Sessession explicity ruled out in US Constitution

Derek Jackson · Mar 10, 2004

Would this have made any difference to events Between November 1860 and April 1861?

If things followed OTL would it has resulted in a different Post Civil War situation?

Paul Spring · Mar 10, 2004

I suspect that a constitution that explicitly forbade secession would probably not have been ratified. Few, if any of the states at that time would have been willing to join a federal union that prohibited them from leaving under ANY circumstances.

Abdul Hadi Pasha · Mar 10, 2004

Paul Spring said:
I suspect that a constitution that explicitly forbade secession would probably not have been ratified. Few, if any of the states at that time would have been willing to join a federal union that prohibited them from leaving under ANY circumstances.

I tend to disagree. I think the Constitution did forbid secession; the Articles of Confederation did, and although the Consitution replaced the Articles, a Consitution is not just a single document (ask the British!). If the Constitution was "in order to form a more perfect Union", it's hard to imagine how allowing for dissolution makes a Union more perfect. The intent was to create a nation, not a temporary alliance.

zoomar · Mar 10, 2004

Abdul Hadi Pasha said:
I tend to disagree. I think the Constitution did forbid secession; the Articles of Confederation did, and although the Consitution replaced the Articles, a Consitution is not just a single document (ask the British!). If the Constitution was "in order to form a more perfect Union", it's hard to imagine how allowing for dissolution makes a Union more perfect. The intent was to create a nation, not a temporary alliance.

I agree. I'm not a constitutional history expert, but I would suspect a prohibition on unilateral secession was not explicitly mentioned because it was so obvious that nobody thought to add it (sort of like marriage only being between men and women

)

If a ban on secession WAS explicit in the constitution, those southerners pushing to to secede over slavery would have been perceived as a small extremist minority even in the south - and most of the OTL confederate officials (who had also been in the US govt) would probably not have joined the secessionist movement. There would have never been a Confederacy, or if there was a rebellion, it would be seen by the majority of people as a simple revolt, not an attempt at secession. Also, this might have led the slavery rights advocates to focus their rebellion on a change in the Washington govt, not independence for the south. Taking it father, the end result might have been the continuation of slavery much longer in the south, with a gradual compensated emancipation wherein the property rights of the former slaveowners were much more aggressively protected than the human rights of the slaves. Blacks might have been permanently assigned to a second-class status by federal law and the "rights" of plantation owners to use of their compensated labor maintained.

It could have led to a significantly different USA.

zoomar · Mar 10, 2004

One more thing. It seems to me that if the founders had envisioned the possibility that future events might make the dissolution of the United States something to consider, they would have incorporated specific peaceful processes for dissolving the union - possibly involving something akin to the amendment process. It is quite clear they intended the USA to be a permanent union.

Susano · Mar 10, 2004

What kinda logic is this? if your foundfing fathers had wanted it to be an undissolavble nation, they would have said so in the constiution. Not mentioning it at all means leaving all option avaible.

Scott Rosenthal · Mar 10, 2004

Folks, the founders wrote extensively on such subjects in the Federalist Papers, their chosen FAQ for just such issues. The existence of a Supreme Court (for interpetation of the constitution, among other things) was another reason that the founders didn't feel the need to create a phone-book sized document (such as the EU's latest effort) to cover every possible circumstance. Whether this was a wise choice or not is another matter entirely, but the notion that the founders were going to put together some one stop shop of wisdom is something that none of them would have accepted at the time.

zoomar · Mar 10, 2004

Susano said:
What kinda logic is this? if your foundfing fathers had wanted it to be an undissolavble nation, they would have said so in the constiution. Not mentioning it at all means leaving all option avaible.

Huh? Every legal contract I've seen binding two or more parties into a joint understanding or agreement (and I've sen a lot) provides at least some language for how the agreement may be legally terminated. If you are even remotely concerned about this you make sure its in there!

"Folks, the founders wrote extensively on such subjects in the Federalist Papers, their chosen FAQ for just such issues. The existence of a Supreme Court (for interpetation of the constitution, among other things) was another reason that the founders didn't feel the need to create a phone-book sized document (such as the EU's latest effort) to cover every possible circumstance."

The Federalist papers are not the constitution. If the founders of the US really thought the union was to be only a temporary alliance or agreement (like most contracts), then they are fools for having left a termination clause out of the constitution.

Susano · Mar 10, 2004

States ar enot person. As souvereign entities, they may leave treaties a will.

zoomar · Mar 10, 2004

Susano said:
States ar enot person. As souvereign entities, they may leave treaties a will.

I've worked on legal agreements between US states, US states and Indian nations, and US states with the federal govt. They have all included termination criteria and clauses. Also, the US constitution is NOT a Treaty among sovereign nations.

Susano · Mar 10, 2004

zoomar said:
I've worked on legal agreements between US states, US states and Indian nations, and US states with the federal govt. They have all included termination criteria and clauses. Also, the US constitution is NOT a Treaty among sovereign nations.

At first, it was.
And the examples you list are INTERIOR treaties WITHIN a legal entity (the USA of today)

david3565 · Mar 10, 2004

zoomar said:
I've worked on legal agreements between US states, US states and Indian nations, and US states with the federal govt. They have all included termination criteria and clauses. Also, the US constitution is NOT a Treaty among sovereign nations.

Ok, here is my humble opinion on the issue...

The Articles of Confederation included a distinct prohibition against secession and the Constitution did not. This is true. However, there is this

Article I said:
No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

I have seen the opinion that these are merely conditions stipulated while States are still a part the Union and still not a prohibition against secession. However, combined with the previous prohibtion in the Articles of Confederation legal precedent, the clauses giving Federal Government certain powers, and the clause declaring Constitutional law to be the supreme law of the land, the argument turns against secession as a legal option. I don't believe any unbiased court would say that it met the burden of proof in a civil case.

There is also the practical ramification to consider. When the Federal Government does legitimately use it's power, secession means that any State can delcare it null and void. Now that may be great when Federal Government is aubsing it's power, but the only true secession that ever happened in this country happened because people were pissed at the opinions of a legitimately elected President.

What appears to be the case and what I think would be borne out with more research is that Federalism, or the concept of duel sovereignty, was meant to replace the specific prohibition. Instead of just slapping on a clause that says you can't leave, an over-arching system is put in place to make sure that Federal Government didn't have it's fingers in too many pots. Federalism also did several other things, but this seems to have been a big one.

Re-reading the last part of Section 10, "...or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.", I think you could say that is an excception, allowing States to actively resist Federal encroachment, violently if need be. Combined with the sovereign powers reserved for them in the Consitution, you could make a strong case for that.

Looking at the language referring to the States in Amendments passed before and after the ACW, you find that States or "the Several States" was capitalized before and put in lower case after. This seems to be a shift in the legal perception of the States position. And make no mistake, they were views as sovereign powers at the time of the Constitution's drafting. But so was the Federal Government in this new system. The change after the ACW seems to be a perception that the States are subordinate to the Federal Government and share no equal status. Even if this wasn't the view in principal, it was certainly the practical effect after the ACW and expanding dramatically under successive Presidents.

Scott Rosenthal · Mar 10, 2004

Zoomar: I believe that you misunderstood my point. The founders did NOT believe that the Union was a temporary matter, and hence omitted any mention of secession from the constitution because they knew it wasn't intended to happen. As for the Federalist papers, they have no force of law, but they DO provide us with a superb insight into what the FF were thinking and why. As such, we can discern intentions... I believe we are likely in agreement on this?

Susano: Actually, at NO time were the states considered soverign entities. The articles of confederation (which preceeded the constitution), specifically referred to states as coequal to the federal govt, but not soveriegn. The constitution left little doubt as to the inherently subordinate role of the states, and the legal record in the decades following confirmed this repeatedly. The only one of the founders who could reasonably be said to have endorsed the rather odd view of the states as sovereign entities was Jefferson, and he had nothing to do with the writing of the constitution. Madison, often thought of as the true author of the constituion clearly endorse the notion of the union as a compact of equals, but placed the federal govt on a higher plane. It is simply inconceivable that a man as detail obsessed as Madison would write at great length about the structural character of the union, and then omit to mention an escape clause.

zoomar · Mar 10, 2004

Susano said:
At first, it was." [at treaty among sovereign nations]

I disagree. The USA was already a organized country under the Articles of Confederation (not something like the UN, EU or NATO). As the Preamble itself states the Constitution was written to establish "A more perfect Union" than the one the US had already. Also, AHP's point is valid. If the Articles already banned secession (which I didn't know), this principle already existed.

zoomar · Mar 10, 2004

Scott Rosenthal said:
Zoomar: I believe that you misunderstood my point. The founders did NOT believe that the Union was a temporary matter, and hence omitted any mention of secession from the constitution because they knew it wasn't intended to happen. As for the Federalist papers, they have no force of law, but they DO provide us with a superb insight into what the FF were thinking and why. As such, we can discern intentions... I believe we are likely in agreement on this?

D'oh! I sure did! Sorry.

Faeelin · Mar 10, 2004

Susano said:
What kinda logic is this? if your foundfing fathers had wanted it to be an undissolavble nation, they would have said so in the constiution. Not mentioning it at all means leaving all option avaible.

They didn't say that bigamy was illegal in the constitution, but this does not mean I can have two wives as a constitutional right.

david3565 · Mar 10, 2004

Scott Rosenthal said:
Zoomar: I believe that you misunderstood my point. The founders did NOT believe that the Union was a temporary matter, and hence omitted any mention of secession from the constitution because they knew it wasn't intended to happen. As for the Federalist papers, they have no force of law, but they DO provide us with a superb insight into what the FF were thinking and why. As such, we can discern intentions... I believe we are likely in agreement on this?.

I'll just take a whack at this. I believe the Federalist Papers, though aving no force of law, could be admitted to a court of law under legislative intent, as it is a matter of public record and accepted fact that they do represent the intent of the Constitution's authors. Even if only as historical evidence, it could still be used in a legal case.

Scott Rosenthal said:
Susano: Actually, at NO time were the states considered soverign entities. The articles of confederation (which preceeded the constitution), specifically referred to states as coequal to the federal govt, but not soveriegn. The constitution left little doubt as to the inherently subordinate role of the states, and the legal record in the decades following confirmed this repeatedly. The only one of the founders who could reasonably be said to have endorsed the rather odd view of the states as sovereign entities was Jefferson, and he had nothing to do with the writing of the constitution. Madison, often thought of as the true author of the constituion clearly endorse the notion of the union as a compact of equals, but placed the federal govt on a higher plane. It is simply inconceivable that a man as detail obsessed as Madison would write at great length about the structural character of the union, and then omit to mention an escape clause.

I disagree, but it is a matter of splitting hairs and you still end up with the same practical effect as what I said before. However, with the powers reserved by the States in the Constituion, they are, by definition, sovereign. It is only a question of how far that sovereignty extends. The duel sovereignty of Federalism means that they do not, I believe, have the power to dissolve the bonds on union, but they are not subordinate entities or clients states of the Federal Government. Indeed, in collective fashion, they possess more and greater powers than the Federal Government, as the Consitution grants them any powers not delegated the Federal Government.

Grey Wolf · Mar 10, 2004

I do not agree

From the South Carolina Declaration of Secession (as opposed to the shorter Ordinance)

"In pursuance of this Declaration of Independence, each of the thirteen States proceeded to exercise its separate sovereignty; adopted for itself a Constitution, and appointed officers for the administration of government in all its departments - Legislative, Executive and Judicial. For purposes of defense, they united their arms and their counsels; and, in 1778, they entered into a League known as the Articles of Confederation, whereby they agreed to entrust the administration of their external relations to a common agent, known as the Congress of the United States, expressly declaring, in the first Article "that each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not, by this Confederation, expressly delegated to the United States in Congress assembled." "

I would aska question of logic - WHAT were the states that agreed to come together to discuss confederation if they were NOT sovereign entities ?

It should also be noted that many of the states retained the legal form 'the sovereign state of XXX' even whilst part of the Union, thus indicating that in their legal view the state was sovereign in its own areas of responsibility even under the Union.

Grey Wolf

Grey Wolf · Mar 10, 2004

btw, the Avalon Project is excellent for posting the texts of historical documents

http://www.yale.edu/lawweb/avalon/artconf.htm

The Articles of Confederation

Grey Wolf

zoomar · Mar 10, 2004

Grey Wolf said:
I do not agree

From the South Carolina Declaration of Secession (as opposed to the shorter Ordinance)

"In pursuance of this Declaration of Independence, each of the thirteen States proceeded to exercise its separate sovereignty; adopted for itself a Constitution, and appointed officers for the administration of government in all its departments - Legislative, Executive and Judicial. For purposes of defense, they united their arms and their counsels; and, in 1778, they entered into a League known as the Articles of Confederation, whereby they agreed to entrust the administration of their external relations to a common agent, known as the Congress of the United States, expressly declaring, in the first Article "that each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not, by this Confederation, expressly delegated to the United States in Congress assembled." "

I would aska question of logic - WHAT were the states that agreed to come together to discuss confederation if they were NOT sovereign entities ?

It should also be noted that many of the states retained the legal form 'the sovereign state of XXX' even whilst part of the Union, thus indicating that in their legal view the state was sovereign in its own areas of responsibility even under the Union.

Grey Wolf

Now Grey Wolf, why on earth would anyone consider a document produced by the secessionist government of South Carolina an unbiased argument on this issue? I know for your own sinister purposes you'd like to see the US broken up, but really! No one denies each state is sovereign, as you state "in its own areas of responsibility". It's just that this sovereignity does not extend to entering into treaties or arrangements with themselves or other nations which supersede or replace US federal government as currently constituted.

Your argument might have validity if the articles of confederation had not already established a United States of America and if these articles had not prohibited secession. The states signing the constitution in 1789 had already given up a lot of their sovereignity.