Friday, September 13, 2013

Secession Reconsidered

Inspired by Seth Barrett Tillman’s response to my post on secession, I looked up Article XIII of the Articles of Confederation:

Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them.  And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

This article was cited by the Supreme Court when it finally considered secession as a legal principle in the 1869 case Texas vs. White.  From Salmon Chase’s majority opinion:

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to 'be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?[7]

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.[7]

Though of course redundant in that the matter of secession had already been decided by force of arms, it is difficult to find fault with Chase’s reasoning as an historical and legal matter.  I still argue that, as a matter of first principles, the Southern states had as much a moral entitlement to self-government as the Thirteen Colonies.  But it would be incorrect to assert as I did that the States had preserved the right of unilateral secession under the existing political arrangements any more than the Thirteen had a legal right to unilaterally repudiate their colonial charters.  Article XIII, unlike “we the people,” is no mere rhetorical flourish, and in that context, neither is “a more perfect union”:  the several States really had committed themselves to a “perpetual”, i.e. permanent, national government.  Again, as a matter of history, I find this argument so compelling that I can’t help but wonder why, amidst all the ink spilled on this subject from Mill to Volokh, I had to find out about it almost literally by accident.

It is instructive to imagine an alternative history in which a more conciliatory Southern congressional delegation had joined with such Northerners eager to be quit of them and their stranglehold on the Legislative Branch and formed a working majority in favor of an amicable separation; this instead of walking out in a huff.  But then, the huffiness was of a piece with the South’s badly constrained militancy and overreach on the subject of slavery.  I hasten to add that the South was not alone in its militancy; the atrocities of John Brown and Nat Turner, coupled with the South’s characterization in the Northern press as evil merely for having inherited an institution as old as civilization itself, certainly played their role in provoking that militancy.  But if the South would assert its own “separate and equal station”, it must assume separate and equal responsibility for its own actions.

16 comments:

Dexter said...

This article was cited by the Supreme Court when it finally considered secession as a legal principle in the 1869 case Texas vs. White.

Yankee Supreme Court meeting four years after the Civil War, and presided over by radical republican, rabid abolitionist, Lincoln cabinet member? Yeah that sounds objective.

Was it "legal" for the colonies to secede from Britain? No. That's why the colonies had to fight.

Dr. Φ said...

Dexter: that's a fair point. I only cited the decision to show that I am not alone in my reading of Article XIII's implications for secession.

heresolong said...

here's an interesting one that I came across whilst browsing the interweb.

Third, new States of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provision of the Federal (constitution.

This is from the Texas articles of incorporation and allows them to split Texas into five states, each of which would presumably (at this time) have Republican representation in the Senate.

Not directly related to the secession issue, but interesting nonetheless.

trumwill said...

It would take a pretty spectacular gerrymandering job for all of the senate seats to go to the GOP. It would be easier, actually, to tilt a majority to the Democrats. Most likely you'd be seeing something like 6/4 in favor of the Republicans. The obvious split is West, Northeast, Southeast, South, and Central.

West (Midland-Lubbock-EP) would be heavily Republican and Northeast (DFW) would tilt towards the GOP to some degree (it could be minor if the boundary with West Texas is set far enough east). South Texas would be a Democratic stronghold.

The two question marks are Central (Austin-SA) and Southeast (Houston-Galveston-Victoria) and that would depend on the boundaries. The more contracted Central is around Austin and San Antonio, the more it tilts Dem. The larger it is, the less it does.

For Southeast, it would depend on how far south it goes. Ironically, the further south the better because that part is really Republican until it becomes very Democrat. So the buffer is Republican. If it's included in Southeast, it tilts the state red. If it's stuffed in South, it's not enough to tip South but is enough to turn Southeast red.

The problem for Republicans is that West would be one of the most Republican states in the country, and so would be hoarding the Republican voters.

It would be relatively easy to draw lines anywhere from 8-2 for the GOP, though (at least for now) and 6-4 for the Democrats.

Dr. Φ said...

Heresolong: Trumwill is almost certainly correct about this. I would add that the present arrangement gives all of Texas' electoral college votes to the Republican candidate; breaking up Texas would mean that some of those votes would start going to the Democrats: a net loss

In general, the Republican strategy should be to break up large Blue states (CA, NY), while keeping Red states together.

Seth Barrett Tillman said...

You wrote: “I hasten to add that the South was not alone in its militancy; the atrocities of John Brown and Nat Turner, coupled with the South’s characterization in the Northern press as evil merely for having inherited an institution as old as civilization itself, certainly played their role in provoking that militancy.”

These claims are wrong. All wrong. Nat Turner was every bit born & bred in the South as was Jefferson Davis. They were both Southern militants – just for different causes (one right and one wrong). John Brown may have “provoked” Southern militancy – but if we are going to speak to who provoked whom – one should also keep in mind what drove Brown to militancy. Brown was a congregant in Reverend Lovejoy’s church. Brown became a militant only after a mob of pro-slavery thugs murdered Lovejoy and burned his (abolitionist) printing press. If we are going to speak the language of “provoking” – let’s keep the chronological order clear. And let’s also be clear: everything and anything provoked the antebellum Southern mobs. You could not write a newspaper or give a speech without meeting the threat of violence. E.g., Sumner’s caning.

The idea that Northern newspapers provoked Southern militancy is a crock. By the way, blasphemy laws are also as “old as civilisation itself.” A magazine in France not to long ago published cartoons of a religious figure, and then the magazine was burned to the ground. The people who burned the magazine to the ground are criminals. And they were not “provoked.” They were just criminals.

Dr. Φ said...

Calling Nat Turner a "Southern militant" starts to sound like the No True Scotsman fallacy. But whatever the immediate failure of his racist terrorism, Turner did, in fact, radicalize the South's attitude toward just about everything associated with slavery. Most of the notorious "black codes" (e.g. restrictions placed on freed blacks, forbidding slave literacy, tolerance for abolitionism) was a reaction to Turner's crimes. I'm not trying to justify this reaction, but only a fool would fail to recognize the effect on Southern attitudes towards abolitionism when it went from being perceived as a civil debate with opponents to an incitement to murder babies in their cradles.

Turner, although he likely didn't know it, was running the standard terrorist play: provoke the authorities into an overreaction. And it worked.

Quoting from the Missouri Supreme Court's decision in Scott vs. Emerson, reversing its precedents granting freedom to slaves taken to free territories:

Times are not now as they were when the former decisions on this subject were made. Since then not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures, whose inevitable consequences must be the overthrow and destruction of our government. Under such circumstances it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. She is willing to assume her full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others.

Which pretty much sums it up.

Dr. Φ said...

By the way, blasphemy laws are also as “old as civilisation itself.”

This bit of misdirection disappoints me. I'll be happy to write a post on France's foolishness in allowing itself to be colonized by an alien religion while it was busy enforcing its own "blasphemy" laws against complaining about alien colonization. Then we can have that particular discussion.

Seth Barrett Tillman said...

You wrote: “I hasten to add that the South was not alone in its militancy; the atrocities of John Brown and Nat Turner, coupled with the South’s characterization in the Northern press as evil merely for having inherited an institution as old as civilization itself, certainly played their role in provoking that militancy.”

There is no misdirection in my response.

Nat Turner was of the South, not the North. He was not foreign born. It was your word choice that suggested he was in some sense non-Southern or foreign (vis-a-vis the South).

Seth Barrett Tillman said...

I wrote: "By the way, blasphemy laws are also as “old as civilisation itself.”

Many societies -- many Western societies -- prior to 1861 managed to abandon slavery. And many did so peacefully. The Confederate States failed to do so. The fact that the institution was old does not account for its continued existence in 1861.

Dr. Φ said...

Seth: "The South", in the context I used it, meant supporters of some combination of slavery and secession. Yes, there were southern opponents of slavery, but any good faith reading would know that wasn't who I meant.

To be fair, I would have to do more research to learn to what extent Turner was actually a product of abolitionist agitation, and to what extent his actions were celebrated by abolitionists at the time, but that was certainly the southern perception. And in fact Turner was celebrated later.

Your "everybody else did it" would be better applied to the word "peacefully". Yes, other European countries with far less skin the game and far fewer negative externalities peacefully abolished slavery. Only northern abolitionists managed to get us into a 600k casualty civil war to do it.

But my original point was that slavery had existed everywhere for all of recorded memory. That many Europeans peoples decided they didn't like it and were prepared to enforce their will on the rest of the world might make the holdouts retrograde, but it doesn't make them evil.

Seth Barrett Tillman said...

Your missing the point: Because Turner was from a confederate state, if he inspired militancy by whites, that militancy should not extend to northerners or lead to disunion. Turner was not born & bred north of the Mason Dixon line. He was a problem created by the South's institution. And as slavery is as old as civilization, so are slave rebellions. Why blame it on the North?

"I would have to do more research to learn to what extent Turner was actually a product of abolitionist agitation." Why? Who has ever connected Turner to northerners?

But your larger point is that Southern Whites were provoked by some northern sympathy for Turner. Again, it is unreasonable to be provoked by what other people think or say in papers or sermons. To excuse or explain the criminal conspiracy led by some Southern Whites in terms of northern sympathies for Turner ... is no different from saying France's religious fanatics/criminals can be excused or explained based on C.H.'s cartoons of the fanatics' religious figure. The cartoons neither explain nor excuse crimes, arson, throat slitting. The people who did such things were always ready to do such things: the cartoons provide a convenient rallying point, not an explanation or excuse.

I never suggested that Southern whites were evil in light of the fact that others ended slavery first. My point is that they had the ability to change their institutions. And if you are going to point out that slavery is as old as civilization, then you can also point to many civilizations that ended the institution -- or, at least realized it was a necessary evil. Slavery was positively celebrated in parts of the old South.

"Only northern abolitionists managed to get us into a 600k casualty civil war to do it." Truly a dispiriting comment. Northern abolitionists were not on either side at Sumter; they were not in power in DC, not in 1860-61. You could only say northern abolitionists caused the war if their writings caused Southern Whites to secede. But that makes no sense. What northerners were thinking/saying is no reason to leave the Union by violent means. The Declaration of Independence never suggested that disunion with Great Britain related to what Brits thought or wrote: it was what the government did that counted. Your position also suggests that Southern Whites lacked real choices or options other than secession and violence, almost as if they lacked free will, but that somehow northerners could just set aside their values even as applied to their own states.

Gone-with-the-wind history is a fraud.

Justin said...

The verdict is in: Seth is pathologically unable to grasp basic facts of reality.

The South did not "violently succeed". They voted to be free of the Union. The Union then violently invaded.

There is so much bad-faith argumentation-ism in his writing, it is literally impossible to communicate with him.

Like this gem: "What northerners were thinking/saying is no reason to leave the Union by violent means."

Like, what? Seriously?

A cursory glance at ANY of the Southern Declarations of Independence reveals that the overwhelming victory of the anti-slavery and regional Republican Party was the immediate cause of their succession.

Seth is just arguing on pure ignorant vacuity. There is nothing else to say about it.



Seth Barrett Tillman said...

Violent secession -- Fort Sumter.

Like this gem: "What northerners were thinking/saying is no reason to leave the Union by violent means."

Yes, I meant it seriously.

You wrote: "A cursory glance at ANY of the Southern Declarations of Independence reveals that the overwhelming victory of the anti-slavery and regional Republican Party was the immediate cause of their succession."

Yes, it provided an excuse, but even as an excuse it was unreasonable. The Republicans had done nothing yet justifying secession. Second, the Republican party was not -- in 1860 anti-slavery -- it was against the expansion of slavery into new federal territories, and would have preferred that the Union taken no further territory than see slavery expanded. It was no threat to slavery in the states which became the confederacy.



Dr. Φ said...

Again, it is unreasonable to be provoked by what other people think or say in papers or sermons.

Again, you are failing at empathy. If you are not provoked by your fellow citizens cheering the murder of children, then obviously they aren't your children.

To excuse or explain the criminal conspiracy led by some Southern Whites

You may choose to characterize the state legislatures and referenda of the South as "criminal conspiracies" if you choose, but asserting it doesn't make it so.

France's religious fanatics

Again with the Muslims? You realize, don't you, that they are an argument for separate countries? Which was kind of the South's point.

I never suggested that Southern whites were evil in light of the fact that others ended slavery first.

I never claimed you did. I said that this was the characterization in the Northern press at the time (and in much present day commentary, for that matter).

Northern abolitionists were not on either side at Sumter; they were not in power in DC . . . . Your position also suggests that Southern Whites lacked real choices or options other than secession and violence, almost as if they lacked free will

Seth, do you even read my posts before commenting? I already said that the South was overreaching in their defense of slavery and are responsible for that overreach.

Gone-with-the-wind history is a fraud.

At no point did anyone here invoke Gone with the Wind. But so I can keep track of the strawmen, are you referring to the book or the movie?

Dr. Φ said...

Justin: let me see if I can explain Seth's point.

Lincoln thought like the lawyer he was. From his perspective, the South's unilateral secession was legally void. This was not without some justification, as I have written, but that position left Lincoln without a legal way to start the war.

Given the apparent unwillingness on the part of the Northern government to let the South secede, the need to clear Union troops from a fortification controlling access to Charleston Harbor was militarily prudent. But considering that those troops weren't leaving on their own, the attack on Fort Sumter did, in fact, start the war, a fact that led some Southerners to counsel against it. (Union apologists do a bit of a two step here, depending on which propaganda point they are trying to make. Elsewhere, they claim that John Brown's attack on Harpers Ferry started the war. But let's leave that aside for now.) The attack became the pretext under which Lincoln called up the 75,000 militiamen "to enforce the laws", as he put it.

Now, this legal narrative is apparently more compelling to lawyers, and especially those with a tribal hostility to the Confederate cause, than it is to you or me. And it wasn't especially persuasive at the time; Lincoln's militia call-up is credited with driving four more states into the Confederacy, and would have cost him an additional two but for the intervention of Federal troops. But that is the argument being presented.