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Posted at 7:33 AM ET, 11/23/2010

Craig Symonds: Did South Carolina have a Constitutional right to secede?

By Craig Symonds

Professor Emeritus at the United States Naval Academy


South Carolinians pointed out that to become a part of the Union, each State had to ratify the Constitution -- and do so voluntarily. Ratification did not take place by State government action -- the States had to call conventions to do so. Thus approval came not from the States, but from the people of those States. The southern argument was that since each State (or the people thereof) had voluntarily ratified the Constitution, they could also voluntarily UN-ratify it -- which is what the secession ordinance did. Advocates of secession argued that when that happened, the States re-assumed the status they had held prior to ratification -- as independent sovereignties. That is why South Carolina held a Secession Convention: to undo its earlier act. Presumably if ratification by convention is legal, then UN-ratification by convention is also legal.

Abraham Lincoln's argument (and by extension that of the North) was that the Union was intended by the Founders to be permanent. The Articles of Confederation had stipulated that it was to be a "perpetual union," and the Constitution itself declared that its purpose was "to form a more perfect Union." In addition, Lincoln asserted in his Inaugural Address that "Perpetuity is implied, if not expressed, in the fundamental law of all national governments." And even if the United States was "merely an association of states" as the South claimed, he did not believe it could be "peaceably unmade by less than all the parties who made it?" In other words, if all of the States agreed that South Carolina could depart in peace, then it could. But if the rest of the States withheld permission, then secession was illegal.

Each of these arguments is consistent and plausible. What determined the matter was the war. Lacking any precedent, if South Carolina made secession stick, then it was legal; if she lost her bid to secede by being defeated in war, they secession was not legal. Since the South lost, secession is not legal (Rick Perry notwithstanding).

By Craig Symonds  | November 23, 2010; 7:33 AM ET
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The United States was a product, not of the states, but conventions of the people, which were called at the direction of the Continental Congress when it transmitted the proposed Constitution to the states for ratification.

Ratification by the people wqs necessary because the new government would have power over the individuals, something that the Confederation did not have.

The Framers didn't submit the state governments because they had not the authority under their enabling documents [constitutions] to bind their citizens to a new sovereign. [See William Miller, professor at UVA; "The Business of May Next"]

The Constitution is one of enumerated powers, hence the absence of a provision prohibiting secession preserved that right which was among those subsumed in the phrase, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

If we are to accept the Declaration's words, the right to secede or revolt is inherent, and as indicated, in the absence of a countervailing prohibition the secession was "legal", which of course begs the question because in reality force, trumps all.

Posted by: samscram | November 23, 2010 5:32 PM | Report abuse

One aspect of the people's "right" to secession is whether they get to vote on it.

This did not happen in the southern states. There was the distinct possibility that, if put to a popular vote, secession of the Confederacy might not have happened. Then you have the matter of blacks and women being disenfranchised and those with political power in the conventions being primarily wealthy white slave-owners so an argument could be made that this was not a democratic secession desired by the people.

There were areas and counties of states that were opposed to secession. In addition there were split states on both sides. Secesh supporters in Kentucky and Missouri called conventions in which they declared secession but the largely pro-Union government of those states ignored them.

Then you have West Virginia, which was a group of counties that seceded from Virginia and formed their own state.

Posted by: AlanGoldberg54 | November 23, 2010 6:10 PM | Report abuse

I wasn't sure if these articles were about the Civil War period or current news when I saw the headline? Shows how far we haven't come doesn't it?

Posted by: Ez2DoubtEveryone | November 23, 2010 7:43 PM | Report abuse

I have to disagree that the unconstitutionality of secession was determined by the war. Nowhere in the Constitution is war given as a method of amendment. Win or lose, secession was unconstitutional because it violated the Supremacy Clause. Even if the Confederates won, it wouldn't change that fact. It would only be the triumph of military arms. Trial by combat is no longer considered to be a fair adjudicator of right vs. wrong.

Posted by: AlMackey | November 23, 2010 8:51 PM | Report abuse

Hard question before 1870 (Texas v White)

Federalists in New England thought that secession was legal in the early 1800s. South Carolina and John C. Calhoun did not decide the question in the 1830s. West Virginia seceded from Virginia in 1863 and Texas and its ability to divide itself into five states means that the state was not an immutable object.

Before 1870, good question
After 1870, no.

Posted by: PALADIN7E | November 23, 2010 8:58 PM | Report abuse

The first argument presented is not at all consistent.

Ratification of the Constitution by South Carolina individually was not effective by itself because that the Constitution only went into effect after 9 of the states had ratified. Therefore, for the secession logic presented by Mr Symonds to be consistent, un-ratification by South Carolina alone would not be effective until other states had done the same.

The other problem with the argument Symonds presents is that prior to its ratification of the Constitution, South Carolina was not fully independent – it had been part of the United States prior to the Constitution. So if un-ratification restores it to its pre-Constitution condition, that condition was subject to the Articles of Confederation. Furthermore, this line of reasoning also falls apart when applied to states further west: just what status would Alabama “resume” when it un-ratified?

Posted by: eqbaldwin | November 23, 2010 11:51 PM | Report abuse

I seriously doubt if any state would have signed on to the Constitution if they could foresee that secession would include a massive armed invasion of their state, destruction on a grand scale and 600,000 casualties. Secession was considered legal by just about everyone except Lincoln. It was his iron will which forced the issue and it was his war which decided the question.

Posted by: bragdonb1 | November 24, 2010 10:02 AM | Report abuse

Of all the arguments on the illegality of Secession, this has to be the most ridiculous I've seen. "We beat you up, so you're a criminal."

Not sure how that makes sense.

South Carolina had every right to secede an still does to this day. If the states don't have the right to secede, then we are not in a voluntary compact, we are subjects to an Empire.

The only place you have to look to validate the right to secession is in the ratification documents of the various states. Clearly they entered into a voluntary union for the purpose of securing a very set list of federal services. The USA violated that compact with its protectionist tariffs, which essentially built the industrialized North off the backs of Southern farmers, most of whom were not slave owners.

For more information, I'd recommending watching these excellent videos on the subject matter:

Posted by: uttles | November 24, 2010 11:54 AM | Report abuse

"Secession was considered legal by just about everyone except Lincoln."

This is patently false. The majority of Americans probably saw unilateral secession as unconstitutional, with a majority of Northerners holding this view while many white Southerners (this has to be specified because almost four million Southerners were enslaved and therefore without legal standing), perhaps a majority, believed it constitutional.

Posted by: marcferguson | November 24, 2010 2:13 PM | Report abuse

@marcferguson - Actually it was the northern states who first threatened secession over the fugitive slave laws. They didn't want to be in a union that protected such an institution as slavery. They realized though that they wouldn't be able to sell their products on a free and open market (without protectionist tariffs) so they stayed in the mercantilist union.

This war was mercantilism vs free trade, pure and simple. In fact, had the South not seceded, slavery would have been protected under the 13th amendment.

Posted by: uttles | November 25, 2010 1:30 PM | Report abuse

I'm sorry, I meant to say "what would have been the 13th amendment" not the actual 13th amendment.

Posted by: uttles | November 25, 2010 1:42 PM | Report abuse

No northern states threatened to secede over the fugitive slave laws, and a few abolitionist voices which abhorred elements of the Constitution as a Devil's pact with the evil of slavery and might have preferred disunion to the continuation of slavery within the Union does not a secessionist movement make. The frequently invoked Hartford Convention during the 1812 war was also not a secession convention, and there is no record of secession ever coming up during its actual proceedings.

While there were certainly economic aspects to the sectional conflict leading up to war, the secessionists themselves were quite clear that they were acting to protect the institution of slavery. You will note that in the secession documents, there is never a reference to "free trade states" versus "mercantile-tariff states."

Posted by: marcferguson | November 25, 2010 2:13 PM | Report abuse

Oh really? From the Confederate Constitution:

To lay and collect Taxes, Duties, Imposts and Excises, for revenue necessary to pay the Debts, provide for the common Defence, and carry on the government of the Confederate States; but no bounties shall be granted from the treasury, nor shall any duties, or taxes, or importation from foreign nations be laid to promote or foster any branch of industry; and all Duties, Imposts and Excises shall be uniform throughout the Confederate States;

Posted by: uttles | November 25, 2010 5:04 PM | Report abuse

I guess I wasn't clear. In all the Declaration of Causes for Secession, and in letters, public statements, speeches, newspaper editorials, etc, there are constant references to the Southern "slave states," but never to "free trade states" or "anti-tariff" states.

But your original claim was that "Secession was considered legal by just about everyone except Lincoln."

You haven't provided any evidence to support such a claim. No sitting President ever supported the constitutionality of unilateral secession. Besides Lincoln, other notable American statesmen who viewed unilateral secession as unconstitutional were James Madison, Andrew Jackson, Henry Clay, and James Buchanan. A quick perusal of Northern newspapers during the secession crisis will demonstrate the widespread rejection of unilateral secession. There were Americans on both sides of this question, but your claim is demonstrably false.

Posted by: marcferguson | November 25, 2010 5:54 PM | Report abuse

Oops, sorry uttles, I just realized that this wasn't originally your claim. My apologies for attributing it to you.

Posted by: marcferguson | November 25, 2010 5:58 PM | Report abuse

SC's Articles of Seccession mentions "slavery" 18 times and in the first sentence. People who claim slavery wasn't at the root of the Civil War are like Holocaust deniers trying to whitewash history.

"......The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other SLAVE-holding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.....

Posted by: BurfordHolly | November 27, 2010 10:59 AM | Report abuse

Each of the distinguished panelists made interesting and insightful comments, as did the great majority of those who, as I have done, chose to add their own comments. From the perspective of a lawyer (sorry, but there simply is no other way for me to approach this, or any other, issue),the following aspects of this discussion "jump out" at me: 1)the Constitution does not,indeed, expressly deal with the matter of secession--one way or the other--but that is not an unusual thing; the same may be said of the issue of the individual's "right" of privacy, or the individual's personal "right" to bear arms; 2) one should not invest too much trust in the Supreme Court's decision in Texas v. White: in the first place, Supreme Court decisions are not engraved in stone; consider the 1896 decision in Plessy v. Ferguson (separate public facilities for blacks can be constitutionally permissible if "equal"), over-turned in 1954, and the Court's recent over-turning of its 1939 decision on the right of individuals to bear arms; secondly, I seem to recall that the five Justices forming the majority in that decision in 1869 had been appointed by Lincoln, and in any event, what would you expect the Court to do in 1869--rule that the bloodiest conflict then known to history had been needlessly fought, and that the assassination of Lincoln had been totally avoidable, in that the southern states had had every right to secede? 3)finally, the right to secede seems to me to be intuitive, for two principal reasons: a) the ratification process resulted in a compact, or contract, between the ratifying states, and I am hard-pressed to come up with a contract that can't be broken upon sufficient grounds (one can argue whether such grounds were presented via federal actions complained of by the seceding states), and b) the southern delegates to the Constitutional Convention surely knew that additional states would be joining the Union in the years to come, and that if enough of the new states came in as "free" states, then at some point the southern states would be out-voted with respect to an amendment to the Constitution out-lawing slavery; under such circumstances, why would South Carolina, or any of the southern states, even consider joining such a "perpetual" union, from which there could be no secession? Why not form their own union instead? That reality is, I must argue, seriously counter-intuitive to the "no right of secession" argument. Perhaps some of the panel members can weigh-in on the latter point.

Posted by: ronnina | November 27, 2010 2:22 PM | Report abuse

A question for Professor Symonds:

How would you compare the dissolution of the Soviet Union to the southern secession in the US?

Posted by: TexLex | November 27, 2010 4:46 PM | Report abuse

You lost me with your 3rd point.

The idea that under certain adverse conditions the contractual bond is broken is not the same thing as asserting that there was a right to secession. If a state has the constitutional right to secede, that would indicate that it could do so unilaterally even if the contract were not broken. It is rare for a contract to allow parties to walk away any time they feel like – the point of a contract is to bind the parties to certain obligations and constraints.

As to your second point, it doesn’t make much sense historically. At the time of ratifications there were more slave states than free states and the available territory for new states seemed as likely to yield a bunch of new slave states and it was to yield a bunch of new non-slave states. An amendment required the approval of 75% of the states, a numeric advantage that “free” states never had. The only way an amendment prohibiting slavery got approved was through forced regime change in the aftermath of civil war. Without war, it seems highly unlikely that there would ever be enough “free” states to pass an anti-slavery amendment.

In answer to the question of why South Carolina would consider joining a union that would be binding on it and included a few non–slave states, the Constitution contained various provisions that seemed to safeguard South Carolina’s position and its provisions would be just as binding on Massachusetts as they would be on South Carolina therefore joining was considered a better option that being on the outside of the union.

Posted by: eqbaldwin | November 27, 2010 7:22 PM | Report abuse

Thanks for the input, eqbaldwin; let me try to put a little more flesh on the bones: the contract analogy would be available even if one conceded the point that there is, in the Constitution right of secession, but it would simply be an argument after the fact, and not an argument that would have prevented a war between the states. And, it would depend on proof that the federal government did commit acts and omissions serious enough to support the conclusion that the contractual bonds had been broken.

And, while there were more slave states than free states at the time of ratification, I would not want to have the side of the argument that says the southerners did not realize that in the future the numbers could change dramatically. You say, eqbaldwin, that the "free" states never had the 75% number needed to amend the Constitution. That is true, but you are thinking like an historian, not like a lawyer (which many of the characters we are talking about were). The southerners' problem, at the time of ratification, was not "what the numbers were then" but rather, what might those numbers be in the future (it is second-nature for a lawyer to consider worst-case scenarios). If we look at 1861, there were 36 states, of which 11 would no doubt vote against an anti-slavery Amendment, and maybe two or three more that might join them (right at the 60% level). The problem for the South in 1861 was that there was no way to know just how many states would ultimately come out of the territories of Dakota, Nebraska, Colorado, Dakota, California, etc. I think that it was the "numbers game" that led South Carolina politicians to conclude that the handwriting was "on the wall." Again, I am unwilling to argue that the political leaders of the southern states could not, at the time of ratification, foresee all of this on the distant horizon. In order to be a slave state, you have to have something, like cotton, that requires ultra-cheap labor, and the states to the "west" that everyone knew would be coming into the union did not, for the most part, have a need for slaves (not to mention a different cultural background, given that IN, IA, IL, etc. were settled by northerners moving west. I do believe that the southern politicians of the time were fully aware of the importance of numbers, and did not simply and smugly assume that their original numbers advantage would be forever maintained.

Yes, they could take solace in various provisions of the Constitution, but they also knew that the slavery issue had been left by the founders as the elephant in the parlor.

Finally, maybe Lincoln should simply have let the southern states leave the union; after all, how long could a slavery based economy flourish? Maybe 50 more years? Until someone invented a cotton-picking machine? Our "union" has, from day one, consisted of two countries which have, with the exception (maybe) of WWII, never had very much in common. Read J.J. Cash's book, "The Mind Of The South."

Posted by: ronnina | November 28, 2010 12:40 PM | Report abuse


In 1861 there were 15 states with legal slavery, not 11. All of them would be likely to vote against an anti-slavery amendment at that time. Therefore, in order to pass an amendment, the free states would need to create More than 20 new states! Seems unlikely to me.

But the position you originally took was regarding the point of view at the time of ratification, 70+ years earlier. The territory of the US at the time of ratification included a large area that became slave states (Alabama, Mississippi, Tennessee, Kentucky). I think the addition of those states was fairly foreseeable to the ratifiers. The next wave of expansion included a bunch more slave states (Florida, Missouri, Arkansas, Louisiana, Texas). Some of this, especially Florida, could be envisioned at the time of ratification. But while it is true that by the 1850s there was great concern about how many states would be formed out of the territories between Missouri and California, I see no evidence that Nebraska was a concern to the ratifying conventions in 1788.

So I am quite willing to argue that political leaders, north or south, did not foresee at the time of ratification that almost 70 years later they would be arguing over the fate of Nebraska. If you think US politicians have a good grasp of the future 70 years from now and that they make rational policy decisions based on an accurate prediction of that future, then we have divergent views on the nature of our leaders.

Posted by: eqbaldwin | November 28, 2010 11:38 PM | Report abuse

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