The Elusive Right of Secession

Cory Eno

HIST/552
Robert Young
3/16/14

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Tucked away in the labyrinth that has become the American Civil War are core questions
that drive both research and debate. Peripheral concerns and areas of interest have fueled work in
social and economic history. Of course, there is no shortage of tomes on military strategy and
those who fought the war. Lincoln himself has suffered no dearth of scholarship. The causes of
the war have received ample and appropriate attention from historians, and have contributed to
the great debates of generations of Americans who want to know how and why this war
happened; perhaps to avoid another costly conflict in the future. Slavery, undoubtedly, has been a
central point of study for those seeking answers on the nature of the war. But all of this does
hinge on a more practical and legal question: Did the South have a legal right to secede under the
Constitution? While the arguments denying a right to secession make practical sense and
reinforce justification of Northern action against the Confederacy, the right of secession being
neither confirmed nor denied by the Constitution was legally claimed by Southern states and
particularly bolstered by the tenth amendment.
Most arguments against secession were articulated by President Lincoln leading to and
during the Civil War. Thirteen years before the conflict, Lincoln actually supported a peoples
right to overthrow their government. As he put it, Any people anywhere, being inclined and
having the power, have the right to rise up and shake off the existing government, and form a
new one that suits them better.1 While secession and overthrow are certainly two different
actions, one could argue that secession is the lesser of two evils. Those who attempted to
1

Lincoln, Abraham, and Marion Mills Miller. Life and works of Abraham Lincoln. Volume III. (New York:
Current Literature Pub. Co., 1909), 128.

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peacefully secede from the United States were not attempting to overthrow the federal
government, but to withdraw from it. Lincoln made this statement in the context of the Mexican
War, and in support of the right of revolution. It is unfair to apply it to his view of secession over
a decade later, but it does illustrate his perspective on the Civil War. If he truly believed in this
sacred right, then he clearly did not believe that the Confederacy had the power or the right to
shake off its existing government. In fact, Lincoln argued in his famous July 4th War
Speech in 1861 that secession was nothing short of a power to destroy the government itself.2
He may very well have known that withdrawing from a union is not equivocal to dismantling
that union. As James Ostrowski rightly summarized, To depart from is to destroy, according to
Lincoln.3 This argument was emotionally effective in casting blame for bloodshed since Fort
Sumter on those who were attempting to destroy the union through secession, and it played
very nicely with Lincolns assertion in his first inaugural that the Confederacy could have no
conflict without being the aggressors.4 More importantly, Lincoln was able to use this
rhetoric consistently to justify the immense brutality of the war. After linking the conflict to
slavery through the Emancipation Proclamation and the Gettysburg Address, he concluded in his
Second Inaugural that while his side was devoted altogether to saving the Union without war,
insurgent agents were in the city seeking to destroy it without warseeking to dissolve the
Union and divide effects by negotiation. Both parties deprecated war, but one of them would
2

Lincoln, Abraham. "Miller Center." July 4th Message to Congress (July 4, 1861)-. http://
millercenter.org/president/speeches/detail/3508 (accessed March 16, 2014).
3

Ostrowski, James. An Analysis of President Lincolns Legal Arguments against secession. In Secession,
state, & liberty. Ed. Gordon, David. (New Brunswick USA: Transaction Publishers, 1998, 165.
4

Lincoln, Abraham. "The Avalon Project : First Inaugural Address of Abraham Lincoln." The Avalon
Project : First Inaugural Address of Abraham Lincoln. http://avalon.law.yale.edu/19th_century/
lincoln1.asp (accessed March 16, 2014).

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make war rather than let the nation survive, and the other would accept war rather than let it
perish, and the war came.5 Perhaps the most brilliant part of this speech, after a brutal year in
the conflict, was the last four words. It is a passive accusation that punctuates Lincolns entire
philosophy of the war. By tying secession to the war, he proves his point. The Constitution does
not have a provision for its own destruction; therefore those who through war have tried to
destroy it were in extralegal territory. This robs the Confederacy of legitimacy and places full
blame on those who ignited the conflict with an unconstitutional act of rebellion.
Politically, Lincoln and others used arguments that portrayed the Confederates as Antimajoritarian and Anarchist.6 This approach implied poor democratic sportsmanship on the part of
the rebels. They did not like the outcome of majority rule, so they decided to break up the union
and go their own way. According to this view, the minority would subdivide over one issue over
and over, until there was no government left at all. Lincoln would have been hard pressed to give
any historical examples of such a result; arguably not the only straw man argument he made.
James Ostrowski accuses Lincoln of just such a logical fallacy when the President said that
rebels made the assumption, that there is some omnipotent and sacred supremacy, pertaining to
a State--to each State of our Federal Union.7 Those who subscribed to the so-called Compact
Theory, articulated best by Jefferson in the Kentucky Resolutions, saw secession as a natural
right of the self-governed. They argued that the Constitution is a compact ratified by the states,

Lincoln, Abraham. "Abraham Lincoln: Second Inaugural Address. U.S. Inaugural Addresses. 1989."
Abraham Lincoln: Second Inaugural Address. U.S. Inaugural Addresses. 1989. http://www.bartleby.com/
124/pres32.html (accessed March 17, 2014).
6

Desnoyers, George. "Lincolns Four Main Arguments against Secession." Lincoln. http://
www.endusmilitarism.org/secession_condensed-with_notes.html#Note_two (accessed March 17, 2014).
7

Ostrowski.

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and thus withdrawal from that compact is reasonable on democratic grounds. This is not the
same as claiming omnipotent and sacred supremacy, but those words were more supportive of
Lincolns own ends; namely the preservation of Union. Therein lies the greatest philosophical
divide. Lincoln was dedicated to preserving the Union with all previous states intact, and the
Confederates wished to leave the union, not destroy it. Since the union Lincoln (and many
Americans) wanted to preserve was not the union that Confederates wished to leave behind, the
rebels were effectively destroying the former to achieve the latter. So, the arguments made
practical sense at the time, and served to justify war aims in the process.
Coupled with the legal argument that secession destroys a constitutional union was the
notion that the United States was legally a perpetual union. In his first inaugural, Lincoln
outlined the path of union from British colonies through the Articles of Confederation. The
Articles clearly articulated perpetual union (five times), and he argued that the phrase a more
perfect union in the preamble of the Constitution linked the two unions together. Beyond the
obvious contentions that the Constitution itself was a result of secession from the Articles - nine
necessary states would simply form a more perfect union and leave the previous one to those that
remained - this argument rests on very tenuous evidence. It was precisely to form a government
that was very different from the one that existed that Congress met in Philadelphia. To claim that
their wish to perpetuate their union in a new form invalidates secession from the next one seems
to be a stretch. There is evidence that omitting secession (and perpetuity) from the Constitution
was largely political and that it would have been inexpedient to have forced this issue in 1787,

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when the fate of any sort of a central government was doubtful. But [this] subject [was] probably
not even seriously considered at that time.8
Lincoln, whose practical handling of the war was nothing short of masterful, was faced
with the task of justifying immense loss of life and the coercion of a group of states that
ostensibly sought peaceful withdrawal from the union. The only way for him to do this was to
first classify their actions as illegal, and later immoral. By maintaining that the Confederacy was
illegitimate and nothing more than a domestic insurrection, Lincoln was able to justify his use of
force as a perfectly legal executive action. During the war, this was among the most critical
factors in persuading the American people (especially those in the border states) that they were
on the right side. The injection of moral reasons for war simply reinforced that notion, and
addressed the true cause of war, slavery, as a central factor in the conflict. Once the war was
about liberty and to destroy slavery, the original cause did not really matter to many Americans.
More importantly, how the war started became a footnote. Lincolns able manipulation of the
dialogue about secession was critical in this process.
It seems that regardless of the moral and ethical justifications made for the Civil War, the
legal justification was absolutely necessary. Some may argue reasonably well that the ends
justified the means in that conflict, but the question of whether secession was legal is not
answered by such moralizing - however virtuous. Because secession is not expressly prohibited
by the Constitution, and the Confederacy was established by states that were attempting peaceful
withdrawal from an existing union that was willingly entered through ratification, that secession
should have legally stood. That is not to say that the Union started the war, weight must be given

M. Farrand, The Framing of the Constitution (New Haven: Yale University Press, 1913), p. 206

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to the first shots, refusing to allow secession was the chess move that precipitated the conflict.
The tenth amendment states that The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.9 If a right to secession does exist, it is reserved to the people and to the states. The
founding philosophy of the nation rests on self-government, self-determination, and personal
liberty. To assert that the majority can hold the minority captive, without right to the ultimate
recourse of secession, and by extension, nullification, is to accept an authoritarian worldview that
conflicts severely with those founding principles.
In spite of the legality of secession, the Civil War took over claimed over 620,000 lives
and achieved a much more meaningful legacy. There is no question that the wars greatest
casualty was slavery, and the long, arduous process of reconstruction has been handed down to
generations of Americans since Appomattox. In the course of seeking answers about the deep
complexity of the Civil War, the legal grounds on which it was fought remain both incredibly
relevant, and shockingly moot. To those that see pragmatism in the 16th President of the United
States, there is a case to be made for his argument that the Union was saved from an insurrection
that sought to overthrow legitimate government and ultimately destroy the Constitution. Whether
that destruction came through the spread of slavery, or through secession, the Union had to
prevail. Some who value legal justification for war, this might not hold up. Lincolns argument
may have been politically convenient, but it did not soundly refute a right to secession that has
been held by many Americans since independence was declared. The tenth amendment did not
create omnipotent, sovereign states, but it did reserve powers like secession for the people.

U.S. Const. amend. XI. Sec. 2.

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Bibliography
Desnoyers, George. Lincoln's Four Main Arguments against Secession." Lincoln.
http://www.endusmilitarism.org/secession_condensed-with_notes.html#Note_two
(accessed March 17, 2014).

Gordon, David. Secession, state, & liberty. New Brunswick (USA): Transaction
Publishers, 1998.

Lincoln, Abraham. "The Avalon Project : First Inaugural Address of Abraham Lincoln."
The Avalon Project : First Inaugural Address of Abraham Lincoln. http://
avalon.law.yale.edu/19th_century/lincoln1.asp (accessed March 16, 2014).

Lincoln, Abraham. "Miller Center." July 4th Message to Congress (July 4, 1861)-. http://
millercenter.org/president/speeches/detail/3508 (accessed March 16, 2014).

Lincoln, Abraham. "Abraham Lincoln: Second Inaugural Address. U.S. Inaugural

Addresses. 1989." Abraham Lincoln: Second Inaugural Address. U.S. Inaugural
Addresses. 1989. http://www.bartleby.com/124/pres32.html (accessed March 17,
2014).

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Lincoln, Abraham, and Marion Mills Miller. Life and works of Abraham Lincoln.
Commemorative ed. New York: Current Literature Pub. Co., 1909.

Ostrowski, James. "AN ANALYSIS OF PRESIDENT LINCOLN'S LEGAL

ARGUMENTS AGAINST SECESSION." James Ostrowski. http://
jimostrowski.com/articles/secession.html (accessed March 17, 2014).