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Posted at 7:31 AM ET, 11/23/2010

David Blight: Did South Carolina have a Constitutional right to secede?

By David Blight

Professor of American History and Director of the Gilder Lehrman Center for the Study of Slavery and Abolition at Yale University

Blight

The idea of secession is rooted in the long American tradition of federalism and the doctrine of states' rights. But the answer to this question is an unqualified no. There was and is no "right" to secession from the Union. Diehard believers in John C. Calhoun's theory of the "concurrent majority," or in the doctrine of nullification (the alleged right of a state to reject or overtly repeal federal legislation within their borders) may claim a logical extension to the act of secession. And we have current day politicians who like to flirt with the language and threat of nullification, such as Governor Perry of Texas as well as many who apparently hope to repeal parts or all of the new health care bill. But there was no Constitutional right to secession in 1860-61, and there is none today.

What the Southern states did have in their resistance to the election of Abraham Lincoln in 1860 was a "natural" right of revolution. That, indeed, is what they really did. They engaged in a revolution against the United States government as it was constituted. The right of revolution is, of course, one of the four first principles in Jefferson's Declaration of Independence. As Jefferson well knew, the leaders of the American revolution were rebels against Britain. And in any reasonable definition, that is therefore exactly what the Confederates were in 1860-61: rebels, or revolutionaries, against the United States. They were not exercising a right to state sovereignty, which is what they would argue during and well after the war, and as their defenders still do today. They were engaged in revolution, and in legal-constitutional terms, treason. Revolutions are won and lost; in this case, a second American revolution resulted in the expansion of human freedom and equality, and the reinvention of the U. S. Constitution, not, as the Confederacy sought, a society based on slavery and white supremacy.

Secession is not only a dead letter, but one might hope a dead spirit, in American political and Constitutional life. States' rights doctrine, however, is of course alive and well and thrives on our Supreme Court as well as in right wing politics. Its adherents, one can hope against hope, will learn some caution and wisdom from the disaster of 1861. One hopes that they will remember that the purpose of the 14th Amendment in the wake of the war and emancipation was to federalize the enforcement of the Bill of Rights within the states forever.

By David Blight  | November 23, 2010; 7:31 AM ET
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Comments

Forget SC, what about the unconstitutional carving of West Virginia out of Virginia land? Expressly forbidden in the Constitution, yet Congress conveniently acquiesced. And why doesn't Texas, the only state ever to join the U.S. by treaty, exercise its treaty right to subdivide into four states and gain six more senate seats?

Posted by: Religulosity | November 23, 2010 8:46 AM | Report abuse

I have a dream that one day they will "federalize the enforcement of the Bill of Rights," so that I no longer get strip searched at the airport.

Posted by: morattico | November 23, 2010 9:22 AM | Report abuse

@morattico: you give up certain rights when you agree to use air travel instead of automobile, bus, or ocean liner. The Bill of Rights was always federalized. The 14th Amendment applied it to the states.

Posted by: laugh_riot | November 23, 2010 9:43 AM | Report abuse

To appreciate the full blown insanity of my Governor, Rick Perry, one must consider that the Secessionist solution to a dysfunctional Union is the creation of two, smaller, dysfunctional Unions. Reductio ad absurdum, every political Union, no matter how small is dysfunctional. A Secessionist is an Anarchist with anti-social tendencies. One expects a such a person to be occasionally right but never wise.

South Carolina, Inc. may have been within their Right to be dumber than a brick.

Posted by: gannon_dick | November 23, 2010 5:54 PM | Report abuse

Religulosity, the creation of West Virginia was permitted by the Constitution and Texas can not split into more states without approval by Congress.

Posted by: eqbaldwin | November 23, 2010 11:30 PM | Report abuse

Why are we always fighting the last war? Clearly, the terrorists are one step ahead of us so explosoives in the underwear is yesterday's idea. The only place left to hide explosives is in the human body. I think that the TSA pat downs don't go far enough. We need madatory cavity searches to stay one step ahead of the terrorists. No exceptions (including pilots, stewardesses, male stewardesses, animals in stowage, etc.)

Posted by: TyrannyOfTheMajority | November 24, 2010 8:58 AM | Report abuse

I am surprised that a group of professional historians is conducting this debate at such an abysmally low level.
States rights was never a real issue, and isn't today. The Fugitive Slave Act of 1850 trampled not only the rights of states, but of individuals, who it turned into involuntary slave catchers. The Personal Liberty Laws of many Northern states (especially Massachusetts and Wisconsin) effectively nullified this law, although of course no one in the North called it nullification. Lincoln agreed with the Southern Democrats that settlers in the territories should have no right to decide for themselves whether or not to permit slavery; only Stephen Douglas (an Illinois Senator, plantation overseer, and, through his wife, very large slaverowner) favored "squatter sovereignity". Today's Republicans trample states rights in reference to legalized marijuana, physician-assisted suicide, auto emission laws, reproductive freedom, and, through NAFTA and other trade agreements (which cripple state as well as national action) labor and environmental laws. They, like their Confederate forebears, favor states rights only when doing so furthers their agenda
of destroying and enslaving people.
And has anyone mentioned another salient fact? The Confederates (and neo-Confederates, including Ronald Reagan during his first inaugural) claim that the states made the United States, rather than the United States making the states--thus justifying secession. But most of the states were directly created by the United States government, which exterminated or expelled the aboriginal inhabitants, surveyed and sold or gave away the land. drew boundaries, appointed a governor of each territory, supervised the writing of a state constitution, and then admitted the US-defined and created territory as a state. The claims of Jefferson Davis, Ronald Reagan, and their ilk, that the states created the USA, might possibly be true as far as the first thirteen states were concerned, but cannot possibly apply to the other 37.
The Confederates of the 1860s and of the 2010s should not be taken seriously; they will tell whatever lie, and its opposite, meets their temporary needs.

Posted by: cchawkins | November 27, 2010 9:24 PM | Report abuse

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