The Right of Secession

This piece appeared as an op/ed in two newspapers in the very red, Confederate district in which I ran for Congress that the Democratic nominee in 2012.


The basic conflict that the Civil War was about was the same issue that had dominated the nation’s politics for forty years: Would the slave-based economy expand into new territories, or would its expansion beyond its present domain be blocked?

But it was another related disagreement that brought that disagreement out of politics and into war: Did the South have the right to secede from the Union and form its own country?

The leaders of the South claimed that right, while the President of the United States maintained the Constitution did not allow it.

Had I been a judge with the job of resolving that dispute, I might well have agreed with the South. That is my leaning, anyway, as I have sympathized with the drive for Scottish independence from the United Kingdom. And I appreciated the peaceful way the Czechs and the Slovaks — combined for many decades into Czechoslovakia — went their separate ways and became two sovereign nations (the Czech Republic and Slovakia).

But in the U.S., the question of the right of secession had never been resolved: the South’s slaveholder class had long asserted such a right, but powerful arguments were also made to the contrary.

When the leaders of the South decided to form their own nation, they had two legal options available to them:

  • They could just accept the authority of the President, who forbade secession, and remain in the Union;
  • Or it could take the issue of secession to the Supreme Court, hoping that the Supremes would agree that the South’s secession could move forward.

But instead of either of those constitutionally permitted options, the leaders of the South simply took it upon themselves to defy the President of the United States, and prepared to fight a war to assert a right that was still in dispute.

Whether or not the South didhave the right to secede, it is crystal clear that the South had no right to do what it did.

No group of citizens in dispute with the government of the United States has a right to simply impose their position unilaterally and by force. Only the Supreme Court could have conferred the right to secede, and that issue had never been brought before them.

Though as a judge I might have agreed that the South could secede, if I’d been President – having taken an oath to defend the Constitution and assure that the laws are faithfully executed – faced with what was clearly a lawless act of insurrection, I would have felt constitutionally required, as Lincoln felt, to use whatever force was needed to put it down.

Although the question of the “right to secede” was surely important, far more fundamental is the question of whether disagreements will be settled by the Rule of Law or by the Rule of Force.

Indeed, that is the essence of the American Constitution, our fundamental American covenant: we will resolve our conflicts according to the rules. By that means, Americans can avoid the nightmares that ensue from having disagreements resolved by illegal violence.

Indeed, the great achievement of the founders of the United States was to set up a system by which the nightmares of history – during so much of which the course of human affairs had been decided by violence and bloodshed – could be overcome by a system of rules established with “the consent of the governed.”

The South’s lawless arrogation onto itself of the right to impose its position in this major dispute by force of arms was a violation of that American covenant. Their illegal assertion of will  dragged the nation back into the terrible “war of all against all” – that anarchic problem of power uncontrolled — that had darkened the pages of the history of civilization for millennia.

And how huge was the cost to the nation of that departure from the Rule of Law!

Had the leaders of the South decided to “fight” for their right to secede, but to do so legally – by bringing their case before the Supreme Court, there were two possible outcomes:

  • If the Supremes found for the South, the division could be effected peaceably, perhaps with minimal damage done in the transition.
  • If they found for Lincoln’s position, and forbade secession, then the South would have been obliged to accept they were stuck in the Union and make the best of the situation.

Either one of those legal paths would have been infinitely better than the one the nation took, where the outcome would be decided on countless battlefields around the continent.

It would be hard to overstate how nightmarishly destructive have been the consequences of the Civil War, including hundreds of thousands dead on the battlefields, and enduring wounds on the national culture, still not fully healed.

A cautionary tale for our times. No, we’re not much confronted with the issue of “secession.” But once again that still more fundamental question has arisen whether Americans will honor our covenant to resolve our disagreements according to the Rule of Law, or turn instead to violence.

We should remember that when a part of the nation chose to depart from the Constitution and turned instead to Force, the whole nation suffered grievously. (But especially the part that made that lawless choice.)

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