Did the Constitution permit Southern states to secede from the United States?

Stephen Kershnar

The Civil War and Secession

Dunkirk-Fredonia Observer

November 18, 2019

I recently rewatched Ken Burns’ outstanding Civil War documentary. It raised the interesting issue of whether the Constitution allowed Southern states to secede.

The legal status of secession is independent of its moral status. Slavery was a monstrous evil and eliminating it justified killing some people and breaking their things. Whether the benefit of eliminating slavery was greater than the cost of 620,000 dead soldiers, many more badly wounded or maimed, and half an economy wrecked is a discussion for another day.

It is not entirely clear whether the Constitution permitted secession, but it probably did.  First, while the Constitution is silent on whether states had a legal right to secede, there is good reason to believe that some of the people who ratified it intended that it permit secession. In addition, when it was passed, many people likely understood it that way.

In 1798 and 1799, Kentucky and Virginia passed resolutions that asserted that the states created the federal government by contract and had a right to judge whether the federal government violated the contract. Implicit in these resolutions was the notion that the states may secede were the federal government to violate the contract. This was one of the reasons the states had such a right. Significantly, James Madison and Thomas Jefferson authored the resolutions. Madison and Jefferson were the fathers of the Constitution and Declaration of Independence respectively.

There is a problem interpreting Madison’s intention. He and fellow Federalist Papers authors Alexander Hamilton and John Jay argued that the Constitution did not permit secession. There is thus an issue as whether Madison and other founding fathers viewed federal tyranny as justifying secession or revolution. The former makes more sense in that making the sort of judgment needed to justify a revolution doesn’t require resolutions reserving various legal rights.

Other signatories and early American leaders understood the Constitution as permitting secession. Consider, for example, President James Buchanan, Vice President John C. Calhoun, and founding father Gouverneur Morris. Still, other early American leaders, such as President Andrew Jackson, denied that it permitted secession.

The people who drafted the Constitution were well aware of the issue of secession. If they had wanted to prohibit it, they likely would have done so.

In addition, the secession-permitting view makes sense of the fact that the Constitution was ratified only when the states withdrew from the Articles of Confederation. This withdrawal happened despite the Articles’ purporting to create a perpetual union. Similarly, the U.S. permitted Texas to withdraw from Mexico despite the Mexican constitution not permitting it to do so. The recognition of states’ right to withdraw from contracts similar to the Constitution would be odd if the Constitution did not also include a similar right. 

Second, the structure of the country following the ratification of the Constitution supported a right to secede. The delegates who authorized the Constitution did so on behalf of the states. The states authorized the Articles of Confederation, the Constitution’s predecessor. In addition, the Constitution viewed the states as sovereign. It provided that federal law took priority over state law (see Article VI Section 2), but the federal government’s powers were few and well-defined (see Article I Section 8). The Constitution assigned any rights and powers not explicitly granted to the federal government, or necessary to exercise these powers, to the people or the states. See the Ninth and Tenth Amendments. It would be surprising if the states authorized the federal government and remained sovereign following authorization of the Constitution and yet didn’t have the power to secede were the federal government were to exceed its few and well-defined powers.  

Third, following the Civil War, the North’s passage of the Civil War Amendments (Thirteenth, Fourteenth, and Fifteenth Amendments) was so inconsistent with its anti-secessionist position that one wonders whether its view was coherent. Congress didn’t allow some Southern states to vote in Congress on the Amendments. It later allowed them to get their Congressional seats back only if they ratified the Amendments. This doesn’t make much sense if secession was illegal and, as a result, the states didn’t, and couldn’t, leave the union.   

Fourth, justice permits secession. In general, self-determination is good and right. Consider, for example, the Soviet Union’s dissolution. Consider, also, peoples who escaped colonialism. See, for example, Algeria, Brazil, Haiti, India, Jamaica, Kenya, Nigeria, Pakistan, and Peru.

In partnership law, people in a partnership are permitted to withdraw from it. They might have to pay damages for doing so, but they are not locked into a partnership for perpetuity. In contract law, if contractors misunderstand a material term in the contract, there is no meeting of the minds and, hence, the contract is void. Disagreeing about whether the constitution permits secession is arguably such a misunderstanding.  

Following the Civil War, a later Supreme Court decision, Texas v. White (1869) held that secession was illegal. Its reasoning was so quick and shoddy as to not warrant serious consideration as an argument against secession, although it might carry weight as precedent. Berkeley Law’s Daniel Farber argues that even if, prior to the Civil War, the Constitution permitted Southern states to secede, the Fourteenth Amendment’s Citizenship and Privileges and Immunities Clauses now prohibit secession. I doubt this view is correct, but in any case, it isn’t relevant to pre-war secession.   

This debate is not merely of theoretical interest. Secessionist movements are found in a number of states, including Alaska, California, Montana, New Hampshire, and Texas. Red and blues states intensely disagree about discretionary wars, fossil fuel, freedom of speech and religion, guns, open borders, race quotas and preferences, socializing child-rearing, medicine, and higher education, and politicizing federal agencies. One solution might be to split the country in two and avoid the need to yolk together people with radically different values who increasingly don’t much like each other.