Secession (again)

by Fred Ray on February 17, 2010 · 0 comments

Secession again rears its ugly head, this time on The Volokh Conspiracy. Professor Eugene Volokh opines “I keep hearing the claim that the legitimacy of secession from the U.S. was “settled at Appomattox,” and I wanted to say a few words about why I think that makes little sense.” While he thinks that “today, secession is politically a total nonstarter, and for very good reasons,” he continues that “…surely this must be a judgment based on how we see the world today, not based on what happened 144 years ago. A matter is ‘settled’ by political decision only so long as the political decision commands the adherence of the polity. If in 2065 Alaska, California, Hawaii, or Texas (just to consider some examples) assert a right to secede, the argument that ‘in 1865, the victorious Union government concluded that no state has a right to secede in opposition to the wishes of the Union, so therefore you lack such a right’ will have precisely the weight that the Americans of 2065 will choose to give it — which should be very little.”

A good point, although I’d note that the Late Unpleasantness did not come to an end on April 9, 1865, at Appomattox Court House. This marked only the surrender of the Army of Northern Virginia. In fact a major battle was going on around Mobile at the same time, and the remaining Confederate forces east of the Mississippi did not surrender until May 4 at Citronelle, Alabama. Jefferson Davis was captured a few days later on May 11, and the last organized Confederate force under General Stand Watie did not surrender until June 23 in Oklahoma. Sporadic surrenders of smaller commands and guerilla groups continued until late in the year. The Confederacy itself never formally surrendered, it simply collapsed.

Professor Ilya Somin (whom we have met before) follows up with another post where he notes that “In many federal systems, secession is an important safeguard for minority groups and a guarantee against excessive concentrations of power in the central government” and gives some examples, including the American Revolution.

He then goes on to say:

Not all secession movements are defensible. As I see it, their merits depend crucially on the nature of the regime they are seeking to secede from and the quality of the one they are likely to establish. For this reason, I am one of the relatively few Americans sympathetic to the general idea of secession who also believes that the Confederate secession effort of 1861 was utterly indefensible. The Confederates seceded for the deeply unjust purpose of defending and perpetuating slavery, a point that I discuss in detail here and here. For that reason, among others, their defeat and the resulting abolition of slavery was a far better outcome than a Confederate victory would have been.

Now I know law professors, like wizards, are subtle and quick to anger, but this seems a bit hard to digest, since Professor Somin first posits a right but then adds a political gloss—that a secession be “just,” without explaining what that might mean. Leaving aside the simplistic notion that secession was only about slavery, who decides what an “unjust” cause might be? Even if we concede the point, hadn’t the highest court of the nation from which they purported to secede decided only three years earlier that slavery was legal and protected by the US constitution?

Who would decide the justice of the cause of secession? A court? Referendum? Or should any secession movement try to anticipate what historians and law professors will say 145 years after the fact? I suspect that the issue would, as it was in the Civil War, be decided on the battlefield and not in courts, and that a just cause would be a winning one. Although it’s often said that slavery hurt the Confederacy’s search for aid and recognition abroad, diplomat John Slidell’s view was that it hinged more on battlefield success. Had Lee scored a major victory in Maryland in 1862 or in Pennsylvania in 1863 history might have been written quite differently. As I pointed out in my review of The London Confederates, much of the British intelligentsia and press were pro-Confederate regardless of the issue of slavery. Many of the leading intellectuals of the day, including such luminaries as Lord Acton and Thomas Carlyle, favored the South.

A more authoritative view is that of sitting US Supreme Court justice Antonin Scalia, who, in a fascinating letter reproduced on the site of yet another lawyer, Eric Turkewitz, says that “the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. … Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”

I, too, rather doubt that this sort of thing would be settled in any sort of court. If you believe your cause is just (and that you can prevail), no legal precedent is going to stop you any more than it did the Thirteen Colonies seceding from the British Empire.

Professor Volokh weighs in again: “Appomattox might well have a continuing effect …. But that’s not a ‘settlement’ of the secession question for the centuries. And there can be and should be no such settlement. ‘The past is a foreign country: they do things differently there.’”

True, and the reasons for secession in 1860 should be viewed as they were understood at the time, not as we see them now. It’s one of those questions that will never be settled in books or courts, but will be from time to time on the battlefield, although this is not to say that there will be more or less peaceful settlements such the dissolution of the Soviet Union.

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