One Nation Under God, Indivisible: Did the South have the right to secede?

            I’ve been reading conservative websites for some time now. My favorite by far is National Review, but The Dispatch is actually edging it out as my favorite. But one of the things I’ve liked most about National Review, the flagship of conservative thought, is that they’re unapologetic Lincoln defenders. They’ve shamelessly defended his policies and condemned the Confederacy on their site, and they’ve promoted books like Vindicating Lincoln (which is my main source of argument on this topic) and Lincoln Unbound: How an Ambitious Young Railsplitter Saved the American Dream---And How We Can Do It Again by Rich Lowry (editor of NR).

            As I write this, NR just released an article on their website titled “Civil Liberties in Wartime: Lincoln had the right approach,” which I’ll cite in a few days when we tackle the topic of Lincoln’s wartime conduct. And as I expected, in the site comments section the Lincoln haters came out in droves, each posting angrier than the last. When I say “Lincoln haters,” I’m really not exaggerating: They really believe that Lincoln was a tyrant, a war criminal, a mass murderer, etc.

            Any article of this type brings out the Lincoln hatred, but a concurrent theme comes up repeatedly as well: The South had every right to secede. There’s nothing in the Constitution which forbade it, and the states all came into the Union with the tacit or explicit understanding that they could part ways and withdraw at any time they chose.

            As always, we need to define our terms and make proper distinctions. First and foremost, when we ask “Did the South have the right to secede?” we need to clarify whether we’re referring to a natural right or a legal right.

            Legal rights are pretty straightforward. I have the legal right to vote, to start a business, drive a car, and a whole host of things. When I’m referring to a natural right, I’m using it in the same sense that the Founders referred to as our “unalienable” rights, such as life, liberty, and the pursuit of happiness. These rights, according to the Founders, have been given to us by God, not by the State. It’s the State’s job to recognize these rights. The gap between our natural rights which God has granted us and our legal rights recognized by the State is a measure of our freedom. If I have a natural right to freedom of religion and the State takes that away, that’s tyranny. Also someone might have a legal right which isn’t in accord with their natural rights, the first and foremost among these the “right” to own slaves.

            Part of the problem is that Confederates and Neo-Confederates love(d) to make their case by equating themselves with the Founders and the Revolution. They love to conflate the Revolution of the Colonies against Great Britain and the CSA’s declared secession against the Union. But there are differences, and they’re vital to understand.

            When the Colonial Rebels declared their Independence, they appealed to natural rights which the government should recognize. They completely understood that they had no legal right to rebel against their King, but they had every natural right to do so.

            But the Confederates, both the first ones and their modern defenders, claim that the CSA had both a legal and a natural right to secede.  Let’s take the latter one first.

            Did they have a natural right to secede? Well, the Colonies declared that they had the natural right to revolt against the British government because their other natural rights had been trampled upon. They had no voice in their own government, no representatives in Parliament. Taxes and other regulations were imposed on them by the Crown, and they had no legal recourse to protest or change them. What was the popular rallying cry? “No taxation without representation!”

            But in no way did the Colonies claim a legal right to independence. This would’ve been laughable! There was nothing in British laws which enabled the Colonies to declare themselves an independent nation. They claimed a natural right to revolt against their government: “[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.” What followed was a list of ways in which the Signers accused the Crown of trampling upon these natural rights and ignoring colonial appeals to address this.

            But what about the Confederate states? What natural right of theirs had been trampled? Had the Northeastern states blocked elections down in the South? Had representatives from the South been kept out of Congress? Had the Electoral College votes from the South for President been discounted? Had any laws from the North abrogated any rights for Southerners under the Bill of Rights?

            Of course not. If anything, the South was far more guilty of trampling upon rights, both legal and natural, since in several counties in the South, Lincoln’s name was purposefully kept off the ballot! The free speech of abolitionists in the South certainly hadn’t been protected.

            What had happened was that the country had had an election, and the guy the Southerners preferred had lost. As Krannawitter put it, “The Southern argument for secession was based primarily on a refusal to accept the result of a free, legal, and legitimate election.”

            This is really really important. If we’re going to have rule of law instead of rule of the jungle, then elections have to be respected. As Lincoln put it in his first inaugural:

Our popular government has often been called an experiment. Two points in it, our people have already settled--the successful establishing and the successful administering of it. One still remains--its successful maintenance against a formidable internal attempt to overthrow it. It is now for them to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion; that ballots are the rightful and peaceful successors of bullets; and that when ballots have fairly and constitutionally decided, there can be no successful appeal back to bullets; that there can be no successful appeal, except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by a war; teaching all the folly of being the beginners of a war.

And naturally Krannawitter addresses this as well, far better than I ever could:

A union of free, self-governing citizens settles its disputes through elections, a process that necessarily divides the Union into a majority and one or more minorities. The minority is to accept the majority that wins an election as the rightful electoral victor, so long as the rights of the minority are in no way injured or violated. If a free political union has any meaning at all, it must mean that election results are binding upon the losers no less than the winners. The only alternative is to allow the losers of each election to secede from the Union responsible for the election, which means each successive election is a successive step in dissolution. A government formed on the principle of secession is no government at all; it is self-destructive by design.

            In other words, if a government is trampling your natural rights, especially if it’s depriving you of your voice in that government, you have a natural right to revolt against it. You do not have a natural right to secede when an election doesn’t go your way.
            Quite frankly, I'm more than a little disgusted by this attempt to conflate the Founders of this country with the leadership of the Confederacy. One group was taking up arms in order to secure more freedom for themselves and others. The other group was taking up arms almost solely for the "right" to keep other human beings in bondage. There are some side-issues, but according to the Confederate leaders themselves, it was mostly about slavery as far as they were concerned. So the "natural" rights argument is pretty much a non-starter as far as I'm concerned. 

            But what about a legal right to secede? Confederate apologists usually try to shy away from the fact that they’re defending a nation whose very Raison d'être was slavery, so they don’t talk that much about a natural right to secede. What they like to focus on is the alleged legal right to secede, and in doing so they usually make two main claims: 1) The Constitution doesn’t mention secession, so therefore it doesn’t forbid it, and the states therefore had a legal right to pull out, and 2) The states all came into this pact with the implicit or explicit understanding that they could pull out for any reason or no reason. When they came into the Union as states, they supposedly put within their state charter (or the equivalent document making them a part of the U.S.) the right to pull out.

            Dr. Walter Williams, whom I admire so much compares it to the individual right of association. If two people want to associate with each other, that’s well and good. But what if one of the two parties doesn’t want to associate with the other? Should the law step in to force—at the point of a gun—one party to associate with one another?
            I love and respect Dr. Williams, but this is nonsense on stilts. Analogies do not prove, they only illustrate. Of course one person has the right not to associate with another person. He does not have a legal right not to associate with the government. If the government tells him to pay his taxes and drive 55 mph on the highway, he can't just choose not to "associate" with the State in that regard.
            And actually there is a way for you to completely disassociate with the government of a country or state or city. You can leave it. But the Southern states were not proposing to have its population take themselves out of this country and resettle in another country. They were proposing to declare the ground they were currently living upon to be outside the authority of the U.S. One of their first official acts in this regard was to approach Fort Sumter--a federal fort which was on federally-owned property--and unilaterally declare that they owned it now and demand that the soldiers within it abandon it to them. When the soldiers inside refused, the Southerners started firing upon it.
            Since Dr. Williams submitted his analogy, let me submit mine, which I think actually is valid. What if I decided to declare my house a sovereign nation? I'm not physically moving to another nation; no, instead I'm just declaring--with no authority outside my own mind--that my house is no longer under the authority and laws of the city, county, state, and nation  in which I'd been living up to that point. Or better yet, how's about I approach the local police station and unilaterally declare that it belongs to me instead of the city and demand that--in accordance with the Declaration of Keith--that the police officers within it vacate it immediately? And if they refuse, then I immediately fire upon them, then later blame them for any damage and lives lost. After all, if they just surrendered the police station like I asked them to, then this all would've been settled peacefully, right? What exactly is the difference between me in those scenarios and what the CSA did at Fort Sumter? 

            Let’s take argument number 2) first. Here I defer once again to Krannawitter. In Vindicating Lincoln, he spends 15 pages going thru this claim that the states--when they ratified the Constitution--reserved the right to secede. He’s thoroughly looked at the documents to which NC’s point to try to prove that the states came into this Union with the understanding that they could unilaterally withdraw from it legally, and it’s all bunk. To the degree that NC’s aren’t (quite frankly) just making stuff up, apparently it all goes back to their utter failure to distinguish between the natural right to revolt against one’s government when one’s rights are being trampled vs. the legal right to secede. To the degree that these founding charters mention anything like the NC’s are claiming, the documents are talking about the natural right to revolt, which of course is following the thinking of the Declaration Independence. If you'd like to examine his evidence (complete with citations), here it is. I have also found another article by a historian who goes deep into the weeds in what the state conventions to ratify the Constitution actually said. 

            Dr. Williams loves to quote from James Madison--and rightly so--as the “Father of the Constitution.” When arguing against federal welfare, for example, he cites Madison as the authoritative source on what the Founders meant when they wrote the Constitution. And he’s entirely right to do so. But, Dr. Williams, with all respect, why don’t you cite Madison when discussing whether states have the right to secede or not?

            Because you can’t. Madison in no way believed in that nonsense. Unlike Jefferson and Adams and others of the founding generation, he actually lived long enough to confront this notion (starting around the 1820’s and 1830’s), and he utterly rejected it from beginning to end. One of the ideas he had to counteract was the idea of nullification, the claim that a state could pick and choose what federal laws it would obey. Here’s what he wrote about it:

The main pillar of nullification is the assumption that sovereignty is a unit, at once indivisible and unalienable; that the states therefore individually retain it entire as they originally held it, and, consequently that no portion of it can belong to the United States. But is not the Constitution itself necessarily the offspring of sovereign authority?. . .And where does the sovereignty makes such a Constitution reside? It resides not in a single state but in the people of each of the several states, uniting with those of the others in express and solemn compact which forms the Constitution. To the extent of that compact or Constitution, therefore, the people of the several states must be a sovereign as they are a united people.

And this seems pretty clear to me:

[The Constitution] was formed by the States--that is, by the people in each of the States, acting in their highest sovereign capacity; and formed, consequently, by the same authority which formed the State Constitutions. Being thus derived from the same source as the Constitutions of the States, it has within each State, the same authority as the Constitution of the State, and is as much a Constitution, in the strictest sense of the term, within its prescribed sphere, as the Constitutions of the States are within their respective spheres, but with this one obvious and essential difference, that being a compact among the States in their highest sovereign capacity, and constituting the people thereof for certain purposes, [the U.S. Constitution] cannot be altered or annulled at the will of the States individually, as the Constitution of a State may be at its individual will."

And here's another one:

The compact being among individuals as imbodied into States, no State can at pleasure release itself therefrom, and set up for itself. The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect. It will hardly be contended that there is anything in the terms or nature of the compact, authorizing a party to dissolve it at pleasure.

And finally, here's this little gem: "It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by someone who understands the subject."* 

            In a few postings we’ll try to delve into the mind of a Neo-Confederate, but for now I’m just dipping my toe into the water of supposition. There’s always been a tug-of-war in our national mindset, starting with the Founders down to their modern-day philosophical and political heirs, the conservative movement. On one hand, we believe in law and order, the rule of law. We recognize, as opposed to our more leftist brethren, that the rule of law is incredibly important, and you can’t have justice without it. But on the other hand, this country started out by saying to the Mother Land “You can’t tell me what to do!” Our founding document is the Declaration of Independence.

            I think that deep down most NC’s have some sense of this tension, at least in scenarios in which they’re not defending their beloved Confederacy. They believe in law and order, and they know that rule of law is sine qua non of civilization and getting ourselves out of caves. But they don’t seem to realize that the Confederate secession was not right, and it wasn’t legal, and in the end what it stood for is incompatible with what we hold dear. 

*Letter to N.P. Trist, Dec. 23, 1832; The Writings of James Madison, New York: G.P. Putnam's Sons, 1910, v. 9, pp. 490-91.