The Right to Secede ...
Secession may or may not be supported
by constitution; interpretation is key

By DOUG LIPPMAN
Bugle Staff Writer

(EDITOR’S NOTE: This is the first of a two-part article on the Emancipation Proclamation. Part two will appear in the January issue of The Bugle.)

The election of 1860 was a major turning point in the history of our nation. Whether right or wrong, and it has long been debated, the South believed Abraham Lincoln intended to increase the power of the central government and attack their “peculiar institution.” The month after his victory at the polls, president-elect Lincoln witnessed the secession of South Carolina, which quickly was followed by six more southern states. The initial reaction in the North was to “let them go.” Even Horace Greeley, a firm supporter of the Republican Party, endorsed this policy. However, a quick review of federal economics challenged the feasibility of such an option. In 1860, the country had no income tax, and its principle source of revenue was tariffs. Unfortunately for the North, 57 percent of that revenue resulted from the sale of cotton, or “white gold,” as it was known in the South.

War seemed imminent. However, although limited preparations were being made for conflict, no shots had been fired yet and the question on everyone’s mind was, “do the states have a right to secede.” Lincoln was a lawyer, so he immediately set out to accentuate any evidence which may be utilized to prove no such right existed. He pointed out the words of the preamble of our Constitution: “We the people of the United States, in order to form a more perfect Union....” The states were to be united, and were to form a “perpetual union,” according to the Articles of Confederation. This would seem to imply that secession would be forbidden. However, since “the right to secede” is not directly mentioned in the Constitution, the South would maintain that any power not given to the federal government was reserved for the states, according to the Tenth Amendment.

The situation becomes more complex when one realizes the Thirteen Colonies gained their independence by seceding from the British Empire. So, the very foundation of our national existence was based on the right to secede. Further, the Treaty of Paris, which ended the Revolutionary War, granted independence to thirteen sovereign nations. At this point, we must examine a strange characteristic of American political semantics. We call our provinces “states.” A “state” is defined as a sovereign nation, which would imply that the federation of states was a contract. Is war the only way out of a contract? Those who enter into a contract can, under conditions mentioned in the Declaration of Independence, withdraw from the contract. This subject will be addressed later.

Like any good lawyer, Abraham Lincoln was an expert at card stacking. This is at the heart of the adversarial system as we know it. A lawyer must present all the evidence which benefits his client, while failing to mention any evidence which would support his opponent. The president properly points out the majority of “We the people” did not vote to secede, and this is correct. However, he fails to mention he garnered only 39.8 percent of the vote of “the people” in the recent election. Later in the war, he will refer to the Declaration of Independence’s clause “that all men are created equal.” This also is proper. However, further down in the same paragraph, it stipulates that governments derive “their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends (unalienable rights), it is the right of the people to alter or to abolish it.” Lincoln conveniently never mentioned these words.

So who ratified the Constitution? Was it “We the people?” Actually, it was the states, and not without some measure of difficulty. Many delegates agreed reluctantly to accept slavery, although not directly mentioned, as part of the Constitution. This was necessary in order to procure the needed votes for ratification. Even when the required nine states had voted for ratification, North Carolina and Rhode Island withheld their approval. While this was eventually settled in a satisfactory manner, three states, New York, Virginia and Rhode Island, maintained in their state constitutions the right to secede. This could well be challenged under the Supremacy Clause, in Article six of the Constitution.

Until the war began in 1861, there were numerous threats to secede. Perhaps the best known is the Hartford Convention, where New England states threatened to secede because of their loss of trade during the War of 1812. When South Carolina seceded in 1860, no state objected more strenuously than Massachusetts. As so often happens in history, hypocrisy and irony are omnipresent. Until 1860, the state which had threatened to secede more than any other was Massachusetts, which had advocated secession no fewer than six times.