SECESSION

THE SECESSION

OF THE

CONFEDERATE STATES

LEGAL OR ILLEGAL?

The Paradox

PARADOX Never Lost: (with apologies to John Milton) There is no LEGAL INCONTROVERTIBLE proof that secession was forbidden by the Constitution. The debate of Secession's legality is perpetuated with the same arguments that have persisted since BEFORE Constitution was ratified.

Upon the ratification of the Constitution, in regards secession, we are faced with FAITH rather than LAW. The futility of the Constitutional argument over secession brings to mind the similar futility: arguing the what is meant by bible scripture. Catholicism and Protestantism, not to mention agnosticism and a myriad of other religious orthodoxies, came into being, all of whose advocates point to the bible as their authority, proposing juxtaposed arguments and tenets of faith "proving" the fundamental truth of their respective positions whereby a PARADOX is thereby produced since not ALL these juxtaposed positions can be right.

PARADOX LOST -- How to eliminate the Paradox:
The Constitutional argument for secession which presents a similar PARADOX could have been, and still could be, resolved by a legislative process that amends the Constitution and explicitly forbids, or allows, secession.

What are the principal arguments in the secession debate?

The fundamental argument FOR the legal right of secession is that any power not given to the Federal government is retained by the state. The POWER TO PREVENT SECESSION was not given by the Constitution to the Federal government ergo the RIGHT TO SECESSION exists in the state.

The fundamental argument FOR Permanent Union is that the ratification process was not delegated to the individual state governments but rather to "THE PEOPLE" of each state in the form of a Ratification Assembly and that the Union is PERPETUAL by the fact that "THE PEOPLE" not the state governments, created a PERPETUAL FEDERAL UNION and therefore no action taken by a state to secede is legal.

The absence of any explicit definition of PERMANENT UNION, or any explicit definition of THE RIGHT OF SECESSION in the Constitution and the the fact no precedents had been set by previous adjudications on the issue by the Supreme Court, allowed educated men of law to be able to argue both viewpoints. No consensus that eliminated the PARADOX was reached prior to the Civil War.

In an attempt to thwart the PERMANENT UNION argument, the Confederate states called "Secession Assemblies" that were intended to REVERSE the process of ratification. The Federal government, in its viewpoint, having been permanently established at the moment the Constitution was ratified by THE PEOPLE of the UNITED STATES, refused to recognize the secession process. The PARADOX continued.....

The Constitution is ambiguous, an ambiguity that was known, and intentional, by the men who drafted it --- this viewpoint and the reasons for the ambiguity are covered in Stampp's research for his article. Basically the Constitutional convention set up a process that is familiar to our modern legislative process: if it is perfectly clear what we, the people, are voting for, it might not pass -- or fail, therefore, it is left ambiguous so our silver-throated leaders might explain to us, the people, what we, the people, are voting for -- or against, so both sides end up hearing what they want to hear and the issue can then pass -- or not, leaving us with a PARADOX. Isn't Democracy wonderful!

After secession votes were cast by the several states, also utilizing this wonderful process, someone tamped a minie ball down the barrel of his musket and we, the people, jumped for our weapons. That which the Supreme Court and the elected leaders of the Congress of The[se] United States couldn't resolve peacefully, the barrel of a gun was about to accomplish militarily.

As far I know, since that war no amendment to the Constitution has been passed to clarify explicitly that secession is illegal. Therefore that PARADOX continues to exist....

From time to time in my lifetime, California, Alaska, and other states have threatened, perhaps not seriously, to secede and I am sure the men who propose such secessions pointed to the Constitution for their proof, as the men of the South did before them, and "proved" secession is legal and, of course, the proponents of Perpetuity of Union pointed, as did the North before them, to the same document and "proved" it would be illegal. The PARADOX still exists.....

The Civil War like all wars proved at least one thing: You cannot secede if you don't have the firepower and resources to make it stick. During this awful process both sides continued the PARADOXICAL aspect of the debate: the UNION claimed it was a War Against Rebellion and the CONFEDERACY claimed it was a War Against Northern Aggression.

The PARADOX remained as the dead piled up in heaps on the battlefield. Ordinary men, from North and South, who were not given a chance to vote for -- or against, war and whose elected government was incapable of resolving the secession PARADOX found that their respective elected state governments did have the power to force them to fight out the PARADOX on the field of battle.

Once again, an amendment to the Constitution could have unambiguously specified that secession was legal, or illegal, and solved the problem. And it still could do so if proposed and ratified....

Don't hold your breath for that amendment. The term Mugwump comes to mine....
[During the 1884 campaign, they were often portrayed as "fence-sitters," with part of their body on the side of the Democrats and the other on the side of the Republicans. (Their "mug" on one side of the fence, and their "wump" on the other.)-Wikipedia]

And on this list (and many other Civil Warl Lists) the PARADOXICAL debate spawns many posts......as
                    Thick as autumnal leaves that strew the brooks
                       In Vallombrosa where Etrurian shades
                        High over-arch'd embower."
[a hearty thanks to our friend John Milton for the imagery]

Why does the discussion go on? Let us, for the sake of debate, agree one with another that either side was right -- or wrong, would anything change?

I don't think so.

The fault dear Brutus, lies not in our stars but in ourselves that we are underlings......WS