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Posted at 8:41 AM ET, 11/27/2010

Stephanie McCurry: Did South Carolina have a Constitutional right to secede?

By Stephanie McCurry

Undergraduate chair of the history department at the University of Pennsylvania

McCurry

No, I do not believe they had a constitutional right to secede – and I also believe that they knew that.

Disunionists in South Carolina and other southern states routinely claimed that they possessed a constitutional right to secede. But there are a number of problems with accepting that as a statement of fact. The most obvious, of course, is that they could never point to any provision of the Constitution where such a right was explicitly conferred and so were forced to rely on vague arguments about the retained sovereignty of the states. But more important even is that they were painfully aware that the right to secede was deeply contested by many Americans, including the President-elect, and that if they asserted or acted upon that claimed right they would meet formidable opposition. In that sense secession did not have the status of a widely recognized Constitutional “right” upon which advocates of secession could base their actions in 1860 and 1861.

That, I believe, was why they repeatedly abandoned the Constitutional argument in favor of a justification of secession they knew no one would contest: the right of a people to rebel. This was a right to resist tyranny through revolution that no one denied Americans possessed as a matter of national birthright. You can see this, for example, in January 1861, when Jefferson Davis gave his speech resigning from the U.S. Senate. In it Davis predictably asserted “the right of a State to secede from the Union” as an “essential attribute of State sovereignty.” But he also acknowledged that many denied that interpretation and so made recourse to another argument on which he knew secessionists could rely. Justifying secession on the basis of attacks on slavery and warning the government not to try to coerce his state back into the Union by force, he said that despite the dangers, we in Mississippi “will tread in the path of our fathers . . . proclaim our independence, and take the hazard.” Given the model – the Revolutionary War – it is pretty clear he knew what “the hazard” was. It wasn’t the Constitution but the Declaration of Independence that provided the practical model for secession.

Finally, it is surely worth pointing out, given how much we still hear about the southern states’ right to secede, that there is no such provision in the Confederate Constitution. Which only goes to show, I think, the value of Lincoln’s observation that no government ever provides the means of its own dissolution.

By Stephanie McCurry  | November 27, 2010; 8:41 AM ET
Categories:  Views  | Tags:  Stephanie McCurry  
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Comments

The idea that a state can legally unilaterally secede from the United States is a fraud that continues to be perpetuated on unsuspecting people. James Madison wrote that nothing in the Constitution would allow it. No less than three sitting presidents, Jackson, Buchanan, and Lincoln, made official pronouncements denying it would be legal. The idea that the Union was made up of a group of independently sovereign states would contradict a number of prewar Supreme Court Decisions, such as Fletcher v. Peck (10 US 87), McCullough v. Maryland (17 US 316), Gibbons v. Ogden (22 US 1), and Cohens v. Virginia (19 US 264). After the war, the Supreme Court had an opportunity to rule on secession or on issues arising from secession in several cases, most famously Texas v. White (74 US 700) but also White v. Hart (80 US 646), Thorington v. Smith (75 US 1), Hickman v. Jones (76 US 197), Williams v. Bruffy (96 US 176), and Lamar v. Micou (112 US 452). In no case was the idea of unilateral secession ever upheld. The idea that a state could ever say, on its own, that the US Constitution and US laws and treaties no longer apply to it is a clear violation of the Supremacy Clause of the Constitution.

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

Where did you learn "the Law"?? For something, anything, to be prohibited, it must be SPECIFICALLY PROSCRIBED. The fact that the Constitution did not contain language "permitting" secession is completely beside the point as a legal matter. It was only prohibited if the Constitution PROHIBITED it via specific proscription. Argue your point by pointing to such language, and we can talk. Otherwise, back to school you go.

And I do believe that someday, it will be the North which may wish to secede (and possibly join with Canada), as it becomes clear the South has essentially taken over the U.S. government.

Posted by: dyinglikeflies | November 27, 2010 11:49 AM | Report abuse

We as a nation agree no state may secede from the Union as various court cases have stated with the Supremacy Clause being at the heart of the matter. If we agree the US Constitution must be abided by with the rule of law how did Lincoln suspend Habeus Corpus during the Civil War?(legally) Recent presidents have appointed Czars at will? How can Congress tell the American people they have to purchase health care? We as a nation have to follow the Constitution or start over.

Posted by: pechins | November 27, 2010 11:55 AM | Report abuse

Since the Constitution is basically silent on the issue and SC joining was a voluntary action on their part,there was no reason for them to believe that bowing to the wishes of popular sovereignty would prohibit disunion. Logic would dictate that those holding an opposing view would also agree that marriage, being a voluntary union, would itself be a contract for life.

Jefferson's stirring words severing the bonds of a forced union that was only accomplished by violent revolution could equally apply to people only seeking a peaceful disunion based on the premise that when government ceases to represent the rights and acts contrary to their interest, the people retain the right to abolish or withdraw. Consider how many countries in a state of disunion the US has supported militarily over the last half-century to gain some idea of the hypocrisy.

Posted by: slim21 | November 27, 2010 12:09 PM | Report abuse

I think we should avoid making too much of the Confederate Constitution not having a provision for state secession. Such a provision would have undermined their own position that they had such a right under the US Constitution. In my opinion, the US Constitution with the Supremacy Clause already prohibited unilateral state secession. In the words of Gov. Samuel Johnston in the North Carolina Constitutional Ratification Debate, "The Constitution must be the supreme law of the land; otherwise it would be in the power of any one state to counteract the other states and withdraw itself from the Union."

Posted by: AlMackey | November 27, 2010 12:13 PM | Report abuse

Three historians say the South had no right to secede? I wouldn't have imagined any other position, given that one is from Yale, one from Pennsylvania, and the last from the Naval Academy. I would be interested in what Southern-born, Southern-raised historians would say. (50 and over, please. Too many young Yankees have invaded the South again these days.)

Posted by: bryan3 | November 27, 2010 12:13 PM | Report abuse

What kind of spoiled narcissitic brats would pledge themselves to a system where things are done by election but would only be followed if their side won the election (then of course the other side had to submit), but if they lost it would be "tyranny" that would justify withdrawal?
Such attitude more properly belongs on a elementary school playground rather than the halls of state.
If you consent to an election, you must abide by the results - you don't get to equate losing the election with "tyranny"

Posted by: hohandy | November 27, 2010 12:19 PM | Report abuse

Actually both the confederated south and Prof McCurry were right. It isn't in the Constitution and is not covered under US law. The declaration says that it's the laws of Nature and of Nature's God which the declaration (and Jefferson) felt were higher than those of man-made governments. Note the part were it says when a government no longer recognizes the rights of Life, Liberty and the Pursuit of Happiness that the people can change or abolish the government which refuses to recognize these inalienable rights. Inalienable for those who forget are rights that can not be given away nor taken away from the possessor. And I have included the part about how hard it should be to dissolve such "bands"....

The Declaration of Independence:

"When in the Course of human events it becomes necessary for one people to dissolve the political bands 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.

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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

I think that many believe there is enough in the Declaration to show dissolution is possible even if not according to US law, US custom shows it has happened before...

Posted by: mil1 | November 27, 2010 12:43 PM | Report abuse

Those that insist that the primary cause of the Civil War was the issue of slavery must bear the responsibility of agreeing that the North waged war on their fellow countrymen to validate Jefferson's words that "All men are created equal...", while the South was placed in the position of defending the Constitution as it was written, acknowledging the Negro as property. So much for the rule of law--eh?

Posted by: slim21 | November 27, 2010 12:48 PM | Report abuse

Those who would use the Declaration of Independence as a legal justification for unilateral secession miss the whole point of the DoI in three ways:

1. The Declaration of Independence provides an extralegal justification for rebellion, not a legal or constitutional justification.

2. The Declaration's condition on the justification for rebellion is that the government has become destructive to the end of securing the natural rights of its people. The Declaration would justify the rebellion of the slaves in the South, but is not a justification for rebellion by white Southerners. No natural rights of white Southerners were at stake in 1860-1861. Indeed, as we read what the secessionists wrote at the time, they were seceding in order to keep being destructive to the natural rights of their enslaved population.

3. The Constitution incorporates the Declaration's principle in the amendment process, Article V, which is the way the People of the United States can recall their delegated powers and reform the government to their liking.

Posted by: AlMackey | November 27, 2010 2:06 PM | Report abuse

Depriving a man of his property by force could be considered an egregious violation of natural law.

Posted by: slim21 | November 27, 2010 2:29 PM | Report abuse

"Depriving a man of his property by force could be considered an egregious violation of natural law."

This is wrong on two levels:

First, a human being cannot be property according to natural law, since that would deprive that human being of their natural right to liberty.

Second, there was no attempt to deprive anyone of their property prior to secession, although the secessionists perceived a threat to the existence of slavery, causing their secession. That perceived threat dealt with cutting off the expansion of slavery into the territories, thus allowing it to die out where it existed.

Posted by: AlMackey | November 27, 2010 2:42 PM | Report abuse

Negro slaves at the time were consider less than human by the laws(Constitution) as written at the time. Only the Declaration of Independence declared them equal.

Posted by: slim21 | November 27, 2010 3:03 PM | Report abuse

Even being defined as 3/5ths person they still carried more rights than a human embryo does today. The reason the Civil War claimed over 600 thousand lives was both sides had a valid legal argument. All the more reason the next Civil War should be settled more amicably.

Posted by: slim21 | November 27, 2010 3:11 PM | Report abuse

"Negro slaves at the time were consider less than human by the laws(Constitution) as written at the time. Only the Declaration of Independence declared them equal."

The Constitution said nothing about the status of blacks. It said nothing about whether or not slaves were human beings. If slaveowners considered slaves to be less than human beings, then the very large number of them who raped their female slaves would be considering themselves as engaging in bestiality. No, the slaveowners knew their slaves were human beings in every way.

The 3/5 Clause never said slaves were 3/5 of a person. It said that for purposes of representation and direct taxes, 3/5 of "all other persons" would be counted. It considered them as full persons, but for the purpose of counting for representation and direct taxes, only 3/5 of them would be considered.

Posted by: AlMackey | November 27, 2010 4:16 PM | Report abuse

Being considered anything less than fully human, for any purpose, relegates something or someone to the status of property.

Posted by: slim21 | November 27, 2010 4:20 PM | Report abuse

"then the very large number of them who raped their female slaves would be considering themselves as engaging in bestiality.".....

Would having sex with a blow-up doll be considered an act of "bestiality" or simply a sick fetish?

Posted by: slim21 | November 27, 2010 4:25 PM | Report abuse

"Those who would use the Declaration of Independence as a legal justification for unilateral secession miss the whole point of the DoI..."

The Declaration is not legal justification; it even states that it isn't...it is moral justification which Jefferson wanted to make perfectly clear (i.e. "When...it becomes necessary..." an explanation is the right thing to do). The Declaration explains why the colonies rebelled not the legal justification to do. Interestingly, the founding fathers, who knew they were in violation of British law, felt that they were morally bound to rebel.

Article V merely tells us how to change the constitution; that isn't the same as changing how the states accept federal governance...though certainly it could be a more viable and less violent means than rebellion if an amendment were proposed to allow dissolution or to set limits on governance from the federal level into the states. In some respects this is why the Corwin Amendment was pass by Congress but not ratified by enough states to become part of the Constitution.

Don't get me wrong Corwin would have done nothing like defining dissolution...it states in part:

"No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State..."

And I don't propose that it is something that should be considered now but rather that Congress did try to find a means to ward off Civil War...but things moved more quickly and in different directions than the federal govt realized it would. And there is really no telling what this proposed amendment might have done...maybe nothing, to avoid rebellion.

However, also make no mistake, the DOI says that there is a moral duty to choose rebellion IF NECESSARY...of course it's all about what is necessary. And once again, not the same as being legally sanctioned to do so.

Posted by: mil1 | November 27, 2010 4:35 PM | Report abuse

I am not a Constitutional scholar so I won't argue this one way or the other. I do think it rather ironic though that only 50 years (roughly) earlier the New England states discussed leaving the Union in favor of the British (Hartford Convention). And of course, there is Texas. I have read that Texas came into the union with the caveat that they could leave if and when they wanted! Another rather odd situation to confuse the argument. It always made sense to me that those other than the 13 original colonies could not leave because they owed their existence to the original 13. However, it seems equally fair to me to say that those of the original 13 formed a pact with their twelve brethern that they should be able to break if they wish. The original 13 created our union. The rest came later and owed their existence (financially and otherwise to the first ones)....

Posted by: ransr01 | November 27, 2010 5:48 PM | Report abuse

"if an amendment were proposed to allow dissolution or to set limits on governance from the federal level into the states."..............

This already exist in the form of the 10th amendment. Since the Constitution was essentially silent on the issue of slavery, it would seem all laws related to it passed in the affected states, then all powers related to that institution would be retained by the states or the people themselves.

Posted by: slim21 | November 27, 2010 6:14 PM | Report abuse

"Being considered anything less than fully human, for any purpose, relegates something or someone to the status of property."

The "all other persons" were considered to be fully human in the Constitution. In determining representation and direct taxes, 3/5 of their total number was used.

Posted by: AlMackey | November 27, 2010 6:16 PM | Report abuse

"However, also make no mistake, the DOI says that there is a moral duty to choose rebellion IF NECESSARY...of course it's all about what is necessary. And once again, not the same as being legally sanctioned to do so."

And the DoI gives the condition under which it is necessary: when the government becomes destructive to the end of securing the natural rights of its people. It is neither a legal nor a moral justification for what white Southerners did in 1860-1861.

Posted by: AlMackey | November 27, 2010 6:29 PM | Report abuse

"I do think it rather ironic though that only 50 years (roughly) earlier the New England states discussed leaving the Union in favor of the British (Hartford Convention)."

Actually, that's not true. There is no primary source evidence at all that secession was brought up at the Hartford Convention. The political opponents of the Federalist Party spread the rumor that the Hartford Convention was secessionist, a charge hotly denied by the participants. The taint of disunion was enough to destroy the Federalist Party for all time.


"And of course, there is Texas. I have read that Texas came into the union with the caveat that they could leave if and when they wanted!"

Again, not true. Texas had no such caveat.


"However, it seems equally fair to me to say that those of the original 13 formed a pact with their twelve brethern that they should be able to break if they wish."

Provided they had the consent of the other states, they could. But they could not do so unilaterally as was attempted in 1860-1861.

Posted by: AlMackey | November 27, 2010 6:34 PM | Report abuse

"This already exist in the form of the 10th amendment. Since the Constitution was essentially silent on the issue of slavery, it would seem all laws related to it passed in the affected states, then all powers related to that institution would be retained by the states or the people themselves."

The 10th Amendment didn't play into it. Other than that, that is essentially the interpretation that existed at the time. The Federal government could do nothing to affect slavery in the states where it already existed.

Posted by: AlMackey | November 27, 2010 6:37 PM | Report abuse

With the benefit of 20/20 hindsight it is obvious that keeping the goober states in the Union was a really stupid thing to do.

Posted by: No_Tea | November 27, 2010 6:54 PM | Report abuse

My my what an ignorance of history. Congressman Abraham Lincoln (he served one term) advocated SECESSION for the states of New England, who, at the time were discussing it. Like much in his political life...Lincoln bent his views to fit the moment. His most odious comments of course came during the war about the 'inferior intellect of the negro' and his desire they all be shipped back to Africa...thus the origin of the nation of Liberia. This whole WASH POST series on the war has been a historic joke. Too bad they cannot find honest historians not trapped by political correctness.

Posted by: pelham1861 | November 27, 2010 6:56 PM | Report abuse

"The Federal government could do nothing to affect slavery in the states where it already existed.".....

Other than impose the soaring rhetoric of the DOI at the point of a bayonet, trample the Constitution and ignore the unambiguous language incorporated in the 10th amendment. Lincoln was wont to do this at times regarding amendments, especially #1,#4, #5,and #8(driving citizens from their homes in winter to exile in the South could be considered cruel,if not unusual punishment). He later went on in June of 1863 to create an entirely new state out of an existing one(West Virginia), an act clearly in violation of the US Constitution. Might does indeed make right.

Posted by: slim21 | November 27, 2010 7:05 PM | Report abuse

"Congressman Abraham Lincoln (he served one term) advocated SECESSION for the states of New England, who, at the time were discussing it."

That statement has no relation to historical accuracy. Lincoln said nothing about secession of New England. The New England states were not discussing secession, although there were a couple of politicians who made the specious claim that the Mexican War meant a dissolution of the Union. Extremist wackos can be found almost anywhere. Lincoln made a statement about the natural right to revolution in defending the Texas Revolution, but he never once advocated secession of any state from the United States. It would be best if people would actually read some history before commenting.

Posted by: AlMackey | November 27, 2010 7:58 PM | Report abuse

"Other than impose the soaring rhetoric of the DOI at the point of a bayonet, trample the Constitution and ignore the unambiguous language incorporated in the 10th amendment."

Again, it would be helpful if people actually read history before commenting. Posts are getting further and further from what actually happened and more and more into the realm of fantasy.

Posted by: AlMackey | November 27, 2010 8:03 PM | Report abuse

Just a note about Texas. I am surprised that commentors here don't know this already.

"In their first election after Texas won its independence (1836), Texans voted overwhelmingly in favor of annexation to the United States. However, throughout the Republic period, no annexation treaty was approved by both countries (the US and Mexico). When all attempts to arrive at a formal annexation treaty failed, the United States Congress passed—after much debate and only a simple majority—a Joint Resolution for Annexing Texas to the United States. Under the terms, Texas would keep both its public lands and its public debt, it would have the power to divide into four additional states "of convenient size" in the future if it so desired, and it would deliver all military, postal, and customs facilities and authority to the United States government. Neither this joint resolution or the ordinance passed by the Republic of Texas' Annexation Convention gave Texas the right to secede.

A popularly-elected Constitutional Convention met in Austin in July 1845 to consider this annexation proposal as well as a proposed peace treaty with Mexico which would end the state of war between the two nations—if Texas remained an independent country (put together by French and British attaches to Texas who wanted to keep both Mexican relations and Texan goods).

The Convention voted to accept the United States' proposal, with only one delegate dissenting: Richard Bache, Benjamin Franklin’s grandson. The Annexation Ordinance was submitted to a popular vote in October 1845.

Once approved by Texas voters, the proposed Annexation Ordinance and State Constitution were submitted to the United States Congress. The United States House and Senate, in turn, accepted the Texas state constitution in a Joint Resolution to Admit Texas as a State which was signed by the president on December 29, 1845 . Although the formal transfer of government did not occur until February 19, 1846, Texas statehood dates from the 29th of December 1845." (from the Texas State Archives) (parenthetical comments my own).

Texas wasn't a US territory; it was a separate republic or from a Mexican point of view, a separatist movement (there were several others at the time--the Republic of Rio Grande for one and also the Republic of Yucatan both of who "recognized" Texas as a republic); the peace treaty with Santa Anna was never officially recognized by Mexico.

So, Texas can't secede under the joint resolution--but it can decide, at it's own choosing to be 4 separate entities (states).

This is just a side note to say that basically Texas (and California even though it was only independent from June to July 1846) is different from many other states since they were "annexed" (and of course, Hawaii also).(annexed being a euphemistic term for, taken by force of the people then occupying the territory--i.e by revolt).

Posted by: mil1 | November 27, 2010 10:05 PM | Report abuse

By the way, Texas and California's entry into the US had little effect on the coming session until the Compromise of 1850...when California became a free state (i.e. anti-slavery) and Texas entered as a pro-slavery state. Texas was carved into the state shape we know today and parts of it's territory given to the Utah Territory and the New Mexico Territory (to form parts of Colorado, New Mexico, Wyoming, Kansas, and Oklahoma eventually). In exchange Texas had it public debt paid by the US govt.

The Compromise of 1850 was the last great attempt by Congress to stop infighting on the issue of secession over slavery. It failed but worked well until the Kansas-Nebraska act of 1854...it was supposedly politically popular but just 4 years later, the Whig party disappeared in a whimper and the Republican party was formed. The Republicans became the party of the rich industrial North and the Democrat party of the rich agrarian South.

Texas and California did lead to the Mexican-American War however and this did lead to more unrest in the US as a whole.

A big deal is made about the federal govt not being able to "reduce" the size of state (Article IV, section 3 of the US Constitution) unless a state legislature agrees. The Texas legislature agreed to the territorial reduction--more than I can say for Virginia who at secession lost West Virginia. But I imagine secession makes any Constitutional claims void.

Posted by: mil1 | November 27, 2010 10:30 PM | Report abuse

"A big deal is made about the federal govt not being able to "reduce" the size of state (Article IV, section 3 of the US Constitution) unless a state legislature agrees. The Texas legislature agreed to the territorial reduction--more than I can say for Virginia who at secession lost West Virginia. But I imagine secession makes any Constitutional claims void."


No. In 1849, the US Supreme Court ruled, in Luther v. Borden, that when there are two state governments that both claim to represent the state, the Federal Government has the power to decide wich of these is the legitimate government of the state. Fast forward to 1861. Virginia secedes and loyalists form a loyal government of Virginia, claiming to be the legitimate government of Virginia. The US Congress and the President both recognize this government as the legitimate government of the state of Virginia. That government gives its consent to the partition of the state, and West Virginia is born. So the formation of West Virginia followed what was required by the Constitution.

Posted by: AlMackey | November 27, 2010 10:54 PM | Report abuse

"The US Congress and the President both recognize this government as the legitimate government of the state of Virginia. That government gives its consent to the partition of the state, and West Virginia is born. So the formation of West Virginia followed what was required by the Constitution."
________________
I don't really disagree but I will pose that one of the reason that the govt of W. Virginia became the "legitimate" govt is that the Union won.

West Virginia seceded from Virginia--so a guess some secessions are OK under the Constitution. WV seceded in 1963, when there was no longer any representation in Congress to oppose WV becoming a state since all the congressmen who might oppose were now secessionists themselves and a part of Confederacy.

I am not saying it was Constitutional; it certainly followed the law. It just also follows the law of "to the victor..." If the South had won, what would have been it's status then? Of course, it would have been a different Constitution that would have been at issue.

Just saying here to go back to the original question about "can states secede?" It appears they can...and West Virginia was proof. Also, if a state ever convinced Congress and the President that it should secede...does it mean it can?

This is what the US Supreme Court decided:

"The question of the constitutionality of the formation of the new state was eventually brought before the Supreme Court of the United States, in the case of Virginia v. West Virginia, 78 U.S. 39 (1871). Berkeley and Jefferson counties lying on the Potomac east of the mountains, in 1863, with the consent of the Reorganized government of Virginia voted in favor of annexation to West Virginia. Many voters absent in the Confederate army when the vote was taken refused to acknowledge the transfer upon their return. The Virginia General Assembly repealed the act of cession and in 1866 brought suit against West Virginia asking the court to declare the counties a part of Virginia which would have in essence made West Virginia's admission as a state unconstitutional. Meanwhile Congress on March 10, 1866 passed a joint resolution recognizing the transfer. The Supreme Court decided in favor of West Virginia, and there has been no further question."

The two states argued about pre-war debt until 1915! When the Supreme Court said WV owed Virginia $12.3 million. WV paid it off in 1939. And they argued about the border until 1991...so secession can actually happen, legally. Just everyone--state, Congress, Executive--must agree. What if Congress and the President agreed with S. Carolina (if they had asked...)? It would have been foolish for one state but it might have been possible pre-war. Now, post Civil War...feelings run too deep to get anyone to agree. Or would they?

Posted by: mil1 | November 27, 2010 11:45 PM | Report abuse

Sorry that one line should read:

I'm not saying it wasn't Constitutional...typing too fast...

Posted by: mil1 | November 27, 2010 11:49 PM | Report abuse


You guys should stop complaining because, one the health care we have now isnt as good as it was supposed to be. also the law has just been signed so give it some time. so if u want to say u have the right to choose tell that to ur congress men or state official. If you do not have insurance and need one You can find full medical coverage at the lowest price check http://ow.ly/3akSX .If you have health insurance and do not care about cost just be happy about it and trust me you are not going to loose anything!


Posted by: charlesstraton | November 28, 2010 1:25 AM | Report abuse

We're getting a bit far away from the question of South Carolina and secession, but I'll point out that secession **with consent** is legal under the US Constitution, as outlined in Texas v. White. A state that wishes to secede must have the consent of the rest of the states. A portion of a state that wants to secede, as in the case of West Virginia, must have the consent of the state government. West Virginia had the consent of the government of Virginia that was recognized as legitimate under the Constitution. I don't see any change to that if the Confederates had won the war. They might have tried to negotiate for the return of Berkeley and Jefferson Counties, but there wouldn't have been an automatic transfer.

Posted by: AlMackey | November 28, 2010 12:50 PM | Report abuse

Actually, I think we both just disagreed with Prof. McCurry. She said above:

"...I do not believe they had a constitutional right to secede – and I also believe that they knew that....The most obvious, of course, is that they could never point to any provision of the Constitution where such a right was explicitly conferred and so were forced to rely on vague arguments about the retained sovereignty of the states..."

And yet we both agree that Article IV, section 3 and the Supreme Court ruling in WV vs V in 1871 does acknowledge a way to secede. Of course, South Carolina didn't do it by asking the state Legislature, the US Congress and the US executive branch by signature of the President. And I doubt any sitting Congress or President would ever agree for state dissolution but....the possibility does Constitutionally exist and until these discussions, I personally didn't think that any thing but special circumstances i.e. treaties and territorial requests, might allow it.

Posted by: mil1 | November 28, 2010 3:45 PM | Report abuse

I agree they didn't have a constitutional right to unilaterally secede as they tried to do in 1860, but as I said earlier, I don't think we should make much of the fact that the Confederates didn't include a secession provision in their constitution, since that would have undermined their claim that they did have such a right. Texas v. White specifically lays out that a state seeking to secede from the United States has to have the consent of the other states. The Constitution, in giving Congress the authority to admit new states, conveys on the Congress the authority to determine the make up of the Union. Such an authority is not within the power of a single state.

Posted by: AlMackey | November 28, 2010 4:08 PM | Report abuse

pechins asked: "If we agree the US Constitution must be abided by with the rule of law how did Lincoln suspend Habeus Corpus during the Civil War?(legally)"

The Constitution does indicate circumstances under which it is acceptable to suspend Habeus Corpus.

Posted by: eqbaldwin | November 29, 2010 10:38 AM | Report abuse

Slim21 wrote: "Logic would dictate that those holding an opposing view would also agree that marriage, being a voluntary union, would itself be a contract for life."

Tyical marriage vows do say "til death do part". but even if a divorce is sought, it generally requires a legal action involving both partners and a court official. if one is to make logical comparisons between divorce and secession, perhaps one should base that comparison on the actual dynamics of divorce.

Posted by: eqbaldwin | November 29, 2010 10:42 AM | Report abuse

mil1 wrote "West Virginia seceded from Virginia--so a guess some secessions are OK under the Constitution." See also the creation of Maine from Massachusetts. The process for forming a new state from another state is spelled out in the Constitution and had been done before.

Posted by: eqbaldwin | November 29, 2010 10:58 AM | Report abuse

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