Friday, October 01, 2010

Sesquicentennial, Part V: Secession


By early October of 1860, the four-way race for the Presidency was nearing its close. Several of the Southern states had made it plain that they would secede from the Union if a Republican were elected. Two questions were at the forefront: would they, and could they? For the first, many in the North thought that the pronouncements coming from the cotton states were just election-year bluster. For the other... The Constitution has this to say, explicitly, about the legality of secession:

And that, ladies and gentlemen, is the nub of the problem.

The Founders honestly never imagined the question coming up. It was only by union and concerted action that they had wrested their freedom from Britain at all. As small, independent entities they were sure they'd be gobbled up, piecemeal. So, while they were very careful to detail the procedures for new territories joining up, they neglected to consider the possibility that any would bolt the fold, once inside. And for fifty years, near enough, they were right.

The question weighed heavily on peoples' minds that autumn. Is it legal, or not? There are two broad approaches to the question, one Constitutional and one based on contracts, and each one can be argued pro or con.

First, there's the fact that the Constitution has nothing explicit to say on the matter. Most American jurisdictions draw their legal traditions from English Common Law, and as such, unless something is expressly prohibited, it's permissible by default. By this line of reasoning, the fact that it's not specifically prohibited meant that secession was perfectly legal.

But there's another Constitutional argument in play. If you interpret the Preamble as having the force of law, the phrase "to form a more perfect Union" implies an indivisible Union, since an indivisible Union is clearly more perfect than a divisible one. Further, one of the Anti-Federalist arguments against adoption of the Constitution was that such a strong Federal goverment implied a perpetual Union, posing a threat to State sovereignty.

Another argument flows from the nature of contracts. Some contracts can be terminated at will by either party. Some hold that the accession of a State to the Union follows this model, and any State is free to exercise it's sovereign prerogative at any time. But there's a counter-argument here, too; some contracts require both parties' agreement to end, like marriage. Under this interpretation, the accession of a State is an agreement between the State and Congress. Both would have to agree in order to sever their connection.

But an even larger point loomed, that even the most ardent Fire-Eater would be compelled to take notice of. What about the property to which the Federal government held clear title? Customs houses, armories, forts and the like?

No one was thinking about those yet. They should have. They would come to regret this oversight, in months and years to come.

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