Secession's Legality & Constitutionality

Opinions on the constitutionality of secession vary, but from the time before and during the Civil War, secession had arguments both for and against its constitutionality, whilst after the Civil War and the 14th amendment it became clear that secession was unconstitutional. It often proves an easy solution to impose our modern world views on the issue of whether secession was constitutional, but at the time before and during the Civil War different interpretations of the Constitution, Articles of Confederation and the relationships between the two founding documents allowed for both pro and anti-secession arguments to form. Therefore, although by modern terms secession was unconstitutional, arguments can be made both ways as to whether the South had a right to secede when looking from the perspective of before and during the Civil War.

In the period before and during the Civil War, the South brought convincing arguments towards their rights to secession, many of which were based on their understanding that the Constitution replaced the Articles of Confederation – and was not simply an extension of the Articles of Confederation. One of the key arguments towards the South’s belief in their right to secession was that of the federal government exerting tyrannical powers over the colonies was not permitted by the Declaration of Independence, which declared exactly these tyrannical powers as being the reason for the colonies’ willingness to fight for their independence. In other words, the South believed in “the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted” (Confederate States of America). This aspect of the South’s argument towards its right of succession largely depends on subjectivity: although the South believed that the federal government was abusing its power, the North believed the contrary. Another key point which the South presented towards its argument of its right to secede from the Union was their belief that they could leave the Union established by the Constitution just as they had entered it. Although the Articles of Confederation had argued that the Union was perpetual, the Constitution did not state this explicitly and it was unclear as to whether the Constitution had entirely replaced the Articles of Confederation (which would imply that the Union was no longer necessarily perpetual) or if the Constitution had simply been an extension of the Articles of Confederation (in which case the Union would be perpetual, and secession would therefore be unconstitutional) (Manning). Since Southerners believed that the Constitution had essentially replaced the Articles of Confederation, they argued that it was not a perpetual union, and therefore believed that “if ratification by convention is legal, then UN-ratification by convention is also legal” (Symonds). The belief that the Constitution had replaced the Articles of Confederation was essential in all of the South’s points towards secession: since they considered that the union could be broken, they decided that it was entirely constitutional to vote on the matter or to leave the union because they believed that they had been unfairly treated by it. A final key argument towards the constitutionality of secession which was heavily endorsed by the South was that the non-slaveholding North had not kept to its part of the Constitution. Whilst the Constitution had called for “No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due” (Confederate States of America), the North’s encouragement of abolitionism and of slave rebellions (and their refusal to return fugitive slaves) allowed Southerners to argue that the North was not holding to the rules established by the Constitution, and that they therefore had the right to leave the Union. Since, according to their belief in the relationship between the Constitution and Articles of Confederation, the South did not have to remain in the Union, they considered that leaving the Union was perfectly constitutional. The South’s arguments of the relationship between the Constitution and Articles of Confederation, their belief that the North was in breach of the contract for all states and their subjective view of the tyrannical powers which were being asserted by the federal government all led the South to push for secession and demonstrate that the South’s claim towards the constitutionality of secession was not baseless.

The North also had much support towards their argument of the unconstitutionality of secession from the union, which also bore heavy support from their belief that the Constitution added to the Articles of Confederation and did not replace the original Articles of Confederation. One of the key arguments of the North against secession and the South’s belief in its constitutionality was that the North believed that the Union was perpetual. This claim was based on the belief that the Articles of Confederation had not been replaced by the Constitution, but instead that the Constitution was simply an addition to the pre-existing Articles of Confederation, and also that “the Articles of Confederation declared the Union to be “perpetual”” (Manning). Another key argument which the North brought against secession was that the Constitution nor the Articles of Confederation had ever established any policy for leaving the Union. As expressed by Lincoln when he stated that “no government proper ever had a provision in its organic law for its own termination” (Holzer), no legislation was ever created for the nation regarding its separation, implying that a certain part of a nation simply trying to leave would break apart the nation and would thereby in itself violate any nation-binding document like the Constitution. Thereby, the Northerners were clearly able to develop their position that the act of seceding from the Union was unconstitutional through their opinion on the Union’s perpetuality, the link between the articles of Confederation and the Constitution and the basic idea of a nation.

Finally, a modern interpretation of Southern secession again gives us a different outlook on secession - we would most definitely consider that secession is unconstitutional. As expressed by Farber, “School children today pledge allegiance "to the flag of the United States of America, and to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all"” (Farber). This view of citizenship and allegiance to the USA over an individual state, and its nature as “indivisible” implies that secession is impossible. The 14th amendment to the Constitution further confirmed this viewpoint, which means that most people looking back from today will regard secession as something against the values of the Constitution. The 14th amendment makes it clear that the loyalty of citizens should be first and foremost to the nation and not to their state, which comes together with the pledge of allegiance to show that seceding from the Union was unconstitutional. However, although we may today believe in the unconstitutionality of secession, neither the pledge of allegiance nor the 14th amendment existed before or during the Civil War, so it is clear why the constitutionality of secession could be understood in both ways by people at the time.

In conclusion, the interpretation of the constitutionality of secession is difficult and results in different perspectives lending different opinions. Whilst a modern perspective tells us that secession was clearly unconstitutional, the perspectives before and during the Civil War greatly varied due to the flexibility in the interpretation of agreements and the relationships between them. Thereby, the arguments for or against secession’s constitutionality during and before the Civil War were each not baseless, but the variety of interpretations meant that essentially the only way of forever deciding about secession’s constitutionality was through a war or a compromise – and in the end, a war was the chosen option.

Works Cited

Confederate States of America. "Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union." 24 December 1860. Yale Law School Avalon Project. 30 November 2021.

Farber, Daniel A. "The Fourteenth Amendment and the Unconstitutionality of Secession." 2012. Akron Law Review. 30 November 2021.

Holzer, Harold. Did South Carolina Have a Constitutional Right to Secede? 23 November 2010. 30 November 2021.

Manning, Chandra. Did South Carolina have a Constitutional Right to Secede? 23 November 2010. 30 November 2021.

Symonds, Craig. Did South Carolina Have a Constitutional Right to Secede? 23 November 2010. 30 November 2021.