Discussing the Unilateral Exit Right…
Image courtesy of Wikipedia Commons
Since a conversation about Southern secession has been brewing over a couple of posts, and I got a question from LWA about why a unilateral exit right needs to be respect. Given that I’ve also had a few discussions with nevermoor about Southern secession, I thought I’d just throw it all in here.
To provide a reference point, I’m going to post a link to an article written by Clyde Wilson, a southern historian, and published at the Abbeville Institute, a website that devoted to defending southern tradition and history. I’m going to focus solely on the content pertaining to the Constitution, and given that the article is going to contain a lot of historical points that will generate strong disagreement, I respectfully in advance ask that we focus the discussion on the points I address here. With those disclaimers behind me, I’ll continue.
Let’s start with the basics:
According to the Declaration of Independence, governments rest on the consent of the people, who may alter or abolish them when they no longer serve their rightful ends. This is the bedrock American principle.
Yes. I agree with this.Secession as a natural right of the people to reclaim sovereignty for themselves as an extralegal/revolutionary act has been well established (see the Declaration of Independence). The people in each state have that right even today even if there’s no chance in hell of it happening.
In every system there must be, at least in theory, a sovereign —a final authority for the settlement of all questions. All Americans are agreed that the people are sovereign…State rights was not, despite what they will tell you, something that was made up to defend slavery. It was the most honoured American tradition, implicit in the way the United States Constitution was set up and made valid. The right of the people of a State to exercise their sovereign will and secede from the Union was taken for granted at the Founding of the United States.
The Constitution was built on the bedrock of popular sovereignty, i.e. the people being sovereign, and as I argued (maybe implied) in my two-part series (here and here), the concept of state sovereignty (i.e. states rights) played a critical role in the ratification process and the scope of power delegated to the federal government. I didn’t get a lot of push back on those two posts on that point so I’ll assume there’s agreement here as well.
At this point, I’m going to converge from my Madisonian self and explain the southern defense of the compact theory. Note that Clyde Wilson uses the term “a sovereign”, meaning a single sovereign and not, say, dual sovereigns. The underlying theory is that sovereignty, once established, can not be divided. A sovereign political unit remains a sovereign political unit until that political unit decides that it wants to transfer 100% of its sovereignty to another political unit.
Therefore, applying this principle to the Constitution and the relationship between the federal government and the states, one of only two possible outcomes could have occurred. Either each state retained 100% of its sovereignty for itself and ratified the Constitution in its highest sovereign capacity (i.e. the compact theory) or that sovereignty was transferred to a single American people forming a national government and ratifying the Constitution in that regard. Needless to say, both history and the Constitution itself (see Article VII) disproves the latter.
Assuming the Constitution is a confederal compact between thirteen wholly sovereign states, the structure of the Constitution is as follows:
Each of the thirteen states are co-equals in the compact. EDIT (thanks Mark!!!) No state has the right to coerce any other state into compliance. This was a well-accepted concept under international law. Each of the thirteen states agreed to delegate specific sovereign powers to the new federal government, powers that it exercised themselves but now delegate to the mutual benefit to the parties to the compact.
While sovereign powers were delegated to the federal government, sovereignty remains with each of the thirteen states. Therefore, the federal government is merely an agent and not a sovereign. In effect, the federal government remains subordinate to the states because it is not a sovereign itself.
As it is also well accepted that sovereigns can freely and unilaterally enter and exit compacts at will, the same applies with the Constitution. To the extent that it has to respected, at least legally, the reason for that is that the nature of the relationship between the federal government and the states is such that the federal government, having no sovereign authority of its own and being subordinate to the sovereign states, has no legal authority to compel a seceding state from exiting the Union. None. Nada. Zip. Zero. Zilch.
Look at it this way, what recourse would the federal government have had if Virginia decided it no longer wanted to be a party to the Articles of Confederation and chose to operate as its own nation state?
Setting aside the causes for secession, the structure I described above provided the legal framework for secession. It describes how and why sovereign states have a right to unilaterally enter and exit into compacts and describes why a subordinate agent has no choice but to respect the wishes of the states.
I think this position is vulnerable to a number of different criticisms. The first is the framing of the compact theory vs. nationalist theory debate as mentioned above. One can eliminate the possibility of the Constitution as forming a national government without making a single affirmative defense in favor of the compact theory. The second is that there is strong historical evidence showing that both the Framers and ratifiers understood that the Constitution was going to create a system of dual sovereignty, meaning that the states were not retaining full sovereignty. I think it’s one of the reasons the anti-Federalists fought so hard to limit the powers of the federal government. The third is that the text of the Constitution supports the idea of a federal sovereign in several places – to list a few: 1) the Preamble (we the People of the United States as a defined term; 2) the concept of US citizenship (one can only be a citizen of a sovereign); 3) treason against the United States (a crime only committed against a sovereign); 4) the Supremacy Clause (the law of the land) and 5) Article V (binds non consenting states to constitutional amendments.
Still, even given the existence of a federal sovereign, the text of the Constitution remains silent on the matter of secession. While a federal sovereign can compel the state to comply to the Constitution, as it bind the people of those states, on what grounds can the federal sovereign compel states to remain a party to it other than the use of force? Historians have struggled with these questions for decades.
My answer is two-fold. First, as far as the legal arguments go, from what I understand, while Clyde Wilson is correct to suggest that the Founding generation took for granted a unilateral secession right, such a right was understood as an extralegal right of revolution against oppression. Because this was not an act of a sovereign state peacefully exiting a treaty and it required the southern states to reclaim sovereignty it had granted to another sovereign, the act becomes more of an extralegal nature. However, let us not forget that slavery is so connected to the causes of secession that the legal debates pale in comparison to the moral abomination secession attempted to defend.
Missed this when it was posted, but here are a few of my thoughts.
1. The cop-out answer is: “As the Supreme Court has held, secession is illegal. Texas v. White, 74 U.S. 700 (1869).”
2. The second cop-out answer is: “There is no such thing as international law, so secession is neither illegal nor legal, but only possible or impossible. It was possible vs. the UK and impossible vs. the North.”
That said, I think a few things are clear:
First, the idea that the Constitution was merely a temporary collection of beautiful and unique snowflakes is garbage. That may have been true about the Articles of Confederacy, but the Constitution was always designed and intended to introduce a new sovereign nation that could participate on the world stage. Each state had the option to refuse the deal, but it was a deal intended to be permanent and complete as set forth in the Constitution and Bill of Rights.
Second, the concept of revolution wasn’t exactly foreign to the founding fathers. If they had wanted to create an explicit right of exit they would have. I am therefore wholly convinced by Clyde Wilson’s point in your conclusion.
Third, as I’ve said elsewhere, the only reason this question matters is an attempt to shift blame from the South to the North for the Civil War (the “we were just exercising our legal rights and you invaded us” justification). That attempt fails whether or not secession is legal/legitimate/whatever because the South started the war.Report
“technically” the colonists started the war with the King of England. If it wasn’t for their agitation and the breaking of crown laws, the brits wouldn’t have come down on them, sparking a resistance.
So the south pulled the trigger first. So what?Report
So they can’t be surprised that doing so was seen as an act of war. And those who commit acts of war against more powerful countries (which is what the North was, assuming secession was legitimate/effective) can’t exactly complain when they ultimately lose.
This is where the “there is no international law” cop-out plays. Secession was effective there, so it happened. Also, on my third point, no one seems to blame the British for sending troops (in the sense that they argue doing so was inherently wrong; I’ll concede people blame the British for specific nasty things that happened). People knew, and accepted, the UK would do so and simply tried to figure out how to win that war.
I’ll also observe that on the high-theory concepts of borrowed sovereignty southerners often use to justify the general right to secession, they at least have the chain of events right (entrance was voluntary/intentional). Do you see secession as more or less legitimate in a situation where the seceder is a colony who never had sovereignty in the first place?Report
“So they can’t be surprised that doing so was seen as an act of war. And those who commit acts of war against more powerful countries (which is what the North was, assuming secession was legitimate/effective) can’t exactly complain when they ultimately lose.”
Seen. Appearances are everything? Doesn’t matter what it seems like.
“Do you see secession as more or less legitimate in a situation where the seceder is a colony who never had sovereignty in the first place?” Since each individual is sovereign, secession is legit in any form.Report
So when the Lakota committed an act of war at Little Big Horn against a more powerful country (which the USA was) they can’t exactly complain when they lose.Report
Refresh my memory, who started that one again?
The better analogy to the south is WWII Japan, and I don’t see anyone saying that war was unfair.Report
How we got into it was a bit shady thoughReport
Worth making explicit what’s implicit here: the DOI wasn’t issued until well over a year after Lexington and Concord, and there wasn’t much support for independence/secession until early 1776. The colonists’ pre-1775 agitation, moreover, was in many ways closer to civil disobedience – it wasn’t some official act by a popularly elected or officially recognized body.
There’s a huge gap between individuals or groups of individuals organizing to disobey laws that they view (rightly or wrongly) as unjust and secession just because you don’t like the laws, much less just because other states aren’t governing themselves in the way that you want them to (which was probably the CSA’s most explicit complaint, to wit: the Northern states refused to enforce the Fugitive Slave Act in the way the CSA wanted).
None of which is all that relevant to Dave’s OP, though, which I’m mulling over.Report
@nevermoor
To breeze through your points.
1. That’s fine. I mentioned the end of the Civil War.
2. This is a good catch. I meant international relations and had de Vattel’s The Laws in Nations in mind. Those concepts were understood by the founding generation.
Other things…
but the Constitution was always designed and intended to introduce a new sovereign nation that could participate on the world stage
This I should have mentioned, and it’s an excellent point because how a loose confederation could have conducted foreign policy is not something I completely understand.
That may have been true about the Articles of Confederacy
The Articles spoke of a perpetual union, and I think the Framers of the Constitution had that concept in mind – perpetual meaning no specific ending date. As far as being permanent, there may be a few people around that understand the history behind that more than me but I always associate that position with people like Lincoln and the 19th Century nationalists as opposed to the founding generation.
If they had wanted to create an explicit right of exit they would have.
On the flip side, if it was so well understood, an exit right wouldn’t have been necessary, and that’s what the states rights theorists of the 19th Century drew from when they combined the Framers’ understanding of secession and tied it to the logical conclusions about the Constitution and sovereignty.
Anyway, to be on the safe side, VA, NY and RI inserted secession language into their ratification statements. They don’t speak of a constitutional right but rather a natural one.
That attempt fails whether or not secession is legal/legitimate/whatever because the South started the war.
Correct me if I’m wrong, but the only disagreement left in that discussion is whether or not the South was legally justified in firing on Ft. Sumter assuming that its secession was legitimate. I think that’s where we were.
We agree on the wrongheadedness of the move and we both reject secession as a lawful act.Report
Nope, that’s about it.
First off, Articles of Confederation. Silly me.
Second, I mention it because it was actually a confederation of states with no power to raise money and was restricted from doing a lot of things without unanimous support from all 13 states. There, where each state has a veto anyway, I could see breaking from the group being more like Grexit than rebellion.
That I would agree with, in the sense that anyone anywhere has a natural right to try to start a revolution. I’d completely buy that that was a “well understood” fact requiring no inclusion in the formation of a new government. That’s different from a right to revolt without resistance, which I don’t think had been seen in history until the breakup of colonial states. The latter is the understanding of “right to secede” that, at least in my view, actually gets the south anywhere in its argument.Report
@nevermoor
That’s different from a right to revolt without resistance, which I don’t think had been seen in history until the breakup of colonial states.
Are you referring to the American Revolution?Report
No, I’m referring to more recent ones (Syria, Lebanon, Phillipines, etc.)Report
“How a loose confederation could have conducted foreign policy”–> NATOReport
@kolohe
I probably know more about being tall than I do foreign policy, but I’m not sure if that would suffice.Report
You do realise that NATO is lampooned for also being short for No Action Talk OnlyReport
This site isn’t being published with Cyrillic script. Just sayin’Report
And you can thank the United States armed forces for that. Those ICBMs in North Dakota haven’t got NATO stickers on the side.Report
I am largely with nevermoor but:
“However, let us not forget that slavery is so connected to the causes of secession that the legal debates pale in comparison to the moral abomination secession attempted to defend.”
I suspect this is the crux of the issue. There are plenty of liberals who are feed up with the South and would not be sad to see them go this time around. There is also an expressed sentiment that it would have been better for the rest of us if Lincoln found a way to take all the slaves to the North and just left the South to their own devices. I think these are sincere sentiments.
There are also times when liberals could theoretically support secession but it depends on the reasoning. Defense of slavery (under any language or guise or justification) is not worthy enough to justify secession. The Southern Apologist and Racist argument is that any reason given for secession is automatically valid.Report
@saul-degraw
Well, one common understanding of having a right to do X is that if one has that right one can* do the action that falls under the right for bad reasons as well as good.
*depending on the nature of the right the can changes. If you are talking about a liberty right, then the can means permissible. If you are talking about a claim right, that means that others are obligated to not interfere with your activity as long as it falls under the right.Report
My personal belief (somewhat unformed) is that the current citizens of each State are bound by the earlier decision of their predecessors to apply for statehood in a country whose founding document contained no exit procedure.
If you get married under a system of laws that does not provide for divorce, you can either abandon your spouse or get the laws changed. But don’t expect your fellow citizens to buy the argument that you changed your mind; you knew this was an irrevocable decision.
So, if Texas wants to secede legally, then it should propose an constitutional amendment that either (a) declares Texas no longer to be a State or (b) provides for the creation of process whereby states may legally withdraw. Any other course of action is an act of rebellion.Report
@francis
My personal belief (somewhat unformed) is that the current citizens of each State are bound by the earlier decision of their predecessors to apply for statehood in a country whose founding document contained no exit procedure.
As unformed as it is, it’s not unreasonable, and I think that is where I was going. If a state has bound itself to another sovereign in some way, its bound unless the sovereign consents (in your example, a constitutional amendment would suffice) or its taken back in an act of revolution.
I think the Framers and ratifiers had more pressing issues to tend to when the Constitution was drafted and debated and the more radical states rights interpretations wouldn’t rear their head until after McCullough v Maryland was decided. Even St. George Tucker’s defense of the compact theory or James Madison’s description of the Constitution as a compact in his Virginia Resolution and Report of 1800 were consistent with the historical record, at least in my opinion.Report
Texas won’t secede. That’s what irritates me about all this. I mean sure, it’s fun to talk about as an exercise in law and political theory and “what if’s” but the reason we’re talking about it is…because we’re taking idiots seriously.
Take Texas — the last poll I saw (2009ish) had less than 20% for secession, with half strongly opposed. That’s WITHOUT the stopping and thinking “What would it really mean” which rapidly gets…discouraging. Like the fact that, you know, you stop being a US citizen. That you need a passport and to pass through customs to visit the US. That all those military bases empty, including equipment, and that suddenly you’re on the hook for securing your very large, very penetrable border — not just with Mexico, but with the US.
You need to provide Coast Guard, you have no military or Navy, you need to provide for a currency….
Not to mention how many people you’d lose. I’d say without a doubt that few Americans would hoof it to Texas to stop being an American citizen, but quiet a few would leave to STAY one. (i would! My job would move, for starters).
So yeah, it’s an idea that polls less than 30% on it’s best day, opposed heavily by the entire rest of the state.
It’s entirely moot. Fun for theorycrafting, but anyone who is seriously proposing it or thinks it’s gonna happen anytime soon is deluded or pandering. Or in the case of Rick Perry, probably both.Report
@morat20
Texas won’t secede.
Pretty please?Report
No. I live here and don’t want to move, for starters.
Besides, you guys ready to handle the influx of people from Houston, Austin, San Antonio, and Dallas to name a few?
Amusingly, if Texas tried to secede maybe I could try to get Houston or Austin (or their counties) to secede from Texas and remain part of the US. After all, if Texas can leave the US, why can’t various counties leave Texas?Report
@morat20
Besides, you guys ready to handle the influx of people from Houston, Austin, San Antonio, and Dallas to name a few?
What do I care? They’re too smart to want to come to New Jersey. 😉Report
Actually if you look at maps of how the 1861 secession polled in the various counties of Tx you find that there were regions then that did not approve. (as was true in other southern states such as East Tn and North Al, and of course what is now West Va which was part of Va at the time, and in a neat manover held a rump session of the Va legislature in Charleston, which voted to approve the split, and then adjourned into the W Va legislature.Report
The hilarity of a state trying to leave the US while simultaneously telling parts of itself they can’t stay behind is pretty funny.
If Texas wanted to secede and places like Harris or Travis county voted against it, I see no actual reason Texas is entitled to geographic continuity. If anything, those places wishing to remain in the US would have a better case, as they are wishing to remain as they were.
A somehow suspect the pro-secession folks would cheerfully force every part of their state along, and thing nothing of the hypocrisy.Report
See US Grant’s comment on this as posted by Zic below;
This is part of my objection to secession being unilateral; what logic governs who holds this right- can a county secede from a state, a city from a county, a neighborhood from a city, an individual from a neighborhood?Report
I particularly like Grant’s point that other than the original thirteen colonies, all had been bought or annexed by the United States as whole — paid for in blood and treasure, I believe, were his words.
As such, do they really have a right to leave? Sure the citizens may, but does not (for instance) the entirety of the Louisiana purchase have any right to leave the nation that bought that land?Report
And, like in a divorce, doesn’t the counterparty have legitimate interests that need to be negotiated, and properly compensated?Report
True. It’d be pretty funny to hear the US quote Texas a price, in US dollars to be paid prior to exit, for air force bases, national parks, equipment or infrastructure that is federal but can’t be moved, etc.
Honestly, the secession movements strikes me as thinking it’s like the way 15 year old’s breakup (one just walks away and they snipe at each other in class, but it’s trivial) as compared to a divorce between a couple that has been married for decades and has a VERY entwined mutual financial setup.Report
I particularly like Grant’s point that other than the original thirteen colonies, all had been bought or annexed by the United States as whole — paid for in blood and treasure, I believe, were his words.
Yeah, that’s always been an odd sticking point. States that existed as sovereign nations (The original 13 and Texas and Hawaii, unless I missed one) might have some sort of logical claims of ‘divorce’, but the US *bought* Alabama’s land, for an example. And then *chose to allow* that state to form.
So by what right do they have to leave and take their land? I mean, as an ‘organization’, the government of Alabama could, conceptually, choose to leave the US…but they’re operating on land that was given to them to be a *US State*. If they’re not a US State, they logically have to leave it behind.
Which makes them not actually a ‘nation’ (Which requires some sort of land they are in control of.), but some sort of international organization like the Red Cross or UN.
Perhaps they could *buy* some land somewhere, or claim an unoccupied island, or get someone to give them some tiny piece of land like the Vatican? Or buy a boat and sail it under the Alabama flag, claiming sovereignty over that little slice of jurisdiction?Report
The hilarity of a state trying to leave the US while simultaneously telling parts of itself they can’t stay behind is pretty funny
That’s actually perfectly logical. It’s true for the same reason that when a city goes bankrupt, the state can remove its local government and appoint a special master to run it, and the city’s residents have no recourse. Local governments’ power is given to them by the state, and the state can rescind it at any time. The US has a system of dual sovereignty, state and federal but there is no sovereignty below the level of the states.Report
True, but federal sovereignty trumps state — that’s in the Supremacy Clause. Ergo, if Harris county wanted to remain in the US while Texas seceded, they’d be in the right.
In fact, whatever counties, cities, municipalities, etc that wanted to remain behind would be “The State of Texas” as opposed to whatever the new nation of Texas would be.Report
As someone who dabbles in secession planning, it is clear that in this day and age any successful Texas secession movement would have to be over issues that convince the urban/suburban areas that they need to leave.Report
Do we have a natural right to unilaterally sell Texas back to Mexico (for a buck, maybe)?Report
I can’t understand the question because I’ve decided to unilaterally ignore the existence of Texas. What are we selling?Report
That is your right!Report
The place that if you owned both it and Hell, you’d live in Hell and rent it out. Besides LA.Report
I’d pay more than a buck for them to take it…Report
I figured it was better if we had a receipt showing that they’d purchased it, for tax purposes.Report
…see, I know this is a joke, but I still spent like two minutes trying to figure out who the US and Mexico could possibly be paying taxes to as to require a receipt even though I know the question is nonsense. (Also, Mexico does realize it’s probably going to have to pay taxes on the full value of what it got, even if it only paid a dollar? OTOH, it did just get a lot of dependents, so maybe it will break even.)
Also, do we need to collect sales tax on this dollar? If so, do we send it to Mexico or Texas? Both those idea seem to present strange paradoxes.Report
@morat20
That’s what irritates me about all this. I mean sure, it’s fun to talk about as an exercise in law and political theory and “what if’s” but the reason we’re talking about it is…because we’re taking idiots seriously.
There are a lot of people that still adhere to the compact theory (even if they don’t address the Civil War), and one day I was reading some debate where the opponents of the compact theory were just steamrolling people, not because their arguments were necessarily better but because people didn’t know how to approach the debate. Actually, if I recall, it was not only the compact theory but John Calhoun’s theory of nullification.
In a way, I got tired of watching people who shouldn’t be winning debates winning them so I educated myself. 🙂
I ended up getting a lot more out of it, but I will say I found the writings of both John Calhoun and John Taylor of Caroline fascinating even though I strongly disagree with them. They took a hard run at Madison’s work, especially Federalist 39.Report
Dave, thanks for the post.
Since I am neither a lawyer nor expert on the Constitution, I can’t really speak a lot about the technical aspects of whether secession is a legal right or not.
I was thinking more on the level of moral rights, and when secession can be morally justified.
I think it does depend on the reasons, and effects of secession. The notion (if anyone has it) that there exists some free floating a priori right to withdraw from any community at will, upon demand, seems so weird as to be absurd.
But in my comment I raised the cases I am familiar with, of the City of West Hollywood being formed and breaking away from the City of Los Angeles.
It followed an established procedure and was more like a divorce, with each side negotiating and agreeing to terms for how to draw boundaries, how to handle police and fire services, and how to deal with the massive amounts of interconnected infrastructure- water, gas, electricity, sewer lines etc.
Which really forms the crux of my thought here- that the concept of communities being so atomized that one can assert an automatic unilateral right to separate is wholly at odds with empirical evidence.
What state, what county or city is so detached from its neighbors that it can withdraw without having a massive impact on its neighbors?
A unilateral right deprives the counterparties to any sort of redress, or at least, forces them to overcome a high burden of a “right” of the other party.
I do think a strong case can be made that when someone is being held unjustly, then unilateral secession is the least harmful option.Report
@lwa
You’re welcome. This post goes down in the record books as my fastest one. I don’t know if that’s a good thing but I needed to make an appearance on the main page. 🙂
I think it does depend on the reasons, and effects of secession. The notion (if anyone has it) that there exists some free floating a priori right to withdraw from any community at will, upon demand, seems so weird as to be absurd.
Having studied the debates, the idea isn’t weird to me, but I don’t think one can detach a legal/extralegal right to exit from the moral arguments behind that decision. Does it matter if the South’s secession was legal if it was over slavery? It wasn’t, but assuming it was, does legality mean we have to withhold our moral condemnation? My grasp on philosophy is next to non-existent but even my answer to this is no.
But in my comment I raised the cases I am familiar with, of the City of West Hollywood being formed and breaking away from the City of Los Angeles.
It’s a different kind of example than allegedly sovereign states in the 19th Century, but I think it’s a good example to show how complicated something like that could be if it were tried today.
Which really forms the crux of my thought here- that the concept of communities being so atomized that one can assert an automatic unilateral right to separate is wholly at odds with empirical evidence.
I know some people would like nothing more to wall off the State of Texas and throw a going away party but yes, there is so much interdependence between communities, states, and countries that even the thought of secession is met with offering up the tin foil hats to those that think it’s a good idea. I can’t even begin to navigate the logistical difficulties as you have.Report
I think if the right clearly exists, the morality is irrelevant (e.g. free speech being used by Westboro Baptist Church).Report
Question: if the North concedes the legality of secession, do they have any moral obligation to do something about slavery?
Or say, is it possible that things get so bad in Mexico that the US is morally obligated to step? With the military?
To go full Godwin, had Hitler confined his ambitions to Germany, what should the rest of the world done about the Holocaust?Report
So crazy thought experiment time:
Suppose that Lincoln decided he just wanted to end slavery and didn’t care about the union so he said. “I accept the secession but the confederacy must release all of the American citizens who want to leave. And that includes those previously held in bondage.”
Now what?Report
You still have a civil war, or you have an empty statement. Slaves ain’t gonna be allowed to leave. The Union has to fight for them, and if Lincoln had made the civil war entirely about slavery instead of mostly about preserving the union, he would have lost.
Let’s not fool ourselves about the purity of the North- they were just as racist as the South, they just didn’t need slavery to prop up their economy.Report
True indeed. In fact Lincoln would have preferred to ship back all the slaves to africa. No, the war was all about “the union”…and economic model of Lincoln’s supporters…the northern industrialists.Report
Confederate apologists are somewhat confusing. Often, as in your case, they have almost no knowledge of the history (just enough to use some correct words and names), and are largely parroting things they’ve half heard, likely from other Confederate apologists. But I can’t always tell what motivates them. I mean, in some cases it’s obvious, but in others it seems to be a combination of the obvious one and a more nebulous, misguided sense that the Confederacy was some great libertarian cause, as though the side that owed its entire existence to near absolute denial of liberty to an entire class of people, and which suppressed both individual and collective will whenever it tried to get in the way of that denial of liberty, were consistent with libertarianism.Report
Yeah, that’s not what I said. The war wasn’t even remotely “all about ‘the union'”. It wasn’t even “all about ‘the union'” in the Union.
The CSA was explicitly fighting for the right to keep humans in chattel slavery, and to expand it beyond its existing geography. The USA was fighting for both the end of slavery *and* to preserve the union.Report
@gingergene
“if Lincoln had made the civil war entirely about slavery instead of mostly about preserving the union, he would have lost.”
“they were just as racist as the South, they just didn’t need slavery to prop up their economy.”
I was agreeing with these two statements of yours. Although I should have taken issue with the “mostly about preserving the union” part of your comment. Lincoln specifically said he’d sacrifice the slavery issue to keep the union together.
Citation: http://www.abrahamlincolnonline.org/lincoln/speeches/greeley.htm
Ego…NOT about slavery.
“The CSA was explicitly fighting for the right to keep humans in chattel slavery, and to expand it beyond its existing geography” This is true, but again, not the whole story.
@chris
“Confederacy was some great libertarian cause, ” I don’t know where you got that idea. I certainly didn’t say it. Perhaps you are combining my comments in this thread with my libertarian comments in other posts? Also, I’m not aware of any libertarian that claims that. Perhaps you’ll provide a link?
As to the rest of your comments, thanks for the slander. 🙂Report
Lincoln also campaigned on ending slavery. When a politician says two contrary things, why not look to his actions?
If Lincoln had wanted to preserve the Union and keep slavery, he could have. The south seceded because the Republicans made it clear they weren’t going to continue it, and they won the election.
There is a difference between what politicians say and what they do, and actions speak louder than words.Report
He wanted to preserve the union. If he got rid of slavery, that’d been a nice adder. So in the end, he got a twofer. He wasn’t going to get slavery gone without losing the union. Ergo, all his actions and words are consistent. It….was….about….the…union….Report
If I recall, ex-OTer Jason K. has discussed this often (arguing that the Confederacy is anti-libertarian):
http://www.libertarianism.org/media/libertarian-view/libertarians-confederacy#.q4q3rm:Uwtk
Anyway, given that you clearly don’t know the history, and you say it’s not your libertarianism, I can’t explain your apologism except by noting the obvious.Report
Maybe you should think a little more on it then than just dismissing my comments as “apologism”.Report
We can respect the free speech rights of the members of the Westboro Baptist Church and denounce them for the way they exercise it.Report
Of course we can (and should) do both. My point is that their use of free speech doesn’t cheapen or restrict the right, and neither would the south’s decision to secede over slavery were secession a clear right akin to freedom of speech.Report
I was going to write that independently of a possible general right of secession, Confederate secession was morally wrong because its purpose was to preserve and expand slavery. Considering this deeper, I wondered if that position is just a kind of “homeomorph” of the larger moral wrong of the South being a slavery-based society — whether secession to further evil aims was actually an additional evil, the way we condemn the getaway driver at a robbery without considering it generally wrong to drive people places.
Then I considered the actual historical effects of secession and realized that the event may be the best possible example of contrast between deontology and consequentialism. The motivation of secession was to prevent the federal government from placing what the slave states perceived as unjust restrictions on slavery, but the practical effect was to bring about total abolition much sooner than it would have been if the slave states had cooler heads.
This is probably the best possible argument for waving a Confederate flag. I’m vaguely surprised modern apologists don’t make it — because this argument treats motivation as irrelevant, it can be modified to incorporate their claims of the “real” motivations. But they prefer to go the “slavery would have died on its own” route. Probably because we generally prefer a deonotological approach when judging history; we don’t think of the Confederacy as being “allowed” to claim credit for bringing about abolition thanks to having started and lost a war.Report
“Allow them to secede and then invade to end massive human-rights abuses” is not the same thing as “don’t allow them to secede”.
A state might decide to secede because, e.g., it’s tired of its citizens’ private communications being recorded and analyzed by the Federal Government.Report
Municipal breakway:
One of the most obscure set of agencies in the State of California is the 58 Local Agency Formation Commissions (LAFCOs), one for each county. LAFCos are the agencies that draw – and re-draw – lines of demarcation between the cities, special districts and unincorporated areas of each county. A LAFCo is headed by a board made up of elected officials within the county from various entities – the county itself, cities and special districts within the county. But it is a separate legal entity.
The organic statute creating LAFCos is the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000, which I unfortunately needed to understand at one point in my legal career. A more impenetrable collection of statutory language regarding how and when a LAFCO is to create a city, establish a new district, grow, shrink and even dis-incorporate such things cannot be found anywhere in the California Codes.Report
I essentially agree with your position. I don’t believe in a right to unilateral secession, although I would say it’s morally defensible if the people of the region seceding have undergone and are undergoing serious persecution which shows no signs of being resolved. “We don’t like the folks who won the election, and we don’t like their policies” – which is basically all the American South had to go on – does not by itself qualify as persecution.
In practical policy terms, unilateral secession usually makes a situation either worse or, at least, no better. The most recent example is South Sudan. It had about as good a case for secession as you can get – the north of the country had been making war on them, with severe civilian casualties, on and off for decades; the government of Sudan was an international pariah anyway for the genocide in Darfur; and a plebiscite found something like 99% of voters in South Sudan in favour of separation. Plus north and south Sudan had very little in common culturally speaking: northern Sudan is Islamic and more similar to the mideast; southern Sudan is black, with Christianity and animism as the main religions. In addition, the state of Sudan wasn’t a creation of its people, but the result of borders drawn by colonial powers.
And despite all of those reasons indicating that separation might be the best option, or least-bad option, it doesn’t appear to have improved the lives of people in South Sudan. The new country is still war-torn (with its different ethnic groups now fighting each other) and extremely poor, and due to separation (and marginalization by the Sudanese government for many decades before) it has virtually nobody equipped to govern or to run a civil service. Separation might still have been the best, or only viable, option, but it’s been far from a success. And the worst-case scenarios for separation or state breakup – Pakistan-India, or Yugoslavia – have resulted in mass violence.
In contrast, nation-states tend to be much better off when they can work out their internal differences, respect minority rights, and provide automony where it’s warranted. It satisfies the core needs of minority groups, and it makes the nation-state a better place on the whole as it learns to be more tolerant. Turkey has been on a slow path towards this with the Kurds for the last decade (changes under the current government include things like Kurdish radio stations, Kurdish language in schools, and now a Kurdish political party), with long term peace actually in sight now. That’s a far superior resolution to trying to carve a Kurdistan out of 3-4 existing countries.Report
Your position is similar to what the Canadian Supreme Court held in RE: Secession of Quebec. The court’s view was that even if a large majority of the Quebecois wanted Quebec to secede it could not legally do so unilaterally as long as the Quebecois were capable of exercising their right to self-determination within the Canadian system of government.Report
@katherinemw
“We don’t like the folks who won the election, and we don’t like their policies” – which is basically all the American South had to go on – does not by itself qualify as persecution.
Well, in a sense, the South had a point. The North’s policies were going to destroy slavery. In fact, the Federal government doing *nothing* would destroy slavery.
The problem the slave states had is that the tide of opinion had turned so strongly against them that free states had set up rules saying that slaves were freed the second they reached that state. Over time, this would completely destabilize slave ownership in border states, and in fact had already started to do so. Because of this, in 1850, the slave states had created a Federal law forcing free states to return escaped slaves, in an attempt to stop this serious bleeding.(1)
With Lincoln in power, that power was certainly going away. Which meant the destabilization was coming back, the underground railroad would be back, and border states would start losing their slaves again…half into free states, and half in the other direction as slave-owners moved deeper into the South. Which mean, tada, soon those border states would not care one bit about slavery (Which was already unpopular among people who didn’t own slaves.)…and thus become free states.This would have tilted the *entire balance* of the US, and probably result in slavery become illegal.
If the CSA states *hadn’t* seceded, they would have started losing border states within another decade.
Of course, in reality, secession *didn’t help their problem at all*. Even if they had somehow refrained from starting a war, and the US had peacefully left…at that point, slaves would have started escaping en-mass, *and* there’s no way in hell the US would have returned them! Meanwhile, in the remaining US, the border states stayed behind, but were vastly outnumbered by the free states, which meant that slavery would rapidly be outlawed, which meant slave states just lost their buffer!
It’s actually a little baffling as to what the hell they thought secession would accomplish.
1) Whenever anyone tells you the civil war was over states rights, they are liars or idiots. It’s the *slave* states that were stomping on the rights of the free states. They made it legal for their citizens to wander into neighboring states, and point at a black *citizen* of that state, and collect him as an ‘escaped slave’, and the neighboring state wasn’t even allowed to make them have any sort of trial or anything proving this. State’s rights my ass.Report
Having steered clear of some of the more recent incendiary Civil War threads… this seems like a better place to recommend Gary Gallagher’s (somewhat) recent book on what “Union” meant to the North.
The Union War
Gallagher has helped me appreciate that the term Union wasn’t a simply a negative or reactionary term for Secession, but a vibrant and animating force. Getting my mind around Unionism helped to look at this question from a different angle. Preserving a (the) union in the mid-Nineteenth century had ramifications that I personally couldn’t quite fathom.Report
@marchmaine
Thanks. I’ll have to check this out. I’ve kept most of my interest in the realm of constitutional history, but I’d take a look at this.Report
I posted part of this quote from Grant’s biography a few days ago; it comes from a TNC’s Civil War blogging, when he was reading Grant’s memoir, and it addresses the issue of unilateral exit rights quite specifically from Grant’s perspective. That there is a unilateral exit right, so it seems to me, is a very libertarian perspective, and not one to take for granted because our system includes other vehicles for resolving differences.
Certainly, one of those methods would be to amend the constitution laying out exit protocol. This isn’t something to take lightly. We’ve had one community leave our local school district lately, a second is considering it, and its enormously complicated. Who, for instance, will own federal properties — highways, etc., that people outside the new nation helped fund? Would those people be paid for the loss of public infrastructure? What about military bases? People who own property in one nation but live in the other? People who live in the new nation, but want to remain citizens of the other?
To assume exit rights here is not obvious to me; and 150 years ago, it was so not obvious that we went to war. But here’s Grant, I urge you to read this remembering that he was POTUS in the aftermath of a previous secession effort that was amongst this nation’s most costly endeavors in both blood and treasure.
Report
@zic
That there is a unilateral exit right, so it seems to me, is a very libertarian perspective, and not one to take for granted because our system includes other vehicles for resolving differences….
I know there are libertarians that prefer the Articles over the Constitution for that reason.
Do you mean “take for granted” or “taken lightly”. Looking at the Articles, my belief is each state had a unilateral exit right, but I think this may go back to an initial conversation I had with nevermoor – just because something is legal doesn’t mean it should be done.
Oddly enough, when John Calhoun developed his doctrine of nullification, one of the justifications for it was to avoid secession (obviously there were others). Strange how one of the greatest defenders of the compact theory (and slavery) could never fully break away from his earlier nationalist tendencies.Report
I mean exactly what I said — it should not be presumed that there is a natural law right of secession. The contractual co-dependencies are too intwined.
That we might develop a legal pathway for secession seems obvious to me; but that would have to be a pathway that peacefully untangled the interwoven fabric of interests, from individual rights (property, for instance,) to state (environmental standards, commerce,) and Federal. But the right to cut those intermingled bonds unilaterally is a taking. Or so I see it.
We don’t divorce by simply setting up separate households, we divorce by dividing mutual properties and responsibilities.Report
This a blatant false choice; there’s no reason for sovereignty transfer to be an all or nothing act. In fact, the Constitution enumerating which sovereign powers are transferred to the federal government seems to explicitly deny your framing in this regard.Report
@patrickb
This a blatant false choice; there’s no reason for sovereignty transfer to be an all or nothing act…
Except there’s the belief that it can only rest in one place and it can’t be divided. If I led you to believe that I hold this position, my apologies. This is not my personal position, but it was the position held by those that defended the compact theory back in the 19th Century and even today.
I can’t say for sure where the argument originated, but I’ve read some of John Taylor of Caroline’s work, specifically New Views of the Constitution, which was published shortly after the Federalist Papers became publicly available. I can’t remember ever reading as strong of an attempt to discredit Madison’s “partly federal partly national” description of the Constitution as I did when Taylor ripped into Federalist 39.
Somewhere it went from divided sovereignty as unworkable to divided sovereignty as impossible. I can’t say for sure where or how.
Constitution enumerating which sovereign powers are transferred to the federal government seems to explicitly deny your framing in this regard.
Sovereign powers were transferred to the federal government under the Articles of Confederation. Was a sovereign created in that arrangement?Report
Hmm, and re-reading what you wrote, you actually address this late in the article. Mea culpa.Report
@patrickb
Oh don’t worry. I made a couple mea culpa’s of my own when I wrote the post.
But hey, I still set a speed record for shortest time from start to publish 🙂Report
I think you’re right about the compact view of the Constitution being the basis for the CSA’s attempt at a legal justification. Certainly, the secession resolutions, for all their talk about slavery, also seem to speak in the language of this being a compact.
However, I need to take issue with this:
.
If it is true that there is no right to coerce compliance, then the compact isn’t really a compact at all – without a right to coerce compliance, there’s no reason to have the agreement in writing and provide enforcement mechanisms and mechanisms for the resolution of disputes as to the meaning of the compact (e.g., the Supreme Court, even if its authority was limited to a pre-Marbury understanding, not to mention both Congress and the President) and it’s just a voluntary “understanding.”
By putting it in writing, it becomes either a contract or a treaty (effectively the same thing for our purposes). And certainly, coercion for noncompliance with a treaty was well understood to be a commonplace and appropriate – if anything, it was so widely viewed as such that trumped up or relatively insignificant treaty violations had been used as a pretext for war for centuries, if not millenia.
In order to withdraw from such an agreement, you generally need to have a very good reason for doing so – the prior breach of the agreement by the other sovereigns needs to be not only so clear as to be indisputable, but also so material as to be indisputable. Because if you’re wrong, then it’s you who are indisputably committing the material breach.
If you want to negotiate a withdrawal, that’s one thing, even if your reasons for wanting to withdraw are terrible. But if you’re going to just announce your withdrawal unilaterally, you can’t be surprised when the other parties to the compact make a point of reclaiming whatever benefits they’ve provided you over the years.Report
I’ll just add a quick illustration of my point as to why a right to unilateral withdrawal from a compact would not have made any sense even at the time and even under a Lost Cause understanding of the war.
Imagine an agreement between two equal parties. The agreement is purely voluntary, but provides that party A will provide capital (in perpetuity) to build all sorts of infrastructure and security installations and party B will, in perpetuity, provide X amount of goods to party A.
Let’s say that after a substantial amount of capital has been provided, party B decides that it no longer wants to be part of this agreement because party A is doing something that indirectly and marginally increases party B’s labor costs (in this case specifically by, y’know, not having slavery, thereby making it a desirable location and/or conduit for party B’s labor to escape to). It thus asserts that it is unilaterally withdrawing from the agreement. And oh, by the way, it’s going to keep all of the capital party A has already provided. It also says that it’s taking ownership of all the security infrastructure that party A is effectively leasing to it.
Even in 1861, would we really say that party B is justified in its expectation that party A will do nothing about this and just say “sure, no problem”?Report
@mark-thompson
I don’t mean to sound evasive and I will answer the question, but this seems to me like a continuation of the conversation between @nevermoor and me. I’m perfectly content to continue since this looks like another version of the lone (I think) point of disagreement.
Geez. I spend one hour writing this post and I get more comments than the two-part series I spent weeks writing (and that doesn’t count the year and a half of reading that made such a post possible). It is a strange strange world 😀Report
I spend one hour writing this post and I get more comments than the two-part series I spent weeks writing (and that doesn’t count the year and a half of reading that made such a post possible).
Posts that inspire people to say “me am dum” will not inspire comments.
Posts that inspire people to say “I can display moral uprightness by commenting” will have people knocking down the doors to get to the comment section.Report
So maybe I should bash labor unions and support Wal-Mart’s employment practices. I figure that’s good for 1,000.Report
I bash walmart for their habit of persistently stealing intellectual property and not implementing it properly.
I am quite certain that when they have to pay people highway robbery prices, they do so cheerfully enough. Unlike some companies I might mention.Report
“the prior breach of the agreement by the other sovereigns needs to be not only so clear as to be indisputable, but also so material as to be indisputable. ”
Although this is the exact argument made by most Confederate apologists; that it had been established that slaves were property (by a Supreme Court ruling, in fact) and that emancipation represented a taking without compensation, which was specifically denied by the Constitution.
“If you want to negotiate a withdrawal, that’s one thing, even if your reasons for wanting to withdraw are terrible.”
The issue is what happens when the other party says “you wish to withdraw for bad reasons, so we’re not going to negotiate with you.”Report
Emancipation didn’t happen until after the south seceded. It is not at all clear that it would have actually happened otherwise. It is also not at all clear that it would have been structured as an uncompensated taking (though that’s a terrible way to think about it).
Why is that the issue? Sounds pretty ahistorical to me.Report
It’s amazing, when the Civil War comes up in the South, how fluid the timeline becomes. Obviously the North was always planning to free all the slaves, so the South had to go to war to stop it, even though it didn’t happen until well into the war and also the North had been frantically capitulating to the South prior to the shooting starting.
Bluntly put, the Civil War went like this: Both sides saw the writing on the wall, and realized the South was screwed due to their over-reliance on slaves — it was fixed investments that were increasingly hard to sell, and basically the South was staring down the barrel of industrialization evaporating the bulk of their wealth.
The North was frantically trying to push the problem off until another day, and the South was panicking. Panicking countries are just as dumb as panicking people, and the South ran away while shooting the North because, well, someone had to be at fault.Report
The issue is what happens when the other party says “you wish to withdraw for bad reasons, so we’re not going to negotiate with you.”
As if the Northern states hadn’t spent the last several decades negotiating with the South, giving them what they want on tariffs, compromising on territories and new states (the irony of the “states’ rights” position, of course, is that the South didn’t want new states and territories to have a choice), and just about everything else. The South had come out ahead in virtually every negotiation, and they still seceded because the threat that they would be outnumbered in the federal government and therefore might have to start making some concessions.Report
It should be noted that “We love this system, so long as we get everything we want” is not an absolutely horrible approach to democracy, including the republican sort.Report
@chris
Plus, I don’t know if there was a time that the laws of the land reflect a more pro-slavery position than the 1850’s.Report
Aye. One of South Carolina’s few complaints that, on its face, did not have to do with slavery was that the Republicans (who would not have had a majority in either house of Congress absent secession) had judicial reform in their platform. From what I’ve been able to gather (though I’d love if someone with more knowledge on this could weigh in), the specific reform they had in mind was restructuring the federal circuits to more closely correlate to population.
As I understand, because of how Supreme Court justices were typically appointed at that point in time, the population imbalance in the federal circuits meant that the slaveholding states were effectively given an automatic majority on SCOTUS despite having a smaller population, while several of the Northern states in the Midwest were left outside the circuits altogether and thus with no influence on SCOTUS at all.
Check this out (all of this is the 1860 data):
1st Circuit
NH
Mass.
Maine
RI
2nd Circuit
Conn.
NY
Vermont
3d Circuit
NJ
Penn.
4th Circuit
Dela.
Maryland
Virginia
5th Circuit
Louisiana
Mississippi
Alabama
6th Circuit
North Car.
South Car.
Georgia
7th Circuit
Ohio
Indiana
Illinois
Michigan
8th Circuit
Kentucky
Tennessee
Missouri
9th Circuit
Mississippi
Arkansas
Admitted, but not in any circuit:
Florida
Texas
Iowa
Wisconsin
California (technically was its own circuit, but didn’t get any SCOTUS justice from what I can tell)
Minnesota
Oregon
Kansas (though didn’t officially become admitted until Jan. 1861)
The Northern states had a combined population of 22 million to the CSA’s 9 million.
If, for our purposes, we consider the three border states part of the South, that only makes a minor change in the numbers – there were a little under 20 million people living in free states, and a little over 11 million in slave states.
Yet despite this, the structure of the courts meant that the slave states had complete control of five out of the nine circuits, and thus five of the nine Supreme Court justices.
Even if we count the states as equal sovereigns such that it would have been justified to divide the circuits up without regard to population, the numbers are still a bit out of whack – 16 slave states had five circuits, while 18 (if you count Kansas, which you should since its statehood was held up only because it voted to be a free state) free states had only four.
So this complaint, too, was all about slavery. More to the point, though, it was about a fear that there would be a large party in Congress (but not a majority party!) that had a proposal that, if implemented, would have meant that the slave states would no longer get their way on every single issue.Report
It may or may not be the case that the Northern states’ failure to strictly enforce the Fugitive Slave Act to the CSA’s liking was a clear and indisputable breach. But it seems to me that it’s pretty disputable, one way or another, as to whether this constituted a “material” breach – in other words a breach so severe that it undermines the very purpose of the “compact.” Much of the secession resolutions is dedicated to trying to argue that the breach was indeed “material.” Somehow, I doubt you’ll find many people these days insisting that the failure of Northern states to enforce the Fugitive Slave Act (not to mention their granting free blacks citizenship rights, which wasn’t even arguably a breach, despite the CSA’s insistence to the contrary) to the CSA states’ liking was not only a breach, but also such a massive breach that it undermined the very purpose of the Constitution.
To be sure, the people who passed the secession resolutions sure thought it was a material breach. But not many people outside of the CSA seemed to agree with that conclusion.Report
“not many people outside of the CSA seemed to agree with that conclusion.”
Well, no, but they wouldn’t have, obviously.
“it seems to me that it’s pretty disputable, one way or another, as to whether [northern state’s refusal to enforce the Fugitive Slave Act] constituted a “material” breach…”
But now you’re bringing in the question of who gets to decide whether a breach is “material”. If the people doing the deciding are the ones accused of committing the breach, then it’s pretty obvious how their decision is going to go.Report
There are other people in the world (who the south desperately wanted help from, but couldn’t convince). They certainly got a vote on that one.Report
@mark-thompson
Good catch on that point. I didn’t need the last two sentences to make my point that the states were co-equals. I should retract that as an error.
The concept of co-equal sovereigns as laying the groundwork for the compact theory was discussed extensively in one of the most comprehensive defenses of it – John Calhoun’s Discourse on the Constitution and the Government of the United States. I got the language That’s where I drew the language. I probably should have referred back to it to clarify what that meant. I went off the top of my head on it and got it terribly wrong it seems. Luckily, the error is relatively contained.Report