Re: Was Secession Legal? Part 24

>Thank you. I was aware of the arguments at the Constitutinal Convention but had hoped that you were going to provide case law from the 1787 period.

Case law from 1787 would be utterly irrelevant to the question of whether the Constitution permitted secession, since, obviously, the Constitution was not in force, so no cases arisen under it. Indeed, because the federal courts are required to render their opinions in particular cases dealing with with past or present events, even after the Constitution went into effect, there was no way for the federal courts to issue a binding ruling in advance that secession was unconstitutional. They could only rule directly on the constitutionality of secession only after some state had actually seceded. You could not have case law on secession until after you had a secession.

>It is also noteworthy that no one at the convention demanded that a section be inserted saying that the States could not secede or recede from the Constitution once they were a party to it.

The discussion I cited above suggests that the reason they did not do so was that they believed that secession would be unconstitutional without it. Of course, they might have been wrong. Obviously, Mason and Madison disagreed with Ellsworth about whether state ratification was necessary to preclude a right to secede. Ellsworth wanted ratification by state legislatures. He said that no state would be permitted to “recede” from the compact even if the Constitution had been ratified by the legislatures?

Suppose Ellsworth had gotten his way, and ratification had been carried out by the legislatures. Would the states then have had a right to secede, because Ellsworth was wrong about secession being unconstitutional regardless of the mode of ratification? If Virginia had seceded in 1798 because of hostility to the Alien and Sedition Acts, how would the case law have shaken itself out? Would the Supreme Court have ruled that Virginia’s secession was constitutional because the Constitution had been ratified by the legislatures instead of the states? I think it is a reasonable to speculate that the chief justice, at least, would have ruled that the secession of Virginia was unconstitutional. I say this because the chief justice at that time was — Oliver Ellsworth.

>But it does rather seem to enforce the belief in “consent of the governed” as to ratification and accession, which would logically be taken forward to secession.

That the Constitution did not provide for “consent of the governed” in all cases is demonstrated by the fact that it did not abolish slavery, or guarantee women the right to vote, that it barred Congress from granting to statehood from any part of a state that seceded from thaat state without the consent of the state legislature, and that it lodged the power to govern the territories of the United States in Congress, and not in the territories. The latter is particularly interesting, since the power to govern the colonies had been lodged in Parliament and not in the colonies. In 1860, Southerners vehemently rejected the doctrine of “popular sovereignty,” under which Congress would have delegated the choice of whether to allow slavery in a territory to the people of the territory rather than having it dictated from Washington. They placed their claim of a right to hold property in slaves in the territories above any consideration of “the consent of the governed.”

Your argument, it seems to me, boils down to this: If the Constitution doesn’t permit secession, it sucks. But we all know that the Constitution does not suck. If it sucked, the states would never have ratified it. Therefore, the Constitution must permit secession. – Gary Charbonneau

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