It seems like the American Civil War may never stop being fought, at least anytime soon. While the guns fell silent over one hundred and fifty years ago, the verbal salvoes began almost immediately afterward and have continued, in various forms and with various relative lulls, to the present day. The different threads of Confederate apologism known as the Lost Cause have touched nearly every aspect of the conflict, from its causes to its waging and course, but one of their core principles has been the claim that those who seceded from the Union in 1860 and 1861 did nothing wrong, that secession had always been perfectly legal under the United States Constitution and that it was in fact the Northern states under Abraham Lincoln’s leadership that were the ones violating the fundamental law of the land. While Union victory rendered that claim null in a practical sense in 1865 and was quickly followed in the legal arena by the decision of the Supreme Court in Texas v. White (1869), which explicitly declared no state can unilaterally secede from the Union, defenses of the Confederacy based on its innocence in the core dispute that sparked the war have survived and even thrived into the twenty-first century. Those arguments are, and always have been, ignorant at best and very possibly intentionally facetious, not just in the present day but at the time of secession and every point beforehand going back to the adoption of the Constitution in 1787 and, in fact, beyond. As a student of the Civil War, rebuttals to these arguments have been part and parcel of my academic world for over a decade now, and while I won’t necessarily be adding anything new to the conversation, I wanted to dissect the obvious inaccuracies and lies of Confederate propaganda in what I intend to be a trilogy of installments, providing a clear, concise, and readable format for any in need of intellectual ordnance in the coming years.
Unlike the other major Lost Cause myth, that preservation of slavery was not the motivating factor for Confederates, the legality of secession is not a post-facto fabrication. The Southerners who voted for secession in late 1860 and early 1861 seem to have earnestly believed that they were not doing anything wrong. Other rebels and revolutionaries throughout history, including their own forefathers whose legacy Confederates claimed to uphold through their actions, have held no illusion about the illegality of their actions, instead appealing to a higher law, whether of humanity, nature, or the Divine to prove their case. Here, though, Southerners took the opposite path and argued that their actions were perfectly legal, that any state could secede from the United States at any time if it so chose. By their logic, the states had been sovereign entities at the moment of their ratification of the Constitution, almost in a diplomatic “state of nature,” and had thus voluntarily entered into the national compact at the behest of its people through the ratification conventions. As such, those states possessed the inalienable right to withdraw from the compact. This was the reason that the seceding states called secession conventions, mirrors of those ratification conventions, where the people—not the state government—declared their intent to secede. This argument has a certain simple, compelling logic to it, immortalized among Civil War buffs through the “gentleman’s club” analogy used by George Pickett in Michael Shaara’s novel The Killer Angels and its 1993 film adaptation, Gettysburg. There’s only one problem with it.
It’s a complete fabrication.
Anyone with a working knowledge of American history should have smelt a rat in my above description. The thirteen states who ratified the Constitution in 1787 and formed the beginning of the United States were not, in fact, sovereign entities at the moment of ratification but members of a previous governmental compact: the Articles of Confederation. Forged in the flames of rebellion in order to better resist the might of their imperial overlord, Great Britain, the Articles have become infamous for their many flaws, most prominently the lack of authority for its central government and accompanying inability to reliably raise tax revenue and thus do much of anything that a government exists to do. It is the height of irony, then, that the text of the articles was actually more centralized than its successor in one way particularly relevant to this conversation: it explicitly denied the possibility of subsequent unilateral secession. Article XIII clearly states:
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 con-firmed by the legislatures of every state.
It’s clear, then, that not only were the states not sovereign in 1787, they were members of a united government that they could not secede from of only their own volition! So much for a diplomatic state of nature.
If that were not enough, it can be plausibly argued that the Articles’ prohibition of secession actually continued in full force into the Constitution. Our founding document famously opens with the phrase “We the People of the United States, in Order to form a more perfect Union.” This idea of forming a “more perfect Union” could very well just be a generic reference to the ideal of improvement in society, but the Constitution was intentionally written as a replacement for the hapless Articles of Confederation. In this light, “a more perfect Union” may in fact refer specifically to an improved form of the compact begun under the Articles—a Union that was already indivisible, and one could hardly expect a “more perfect” version of that Union to now be divisible.
The ideological foundation of the Confederate movement, then, was based on the flimsiest of arguments, one that requires its adherents to be judged either monumentally ignorant or maliciously duplicitous. This is only the tip of the iceberg, however; both the fundamental nature of law and the particular history of the United States also have their pieces to say on the topic of secession’s legality. Stay tuned.