural law basis to the Constitution, and the Founders provided the Declaration as a statement of this.

    I am in no way disagreeing with anything in this post, but it seems to me the only reason the issue won’t die is that one side wants to say that secession was legitimate in order to say that resistance to it was illegitimate. I think that is why the issue won’t die.

    • jfepperson October 10, 2012 / 2:53 pm

      “…but it seems to me the only reason the issue won’t die is that one side wants to say that secession was legitimate in order to say that resistance to it was illegitimate. I think that is why the issue won’t die.”

      I agree, 110%. And I will confess that this is why it is worth engaging the question, IMO.

      • Brooks D. Simpson October 10, 2012 / 2:54 pm

        In what way? How do you think the question should be engaged? If there was no definitive answer offered 150 years ago, what does it matter?

        • Mark October 10, 2012 / 6:18 pm

          >> If there was no definitive answer offered 150 years ago, what does it matter?

          I think we can engage the question to the extent that the right questions were arrived at by those participating at the time, such as Lincoln (and I presume many others), that arrived at the view that the right of revolution was a natural and moral right, but that it wasn’t provided for in the Constitution nor could it be. I don’t think we can escape that this is a subtle point that is very easily missed by the average person. I’ve heard so many try to make hay out of Lincoln’s seeming acceptance of secession in certain statements and rejection of it in others because they don’t understand the distinction.

          But I don’t take myself to be disagreeing with you at all Brooks, after all you explicitly mentioned the right of revolution. I’d say my view amounts to seeing the importance of clarifying the questions they faced and leaving it at that. I completely agree that we can’t arrive at definitive answers when our predecessors didn’t, but I think we need to see the questions as clearly as they did. Stating the question this way won’t answer the question of whether the war was justified or not, and some may not even accept this way of framing it. But for those that don’t it is even more a fool’s errand to argue further about possible justification of secession or the war, since it shows they can’t even comprehend Lincoln’s view let alone disagree with it rationally. I view it as a litmus test of sorts over whether someone is serious or not about the topic. Some people don’t want to make any distinction so they can hold Lincoln (and those he represented) guilty of hypocrisy or worse.

        • jfepperson October 10, 2012 / 7:54 pm

          I think when someone claims secession was legal, so the effort to oppose it was not, he or she should be told of the many arguments against the legality of secession.

          • Al Mackey October 10, 2012 / 8:12 pm

            Brooks is looking at it from the standpoint of understanding history, Jim. You’re looking at it from a different point of view. In order to understand what happened and how it happened, we really only need to know most secessionists believed their actions were legal and most Unionists appear to have believed they weren’t. If one were to look at it from the viewpoint of a Constitutional Law professor, it seems to me whether secession is legal or illegal begins to take on more significance.

          • Ned B October 10, 2012 / 8:39 pm

            I think your statement should be amended to “we really only need to know some secessionists claimed their actions were legal “. Whether they believed it or not is something I don’t think we can answer.

          • peterjprice2012 October 12, 2012 / 10:19 am

            Take the Definition of ‘Bullying’ for Example. It doesn’t Matter Whether or Not the Bully Feels He is Being a Bully. It Matters Whether or Not the ‘Victim’ Feels that He is being Bullyed. Just like the Case of Succession. It doesn’t
            Matter Whether or Not the Union Feels Succession is illegal.
            What Matters is that the State Succeeding Feels Like they Need to Succeed for the ‘Betterment of its People’…

          • jfepperson October 11, 2012 / 12:42 pm

            I understand that, Al. Our understanding of biology is not appreciably enhanced by engaging creationists, but it still should be done (IMO). Part of the point is to emphasize the fact that there *were* two sides to the intellectual/legal question in 1860-61.

          • Brooks D. Simpson October 11, 2012 / 12:44 pm

            There were more than two sides. Those who like to posit that there are only two sides to questions remind me of H. Wayne Elliott. 🙂

          • jfepperson October 11, 2012 / 4:08 pm

            No need to get insulting 😉 As is the case with many (most?) complex legal/political issues, there were indeed more than two sides. One could probably write a halfway decent paper on a “taxonomy of the secession crisis.” (I would not be surprised to hear that you have seen a few from students, Brooks.)

          • Al Mackey October 14, 2012 / 9:24 am

            The question is, Jim, are historians the ones to engage in the debunking, or are constitutional law scholars the ones to do so? From the standpoint of historians, it really doesn’t matter much if unilateral secession was illegal or not. It happened. It seems to me that constitutional law scholars have more skin in that game.

          • Brooks D. Simpson October 10, 2012 / 8:14 pm

            And this will accomplish … what? And how will that help us understand what actually happened?

          • Ned B October 10, 2012 / 8:45 pm

            I think historians could do a better job describing and evaluating the views on the subject at the time which could enhance the understanding of what happened.

          • Mark October 10, 2012 / 10:26 pm

            jfepperson, Al, and Ned: Those who opposed secession, for example Lincoln, did not think secession was illegal. Because the Constitution doesn’t provide for something doesn’t make it illegal. They understood that the natural (moral) right to revolution *can’t* be declared illegal. Moral trumps legal when there is any daylight between them, which is frequently. There is the spirit of the law and the letter. Revolutions are by definition extra-legal. That said, I think most at the beginning of the CW thought it wasn’t actually a revolution, but rather probably just a plain insurrection. After the war became a death struggle I think they thought it was no longer merely an insurrection whatever it was when it began.

            But the philosophical assumptions used in any debate past or present must be stated, and if they’re not it will have a negative effect even on how we understand how contemporaries understood past events because they had philosophical assumptions too, and if we don’t know what they were we’re not going to understand why they did what they did. So I’m for stating the philosophical issues and I have I’m quite sure as Lincoln did. I’d say that we can profitably argue the philosophical assumptions–a limited and definite objective–for those who honestly don’t understand. Those who can’t come to grips with these philosophical aspects aren’t serious enough to understand the matter sufficient to join the discussion, and those who could but refuse to in order to claim hypocrisy or ill-will of the Unionists.

            But even for those who do agree on the framing of the questions, that won’t get us to agreement on justification or not of the war or opposing secession. I fully agree that is futile and tiresome.

          • wgdavis October 10, 2012 / 11:54 pm

            Just because the two words both start with the letters r and e doesn’t mean they mean the same thing. A Revolution seeks the change of a government to another form by overthrow, while rebellion is an uprising against the authority of a government.

            The American Heritage Dictionary defines Revolution as:

            “The overthrow of one government and its replacement with another.”

            and rebellion as:

            “1. Open, armed, and organized resistance to a constituted government.
            2. An act or a show of defiance toward an authority or established convention.”

            The south did not attempt to overthrow the government of the United States. It did rebel against the authority of the United States, in essence, rejecting a constitutionally legal national election, then attacking government installations and finally attempting secession.

            I don’t know about you, but I find the order of those three events to be completely without any justification, and honor.

          • Ned B October 11, 2012 / 3:41 am


            On the contrary, “Those who opposed secession, for example Lincoln” argued that secession was illegal. An insurrection, by definition, is in conflict with the law, and is thus illegal. Some put forth arguments that secession was prohibited by the Constitution (I have found Henry Clay’s argument persuasive), so your statement that ” Because the Constitution doesn’t provide for something doesn’t make it illegal” is not applicable.

          • Mark October 11, 2012 / 12:54 pm

            Can you cite a reference where Lincoln says he believes secession was illegal? Look, he knew that the right of revolution trumped all. He also didn’t believe in the beginning it was a revolution, but rather an insurrection. But that isn’t the same thing as arguing publicly that secession was illegal. I’d want to see where you think he argues for that. I don’t think he ever did.

          • wgdavis October 11, 2012 / 5:08 pm

            There you go again, arguing secession is revolution. You denied that you were doing so, claiming in two posts, “I get it.” Obviously you do not get it.

            Revolution strives to overthrow the government.

            Secession did NOT seek to overthrow the government of the United States to another form.

            You need to put the word Revolution away in this discussion. And no, rebellion only half fits.

          • Mark October 12, 2012 / 7:28 pm

            There you go again, arguing secession is revolution.

            No, you said that secession was a revolution “has not been accepted”. My position is that it was accepted by many at the time.

            >> You denied that you were doing so, claiming in two posts, “I get it.” Obviously you do not get it.

            You don’t grasp my view. Let me summarize it so you can understand.

            1) It was widely believed to be a revolution even by diehard Unionists. About any abolitionist or radical Republican likely believed this. Wendell Philips, Thaddeus Stevens, etc. Many Confederates did too, but surely the opinion of those you agree with carries more weight.

            2) I think it is pointless to argue over whether it was since clearly many people did see it as a revolution at the time on both sides. As Brooks has argued, better to understand why they thought it was a revolution than to pronounce judgement on it. If it was a revolution it wasn’t a legitimate one

            3) I do not think secession or the war was in any way justified from the Southern side. I can understand why they did it, but all their reasons were bad and whether it was a revolution or not it was a movement without legitimacy. Wars and things like secession can only be extralegal matters. They are not legal, nor illegal, but can only be moral or immoral. I regard the Southern cause to have been immoral, unwise, and foolish. After all those years they believed their own lies in the end and thought themselves superior in character to the “shopkeepers and merchants” whose lifestyle led to enfeeblement.

          • Ned B October 12, 2012 / 12:09 pm

            See his inaugural address — “It follows from these views that 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.”.

            I thought this concept — the US position that secession was illegal — was well known.

          • Rob Baker October 11, 2012 / 6:59 am

            I agree with what Ned and Mark are saying. Understanding the opinions, or the arguments rather, on secession/anti-secession advocates of the time only serves to enhance our understanding of the event. Why does this matter to the modern debate over the subject? I don’t think it helps our understanding of the event by debating this topic with certain individuals. What it does do, IMO, is to become familiar with the arguments and counter arguments presented on the legality of secession in the present. This way, Historians and educators alike are more familiar with the current trend in order to address such questions at panels, NPS’s events, the classroom, and so on.

          • wgdavis October 11, 2012 / 5:11 pm

            Simple: it was the same arguments at the time.

  5. Charles Lovejoy October 10, 2012 / 5:27 pm

    >”Simple. What we know is that people at the time of the Civil War disagreed over whether secession was constitutional.”< IMO in part lead to war. I also think the "Debate over Secession’s Constitutionality' is irrelevant.

    • Mark October 11, 2012 / 1:11 pm

      I think the debate over whether secession was a revolution is irrelevant. I don’t think the debate over secession’s Constitutionality is irrelevant because I think for many people it contains a fallacy. “Not Constitutional” does not mean “illegal”. In other words, not legal doesn’t mean illegal, because some things are extralegal.

      For example, a kitten isn’t legal but it also isn’t illegal. To say a kitten isn’t legal is a true statement. To say therefore a kitten must be illegal is a false statement.

      So in my opinion the debate over secession’s Constitutionality isn’t pointless because it points out a common fallacy that is important. But I do agree that there is an irrelevancy at a lower level and unnoticed. Namely, the debate over whether secession was a revolution. It was widely thought to be at one point, and even in retrospect by knowledgable scholars (McPherson, Jaffa, etc.) To say it wasn’t really one is about as useful as arguing over whether dark or light beer is the best.

      “[The Constitution] is a most excellent bridge–as far as it goes–and if it ever comes to harm it will be from those who seem determined that no part of any flood shall reach the sea except by going under its arches.” — Elizur Wright

      • wgdavis October 11, 2012 / 4:27 pm

        I’d suggest to you that you get a better dictionary. And maybe a course in logical reasoning.

        Can you please provide the speciffic citations from McPherson and Jaffa, and etc., that support your statement that secession was thought to be revolution?

        • Mark October 11, 2012 / 5:58 pm

          You’re asking for a specific citation for why the war could be seen as a revolution in a book by one of the wars foremost scholars titled “Abraham Lincoln and the Second American Revolution”? Come on.

          I ask again. Does it make sense for one side to see the war as a revolution and the other not? I’ve said arguing over whether the war was a revolution is pointless. It doesn’t justify anything. I think you think I’m making some major concession to the Confederate side, but I’m not. I’m saying you’re fighting the wrong battle and missing out on the understanding part that Brooks is talking about.

          • wgdavis October 11, 2012 / 10:21 pm

            Yes, I am asking for specfic citations that support your comments in the post to which I responded.

          • Mark October 12, 2012 / 7:32 am

            I’m not going to read you the dust jacket if you haven’t read the book, don’t care to rouse yourself to go to and click the “look inside” to read the introduction, and don’t even think the title is informative in any way.

            Besides, the same discussion is now spawned in the other thread now: The American Revolution … Not the American Secession

          • wgdavis October 12, 2012 / 4:27 pm

            So, you are not willing to back up your statement? I don’t think you ever read it, or owned it, but are simply dropping McPherson’s name and the title to try to bolster your argument. If you are going to do that you need to provide the cites when asked for them.

          • Mark October 12, 2012 / 6:40 pm

            You have studiously avoided commenting on whether or not you agree or disagree with my contention that it makes no sense for one side to accept that the war was a revolution, and also hold that it couldn’t have been for the other side. Why is that? How about commenting on what I’ve already said? Do you really refuse to read the first essay in the “The Second American Revolution” and wish me to pick from the many citations in it and type them for you?


            If I don’t type a citation for you are you entitled to declare it not a citation? If a tree falls in the forest . . .

          • wgdavis October 12, 2012 / 8:06 pm

            Mark wrote: “You have studiously avoided commenting on whether or not you agree or disagree with my contention that it makes no sense for one side to accept that the war was a revolution, and also hold that it couldn’t have been for the other side. Why is that? How about commenting on what I’ve already said?”

            I think you have a comprehension problem as I have consistently posted in response to you that you are wrong about the word Revolution as you are using it.

            Go back and read my posts.

          • wgdavis October 12, 2012 / 8:45 pm

            I would also note that you are avoiding posting the citations for which I asked after you used them in your argument. That means reproducing the parts of the work you think supports your claim as a quote.

  6. chiefonliberty October 10, 2012 / 5:31 pm

    One need only look to the ratification debates. Virginia specifically stated that they maintained the right to withdraw from the compact when they ratified the constitution.

    • Brooks D. Simpson October 10, 2012 / 5:36 pm

      The weakness with this argument is that if a state did not so specify, then they did not reserve that right. Had the right been assumed, there would have been no need to specify it.

      And yes, I’m aware of what Madison said about this.

      • Margaret D. Blough October 10, 2012 / 11:26 pm

        People keep saying Virginia said this and they’re wrong. Madison and Hamilton were not only among the primary drafters of the text of the Constitution, each was the leader of the ratification forces in his state. At the time Hamilton wrote the letter that got Madison’s reply, he was determining how to handle the Lansing amendment which would have reserved a right to leave but only if certain proposed amendments were not submitted to another convention within a given time. Hamilton was seriously asking Madison about Madison’s position of the consequences if the New York convention passed the amendment, etc. New York’s failure to ratify would have endangered if not killed the ratification of the Constitution. This wasn’t people looking at long past events and trying to justify their actions. This correspondence occurred when the answers to these questions mattered and were answered by the man whose opinion was critical. It was certainly critical to the NY ratification convention. The Lansing Amendment was defeated and NY followed the Massachusetts model of recommending amendments,some of which later became part of the Constitution as the Bill of Rights. There were other arguments made for the constitutionality of secession that had more weight to them even though I’m not persuaded by them, but the purported expressly reserved right of secession is bunk.

        To me, there is another subtext that we are not dealing with: the issue of who’s responsible for a war that left a major portion of the country devastated and a substantial portion of men of military age dead or maimed. The comparison between the writings of secessionists going into the Civil War and after (even in the dying days of the war) are striking. Yes, at the beginning there were some who made an impassioned argument that secession was legal. There were some who went straight to the right of revolution and rejected trying to claim legality for secession. But there was a lot more bravado and a striking belief that legality ultimately was irrelevant because the Yankees were incapable of resisting. That last belief proved appallingly and tragically wrong. Therefore, it became important among former secessionists to prove that secession was constitutional and that the US government’s actions were illegal coercion, placing responsibility for the death and suffering on the US government.

        • wgdavis October 11, 2012 / 1:08 am

          Thank you Margaret, I think that is a stunningly accurate analysis.

        • Mark October 12, 2012 / 7:34 am

          >> Therefore, it became important among former secessionists to prove that secession was constitutional and that the US government’s actions were illegal coercion, placing responsibility for the death and suffering on the US government.

          Right. And in their old age they wrote memoirs and declared their superior understanding and practice of Constitutionalism. It was total malarky, but it was bought hook, line, and sinker. Only now are these claims starting to be examined in light of actual evidence.

          • wgdavis October 12, 2012 / 8:46 pm

            Are there two different Mark’s posting in this thread?

          • Mark October 13, 2012 / 11:03 am

            Yes wg. There is the real Mark, and the one spawned in your imagination by the cognitive dissonance by conflating natural and legal rights. You simply don’t understand what I’m saying and you think I’m double-minded on secession or the war. I am not saying anything that the Founders didn’t say and believe. But I’ve just learned the futility of arguing such points with those unfamiliar with certain other arguments.

            Look wg, I suspect we’re in total agreement with what I think you wish to say. I just think you’re employing the argument at the wrong time and to the wrong people. The Confederates went on and on about their superior Constitutional sense and the other sides allegedly blatant disregard or misguided understanding of it. So after secession they set up their own government with no institutional reforms to try to counter it whatever. The Confederate government wasn’t a different type of government in terms of formal structure at all (though it obviously was in terms of underlying belief as the “Cornerstone” speech and common knowledge shows. It’s as if they forgot all about the decades of blathering about Northern Constitutional malfeasance, and implicitly telegraphed that the separation of powers of the American government really were sufficient for a formal government structure to protect liberty. The problem was that the leaders in fact didn’t protect Constitutional liberties very well or as well as the Union, and though the Confederate government structure didn’t formally change in ways meant to address any problems they say with the old government, because of the social/political nature of the South and military necessity Davis almost always got his way and practically was able to nullify the Confederate Congress in ways that Lincoln could never have dreamed.

            Isn’t that what you are afraid I don’t understand? And even if it isn’t, I’m persuaded of the futility of discussing natural rights again unless among those who are interested in political philosophy. I think I’ve had enough.

        • Mark October 12, 2012 / 6:14 pm

          >> There were some who went straight to the right of revolution and rejected trying to claim legality for secession.

          But Margaret, do you see that declaring something a revolution does not make it legitimate, moral, or even not-evil? The term revolution is morally neutral. It doesn’t confer anything good of its own on the enterprise. That is why it is irrelevant.

          In fact, I think most revolutions are morally tainted. The American Revolution was one of the few that was principled to the degree it was. When I hear revolution I tend to think of dictatorships. Somehow people think it confers legitimacy, but it doesn’t in any way.

          • wgdavis October 12, 2012 / 8:48 pm

            Nor does declaring something a revolution make it a revolution.

            Do everyone a favor, most of all yourself, and look the word up in a dictionary. Then see if you can fit it to what the slave states were doing by secession.

          • Mark October 12, 2012 / 9:00 pm

            Ok, I did a google search on ‘revolution dictionary’ and this was the first entry:


            “1. an overthrow or repudiation and the thorough replacement of an established government or political system by the people governed.”

            This isn’t your definition is it?

          • wgdavis October 12, 2012 / 9:45 pm

            That is the definition of a revolution. Secession did NOT seek to overthrow or change the United States government.

            Ergo, secession was in no way a revolution.

            Now, before you bring up 1776, you should understand that in terms of the American Revolution, think of it in terms akin to the Industrial Revolution, in that the American Revolution is used as a description of the creation of something new. For example, TV ads for a new model car “the revolutionary new Miata”. As a new model from the manufacturer it is something brand new. The US after independence was a revolutionary new form of government [which we often refer to as the Grand Experiment because it is ongoing as is its evolution], never seen before.

            Now the French actually had a legitimately termed revolution as they overthrew the monarchy [violently and bloodily], and instituted their version of a Republic. That is the first definition, the one you posted, the overthrow. It has its root in the Latin word ‘revolutio’ meaning to turn around, and is linked to the usage as in a wheel’s full turn being a revolution. In this case, however, it requires a complete change of an existing structure/form of government, from within, like the French did in the 1790s, and the Russians did in the early 20th Century. Those were revolutions. So was the Cuban revolution in the early 1960s.

            The American version was different in that they broke away from a colonial power that was more of an owner than a governor. Yes they changed their American form of government, but not the British form of government which would be necessary to be able to legitimately call it a revolution.

            Secede is defined by the American Heritage Dictionary as “To withdraw formally from membership in an organization, association, or alliance.” This accurately defines what the slave states attempted. Revolution does not. Indeed, the Confederate Constitution was almost word for word a copy of the US Constitution, with a few marked alterations. So you can’t even point to the ‘new’ government created by the Confederacy as “revolutionary”, and no matter who did call it such, it was, in reality, and exactitude, not a revolution.

            You cannot reasonably make the two words ‘revolution’ and ‘secession’ mean the same

            You can call the Constitution a peaceful revolution in that they created, out of one brand new form of nation, another one also never seen before [though modeled on earlier republics.], and did so without a shot being fired, although there certainly were angry words.

    • Ned B October 10, 2012 / 6:14 pm

      Except thats not what Virginia specifically stated. Even if they had said what you allege, so what. Things said in a ratification debate are not law.

  7. wgdavis October 10, 2012 / 8:17 pm

    I think that if there had been some movement in Congress to establish a path to peaceable secession it would have been reasonable to secede whether that path had been found after being given enough time to do so, or if it had not been found because of recalcitrance on the part of either side.

    My main argument about the issue’s constitutionality is that it was never discussed withing the venues of the US Government, and therefore, it remained an issue to be determined BEFORE it was attempted.

    Reserving the right of secession during the ratification process may, or may not have been a legally binding right because of two things:

    1. It was part of a process that asked for a simple yes or no to the ratification question, therefore, anything else that went with that answer may or may not have been irrelevant because…

    2. It had never been tested in court. Most likely some court case should have been used to test the legal validity of the right of a state to secede. Pointing to a ratification statement with reservations expressed by the state ratification conventions also doesn’t hold up because said reservations were expressed before the Constitution was fully ratified. An argument could be made that says such statements were without any legal grip under the Constitution.

    Since secession was declared unilaterally, and extra-Constitutionally, Lincoln was certainly well within his duties to call for troops to quell a rebellion under Article 1, Section 10:

    Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emits Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
    No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
    No State shall, without the Consent of the Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

    …which, or course the seceding states promptly began to do just about all of the above, many prior to joining the Confederacy.

    And, while the Constitution does not expressly allow or forbid secession, it certainly forbids the actions of the seceded states in forming the Confederate States of America. Unless and until the secession issue was solved, then…

    • Mark October 10, 2012 / 10:34 pm

      >> [Seccession . . . had never been tested in court.

      There is no court to test it in unless both parties agreed to binding arbitration. And there was no one to impose it because you’d need a court superior to a national one to rule. If you argue before a judge that has no authority to rule on a case that isn’t a legitimate court for the case. Grant said the matter had been “decided by the highest tribunal . . . the force of arms”. Revolutions have to be decided by force. If not a revolution it still has to be put down by force. Courts could never settle anything like secession.

      • wgdavis October 10, 2012 / 11:42 pm

        You argue a premise that has not been accepted…it was NOT a revolution. It was NOT an attempted revolution. There was no seeking to alter the US form of government, but rather a rebellion against the authority of the US Government. It took the form, essentially, of a denial of the legally valid election for president, and moved from there to armed insurrection against [principally] US forts and arsenals throughout the south. All this BEFORE a single vote for secession was cast by any state other than South Carolina. As these acts and South Carolina’s secession vote were obvious signs of a coordinated series of events it becomes evident that the southern states had entered into a confederation even before declarin such officially. They were, in early January 1861, in violation of Article 1, Section 10 of the Constitution.

        Now, as to the courts, secession was an issue on which they could rule since they did make their decisions on the Constitutionality of numerous act and laws.

        The sad thing is that the cowards that conspired for decades to push the south into secession never attempted to seek a peaceful separation, thus guaranteeing more than a half million deaths that could have been averted.

        For example:

        “When Lincoln comes in he will have but to continue in the path of his predecessor to inaugurate a civil war and, leave a soi disant democratic administration responsible for the fact. ”
        –Jefferson Davis Letter to Franklin Pierce 20 January, 1861

        • Mark October 11, 2012 / 12:30 pm

          >> You argue a premise that has not been accepted…it was NOT a revolution. It was NOT an attempted revolution.

          I’m just saying that the right of revolution trumps all. Whether is was or not is truly a pointless debate. In some ways it was and some ways it wasn’t. I’m sure you’re aware that McPherson wrote the book “Abraham Lincoln and the Second American Revolution”, and Jaffa “A New Birth of Freedom”. If many on one side have come to see it as revolutionary in hindsight, then I don’t see the point of claiming it wasn’t in the perspective of the other side.

          Look, I get your point and probably agree. It was an insurrection in most ways and seen as such in the North for quite some time at least. But then the view changed, and in fact the war changed. So you are oversimplifying to say that it was a revolution has not been accepted without qualification.

          • wgdavis October 11, 2012 / 12:49 pm

            It is NOT pointless.

            McPherson was NOT referring to secession when he wrote about Lincoln and the second American Revolution, but rather was writing about the revolutionary ‘rebirth’ of the US during the Lincoln administration. Revolution, you see, need not be violent. If you read it at all, you would know this and not put it up to bolster your argument about secession.

    • Rob Baker October 11, 2012 / 7:05 am

      Texas v. White decided whether or not secession was Constitutional.

      And in line with the majority opinion, it is very easy to see that the Constitution is a document that strengthened the “Perpetual Union” created by the Articles of Confederation. It is simply unreasonable to assume the Constitution’s purpose of strengthening the union also allows for secession.

      • wgdavis October 11, 2012 / 7:57 am

        But that was in 1869, not prior to secession. What I am arguing is that the South did not seek to change the Constitution to allow secession, by seeking to establish common ground of disagreement withtthe rest of the nation. They could have, either through Congress, or through the courrts, sought to establish a legal path to secession.

        Instead, they conspired to unilaterally secede with no legal precedence or path agreed to by the several states, as the Constitution was. Ratification was not an all or none proposition, it required 9 states to pass the Constitution into effect. There was, via that process, I believe, a legitimate and legal opportunity to establish a path to peaceful, legal, Constituional secession.

        • Mark October 11, 2012 / 12:41 pm

          I get all that. I could be wrong but I don’t think the Confederate constitution allowed for secession. Most of the Confederate argumentation was entirely fraudulent. I totally agree with you. My only point is that the right of revolution trumps anything found in the Constitution. Independence movements can arguably be said to be revolutions and it isn’t a hard case to make that the Confederates wanted that even if it was for the purpose of defending slavery. At the end of the war the peace negotiations foundered over Davis insistence over independence. What they wanted it for doesn’t change that. It is pointless to argue over whether secession was a revolution, because it seems to have started one in any case.

          THE ENTIRE POINT is that one side can’t claim secession was illegal any more than the other can claim it was legal. It was arguably an independence movement, or at least became one, and so the moral right to revolution trumps the written law. Secession was EXTRALEGAL, which means it isn’t governed by law at all. It is neither legal nor illegal.

          • wgdavis October 11, 2012 / 12:52 pm

            No, you keep trying to redefine the point, and whle it is true that revolution is the last resort of the oppressed, southern secession was in no way, shape or form a revolution. Arguing the validity of revolution while discussing southern secession is simply going up a blind alley. You get stuck up there and nobody misses you.

  8. Patrick Young October 11, 2012 / 4:02 am

    Generally parties to a legal dispute do not try to resolve the constitutionality of the question at hand by opening fire on a Federal military installation.

    • wgdavis October 11, 2012 / 1:08 pm

      Correct, although there may be some that would love to do just that! 😉

  9. BorderRuffian October 11, 2012 / 5:55 am

    How many of the Southern states said they were applying the theory/process of Secession in leaving the Union?

    • wgdavis October 11, 2012 / 8:00 am

      Theory is one thing and that does not make anything necessarily legal. Process in this case was an act of violence perpetrated in conspiracy among the states attempting secession.

  10. Caldwell October 11, 2012 / 11:53 am

    But we have to remember that the “Perpetual Union” of the AoC lasted, oh about 7 years, before the respective parties lawlessly seceded from it. We must also remember that the illegal secession from the AoC firmly established, for all future generations, an undisputed right of secession (of course that right had already been firmly established when the colonists seceded from the British Empire-a right that Texans employed rather aggressively in seceding from Mexico-but only after Mexico had seceded from Spain-so really, it is an absolute truth that without the right and praxis of secession, the United States , quite literally, could not exist).Then of course, we have the plain language of New York’s ratification, which explicitly reserved the right to secede (Virginia used similar language in her reservation of secession):

    “…That the Powers of Government MAY BE REASSUMED BY THE PEOPLE, whensoever it shall become necessary to their Happiness…”

    That’s the funny thing about being a Unionist; on the one hand, you have to be willing to completely ignore plain language that does exist (Virginia and New York’s reserved right of secession), and on the other, be quite willing to convince yourself that language that does not exist, actually does exist (a constitutional law of perpetuity). In that sense, it all seems strikingly like the anfractuous intellectual reasoning Salmon Chase exhibited in Texas v White. In one sentence, Chase solemnly declares that the Union was “perpetual”, and, in the very next sentence, he insouciantly delcares that that very same “perpetual union”, had been dissolved after a mere seven years.

    • Brooks D. Simpson October 11, 2012 / 12:03 pm

      Actually, one could argue that the AoC was an instrument of a perpetual union, and that the members of that union agreed to join the new order of the Constitution. So what you are arguing is that secession would be legitimate if it received the consent of all (or most) parties to the contract, much as happened in 1787-88. That did not happen in 1860-61. The states in 1787-88 did not say that they seceded from the AoC … because then you would have to produce a document for each state declaring its secession from the AoC.

      We’ll wait.

      • Caldwell October 11, 2012 / 1:10 pm

        “Actually, one could argue that the AoC was an instrument of a perpetual union, and that the members of that union agreed to join the new order of the Constitution. So what you are arguing is that secession would be legitimate if it received the consent of all (or most) parties to the contract, much as happened in 1787-88. That did not happen in 1860-61. The states in 1787-88 did not say that they seceded from the AoC … because then you would have to produce a document for each state declaring its secession from the AoC.”

        1. No one could honestly argue that, because Article VII makes it clear that once nine States had ratified, the Constitution became binding, but only “BETWEEN THE STATES” which had ratified. The remaining States were under absolutely no obligation to ratify, and were free to remain independent, unite under their own Confederacy, unite with Canada, re-join the British Empire, or do anything else they might have wished to do. This means, of course, that the United States under the Constitution, was a new, unique, seperate, and distinct Union. The terms of the Union are also, very obviously, quite distinct from the AoC (for example,there is no law of perpetuity in the Constitution as there was in the AoC).

        2. In the secessions of 1776, 1787-88, and 1860-61 each State (colony) determined for itself to secede. And yes, unlike the secessions of 1776 (illegal), and 1860-61 (perfectly legal), the secession of 1787-88 was unattended by a general promulgation. Unless you consider Federalist 40 such a promulgation.

        • Brooks D. Simpson October 11, 2012 / 4:12 pm

          Careful, Caldwell. I don’t think you should be holding forth on what people “honestly” say. Otherwise you would offer the evidence asked for in support of certain claims you’ve made. That you decline to do so reflects on your honesty and integrity.

          A state is not a colony, and a colony is not a state. There was no secession in 1776, and there was no secession in 1787-88. There was no general promulgation in 1860-61: there were several statements. In 1787-88 there was a ratification process that served the same ends, as you’ll see from the correspondence of transmittal.

    • Ned B October 11, 2012 / 12:51 pm

      So much wrong here.
      1) The respective parties did not lawlessly secede from the AoC nor was the union “dissolved after a mere seven years” — we still live in that same Union.
      2) The occurrence of secession at one time in one place under one legal system does not make it legal everywhere anytime under any legal system. Thus the claim that what may or may not have happened in Mexico or the British Empire doesnt explain what the circumstances in the USA.
      3) The NY and VA statements do not say what you claim they say. For the People as a whole to reassume the powers they delegated to the government is not the same as one member state or even a subset of the people claiming it can withdraw from the union.

  11. Bob Huddleston October 11, 2012 / 1:03 pm

    The argument about the legality of secession creates a problem: if I argue that what I am doing is legal and you claim it is not, we go to court to determine who is correct. When we both show up we are agreeing that the loser will abide by the decision. If the slave states had gone to court, then when they lost, they would have had to go home. Considering how the Court ruled in the 2862 Prize Cases, 7-0, including Taney, let alone how the court ruled in the pre-war Abeleman case, there is little doubt what the decision would have been.

  12. wgdavis October 11, 2012 / 1:06 pm

    See what happens when you call the debate over secession irrelevant?

  13. Bob Huddleston October 11, 2012 / 1:09 pm

    The insistence that secession was legal at heart is trying to lay blame. It goes back to Stephens’ 1868 Constitutional History of the WBTS_ (a phrase he invented)._ Stephens and the other Lost Cause supporters, then and now, faced a serious issue: if secession was not legal then Davis, Stephens, Lee, et al, were responsible for the murder of 6 or 700 thousand Americans. Further, by then it was obvious that defending slavery was not something to want to be remembered for. Stephens also had the problem of wanting everyone to forget the Cornerstone speeches.

  14. Bill Newcomer October 11, 2012 / 4:32 pm

    I have not seen any discussion in this thread regarding the opposition to succession from within the states that “succeeded”. What were the succeeding states going to do with the sometimes significant numbers of the population (such as East Tennessee and West Virginia and parts of North Carolina that opposed secession as well as conscription into the Confederate Army)? Was the federal government under obligation to abandon those loyal citizens of the Union? Secessionists didn’t want to accept the results of the freely democratic electoral process for President, but they also would not let loyal union citizens within there border to do likewise with regard to the ratification of the acts of secession. The most damnable myth of all in the “Lost Cause” mythology is that of an unwavering Confederate solidarity in the south. That is also a matter that need consideration in any discussion of the supposed “legitimacy” of “secession”.

    • wgdavis October 11, 2012 / 10:22 pm

      How did succession get into this discussion?

  15. Caldwell October 11, 2012 / 5:07 pm

    1. The Union under the AoC was most certainly dissolved, and dissolved illegally. Madison openly concedes this in 40, and Chase himself declared this in Texas v White.

    2.The Virginia and New York references to “The People” obviously refer only to the people of each State, and certainly not to the “whole people” of the United States. Politically speaking, there is not now, nor ever has been a “whole people” in the United States. Indeed, the people of each State ratified for themselves, and themselves alone. And they were clearly entitled to rescind that ratification on behalf of themselves.

    • wgdavis October 11, 2012 / 10:47 pm

      By your logic, then all the states, not just the slave states, should have submitted their ‘ratification rescindment’ for a 2/3 vote, then the Union would have been dissolved. Individual states ratified, but the agreement was not final until the ninth state to ratify submitted its vote. Ergo, the same method should be used and not for secession but for dissolution. [Secession implies there would be some state[s] left that did not secede. No, it had to be for dissolution so they all could have an equal voice.

      At that point the states would all be completely sovereign again and could legally join into a confederation with other states. It may have resulted in what actually occurred PLUS most of the Border States within the CSA, and the non-slave states reconstituting the United States with the same constitution, just requiring another ratification process.

      But that is, of course, if the separationists could get a 2/3 majority. Now then, there were 33 states if you do the vote before Kansas is admitted. 11 became the CSA, and there were 5 Border States, so that means there were 16 states that COULD and likely WOULD vote for dissolution, but 17 states that would vote against it. No 2/3 majority there.

      So, undoubtedly the slave states would refuse to accept the out come of that just as they refused to accept the outcome of the 1860 election.

      Amazing…there was no chance for independence for the states seeking to protect an immoral and inhumane institution.

      That leaves us with the deaths of over a half million Americans sacrificed to eliminate an institution that should have been eliminated either by the Constitution when it was ratified, or shortly thereafter. If the slave interests had compromised more in the Constitutional Convention and agreed to gradual emancipation that would eliminate slavery by 1850 [almost 60 years], we would be discussing why it took so long rather than why did we have to kill so many Americans to get it done.

      Sorry, can’t help salve the southern conscience today.

      • Caldwell October 12, 2012 / 12:02 am

        Not even close. The requirement that nine States needed to ratify to form the Union was explicit, while there was no provision at all regarding secession. And in the absence such a provision, and in the absence of a constitutional prohibition against secession, the respective States were at perfect liberty to secede at their pleasure. Meaning, of course, that the deaths of some 700,000 Americans is to be blamed on the Mafioso-style (thanks Peter) Lincoln administration.
        But of course, that doesn’t consider that the Union and its slave States were not fighting to end an immoral and in humane institution, only to impose Mafioso rules (you can join, but death if you leave) on the Southern States.

        Sorry, but I just can’t assuage the northern conscious today.

        • wgdavis October 12, 2012 / 4:44 pm

          Nothing wrong with my conscience.

          Oh, and you fail to grasp the point. If you are going to use the ratification statements, then accomplish secession peacefully the same way you entered the Constitutional entity called the United States. It was a majority [2/3] vote. Rehash the Federalist Papers and put it to a national vote of all the states.

          Or, you can kill over a half million people like you did as a result of the strict adherence to the Institution of slavery and rejected a lawful and legal election.

          • Caldwell October 12, 2012 / 8:16 pm

            No problem at all with my Confederate conscious, none at all. You however, still don’t seem to understand the main point, so I will explain it to you. The ratification process under Article VII specifies that nine States are needed to establish the Constitution. It says ABSOLUTELY NOTHING about a 2/3 vote. The Constitution also DOES NOT impose a prohibition against secession (the way, for example, the AoC did). Not that that mattered, because the States ignored it and seceded from the AoC anyway.

            Now then, why the slave-owners in the United States would want to slaughter 700,000 Americans to impose its Mafia-style government on the free people of the Confederate States, well, that’s for you to sort out.

          • wgdavis October 12, 2012 / 9:03 pm

            Hello? Do we need a math lesson here? 9 states was the number that guaranteed at least 2/3rd of the 13 states had agreed to ratification. They could have specified 7 to show a half plus one, a simple majority, or 10 show more than 2/4 of the states, or 13 making it mandatory for all to agree before the Constitution was implemented. But the states agreed to abide by a super majority rather than a simple majority.

            The constitution does not impose a prohibition against secession nor does it specifically enumerate that secession is a right of the states.

            Not for me to sort out, it got sorted out the hard way by 1865.

          • Caldwell October 13, 2012 / 12:23 am

            Evidently we do need a math lesson here. Especially if you keep insisting that 9/13=2/3. It does not. Never has and never will.

        • Ned B October 13, 2012 / 10:26 am

          Caldwell wrote “The requirement that nine States needed to ratify to form the Union was explicit”. This is a misreading of the Constitution. It is explicit that nine states would be sufficient to put the Constitution into effect between those nine states. What is also explicit in the Constitution is that the Union was already in existence.

          • Caldwell October 13, 2012 / 3:14 pm

            Ned B wrote:

            “What is also explicit in the Constitution is that the Union was already in existence.”

            What is explicit is that the Union under the Constitution could exist only when the Constitution was ratified by nine States, Until then, it simply did not exist.

    • Ned B October 12, 2012 / 11:56 am

      1. No dissolution of the AoC was enacted by any state; the Union under the AoC continued under the Constitution. That is why the USA celebrates its independence based on a date in 1776 not in 1789.

      2. Incorrect. For example, the Virginia statement said “…the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted…”. The People of the United States. Not the People of Virginia by themselves. Politically speaking there has always been a whole people in the United States. The Declaration of Independence starts by referring to “one people”. In addition, not state accepted the Constitution and Union by themselves. For the initial states, the ratification by a state for themselves had zero effect until at least 8 other states had ratified and Congress acted. And for subsequent states ratification by a state for themselves had zero effect until congressional acceptance.

      • Caldwell October 12, 2012 / 5:44 pm

        1. The States undoubtedly seceded from the AoC. One by one, and in open, flagrant defiance of Article 13. That is why we now have an executiive branch, and a legislative brach, neither of which was established under the AoC. Oh, and maybe you can also show me the invitation to Canada to join the Union that was in the AoC. I keep looking, but I can’t seem to find it in the Constitution.

        2. There is not now, nor ever has been, in any capacity, a whole people of the United States. There is not one single function of government that is carried out by the people of the United States as a whole. Not a single one. And yes, each State ratified for itself, and only for itself. Here is Madison from Federalist 39:

        “…this assent and ratification is to be given by the people, NOT AS INDIVIDUALS COMPOSING ONE ENTIRE NATION, but as composing THE DISTINCT AND INDEPENDENT STATES TO WHICH THEY RESPECTIVELY BELONG…each State in ratifying the Constitution, is to BE CONSIDERED AS A SOVERIEGN BODY, INDEPENDENT OF ALL OTHERS…”

        The Declaration has no bearing on the question, as it is not a legal document. Even then, it repeatedly refers to the “United States” of America, not the “United People” of America. It also refers to “free and inpependent States” and not a “free and independent People”. It aso says “…and to do all other acts ang things which INDEPENDENT STATES may of right do. It does not say which an “INDEPENDENT PEOPLE” may of right do.

        Did you ever wonder why the very name of the country is “The United STATES of America” and NOT “The United People of America”?

        “The United People of America”. Kinda makes you laugh, doesn’t it?

        • wgdavis October 12, 2012 / 8:40 pm

          Your post is so far out in left field that it is beyond laughter.

          And I would suggest to you that the national elections are a function of government carried out on a regular and peaceful basis by the people of the United States.

          Now, the Declaration was not a legal document? Of course it was. It established the nation’s independence.

          As for the people’s involvement, you need to look up the word “Republic”.

          The Declaration started off referring to the poeple:

          “When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

          and it ends with the formal declaration of independence:

          [and here is where you need to understand the meaning of the word “Republic”…have you looked it up yet? Here it is from the American Heritage Dictionary: “A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them. A nation that has such a political order.”]

          “We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.”

          Thus was the nation of the United States of America established as an independent nation, formed as a republic, named, and justified.

          By the people, via their elected representatives, just like it is done today.

          • Caldwell October 12, 2012 / 11:05 pm

            I hope you don’t mind, but your post gave me deep, deep, belly laughs. The DoI is a legal document?! Too rich! It is a piece of hackneyed political propaganda, and nothing more. The vote to adopt Virginia’s Resolution of Independence, introduced by Richard Henry on June 7, and adopted July 2, TWO DAYS BEFORE the DoI was adopted is what legally produced American Independence. And of course the Treaty of Paris, which I will come back to, with a special glee. The DoI was pure political theater. And do you mean the “national elections” whereby a President may win the vote of the “national majority” and still lose the election? Is that the “national majority” you are talking about? Or maybe you are talking about the “national majority” whereby a small fraction of the population can impede the overwhelming majority in the constitutional amendment process? Maybe that’s the “national majority” you are talking about? So yeah, go ahead and name one, just one, function of government that is carried out by a vote of your imagined “national majority”.

            ““We, therefore, the representatives of the United States of America”

            Acccording to you, shouldn’t this be representatives of “The United People of America”?

            “free and independent states;”

            Shouldn’t this be “a free and independent people” or at least a “free and independent state” if the colonies had formed one country.,

            “which independent states may of right do”

            Shouldn’t this be “a free and independent people may of right do.” or at least, a “free and independent state” if the colonies had formed a single country?

            And even your reference to “one people” is false. Jefferson was simply introducing and announcing a univeral principle. He was absolutely NOT refering to the colonies as “one people”.

        • Ned B October 13, 2012 / 9:45 am

          If you have a problem with what was written (“people of the United States”) in the Virginia ratification statement then maybe you shouldn’t try to claim it says something else. Likewise the Treaty of Paris, in Article 3, refers to the People of the United States as a whole and in its preamble refers to the treaty as being between “two countries” so perhaps that documents makes you laugh as well.

          The Declaration of Independence is an act of Congress and therefore is a legal document and that is why it is included in the US Code under a section called Organic Laws of the United States of America.

          • Caldwell October 13, 2012 / 2:59 pm

            The DoI is most certainly not a legal document. It is poltical propaganda in its purest form. Virginia’s Resolution on Independence, however, is a legal document. And if you have a problem with the fact that Virginia, and New York, explicitly reserved the right to secede, or that the Treaty of Paris specifically identified, by name, the thirteen “free and independent states”, well maybe you should just accept those simple truths and stop trying to misrepresent the historical facts.

          • Jimmy Dick October 13, 2012 / 3:52 pm

            Virginia did not reserve the right to secede. If you can’t figure that out reading the document go back to school. It’s obvious. You’re lying outright at this point. This has been explained to you over and over again and now you’re just being an ass and trying to state your lie as fact when it is nothing of the sort.

          • Caldwell October 13, 2012 / 6:31 pm

            Virginia clearly reserved the right to secede. If you can’t figure that out by simply reading the document, go back to grade school. You are just perpetrating one hollow and useless mendacity after another at this point. To make matters worse, I have explained this to you over and over again, but you insist on being an ass and repeating your lies over and over and over again. Enuff already.

          • Jimmy Dick October 14, 2012 / 6:35 am

            No state reserved the right to secede. It’s plain and simple. History shows this to be true so stop lying. If this was a court you would have to bring in facts and you don’t have any. Your failure to do so has been pointed out to you repeatedly yet you persist in lying to everyone to support your claim which is incorrect.

          • Caldwell October 14, 2012 / 8:12 am

            Not only did New York and Virginia explicitly reserve the right to secede in their respective ratifications, but that right, of necessity, inured to all the States under the compact. I do wish to make it perfectly clear however, that even without that expressly reserved right, it would still exist as a fundamental attribute of sovereignty. That you cannot accept this simple truth is puzzling, and that you prefer a crude, Mafia-style Union to an enlightened, voluntary Union is even more so. Either way, the only hope you have of sustaining your position is to lie. And lie. And lie.

          • Brooks D. Simpson October 14, 2012 / 9:18 am

            Take care, Caldwell. You’ve crossed the line again. People have asked you for proof and documentation of your assertions, and you seem unable to do that, leaving us to conclude that you can’t support your argument. That your retort is that people who engage you are lying has gotten old, non-responsive, and non-productive.

            The rest of you should move to closing statements. Thanks.

          • Bob Huddleston October 14, 2012 / 9:55 am

            “Not only did New York and Virginia explicitly reserve the right to secede in their respective ratifications” Please provide the reservation in their ratifications.

          • Jimmy Dick October 14, 2012 / 12:27 pm

            The documents from the ratification conventions are proof that there were no rights reserved for secession. Had there been those states would not have entered the union, not a compact. States made suggestions, but those were not binding. The only thing you have done on these pages is express your opinion on the matter, but provided no proof. Basically you’re expressing the Lost Cause myth and doing nothing to make your case because you are disputing proven factual history.
            Interestingly, Jack Rakove brought this up in an interview where he said the states had two choices about ratifying the Constitution. They either ratified it as is or they didn’t ratify it. Those were their only choices.

      • Caldwell October 12, 2012 / 5:59 pm

        ” No dissolution of the AoC was enacted by any state; the Union under the AoC continued under the Constitution. That is why the USA celebrates its independence based on a date in 1776 not in 1789.

        I have bad news for you. The AoC was not establisahed in 1776. Better do a little more basic research.

        • wgdavis October 12, 2012 / 8:23 pm

          I have really bad news for you. The United States established itself as a sovereign nation comprised of the 13 colonies under the Continental Congress in July 1776. From that point on we were legally an independent sovereign nation engaged in a war with the nation from which we declared our independence. The Continental Congress, at the same time the Declaration was being written, established a committee to construct a constitution under which the United States would function. The Second Continental congress began to actually operate under the proposed Articles of Confederation long before it was ratified in March of 1781. Less than a decade later the “United States, in Congress Assembled’ decided the Articles were unworkable and selected a committee to construct a new farmework document, and the Constitution we have today was under construction.

          During that process the Congress operated under the Articles of Confederation until the requisite 9 states had ratified the Constitution [actually 11 had ratified by that time], so the Articles Congress performed its last tasks of setting an election date, and a date for the electoral college to meet, and finally the date of the first Wednesday in March of 1789 at the date the Articles would cease to be in effect and the new Constitution would take over.

          There was NO secession from the articles of Confederation. They very simply ended the first Tuesday in March, 1789 and the Constitution became effective the next day.

          I cannot fathom where you learned your history but you have a very disturbingly skewed and incorrect view of the facts.

          • Caldwell October 12, 2012 / 11:25 pm

            I have some more really, really bad news for you. The colonies most decidely did not form a single country after adopting Virginia’s Resolution on Independence. In fact, here is Article I of the Paris Peace Treaty, which concluded the war of American Colonial Secession in 1783:

            “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, 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. ”

            Please note that the former colonies were refered to, in this very, very. legal document, as “free and independent states”, and NOT, I repeat NOT, as “one free and independent people”. In fact, and sadly for you, they were not even as a “free and independent state”. Nope, they were acknowledged to be “FREE AND INDEPENDENT STATES” .

          • Jimmy Dick October 13, 2012 / 3:57 pm

            Great Britain recognized them formally as it ended the war. The war was fought over that point. Now as for the free and independent states part try to remember it was 1783, and the US was operating under the AoC which means they were free and independent states operating within a confederation. Once the Constitution took effect they were no longer in a confederation and were no longer independent states. They became part of a union, not a compact or confederation. You are just mangling history repeatedly here trying to get your way. I don’t know where you received any education you have but you should really demand your money be returned to you because you didn’t learn any history in the process.

          • Caldwell October 13, 2012 / 6:27 pm

            Your lack of euridition is stunning; truly stunning. And all you are doing here is attempting to distort the established facts of U.S. history, but I won’t have it. For example, you claim:

            “Once the Constitution took effect they were no longer in a confederation and were no longer independent states”

            This is absurd. Here is what James Madison said in Federalist 40:

            “…what are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as DISTINCT AND INDEPENDENT SOVEREIGNS? THEY ARE SO REGARDED BY THE CONSTITUTION PROPOSED…”

            As far as that nonsense whereby you repeat that the Constitution is not a compact, I have already shown you that the ratification of Massachusetts explicitly calls the Constitution a compact. And so on and so on. I have corrected your mistakes many, many times, but you recalcitrantly cling to your comic-book version of history. Suit yourself….

        • Ned B October 13, 2012 / 8:18 am

          I never said the AOC was ” established “in 1776. The USA was.

    • Jimmy Dick October 12, 2012 / 7:10 pm

      The AoC were replaced by the Constitution, but note that the Confederation Congress passed a law in late 1788 once 11 states had ratified the Constitution putting the process into place for the nation to start operating under the Constitution. Nobody seceded. Two states, North Carolina and Rhode Island had not ratified the Constitution and thus were given a choice whether to join the newly enhanced union of states (no longer a confederation or compact, but union) but under no circumstances did those states secede.

      • Jimmy Dick October 12, 2012 / 7:14 pm

        The AoC government did not dissolve the confederation and that is where you make a mistake by stating that they did. That is misinformation. The union replaced the confederation. “In order to form a more perfect Union.” The legal government of the US never stopped operating, no one seceded, and nothing was dissolved. The Constitution took the place of the AoC legally.

        • Caldwell October 12, 2012 / 8:24 pm

          “The Constitution took the place of the AoC legally.”

          False. The States flagrantly violated Article 13 of the AoC to form the United States under the Constitution. Your confusion seems to originate in the fact that the illegal secession from the AoC was peaceful, unlike, for example, the violent, illegal, and treasonous secession perpetrated by the white, slave-owning, slave-trading, colonists in 1776.

          • wgdavis October 12, 2012 / 9:11 pm

            Another trip to the woodshed for Caldwell.

            You didn’t read the entire article:

            “Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

            Let us repeat the salient point for Caldwell’s edification:

            “or shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

            Which is exactly what the Congress of the Articles did by creating the Constitutional Convention, and agreeing to seek the states ratification thereof. The variant was that it was not ratified by state legislatures but by state ratification conventions comprised of citizen elected specifically for the task as representatives of that state’s populace. That stipulation was made by the Congress under the Articles of Confederation.

          • Caldwell October 12, 2012 / 10:38 pm

            “Which is exactly what the Congress of the Articles did by creating the Constitutional Convention, and agreeing to seek the states ratification thereof.”

            Good grief, you STILL don’t get it! Ok, fine. I will to enlist the aid of one of your own, Pulitzer Prize winning Historian Jack Rakove. In his celebrated work “Original Meanings” and in Chapter V, entitled “The Concept of Ratification, this is what he says about the convention:

            “…perhaps because the other changes they were contemplating were so radical, they worried about the wisdom of VIOLATING ARTICLE XIII SO FLAGRANTLY…”

            The only way the insuperable obstacle of XIII could be circumvented, they concluded, was to bring the secession to fruition by appealing to the original source of all political power; the people. This meant that the Constitution could not be ratified by a mere legislative act, but required the ratification of the people IN CONVENTION. More particularly, the people would be represented IN CONVENTION by deputies elected and specifically chosen by the people, to approve, or reject, the Constitution. By appealing to the original source of political power, all obstacles would dissappear. This is the “variant” the States used to secede from the AoC, despite the clear restraints of Article XIII. And this is the same “variant” the Confederate States used to secede from the U.S., even though the U.S. Constitution had no restraints like Article XIII.

          • wgdavis October 13, 2012 / 5:27 am

            Obviously the body that made the articles was not worried enough to make minor modifications, and the Union that you note was to be preserved in perpetuity was, indeed, preserved in perpetuity.

            In the end, they simply replaced the Articles with the Constitution because the Articles were simply not working.

            And finally, once and for all, Caldwell,







            Articles of Confederation!

          • Caldwell October 13, 2012 / 3:03 pm

            And once and for all: There. Most. Certainly. Was. An. Illegal. Secession. From. The. AoC!. And the Union of the AoC was dissolved after seven years. Just as Salmon Chase said in Texas v White.

          • Ned B October 13, 2012 / 8:15 am

            Despite the opinion of Mr. Rakove, Article 13 was not violated. The Constitution was agreed to by Congress and every state legislature confirmed it. The ratification conventions did not appear by magic — they were called into being by the legislatures.

          • Caldwell October 13, 2012 / 3:30 pm

            “The ratification conventions did not appear by magic — they were called into being by the legislatures.”

            Of course, Article XIII said nothing, absolutely nothing, about “conventions being called by the legislatures”. What it actually said is this:

            “nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

            And as not a single legislature confirmed any alterations in the AoC, and as an entirely new Constitution was written in place of the dissolved AoC, and consistent with the opinion of Pulitzer Prize wining historian Jack Rakove, Article 13 was openly and egregiously violated.

          • Ned B October 13, 2012 / 4:26 pm

            Every legislature confirmed the alterations know as the Constitution. The AoC was not dissolved.

            You have repeatedly demonstrated a lack of understanding of US history. wgdavis gave me some good advice. I leave you to your delusions.

          • Caldwell October 13, 2012 / 6:03 pm

            Not a single legislature confirmed the alterations to the AoC, because there were none; a new Constitution was written. And the AoC was dissolved.

            You have repeatedly deomonstrated no understanding of US history. None at all. And gwdavis gave me some very good advice. I will leave you alone with your pitiful delusions.

      • Caldwell October 12, 2012 / 7:59 pm

        Please note Article 13 of the AoC demands perpetuity AND unanimity. Rhode Island refused to participate in the convention, and so the States were compelled to lawlessly secede from the AoC in order to establish the Constitution. Under no circumstances did the States do anything but secede from the AoC, as you fully admit by acknowledging that they withdrew from the AoC in order to form the Constitution.

        • wgdavis October 12, 2012 / 9:14 pm

          Gads Caldwell, they got unanimity. Every state ratified the Constitution.

          • Jimmy Dick October 12, 2012 / 10:00 pm

            No point in really arguing with him. He demands that the past conform to his view so that it fits with his current fantasy that secession is legal. In a classroom we just mark him wrong and move on.

          • wgdavis October 13, 2012 / 5:22 am

            You appear to be correct.

          • Caldwell October 13, 2012 / 12:37 am

            Wrong again.When New Hampshire ratified, the new Union under the Constitution was firmly established, and Rhode Island still had no event consented to any alterations of the AoC, and much less consented to the establishment of an entirely new constitution. This was, as Pulitzer Prize winnig Historian Jack Rakove characterized it, a “flagrant violation”, of Article XIII of the AoC.

        • Ned B October 13, 2012 / 8:10 am

          The AoC was a document describing the legal framework of The givernment for the USA. One does to secede from a document.

          • wgdavis October 13, 2012 / 9:48 am

            Well, Ned, you know what they say about wrestling with pigs: you get very dirty and the pigs love it. I think it best to leave Mr. [or the case may be] Caldwell alone to live in his [or her] house of delusions. It has become increasingly obvious that his reading comprehension and lack of understanding of simple arithmetic precludes him from grasping the realities of the historical record.

          • Caldwell October 13, 2012 / 3:07 pm

            Well, Ted, you know what they say about wrestling with muddy pigs: you get very dirty and the pigs love it. I think it best to leave Mr. [or the case may be] wgdavis alone to live in his [or her] house of delusions. It has become increasingly obvious that his/her/its reading comprehension and lack of understanding of simple arithmetic (the guy/girl literally thinks that 9/13=2/3!!-I howl with laughter at that!) precludes him from grasping the realities of the historical record. Kinda pathetic really,

          • Caldwell October 13, 2012 / 3:32 pm

            Maybe “one” did not, but the States most clearly seceded from the AoC.

  16. Caldwell October 11, 2012 / 5:12 pm

    Why on earth would the slave States have gone to Court to secede? Kentucky, Missouri, Delaware, New Jersey, and Maryland were perfectly content within the slave-owning Union of the United States. In fact, the slave-owning State of West Virginia was also content in the United States.

    • wgdavis October 11, 2012 / 10:25 pm

      Indeed. Those states failed to pass a secession act, and then became the “Border States.” So, what was you question again?

  17. Caldwell October 12, 2012 / 12:05 am

    When you say “Border States”, you mean Union Slave States, right? So what was your question then?

    • rcocean October 13, 2012 / 9:01 am

      Why are you asking what question? Can you read?

  18. peterjprice2012 October 12, 2012 / 10:05 am

    WgDavis: ‘Most of the Confederate Argumentation was Fraudulent’… Do you Want to Know what is ‘Fraudulent’.? Abe Lincoln Leaving the Government in 1845 because He thought it was SO WRONG for President Polk’s Union to Basically Steal “Texas away from Mexico”, But, 15 years Later, Abe Lincoln’s Union thought it was SO RIGHT to Steal “Texas away from the Confederacy”. Do you Want to Know what else is ‘Fraudulent’
    .? The United States Calling the “Burning of Atlanta” by General Sherman’s Army, “Hard War”, but when the Confederates
    Tried to Burn down New York City, that’s Called “Terrorism”
    , Right? You and your “Yankee Buddies” have a’lot of Nerve to Talk about Fraudulency and Hypocrisy…

    • Brad October 12, 2012 / 5:04 pm

      As with most discussions on internet forums, they start well but degenerate with each side trying to prove a point that it has repeatedly made. It seems to prove Brooks’ original thought about irrelevance.

    • wgdavis October 12, 2012 / 5:08 pm

      WgDavis: ‘Most of the Confederate Argumentation was Fraudulent’…
      You are attributing that to me? Could you provide a link to where you saw that?

      Otherwise you should withdraw that.

      • Mark October 12, 2012 / 5:57 pm

        I’m the one that said it.

        • wgdavis October 12, 2012 / 6:48 pm

          Well thank you for stepping up.

  19. peterjprice2012 October 16, 2012 / 8:24 am

    Here is a Fact! When Mr. Washington Needed Soldier’s for his New Revolutionary Army,He went to South Carolina & made himself a little ‘DEAL’.
    You give me ‘Soldiers’ and I will Promise you ‘Slavery’…

    • Brooks D. Simpson October 16, 2012 / 11:02 am

      Hmm. Never knew of this. Neither does any other historian.

    • John Foskett November 10, 2012 / 9:14 am

      George’s secret trip that nobody’s ever heard of? Until his Presidential visit in 1791, he’d never set foot in SC.

  20. ebg November 9, 2012 / 8:08 pm

    Constituionality is not about “determining” right or wrong, its about “determining” social function of the United States and its citizen. Constituional Law is ambiguous because language is ambiguous no matter how precise the written is, yet on the other hand Constitutional Law is so limited because what is to be interpreted is only that which is written within the Constitution. There is no “ONE” solution to Constituional Law. Two opposing views as to the “Constitutionality” of an issue can both be correct. The question then becomes “What opinion is more beneficial to the United States?” Morality may or may not have anything to do with that ruling. To ignore the root cause of the war is to trivalize the events of the time. History is understanding, beyond the facts of “gold or silver colored uniform buttons.” As an example of living history, there is no escaping the Constituional understanding of Seccession…even if the debate is never ending. It’s a constent learning process as to the “meaning” of Law . It’s some what contradicting that a historian would be so favorable upon re-enacting major battles of the Civil war, but so against any continuation of debate upon the Constitutionality of Seccession. Should we also give a blind eye to the issue of Slavery?

      • ebg November 9, 2012 / 10:05 pm

        You wrote: “Render secession illegitimate as a process and one could make a claim that it was legitimate to resist it.”

        That’s not necessarly true. “Rights” from the “Declaration of Independence” or Morale attributes of “Revolutionary Ideas” cannot be applied to Constitutional law because the Constitutiion is a brief within itself. As a Document, the Constitution excludes the interjection of many ideas from other sources. What most people fail to realize is that Lincoln’s opinion of “perserving the Union” is within the boundries of the Constitution, as is the Confederate cause of seccession. To say that Lincoln “rendered the issue of secession as illegitimate” is to say that Lincoln exercised his powers of his Presidency only upon the notion of his morels and disregarded Constitional interpretation. Thats not true. The constitutional issue of seccesion has always been how does the “perserving a more perfect Union” be a more beneficary policy to the United States then “States Rights” given Article 10 of the Bill of rights? Two, correctly interpreded opinions base on Constitutional Law, yet opposed to each other. Within Constitutionary Law the issue is not which one is wrong (because finding either opinion wrong would mean the constitution is wrong!), but which one benefits the United States the most!

        • Brooks D. Simpson November 10, 2012 / 10:18 am

          You seem to miss the use of the verb “could” when you say it’s “not necessarily true.” The cases for and against the constitutionality of secession rest upon different interpretations of the document. I thought that was obvious. Moreover, let’s recall that the Bill of Rights was an addition to to original document … and was not part of the document of 1787. People tend to forget this.

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