The law professors have taken up the issue!
First out the gate was Ann Althouse, a Constitutional Law prof out of Madison, Wisconsin. Her take is that “all these people [who believe in the right of secession] have the law wrong and don’t seem to know the basics of the history of the Civil War,” and that those who believe in secession are “fascinatingly stupid.”
George Mason University law professor Ilya Somin disagrees: “I don’t think that belief in a right of secession by itself demonstrates ignorance about either law or American history. The Constitution is famously silent on the issue of secession. It doesn’t explicitly guarantee states a right to secede, but also doesn’t explicitly forbid secession. …. This silence has led to ongoing debate over the constitutional status of secession.”
Somin mentions the Hartford Convention of 1814 but omits the “disunion” movement of the 1840s and 50s, where New England anti-slavery radicals favored separation with the slaveholding South (at least until the political situation favored them, after which they became staunch Unionists), and such colorful examples as the Republic of Rough and Ready in California. There have been modern calls for secession as well, most recently by Michael Hirsch in Newsweek magazine, which I addressed in a previous post. Hirsh and many of his sophisticated latte-sipping pals view association with beer-swilling, Confederate flag waving, NASCAR-watching rednecks as intolerable.
“There is no question that the federal government defeated the south’s attempt to secede,” says Somin. “However, superior military might doesn’t prove superior constitutional right.” I’m with him on this, but then he adds that the Union was right to suppress this particular secession because it was for “the indefensible purpose of protecting and extending the evil institution of slavery.”
Of course that’s how we look at it now, but was that really the case in 1860? The Republican platform advocated no more than containing slavery and made no mention of abolition. Another plank of the Republican platform, the imposition of protective tariffs, seemed to openly favor industrial New England at the expense of the agricultural South and caused at least as much heartburn. In 1861 Lincoln openly repudiated abolition, chastised his generals when they tried to implement it, enforced the Fugitive Slave Act, and stated that he would free none of the slaves if he could preserve the Union.
As for some sort of national consensus about abolition (remember we are talking about then, not now), you certainly won’t find it in the election of 1860. Lincoln won with less than 40% of the popular vote and did not carry a single Southern state. And while it was true that there was a large and influential bloc of radical abolitionists in the Republican party, it would also be wrong to say that everyone who voted that way favored it. Slavery was quite legal in the United States and remained so until 1866 with the ratification of the 13th Amendment. It had just been reaffirmed by the Supreme Court in Dred Scott (1857), and Congress in 1850 had passed the Fugitive Slave Act, which remained in force until mid-1864. How then, could something that had been repeatedly affirmed as legal be an “impermissible” motive?
This is, of course, assuming that slavery was the South’s sole motive, something I don’t want to get into an extended argument over. Somin, like many others, quotes Confederate veep Alexander Stevens as speaking for everyone in the South, but isn’t this like saying that Dick Cheney speaks for all Americans? It’s certainly not my intention to defend slavery, and it’s always dangerous to get into a legal argument with a law professor, but it seems to me that having said that the Constitution is silent on the subject of secession, he is now adding an express condition of his own—the “rightness” of the seceding cause. Who would have decided this?
One issue that Prof. Somin does not address is whether part of a state can secede. The answer, unequivocally, is “yes.” West Virginia seceded from Virginia shortly after the start of the war, leading to amusing role reversal among the combatants. The Federals, who had steadfastly maintained the inviolability of the Union, readily acceded (indeed encouraged) the secession of West Virginia. OTOH the Virginians, who had maintained their own right of secession from the Federal compact, denied it (or attempted to) to their western constituents. Historical examples of attempted intra-state secession include the State of Franklin, Absaroka, and of course the counter-secession statelets of the Free States of Jones and Winston (yes, the Confederacy had its own secession problems).
UPDATE: Professor Somin replies, which I post with his permission:
I would note 2 things about your post:
1. It’s true that the 1860 Republican platform wasn’t abolitionist. But it did categorically oppose the expansion of slavery. The southern states feared that this would eventually lead to its containment and extinction, whether or not such was Lincoln’s intention. For a good summary of their fears see William Freehling’s book, The South Vs. the South.
2. Stephens’ statement is just the best-known of many similar speeches by Confederate leaders at the time. For example, slavery is mentioned as the principal motive for secession in virtually every secession ordinance passed by the Southern states when they decided to leave the Union. Also, Stephens was chosen as VP in part because he was a relatively moderate proslavery/secessionist figure. The “fireaters” were even more concerned for the future of slavery than he was.