The Confederation was, in strictness, a compact; the States, as States, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a general government, which should stand on a new basis; not a confederacy, not a league, not a compact between States, but a Constitution; a popular government, founded in popular election, directly responsible to the people themselves, and divided into branches with prescribed limits of power, and prescribed duties.
They ordained such a government, they gave it the name of a Constitution, and therein they established a distribution of powers between this, their general government, and their several State governments. Webster's speech came in the midst of the Nullification Crisis. So from one perspective it is of limited utility as "proof": there was a whole other side in that crisis, with a counter-argument of their own.
But Webster's speech is nice because he very neatly articulates the viewpoint of the three relevant Supreme Court decisions and Justice Story's Commentaries. A good summation. If you're serious in asking the question I suspect you are not , it's important to understand that in the historiography of the Civil War, this question is one of the Southern Apologist arguments. Saying that secession was legal until the Court issued its ruling in Texas v White, implies that there was no legal basis for the Court's ruling, ie it's pure judicial fiat.
That's a pure Southern Apologist argument. The rest of the logic goes: "secession was not illegal until , therefore secession was LEGAL up until , therefore Lincoln's use of armed force to put down the slaveholders rebellion was illegal.
And it's not true. Texas v White was pure Stare Decisis : the opposite ruling would have violated previously stated law. The law underpinning the decision had been settled back in There is some discussion about whether later legal commentary contradicts the argument from the and rulings. At least three times since , judges have stated that the question of a state's ability to secede was unsettled prior to the Civil War. That has occurred in a Supreme Court ruling, in a Supreme Court justice's correspondence, and in a state supreme court ruling.
The quotes are below. I added emphasis in each, to pull out the common idea; there is no special emphasis in any of the original docs.
Newdow, U. It's important to note that none of these jurists except for the second half of Alaska, after the word "subsequent" reference any legal action or court rulings. All of these jurists are saying that the Civil War itself settled the question. Not any court ruling: the actual WAR.
And that's the truth. Secession was not a legalistic question that the courts could settle, by examining the Constitution and accumulated Supreme Court precedent. A good comparison is the Dred Scott ruling. There, Justice Taney intended to settle the question of slavery in the territories, and of negro citizenship.
His ruling did not come anywhere close to settling that question; if anything, he inflamed the controversy. That ruling is routinely cited as one of the incidents that escalated sectional tension, in the long lead-up to the war. Likewise secession.
Secession was a political and military! No judge could "settle" it to the satisfaction of all parties. As late as the Summer of , it was still an open question whether the Federal govt had the political will and support to defeat secession.
Imagine if Lincoln had lost the election; it's easy to envision the winning "Peace Democrats" negotiating a peace, leaving the Confederacy in place. In that alternate hypothetical, a later SCOTUS would likely have to acknowledge that although secession might be de jure illegal, it had de facto occurred. That hypothetical Court might conclude that the US citizens had not shown a determination to maintain the Union; obviously it was possible to secede, since it had happened.
It took the WAR to settle the question of secession. That's what we see in history, and that's what the 21st century judges are commenting on. My cynical reasoning is that it's illegal because the pro-union side won. Laws are often changed and legal justification can be found for most things after or before the fact. Sometimes people ask these questions because they equate "legal" with "moral" and "illegal" with "immoral". We can go into these long winded discussions on Supreme Court decisions and the law about secession.
A document that is more important than the Constitution is being overlooked. The Declaration of Independence. Does this not give a state the right to break away from a government that has become destructive to the people.
What did we do when be declared independence from England. Did the Southern states in succeeding declare independence from the United States. Here in the south you can see on some grave stones of Soldiers inscriptions stating they were fighting for Southern Independence. To say that the southern states, or any other state for that matter would have the right to declare independence. If secession is illegal then we committed an illegal act when we broke away from England.
Also these decisions were decided after the war. What other way would they have went. I guess at the end of the day right and wrong are decided at the end of a barrel and bayonet. In 2 court rulings this century the pre-civil war secession situation was described as either unresolved or unsettled, not illegal or unconstitutional. This seems to indicate that the interpretation of Texas v. White as addressing antebellum law may not be correct. JimZipCode wrote a long and passionate answer which tries to debunk many of the other answers here and claim that the law was settled before the Confederate states seceded.
He brings up some interesting points that should be debated. However, he also clearly goes too far. His choice of quotations is selective: I could just as easily come up with dozens of quotations from learned authorities from both the North and South before the Civil War that argue both sides of whether secession was legal or not.
The real meat of his answer, though, concerns whether stare decisis would already be in effect due to previous court rulings, thus making Texas v. White a restatement of previously settled law, rather than a novel interpretation. He cites three previous Supreme Court cases as evidence. However, if there were indeed clear precedent, that matter should be made clear in the rulings of Texas v. When we examine that ruling thoroughly, there is no mention of any of the precedents cited in JimZipCode's answer, nor is there any clear reference to his notion of "Compact Theory.
To the contrary, the majority ruling written by the Chief Justice Salmon Chase a former member of Lincoln's cabinet clearly implies that there had been previous legal disagreement about this question:. We are very sensible of the magnitude and importance of this question, of the interest it excites, and of the difficulty, not to say impossibility, of so disposing of it as to satisfy the conflicting judgments of men equally enlightened, equally upright, and equally patriotic.
But we meet it in the case, and we must determine it in the exercise of our best judgment, under the guidance of the Constitution alone. Note that he clearly states that "we must determine it" according to "our best judgment," not that it was a matter of previously determined or settled law. Furthermore, when we examine the dissents in the ruling, they actually cite another case where John Marshall speaks directly to the definition of a state.
Justice Grier writes:. As the case is short, I hope to be excused for a full report of it as stated and decided by the court. He says:. Now we have here a clear and well defined test by which we may arrive at a conclusion with regard to the questions of fact now to be decided. Grier goes on to apply Justice Marshall's definition of "state" to the situation in Texas. From this, he concludes that Texas is not and was not, during the Civil War a "state," according to laws in force by Congress.
He concludes:. I can only submit to the fact as decided by the political position of the government, and I am not disposed to join in any essay to prove Texas to be a State of the Union when Congress have decided that she is not. It is a question of fact, I repeat, and of fact only. Politically , Texas is not a State in this Union.
Whether rightfully out of it or not is a question not before the court. The other two dissenting justices Noah Swayne and Samuel Miller concur with Grier on this interpretation that Texas is NOT a state according to current law though they agree with Chase regarding other issues in the case.
By the way, Grier's opinion here was also implicitly endorsed by Congress and actually by many historical sources today which cite the dates of apparent "readmission" to the Union as happening between and These were the dates that representatives from these states were readmitted to Congress, and there were generally conditions placed on those states before the representatives were allowed to rejoin Congress.
If secession were truly "unconstitutional" according to Chase's argument which effectively said secession never happened, then Congress was acting unconstitutionally by refusing to seat representatives -- as required by the Constitution -- until they capitulated. It also implies that the various plans to set conditions on "readmission to the Union" were legally nonsensical.
The more consistent interpretation is that the states actually had seceded, at least according to pragmatic politics as Grier argues, as well as according to Constitutional requirements stated for what current states were entitled to. This doesn't argue whether secession was "legal" or "illegal," only that it had in fact happened , which implies that it wasn't thought unconstitutional on its face. White , so they clearly were not considered as settled precedent to which stare decisis must apply.
The majority opinion itself implies that it is making a determination according to present judgment, and 3 of the 8 justices rejected that interpretation, instead citing a different precedent of John Marshall's, as well as current law in Congress, to claim that Texas was not a state.
Obviously dissents are not law. But here they are strong evidence that the matter wasn't even clearly settled among those on the Court in , and the dissent actually lines up well with how the Executive and Legislative branches had been treating the states i. And the majority opinion -- written by a member of Lincoln's cabinet who presumably had been aware of earlier legality of secession debates -- acknowledges that it's still an openly debated issue among many learned people which must be settled in this ruling.
Solely on the basis of the ruling in Texas v. White , a reasonable interpretation would conclude that the matter had not been settled law previously. This is not unusual in Supreme Court rulings: novel Constitutional interpretations are often applied retroactively to earlier circumstances that led to a case. In fact, it's difficult to figure out how the Court could function otherwise unless all Constitutional interpretation had been previously settled once and for all time.
This does not imply the secession was "legal" in , only that it was not clearly settled law at that time. The secession of the southern states was a violation of Section 10 of the US Constitution, to which all of those states had agreed. That part of the Constitution reads:.
By creating the Confederacy, they obviously were breaking this clause of the constitution to which they had previously agreed. Of course, at the sovereign level there is no such thing as "illegal". Laws are for consenting communities that agree to live together under a fixed set of rules. When the communities fight, those laws are no longer valid.
From the answers above you can see that the US Congress and Supreme Court, ex post facto, passed a bunch of "laws" that it was "illegal" for a state to succede, but at the end of the day, there are no laws, just force.
For example, lets say Congress passes a law that makes it "illegal" for anyone in Somalia to mine tin. Does that mean it is illegal for Somalis to mine tin.
I suppose so, in the eyes of Congress, but probably not in the eyes of the Somalis. For a law to have just force, the court must have jurisdiction. When a group seccedes, they may argue there is no longer any jurisdiction over them. For example, William Wallace, after being captured, was charged with treason, but he argued, correctly, that there was no treason because he was not a subject of the English king, Edward. That didn't stop Edward from killing him though. Therefore, if they later reject that Constitution "un-ratify" it, if you will then they are no longer bound by its laws.
I had originally answered yes; then I discovered the force bill. Section 5 of the force bill permits the President to use whatever force is necessary to preserve the Union. The US Congress had considered seccession, and explicitly authorized the preservation of the Union by military force.
I grant you that my argument is indirect, but if the United States authorized military force to preserve the Union, then implicitly any effort to sever the Union is illegal. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The power to secede was not granted to the Federal government. Therefore, it is reserved for the States. However, the case of succession was tried, trial by combat honorable medieval method methinks , and the case was decided by the barrels of guns in the negative.
It is simple, secession was and is legal. Look to the ratification documents from Rhode Island, New York and Virginia, three of the last four to ratify the Constitution. They state specifically, that the State can reassume the powers delegated through the ratified Constitution by the State in cases where they feel they are being injured or abused.
This is a quote from the Virginia ratification document for reference. DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will:.
Ratification of the Constitution by the State of Virginia. If a state withdraws from the union it no longer is obligated to comply with the demands of said constitution. Those laws no longer apply to a withdrawn state any more than they do to an African nation. No its not legal they did not gain permission to secede and so thus they broke the law if they were to secede they would have had to go through several different courts and several different government actions would have to happen.
They illegally withdrew from the u. But they different states would always threaten to leave the union if they did not get their way- meaning each state was it's own basic nation, just in an agreement to help one another more or less.
However, seeing this problem keep coming up, they then decided to write the US Constitution- which in effect threw the Articles away and bound the states together under one goverment with the states holding certain rights of the own, but limiting their ability to operate as a free county on their own.
Now in the event of armed rebellion but the PEOPLE of the state, not the governments, as well as the PEOPLE voting to leave the Union, not just the government making the choice for them- which is very much what happened in the Civil War when the state broke away, they did not do so at the full will of the people, but as the governmnet reprsentaives, who stood to gain power by breaking away, and not the best interest of the people.
Marraro Prize George L. Mosse Prize John E. Palmegiano Prize James A. Schmitt Grant J. Beveridge Award Recipients Albert J. Corey Prize Recipients Raymond J. Cunningham Prize Recipients John H. Fagg Prize Recipients John K. Franklin Jameson Award Recipients J. If one party pulls out, then they would be in breach of the terms. Third, Lincoln further claimed the Union existed long before the Constitution, dating as far back as the Articles of Association of All 53 signatories were British colonies, and as such, they declared their independence as a Union — the United States.
The Supreme Court settled this matter in Texas v White , which also prohibits the expulsion of a state by the national government if the state in question wishes to remain part of the Union. The question is — Does the law allow secession if all parties are in agreement? In Texas v White the Supreme Court made an exception for secession in two scenarios:. The likelihood of the latter happening is slim to none. What is more probable is secession through mutual consent.
This would have to be enacted by Congress. In the case of the recently filed Texas Secession Bill , the legislation allows state residents to vote on whether the state should secede from the United States. This would be the first step in a very long process that would require the rest of the states in the Union and the national government to consent to it.
I think that might be surprising to a reader, because today talking about the legality of secession seems so far-fetched, but I want to introduce them to the arguments on both sides. This is a place where the Constitution is silent. The Supreme Court weighed in on the secession issue in Texas v. White in , declaring it unconstitutional.
White had completely — or fairly — resolved the issue. It took another generation or two for the issue to fade from constitutional discourse.
She said the issues involved are still relevant today, as people debate the idea that states such as California might have a right to leave the U. Nicoletti, who earned her J. Founded in , the University of Virginia School of Law is the second-oldest continuously operating law school in the nation.
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