One Nation Under God, Indivisible: The Constitution, and Reductio Ad Absurdum

            Today we’re going to deal a little more with the Neo-Confederates’ Constitutional claims, namely that the Constitution doesn’t forbid what the Southern states did, so therefore they had a legal right under that document to do it.

           I have to admit, I understand where they’re coming from on this. Based on what Liberals/Progressives/Leftists talk about, you’d think that the First Amendment is the only one of the Bill of Rights that matters. Liberals tend not to be big fans of the Second, tying themselves all up in knots trying to prove that it doesn’t say what it plainly says. But they completely ignore the 9^th and 10^th as well. For a fun game, ask a Leftist sometime: “In theory, what could the federal government do to violate the 10^th amendment? What limits does it place on the federal government, in your opinion?”

            When a fellow conservative makes the case that the federal government does a lot of things which violate the letter and spirit of the 10^th amendment, I stand with them. However, the notion that the Constitution doesn’t forbid what the South did is nonsense. Article 1, Section 10, Clause 1 says

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit 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.

            Alabama or Texas or Maine cannot—without the approval of Congress—enter into a treaty, alliance, or confederation with another state or another country. They can’t even coin their own money, which is something a sovereign nation typically does (and which the CSA did). Under what understanding of the above clause could the Southern states unilaterally pull out of the Union and set up their own government?
            Often when an NC and their opponent debate on the legal ability of the South to secede, the conversation goes something like this:

NC: There's nothing in the Constitution which forbade what they did.
Non-NC: Of course there was. Article 1, Section 10, Clause 1 forbids each state from forming a treaty or union with any other entity. Interestingly enough, they even use the word "Confederation," the exact same term which the Confederacy called itself.
NC: But there's nothing in the Constitution which tells them they can't leave.
Non-NC: That's kind of taken as a given. There's nothing specifically in my city's laws which tells me that I can't unilaterally declare my house outside their jurisdiction, but I can't do that. There's no procedure listed in the Constitution for them to leave, so they can't do it legally. 

            Here's where I actually would disagree, and I have to note a point which someone submitted in a comments section, but which I haven't heard much mentioned. There is a procedure for any state to leave: You can amend the Constitution. Granted, it's a tough procedure. The Founders made it extremely difficult to amend it, and as we say in IT, that's a feature, not a bug. But that's how you make changes like this. If a state wanted to leave the U.S., it can't do so unilaterally, any more than I can just change the terms of a contract unilaterally. In order to amend a contract, you have to get the consent of the rest of the parties, and the way you do that under the Constitution is by working through the procedure of amending it. 

            And finally let’s look at this from a logical viewpoint, namely reductio ad absurdum. If states can secede, why stop there? Again, here’s Krannawitter (citing Lincoln):

           

            [Any] argument for a state to secede legally and peacefully from the Union must be an argument for counties to secede from states. And any argument for counties to secede from states must be an argument for towns to secede from counties, neighborhoods from towns, families from neighborhoods. The ultimate and irreducible minority is the individual citizen. Again, if the purpose of secession is to protect a minority against the majority, why may not an individual citizen secede whenever he is displeased by the laws and policies under which he lives? And after individuals become convinced that they have a legal right to secede, that each individual has the legal right to reject the outcome of any election with which he happens to disagree, does not civil society under law become impossible? In principle, secession implies that no law can be truly binding, that anyone who dislikes a law has to the right to declare himself or herself exempt from its reach. This is why Lincoln argued in his first inaugural address that “the central idea of secession is the essence of anarchy.” A state of anarchy, or a state of lawlessness, is characterized by the rule of might, or brute force. Lincoln understood clearly that secession represents nothing less than a move away from civil society back toward the state of nature and anarchy, a movement away from freedom under law toward slavery without law.

Just to introduce a little humor here, Dilbert got this right back in 1995:

           

            Neo-Confederates try to dismiss this argument, claiming that this could never happen. Au contraire, it did during the Civil War! Here’s a portion of the Wiki article on the origin of West Virginia:

On 17 April 1861, the state convention in Richmond [Virginia] declared secession. Nearly all delegates from counties west of the Allegheny Mountains voted against secession, and most people and officials in that area refused any directions from the secessionist state government.

On 15 May, western Virginia Unionists convened the first session of the Wheeling Convention. Many of the delegates were informally or self-appointed, so the Convention only denounced secession and called for formal election of delegates. The elected delegates met in the second session on 11 June. On 20 June the Convention declared that by acceding to secession, the officials of the state government in Richmond had forfeited their offices, which were now vacant. The Convention then elected replacements for these state offices, creating the Restored Government of Virginia.

The "Restored" government was generally supported in areas where secession was opposed. Union troops also held the three northernmost counties in the Shenandoah Valley, and despite the pro-secession views of most residents, these counties were also subjected to the "Restored" government.

At the Wheeling Convention, some delegates proposed the immediate establishment of a separate state. However, other delegates pointed out that the creation of a new state would require the consent of Virginia, under Article IV of the Constitution. Thus it was necessary to establish the Restored Government of Virginia to give that consent, which was granted 20 August 1861.

A referendum in October 1861 approved statehood; a constitutional convention met, and its work was approved by referendum in April 1862. Congress approved statehood that December, with the condition that slavery must be abolished in the new state. This condition required a new constitutional convention and referendum. The revised constitution provided for the future abolition of slavery, which took effect on 3 February 1865.

On 20 June 1863, the newly proclaimed state of West Virginia was admitted to the Union, including all the western counties and the lower (northern) Shenandoah "panhandle."

            Oddly enough, the government in Richmond, the capitol of the Confederacy, didn’t take kindly to the notion of the right of secession when it came to its own state. They sent in the famous “Stonewall Brigade” (commanded by none other than General Thomas “Stonewall” Jackson) and fired upon their fellow Virginians.
            This is where I'd like to submit another argument first presented by Lincoln: If the U.S. Constitution somehow has this right to secede within it, then where is that right to be found within the Confederate Constitution? Looking again at a side-by-side comparison of the two constitutions, McCullough makes the salient point that the CSA Constitution--following word-for-word the U.S. one--also gave its Congress the solemn duty and right to "[call] forth the militia to execute the laws of the Confederate States, [and to] suppress insurrections." This constitutional right/duty was demonstrated by the Confederates when they sent their own troops to fire upon Virginians who didn't want to be part of the CSA. As Lincoln pointed out: If this alleged right to secede is in the U.S. Constitution, then is it in the Confederate one as well? If this right is in the CSA one, then why are the Confederates firing upon Virginians? If it isn't, then where is it to be found in the U.S. version?  

            I’m actually trying to make a point here other than the utter hypocrisy of the CSA sending troops to put down—by means of force--an act of breaking away from a state. The point is that once we stipulate that states have the right to secede, there’s no limiting principle on this supposed right. Krannawitter gives another example: “By 1864, leading Georgians, including Confederate vice president Alexander Stephens and Georgia governor Joseph E. Brown, both of whom vehemently opposed conscription, the suspension of habeas corpus, and the general centralization of confederate governmental power, were leading a movement for Georgia to secede from the Confederacy! Had the CSA endured any longer than it actually did, it is highly likely that the Confederacy would have been dissolved by multiple internal secessions.”
            When the states joined together in a Union, they entered a compact with each other. A compact is a formal agreement among two or more parties. The closest equivalent we have is a contract. To all my Neo-Confederate friends, could you please cite for me an example of a contract in which one party can unilaterally pull out, in which he can alter the terms of the contract (which he would do by withdrawing from it) without the consent of the other parties in that contract? If one party can unilaterally change the terms of a contract, then you don't have a contract. If you have a counterexample of this, then I'd love to hear it. 

            In the end, the legal right of unilateral secession and the rule of law are incompatible.