A Legal Review Of Secession 150 Years Later- Part 1, by TEH

Introduction

The Civil War (or The War of Northern Aggression, depending on your personal view) ended in 1865. However, the legality of secession by the Southern States simply will not die 150 years after Texas formally seceded from the Union and joined the Confederate States of America. As late as May, 2011, secession by part of the State of Arizona from the rest of the State is being proposed. Secession is often bandied about by politicians on both sides of the spectrum, but do any of its proponents really understand what secession, from a legal standpoint, is and isn’t?

This article will explore the illegality of secession through the style United States Supreme Court cases dealing directly with the issue. As much as possible, the article will let the Court, through its own words, explain what secession is and its legal effect on the seceding states. All emphasis within the following quotes, unless otherwise noted, are those of the author.

Texas – 1861

The Texas Ordinance of Secession, at least in the opinion of its drafters and the people of Texas, officially separated Texas from the United States in 1861. It was adopted by the Secession Convention on February 1 of that year by a vote of 166 to 8.

The Texas Ordinance of Secession – (February 2, 1861)

“The ordinance of secession submitted to the people was adopted by a vote of 34,794 against 11,235. The convention, which had adjourned immediately on passing the ordinance, reassembled. On the 4th of March, 1861, it declared that the ordinance of secession had been ratified by the people, and that Texas had withdrawn from the union of the States under the Federal Constitution.”^[1]

Alaska – 2003

“Scott Kohlhaas drafted an initiative calling for Alaska’s secession from the United States or, in the alternative, directing the state to work to make secession legal, and submitted the initiative, along with one hundred signatures, to the lieutenant governor.”^[2]

The Background

Texas seceded from the United States on March 4, 1861.
The Confederate States of America declared War on the United States. “An Act recognizing the existence of war between the United States and the Confederate States” – May 6, 1861.
The U.S. never declared war on the Confederate States. Abraham Lincoln (and not Congress, since war was not and would not be declared) did issue a Proclamation that an insurrection existed in the states of SC, GA, FL, AL, MS, LA, and TX on April 15, 1861 (Messages & Papers of the Presidents, vol. V, p 3214). The Congress of the United States retroactively approved these initial actions of the President. 12 Stat. 326 (1861).
The Confederate States surrendered April 9, 1865; Lee surrendered to Grant.
“Order” is restored in the Southern States via the Reconstruction Laws.^[3]

Jurisprudence Language By the Winners

A very strong clue previewing the rulings of the Supreme Court of the United States on the issue of the illegality of the secession of the Southern States can be found in the preparatory language of the Court leading up to its decision in the seminal case of Texas v. White, 74 U.S. 700 (1869). The following is a selection of the Court’s classification of the Confederate States’ attempted secession.

Texas v. White, 74 U.S. 700 (1869)

“…At the time of that outbreak, Texas was confessedly one of the United States of America, having a State constitution in accordance with that of the United States, and represented by senators and representatives in the Congress at Washington. In January, 1861, a call for a convention of the people of the State was issued, signed by sixty-one individuals. The call was without authority and revolutionary…”

“…Thus was established the rebel government of Texas.”

“…War having become necessary to complete the purposed destruction by the South of the Federal government, Texas joined the other Southern States, and made war upon the United States, whose authority was now recognized in no manner within her borders.”

Significant Case Holdings in Date Order

The Amy Warwick, 67 U.S. 635 (1863)

Context

This case involved vessels (and their cargoes) which were seized during the Civil War. One of the significant issues in the case was whether the President of the United States had the right to institute a blockade of ports in possession of persons in armed rebellion against it.

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The Supreme Court entered into a detailed, logical analysis of the effect of secession by the Southern States and the right of the United States to react to their secession. The first inquiry was whether a state of war existed when the vessels were seized, remembering that the Congress never formally declared war on the Confederate States. In fact, Congress passed an act “approving, legalizing, and making valid all the acts, proclamations, and orders of the President, as if they had been issued and done under the previous express authority and direction of the Congress of the United States.”^[4] On the issue of the declaration of war, the Court held:

“ Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its accidents–the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.”^[5]

The Court acknowledged that only Congress could declare war. However, Congress could not declare war against a state(s). According to the Court, only the president had the authority to use the military force of the United States to combat an armed insurrection as was encountered during the Civil War.

“ By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.”^[6]

The Court concluded that, in light of the “insurrection” of the Southern States, the President of the United States had the right to institute a blockade of the ports in the possession of the rebelling states and that all neutral countries/citizens were bound to recognize same.

Texas v. White, 74 U.S. 700 (1869)

Context

This case involved the bringing of an original action in the United States Supreme Court by the State of Texas for the recovery of payment from certain bonds of the Federal Government. The issue before the Court was whether Texas, after the end of the Civil War (1867), was entitled to bring an original action in the United States Supreme Court as one of the states of the United States even though it was still attempting to comply with the Reconstruction Acts.

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To answer the very significant question of jurisdiction of the Court, an analysis of the actions of Texas prior to its succession, during its succession, and after the end of the Civil War was performed by the Court. Its findings were as follows:

Statehood Prior to the Civil War

The Republic of Texas was admitted as a state into the Union on December 27, 1845. By its admission into the Union, Texas and all of its residents were immediately vested with all the rights, and became subject to all the responsibilities and duties, of the original States under the United States Constitution.

“ From the date of admission, until 1861, the State was represented in the Congress of the United States by her senators and representatives, and her relations as a member of the Union remained unimpaired. In that year, acting upon the theory that the rights of a State under the Constitution might be renounced, and her obligations thrown off at pleasure, Texas undertook to sever the bond thus formed, and to break up her constitutional relations with the United States.”^[7]