Secession as an International Phenomenon: From America?s Civil War to Contemporary Separatist Movements

“Lincoln, the Constitution, and Secession”

PETER RADAN Lincoln, the Constitution, and Secession Akhil Reed Amar has written that “the legality or illegality of secession was probably the most serious constitutional question ever to arise in America .” In relation to this “most serious constitutional question,” Cass Sunstein has asserted that “no serious scholar or politician now argues that a right to secede exists under American constitutional law.” Laurence Tribe cites President Abraham Lincoln’s First Inaugural Address of March 4, 1861, as the “definitive articulation” of this view of Amar’s “most serious constitutional question.” That Lincoln firmly rejected the legality of the secession of the eleven Confederate States is clear. However, Lincoln never claimed that secession from the Union was impermissible. Lincoln recognized the legitimacy of secession if it was consensual or pursuant to a morally justified revolution. For Lincoln, the unilateral secessions of the eleven southern states lacked any legitimacy because they were not accompanied by either of these two conditions. This chapter explores these two routes to secession. The first part outlines and critiques Lincoln’s arguments in support of his proposition that consent was necessary for a constitutionally legal secession. The second details and evaluates Lincoln’s views on revolutionary secession. The third assesses the impact of Lincoln’s views against the background of contemporary jurisprudence on secession in a number of constitutional law decisions from Canada and the former Yugoslavia as well as in express stipulations in the constitutions of states such as Ethiopia, St. Kitts and Nevis, and Liechtenstein. LEGAL SECESSION BY CONSENT For Lincoln secession was constitutionally legal only if achieved by consent. This required a state, first, to demonstrate that its population wanted to secede Constitutional Law and Secession [57] and, second, to obtain the consent of the union as a whole. It thus followed that unilateral secession was constitutionally illegal. Lincoln set out his views in his First Inaugural Address and his message to Congress of July 4, 1861. In the former he referred to the right of “the people” to “exercise their constitutional right of amending [their constitution].” In his message to Congress, he referred to and rejected the southern states’ argument that a state could “withdraw from the Union, without the consent of the Union or of any other State.” Later he questioned whether a state could “go off without leave” or “without consent.” In opposing secession without consent, Lincoln clearly implied that secession could legally occur with the leave or consent of the Union. Two issues arise from Lincoln’s propositions on consensual secession. The first is the practical question of what constitutes consent. Lincoln does not elaborate in detail on this question. The second, which he more fully analyzes, is the theoretical question of why the consent of a country as a whole is necessary for a constitutionally legal secession. In addressing this issue, Lincoln gives legal and nonlegal reasons. However, in his legal reasoning he reframes the question to ask why unilateral secession of a state is illegal rather than why consent is necessary for a legal secession. The Meaning of Consent For Lincoln, consent involves a two-phase process. First, the population of the seceding state must clearly indicate its consent. Such consent legitimates the demand for secession. Second, the country as a whole must also consent to that state’s secession. Here consent relates to the effectuation of a legitimate demand for secession. Lincoln’s views regarding the consent of the population of a seceding state are revealed in his comments on the secession declarations of the Confederate States. In his 1861 message to Congress, Lincoln said: “It may well be questioned whether there is, to-day, a majority of the legally-qualified voters of any State, except perhaps South Carolina, in favor of disunion. There is much reason to believe that the Union men are the majority in many, if not every other one, of the so-called seceded States.” Lincoln also questioned the legitimacy of elections in Virginia and Tennessee on account of the coercive tactics used by prosecessionists. In making these points, Lincoln was insisting that unless secession had the genuine support of at least the majority of the population of the secessionist state, it would be illegitimate. [58] Peter Radan For Lincoln, a legitimate demand for secession by the Confederate States could only be legally effectuated if it secured the consent of the United States as a whole. In his First Inaugural Address, Lincoln...