July 10, 2019
MY CORNER by Boyd Cathey
SECESSION – Is It An Idea Whose Time Has Come Round Again?
Was Secession constitutional in 1861? Could it still be an option today?
These are questions that, increasingly, in our fractured and fracturing society are being asked. Already there is a movement in far Left-leaning California—Calexit—to secede from the American Union. And there are new calls, and not just in the Southland, for some form of separation nationally, or at the very least a renewed regionalism.
The question arises in some of the most mundane of things….
Consider: a group of masculinized, androgynous, steroidized “womyn” go over to France and play soccer (and win). It is claimed by some faux “conservatives” that these amazons represent America; that may be. But what kind of America? As a group they manifest the same ideological feminism and partiality to lesbian behavior that characterizes much of the hysteria and madness of the feminist movement. Of course, their leaders, including the butch lesbian Megan Rapinoe, attack not just President Trump personally, but decry anything remotely making “America First,” as sexist, racist, bigoted, white supremacist, and filled with toxic masculinity.
How do these womyn “represent” those Americans who still attend traditional churches each Sunday, who continue to hold to traditional moral standards, and try to lead their lives in accord with the inherited beliefs left to them by their ancestors?
And there are, of course, whole areas of these United States where such stark differences are very apparent. Nor is there any sign, any indication, that the starkly radical and rapidly widening differences will somehow abate and that those loony left advocates for open borders, same sex marriage, transgenderism, reparations for slavery, and free health care for all (including any illegal alien from any other country who manages to get here) will be able to “come together” with more traditional folk, barring a national catastrophe or Divine intervention!
Is open civil war on our horizon? Or will we see an eventual dictatorship by the elites who succeed by various methods (e.g., ideologized technology, “population substitution” of native citizens by immigrants, etc.) in marginalizing us or forcing us to just shut up? Perhaps, then, some form of secession is the way out of this dilemma, a way out that could be less brutal or painful than the alternatives?
Interestingly, the prohibition on secession in large part owes its constitutionality not to the “Reconstruction Amendments” or even to the fact of military victory by Northern arms in 1865, but essentially to an 1869 Supreme Court case, Texas v. White, where by a five to three margin the court’s decision, delivered by Chief Justice Salmon P. Chase, stated:
The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to "be perpetual". And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union". It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
Justice Chase was a Lincoln crony and appointee, who succeeded Chief Justice Roger B. Taney in 1864. And his judicial philosophy reflected a Lincolnian view of the American Founding and nature of the American republic. Can anyone imagine in his wildest imagination that conservative Catholic and states' rights Marylander Chief Justice Taney would have manufactured such an ahistorical and anti-Constitutional theory to buttress the results of Mr. Lincoln’s War?
Hardly. Indeed, even a brief overview of pre-War practice and constitutional jurisprudence will give the lie to such speculation.
Of course, it will be argued that since 1869, and going forward, the “ties that bind”—or rather, “the tentacles that grasp”—have grown so tight and so fierce that any such talk is, well, idle intellectual speculation. No doubt, the fait accompli of time and practice, and of succeeding legislation and additional amendments to the Constitution, plus additional legal decisions, we are told, make such views rather eccentric, perhaps better suited for attempted conversations after several draughts of Jack Daniels!
But perhaps not. Perhaps, given the situation and the context in which we live here in these United States circa 2019, circumstances suggest we take another, harder, and more in depth examination of the issue of secession and separation.
A while back I wrote a brief response to a correspondent concerning secession. The correspondent argued, essentially, that in 1861 “secession, such as the Southern states attempted, was unconstitutional and illegal, and that those who engaged in it were ‘traitors’.”
I responded, and the Heritage Officer for the Sons of Confederate Veterans picked up my response, and it now appears on the SCV’s “Make Dixie Great Again” Web site. I pass it along today; it has not appeared previously in the MY CORNER series.
Please also check out the Make Dixie Great Again site.
MAKE DIXIE GREAT AGAIN
Secession: A God-given Right in 1776, 1861, Forever
Secession as an American Right - In this easy-to-read and short article Dr. Boyd Cathey, author of The Land We Love: The South and Its Heritage, capably demonstrates that secession is as American as apple pie. This article is perfect for you, your friends and the world. Read it, print it, share it.
, by Dr. Boyd Cathey
There are several excellent, in depth scholarly studies that undercut the arguments against secession from some hyper-unionists: the most recent, by Prof. Barry Alan Shain (Cornell Univ), The Declaration of Independence in Historical Context: American State Papers, Petitions, Proclamations, and Letters of the Delegates to the First National Congresses (2013), dispels the myth that the Declaration somehow “created a nation” and based it on equality. Shain’s extensive research is totally convincing. And per the US Constitution, the late Prof. M. E. Bradford’s Original Intentions: On the Making and Ratification of the United States Constitution (1993), demonstrates conclusively, through a thorough investigation of the discussions and debates, and the voluminous correspondence that survives surrounding the adoption of the Constitution, that secession for cause was never forbidden. If so, the document would never have been ratified.
One of the better, shorter summaries of the prevalent Constitutional theory at that time has been made by black scholar, professor, and prolific author Dr. Walter Williams. Here is what he writes in one his columns:
“During the 1787 Constitutional Convention, a proposal was made that would allow the federal government to suppress a seceding state. James Madison rejected it, saying, ‘A union of the states containing such an ingredient seemed to provide for its own destruction. The use of force against a state would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.’
“In fact, the ratification documents of Virginia, New York and Rhode Island explicitly said they held the right to resume powers delegated should the federal government become abusive of those powers. The Constitution never would have been ratified if states thought they could not regain their sovereignty — in a word, secede.
“On March 2, 1861, after seven states seceded and two days before Abraham Lincoln’s inauguration, Sen. James R. Doolittle of Wisconsin proposed a constitutional amendment that read, “No state or any part thereof, heretofore admitted or hereafter admitted into the union, shall have the power to withdraw from the jurisdiction of the United States.”
“Several months earlier, Reps. Daniel E. Sickles of New York, Thomas B. Florence of Pennsylvania and Otis S. Ferry of Connecticut proposed a constitutional amendment to prohibit secession. Here’s a question for the reader: Would there have been any point to offering these amendments if secession were already unconstitutional?” [emphasis added]
Anti-slavery zealot and staunch unionist President John Quincy Adams advocated secession over the annexation of Texas, and in his April 30, 1839, speech “The Jubilee of the Constitution,” commemorating the 50th anniversary of George Washington’s inauguration as the first American president, he affirmed:
“… if the day should ever come, (may Heaven avert it) when the affections of the people of these states shall be alienated from each other; when the fraternal spirit shall give away to cold indifference, or collisions of interest shall fester into hatred, the bands of political association will not long hold together the parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; and far better will it be for the people of the disunited states, to part in friendship from each other, than to be held together by constraint.”
More, during the antebellum period William Rawle’s pro-secession text on Constitutional law, A View of the Constitution of the United States (1825,) was used at West Point as the standard text on the US Constitution. And on several occasions the Supreme Court, itself, affirmed this view. In The Bank of Augusta v. Earl (1839), the Court wrote in an 8-1 decision:
“The States are distinct separate sovereignties, except so far as they have parted with some of the attributes of sovereignty by the Constitution. They continue to be nations, with all their rights, and under all their national obligations, and with all the rights of nations in every particular; except in the surrender by each to the common purposes and object of the Union, under the Constitution. The rights of each State, when not so yielded up, remain absolute.”
A review of the Northern press at the time of the Secession conventions finds, perhaps surprisingly to those who wish to read back into the past their own statist ideas, a similar view. As historian William Marvel explains in his volume, Mr. Lincoln Goes to War (Houghton Mifflin Harcourt Publishers, 2006, pp. 19-20), very few Northern newspapers took the position that the Federal government had the constitutional right to invade and suppress states who had decided to secede. Indeed, this non-interventionist view was the view of Presidents Buchanan and Pierce, and according to their previous opinions, a majority of those on the Supreme Court in 1861.
Congressionally a majority of members of Congress expressed a view which favored peaceful separation and that such separation, although regrettable, was constitutional. Indeed, were it not the New England states in 1814-1815 who made the first serious effort at secession during the War of 1812, to the point that they gathered in Hartford to discuss actively pursuing it? To read transcripts of their discussions is to see that not just Southerners but most Americans understood during the pre-war period that states had the right to abrogate their original adhesion to the American union.
One last comment regarding the accusation of “treason.” After the conclusion of the War, the Southern states were put under military authority, their civil governments dissolved, and each state had to be re-admitted to the Union. But, logically, a state could not be “re-admitted” to the Union unless it had been out of it. And if it were out of it, legally and constitutionally, as the Southern states maintained (and some Northern writers acknowledged), then it could not be in any way guilty of “treason.” Robert E. Lee formally resigned his commission from the US Army, and then reverted to civilian status. When Virginia seceded, which its state constitution gave it every legal right to do (and according to a majority Constitutional view of the time), he was called back into service by his state (which was then out of the union). There is no way that ex post facto argumentation can construe this as treason.