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Secession: Treasonous Act or Constitutional choice?

By Bill Ward
Columnist
Posted: 11:00 PM EST Monday April 24, 2006

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….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.

Excerpt from America’s first secessionist document, The Declaration of Independence

The most controversial discussion about the War Between the States usually focuses on secession. Did a Constitutional basis exist for the separation of the northern and southern states into two countries? Did men such as Robert E. Lee and Jefferson Davis, by shifting their allegiance to the Confederacy, commit acts of treason?

It’s hard for many of us today to understand the United States of America being anything but one nation, indivisible. But one of Abraham Lincoln’s key military advisors, Gen. Henry Halleck — known by the nickname “Old Brains” for his intellectual prowess — once suggested that the U.S. be divided into four equal parts, each with separate governments. His reasoning was that one government for all the territory now known as the 48 contiguous states would be too large and unwieldy.

The framers of the Constitution and the founders of the fledgling United States went to great effort to assure the states they would not be subjected to the same tyrannical central government they experienced under the British rule of King George III.

One of those efforts was the Federalist Papers, a series of 85 newspaper essays written in 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay. The Federalists were primarily intended to convince New York State to ratify the new Constitution. They provided a detailed explanation of the original Constitution’s intent and principles of American government. The papers further attempted to assure the states that they would, indeed, retain their individual identities and control over their internal functions.

For secession to be illegal, the Constitution had to contain a prohibition against it, but no evidence exists of such a prohibition. On the other hand, no specific constitutional affirmation of the right of secession was necessary for it to be legal. The closest declaration to the right of secession was implicitly stated in the Constitution by the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The words, “or to the people,” emphasize an ideal that was very much alive in those days, that we the people are the government.

Secession was not only considered a legal, constitutionally sanctioned act, the principles of secession were taught at the anti-bellum U.S. Military Academy at West Point. The textbook, “View of the Constitution of the United States of America,” was written in 1825 by William Rawle, a Philadelphia attorney. Although Rawle opposed secession, his book is thought to have influenced the leaders and supporters of the Confederacy. Robert E. Lee and Jefferson Davis, as well as most of the higher ranking officers in the Union and Confederate Armies were West Point graduates.

Historian Kenneth M. Stampp in his book, “The Imperiled Union,” shows that it is impossible to say that secession was illegal because of the ambiguity of the original Constitution as to state sovereignty and the right of secession. He points out that “the case for state sovereignty and the constitutional right of secession had flourished for forty years before a comparable case for a perpetual Union had been devised,” and even then its logic was “far from perfect because the Constitution and the debates over ratification were fraught with ambiguity.”

That ambiguity was something that caused considerable hesitation by many states in ratifying the Constitution. They wanted to leave no doubt as to the sovereignty and ability of self-government remaining with the states.

As Alexander Hamilton wrote in Federalist No. 33 on January 3, 1788, “If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”

The original intent of an unquestioned right of secession was established by the Founders, took root, and “flourished for forty years,” then later a “perpetual Union” counter-argument developed. That argument was spawned from political necessity when Northern states began realizing their wealth and power was dependent on the continuation of the Union and its exploitation of the South.

One of the best examples of this flip-flopping for political advantage is found in a speech made by Abraham Lincoln to congress on January 12, 1848. The speech, concerning the U.S. Mexican War and Texas splitting off from Mexico, contained the following quote from Lincoln:

“Any people anywhere, being inclined and having the power have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable a most sacred right — a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can, may revolutionize and make their own of so much of the territory as they inhabit. More than this, a majority of any such portion may revolutionize, putting down a minority, intermingled with or near about them, who may oppose this movement. Such minority was precisely the case of the Tories of our own revolution. It is a quality of revolution not to go by old lines or old laws; but to break up both and make new ones.” Lincoln practically echoed the Declaration of Independence.

In his famous biography, “Lincoln the Man,” published in 1931, Edgar Lee Masters commented on Lincoln’s speech: “In other words, the secession of Texas from Mexico was accomplished by the assertion of a ‘most valuable, a most sacred right’; protest as Mexico might against the step; and though at the time of the secession Texas had less than 200,000 people, both whites and Negroes, they or any portion of them had the right to revolutionize and to get free of Mexico. The question then arises what happened between 1848 and 1860 to make it wrong for 11,000,000 people, with an organized national government in every particular, to go their own way as the Confederate States of America, and under a constitution more liberal than that of the United States in that it forbade the protective tariff, the evils of which had by 1860 so distressed the people of the United States….?”

Masters no doubt drew portions of his comment from similar statements written in 1860 and ‘61 by observers and writers, such as Horace Greeley, editor of the New York Tribune and long-time supporter of Lincoln. A number of Northern newspapers had made similar observations along the line of, Why shouldn’t the Southern states be allowed to separate and go in peace without a war? Common thinking was that a government held together at the point of a bayonet would be neither a government of the people nor one of integrity.

As to imprudent comments concerning Robert E. Lee having been a traitor, Lee had sworn an oath to the United States as a commissioned army officer. He was offered the job as head of the entire U.S. Army under Lincoln as President. With the prospect of war looming, he refused the offer rather than, as he said, raise a sword against his home state of Virginia. After resigning his commission in the U.S. Army, Lee was no longer bound by an oath of allegiance to the U.S. His home state of Virginia also had been explicit in its ratification of the U.S. Constitution as to its views of state sovereignty, as opposed to any increased or assumed powers of a central government.

Virginia had ratified the Constitution in two steps on June 26, 1788, beginning with a declaration of ratification. The second was that a bill of rights be added to the Constitution, and that a list of amendments also be added in accordance with Article 5. The excerpt from Virginia’s declaration of ratification leaves no doubt as to the views of that and other states with regards to the binding authority of the U.S. Constitution. The following text is taken from the Library of Congress's Continental Congress Broadside Collection:

“WE the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes: and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.”

Of special note is “the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.” As the War Between the States seemed to be pending, President Abraham Lincoln, without the consent of Congress, suspended the writ of habeas corpus and placed the Northern states under virtual martial law. Lincoln ordered Gen. Winfield Scott to send Union Army troops to Baltimore, where they arrested Mayor William Brown, the Baltimore police chief, and nine members of the Maryland legislature to prevent them from making a lawful vote on secession.

Through his actions as the executive, Lincoln delivered a chilling blow to the Constitution. The First Amendment and much of the Bill of Rights was ignored, as if being non-existent. The Lincoln Administration, using the enforcement power of the Union Army, closed newspapers and arrested thousands of editors and reporters who dared speak out against Lincoln’s war policies, imprisoning them without charges for indefinite periods.

As to the liberty of conscience and of the press, it was cancelled, abridged, restrained and modified by no less authority than the President of the United States.