Union and States' Rights: 150 Years After Sumter, A Legal History of Interposition, Nullification, and Secession

5. Secession and Breach of Compact

88 5 Secession and Breach of Compact The Law of Nature Meets the United States Constitution StephenC.Neff,UniversityofEdinburghSchoolofLaw I nthecrisisof1860–61,thearchitectsofSouthernsecessionweredetermined tojustifytheirdrasticactioninlegalterms.Notforthemwasaresorttonaked powerpolitics,inwhichbruteforcewouldbeitsownbadgeoflegitimacy.This firmlylegalisticoutlookonthepartofSouthernleadershadbeenbuildingupover theprecedingdecades.AnimportantearlyfigurewasRobertJ.TurnbullofSouth Carolina, who became the principal intellectual mentor of John C. Calhoun. In 1827, in a book called The Crisis (assembled from a series of articles written over thepreviousyear),Turnbullpointedtothesteadyexcessofpopulationgrowthin thefreestatesrelativetotheslavestates.Thisofcoursetranslated,withthepassage of years, into a constant growth of the political strength of the former over the latterinthefederalCongress.Inaddition,therewasthecontinuingfearofalongterm alliance between the northeastern and midwestern states in the form of HenryClay’sproposedAmericanSystemofprotectivetariffsandinternalimprovements .(AnenthusiasticsupporterofClayandhisAmericanSystemwasanambitious Illinois lawyer and politician named Abraham Lincoln.) In the face of this growing challenge, the proper strategy for the South, Turnbull contended, was resoluteinsistenceonrespectforthesovereignrightsofthestates.1 Aswillbeseen, these rights of the states were asserted, in the secession crisis, not against the federal government, as such, but rather against the free states. Southerners, in short,heldthemselvestobeonthefirmestoflegalgroundsinreferringtotheconflictof1861 –65 asthe‘WarbetweentheStates.’ stephen c. neff 89 For the marshalling of the arguments in support of their action, the South possessedtwoparticularlynotablelegalpaladins.OnewasAlexanderStephens of Georgia, who served as Vice President of the Confederacy and (more notably forpresentpurposes)wroteadetailedconstitutionalexpositionoftheSouthern position shortly after the Civil War.2 The other was Judah P. Benjamin of Louisiana , who served as Confederate Attorney-General at the start of the war (and later as Secretary of War and finally Secretary of State). He set out the Southern position with great care in a speech in the Senate on December 31, 1860, which was then published in pamphlet form.3 Thisdiscussionwillbrieflyoutlinethelegalargumentsinfavorofthesecessionistposition .Thefirstsectionwillsurveyfourargumentsthatcould,intheory, havebeenemployedbutthat,inpractice,wereusedeithernotatalloronlymarginally .Thesecondsectionwillsurvey,ingreaterdetail,theprincipalargument thatwasadvancedin1860–61:thatsecessionwasalawfulremedyavailabletothe Southern states in the face of material breaches of the constitutional compact of 1787 bythefreestates.Itwillbeobservedthat,inthisargument,generalconsiderations of natural law and of the law of nations played a central role. i. arguments that might have been employed Therewerefourbasicargumentsthatmighthaveplayedimportantrolesin the legal justification of Southern secession but did not. They are worth some brief attention, though, for two reasons. First, some of them were the subject of public debate, even if those debates did not play a central role in the secession crisis. Second, they highlight, by contrast, the nature of the breach-of-compact argument which was advanced as the principal justification. These four alternative or subsidiary arguments for secession do not have standard labels. They will be referred to here as: first, the inherent-right, or voluntary-Unionthesis;second,theinherent-powerposition;third,theabsenceof -federal-power argument; and fourth, the revolutionary argument. It will be seen that, strictly speaking, the second and third of these are not arguments in supportofanactualright ofsecession,butaremerelyassertionsoftheabilityof the Southern states effectually to bring about secession. A. The Inherent-Right-of-Secession (or Voluntary-Union) Argument The basis of the argument for an inherent right of secession on the part of the Southern states (or any other states for that matter) was the belief that the federalUnionwasapurelyvoluntaryassociationofstates,terminableatwillby 90 Secession and Breach of Compact any party at any time. For this reason, it can be alternatively termed the voluntary -Unionthesis.Inallevents,thebasiccontentionwasthat,asamatteroftheir inherentsovereignrights,thestatesoftheUnionwereentitledatanytime,asan act of unilateral will, to withdraw from the federal Union. ThislineofreasoningheldtheUnitedStatestobe,ineffect,aninternational organization(inmodernterminology)ofsovereignnation-states,alongthelines oftheLeagueofNationsortheUnitedNations.IntheLeagueofNationsCovenant, explicit provision was made (perhaps unadvisedly) for withdrawal of member statesontheirownunilateralinitiative—arightthatwasresortedtowithdisconcertingfrequency .TheUNChartercontainsnoanalogousprovision,noristhere any clear judicial authority on the matter. But the predominant opinion is that statesdopossessaninherentrightofwithdrawalfrominternationalorganizations asanexerciseoftheirnormalsovereignrights.4 TheUnitedStates,itmaybenoted, has itself withdrawn from two organizations in the UN family: the International LaborOrganizationandUNESCO(althoughinduecourseitrejoinedboth).5 Concerning this inherent-right thesis, it remains to note only a curious development that has yet to be adequately explored or explained: the fact that, while the argument was not employed at the time of the secessions of 1860–61, it came to attract significant support in the course of the conflict. Confederate Attorney-General T.H. Watts, for example, asserted it in an opinion in 1862, holding that a state of the federal Union might, as a matter of right, secede, according to its will and pleasure, though every constitutional provision remained intact and unbroken, and though every law of the United States was in accordance with its will and pleasure.6 The following year, in a similar vein, he maintained that the states had retainedtheirsovereignrightsuponjoiningthefederalUnionin1789—meaning thattheywereentitledatanytime,asamatterofinherentsovereignprerogative, to rescind their membership of that Union.7 B. The Inherent-Power Argument This argument is similar to the inherent-right argument, except that it focuses on power rather than on right. According to the inherent-right...