Debate/Question: secession constitutionality

A while back a thread got briefly sidetracked debating the matter of secession before being asked to stop. Id like to see the topic explored some more.

The main issues, from what I could tell where these:
  1. Is there a Natural/Human Right to secession?
  2. If so, what is the nature of this right (ie: positive or negative, etc)?
  3. Is there a Legal Right to secession?
  4. If so, is there a procedure established to exercise this right?
  5. If there is a procedure, did the Confederate States of America follow it?
What is not the topic being discussed: the morals of either the Union or the Secessionists. While i agree that topic is important to the peculiarities of the American civil war, im interested in the general case of secession.
 
1. no; members of a civil society have no intrinsic right to separate themselves
2. n/a
3. no
4. no, because it doesn't exist
5. no
 
1) yes it was not made illegal and the constitution justifies it all a state needs is for the other 49 to approve there leaving the United States

2) positive as it holds that the people can leave a Nation they no longer want to be a part of.

3) see number 1

4) no the Confederate States did not follow the proper procedure but then again the United States was unwilling to open talks.
 
Only when there are widespread oppression (at minimum, right to Language and Status is not recognized), member of Civil Society who free and can participate in government on area they living do not have such right.

So Palestine (from Israel), South Sudanese (from Sudan), and other region does have Right to secede.

Scotland, Catalonia, Quebec and Confederacy did not. They aren't oppressed, their language and culture is not made illegal, and they have full suffrage in their government. They can advocate it, but must get agreement from whole population before independence can be recognized.

A fully democratic and liberal SHOULD recognize that desire of secession assuming 1) viability of new state and old original state not under threat (economy, militarily, etc) 2 ) desire of secession is larger than majority among populace that region 3) such desire is expressed consistently over period of decades 4) new states gave strong guarantee of protecting Right of all her citizens (including anti-secessionist, immigrants, and minority). But it SHOULD not MUST.
 
1. Yes. Within Islam, you have this right.

2. Negative. You have freedoms against the coercion of the state, both as an entity/collective and as an individual.

3. Depends on the legal code. Within Sharia, you have this right under certain circumstances. Regardless, legalities may be placed to which the law is unjust or perceived such. It is doubtful that most people will defend all legalities.

4. Depends on the system.

5. I am not sure whether the CSA correctly addressed the issue.
 
Others have said much of this, but I hope to be able to expand:
1) I don't think so. I tend to think that secession is a matter of state (in the sense of a political unit, not the American sense) sovereignty and that states have an inherent right to protect their sovereignty and national authority. When a political unit seeks to secede it inherently threatens the sovereignty of the state from which it is seceding. That state is entitled to protect itself and prevent secession as a defense of its sovereignty, if it chooses. The secessionist entity is the one violating the state's sovereignty by attempting to establish its own sovereignty. From there, secession becomes a practical question. If you win, then you were justified and if you lose then you weren't. Simple enough I think. However, since World War 2, international law has moved away from this position toward extending people the legal right to secede in certain circumstances. In practice however, the old regime still applies.

2) Neither, as I don't think it is a right in the first place.

3) In theory, secession is permissible so long as the state seeking to secede requests the consent of the United States and that consent is given. However, there is absolutely no legal right for a state to secede. It is something that a state may do when the United States chooses to permit it, but the state has no intrinsic right to secede because when states joined the US they joined a perpetual union, giving up their right to certain aspects of sovereignty. Further, as already mentioned, the Supreme Court has ruled on the legal merits of unilateral secession. Namely, that they are nonexistent as states have no right to secede on their own. When they do, legally, the state is not held to have seceded, merely to have had its rightful government usurped by the secessionist authority.

There is another argument here that basically says secession is, fundamentally, a question of sovereignty which is often an extra-legal matter settled by states outside of a legal context. I.e, the Civil War showed that unilateral secession was illegal because the North held that view and won the war. Personally, I find this the most convincing view from an historical perspective, though not a legal one.

4) Nope, no formal procedure. Presumably if a state actually wanted to secede it would submit a petition of some sort to Congress in a similar manner to territories applying for statehood.

5) No. The states that formed the CSA all declared their secession independently of the formation of the Confederacy, as I understand it. They then joined together to form the new state. However, they all seceded unilaterally and therefore their actions were illegal.
 
There is another argument here that basically says secession is, fundamentally, a question of sovereignty which is often an extra-legal matter settled by states outside of a legal context. I.e, the Civil War showed that unilateral secession was illegal because the North held that view and won the war. Personally, I find this the most convincing view from an historical perspective, though not a legal one.

That isn't really a legal question. It's more a case of might makes right.

If the CSA had won, secession wouldn't have been any more legal or moral. The only difference would be they made it stick.
 

SwampTiger

Banned
In reference to the CSA, the American colonies, seceded, in effect from Great Britain. Many people in the Northern states, as well as the South, believed states had the right to secede in 1860. The Southern states did not wait for, or request a vote in the House of Representatives. They called out the state militias to enforce unilateral secession, fully expecting armed resistance from the US government. The US government did not call for a vote, but for volunteers to put down the rebellion, partly because no one could predict the outcome of such a vote.
 
1-Not ''natural'' per se but any democratic state worth its salt should at least allow referendum on the question
2-Not applicable
3-The legality emanate more from the democratic nature of said state and of the secession
4-Yes, a referendum is a good way to judge the will of independance and further negociation should stem from this vote
5-No, calling up your militia and seizing a military fort before any vote or negociation is not a ''procedure'', it is a coup.
 
That isn't really a legal question. It's more a case of might makes right.

If the CSA had won, secession wouldn't have been any more legal or moral. The only difference would be they made it stick.
I agree. But, there is a case to be made that some legal questions like this are resolved through might makes right. It still happens today, and it was even more the case at the time.
 

SwampTiger

Banned
Captain Jack has the crux of the matter. Lincoln and the Republicans on one side, with the Southern Fire-eaters on the other, were not going to let the question go to a legal decision.
 
1. If people have the fundamental right to self-government, then logically they would have the right to regroup into new countries.

2. That’s a matter of perspective. Americans celebrate their secession from the British Empire every year and 52% of British voters in 2016 wanted to secede from the European Union. The Loyalists who fled to Canada, and the 48% who voted Remain, would argue otherwise.

3. That would depend on the particular case but frequently there is not, as countries do not want to have provisions allowing secession.

4. Again, it depends but frequently there is not.

5. Well, attacking Fort Sumpter probably was not the best idea although I don’t know what sort of peaceful alternative existed. They obviously didn’t ask their slaves (35% of the population) what their opinion was though.
 
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SwampTiger

Banned
Well good thing thats not the point of the thread, is it?

Then:
1. Yes, but no government will allow it, see Spain vs. Catalonia.
2. Not sure what you mean by this question. I would say positive, as you should have the right to free association, including with some truly horrible people.
3. Depends of the State/Nation you are discussing. Mostly no.
4. See above.
5. No, see my previous comment. Neither side was willing to follow or discuss any process toward succession.

Is that better?
 

Kaze

Banned
Look up the Preamble - "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court..The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained."

so... according to the words "levying war" is treason... but there is one little problem... the other item in the Constitution - presidential pardon where-in the last act of Johnson was a general pardon for the confederate soldiers and generals.
 
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