Tuesday, December 15, 2015

Correcting Brooks Simpson's Commenter

Some commenter at Simpson's blog answers an earlier comment about secession this way:
 Which is it? Some pro-secessionists say because the Constitution doesn’t say anything about secession, it’s legal. Others say the 9th and 10th Amendments make secession legal. Neither are (sic) correct. Which I guess underlines why they can’t get their stories straight.

Although, if you are saying secession is legal through the Constitution, then Article 1, Sec. 10 says it isn’t.
This is incorrect, as we shall see. It's not about legalities and illegalities. It's about prohibitions. Secession is not prohibited to the states. The power to prohibit secession is not delegated to the US, thus it is not prohibited.

Article 1, Section 10, which he cites, sez:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
"No state..." it sez. Now, first let's establish what states this referring to. Obviously, the individual states of the United States. Not, say, Chihuahua or Sonora in Mexico. Or the Canadian provinces (Canada's "states") like Ontario or Manitoba, or the states of any other country. Just the United States. Can we agree on that?

The 10th Amendment states "The powers not delegated to the United States by the Constitution, nor prohibited to by it to the States, are reserved to the States, respectively, or to the people."
The powers prohibited to the states are identified in Article I, Section 10, of the U.S. Constitution. Secession is not among them, so it is not prohibited.

The power to prohibit secession is not listed among the powers delegated to the United States, so it is not prohibited.

Secession is withdrawal -- formal withdrawal. Per Dictionary.com, to secede is to withdraw formally from an alliance, federation, or association, as from a political union, a religious organization, etc.

What one does after withdrawing is not part of the withdrawing, correct?

Now, look carefully at Article 1, Section 10 again....
  • Entering into a treaty, alliance or confederation is not secession, i.e., not formal withdrawal.
  • Granting letters of Marque and Reprisal is not secession, i.e., not formal withdrawal.
  • Coining money is not secession, i.e., not formal withdrawal.
  • Emiting bills of credit is not secession, i.e., not formal withdrawal.
  • Making something besides gold or silver coins tender for payment of debts is not secession, i.e., not formal withdrawal.
  • Passing any Bill of Attainder, ex post facto laws, or laws impairing the obligation of contracts is not secession, i.e., not formal withdrawal.
  • Granting titles of nobility is not secession, i.e., not formal withdrawal.
Obviously, Article 1, Sec. 10 does not make secession illegal.

The commenter is trying to de-legitimize the states of the Confederacy by saying they violated some or all of the provisions of Section 10, particularly entering into a Confederation. But what he is not taking into consideration is that none of the Confederate states did any of these things while they were still states of the USA and parties to the Constitution. They did some of them after they seceded, when the Constitution and those Article 1, Section 10 prohibitions no longer applied to them -- when they were no more a state of the USA than Chihuahua or Manitoba...

The Confederacy was formed on February 4, 1861. The following states were admitted to the CSA on February 8, 1861. The date beside each state is the date it seceded from the union and was no longer subject to Article 1, Section 10 of the US Constitution, or any other Section, Article or Paragraph of that document. Thus, none of them entered into a Confederation while they were still subject to the US Constitution.

Admitted to the Confederacy February 8, 1861:

South Carolina: which seceded December 20, 1860
Mississippi: which seceded January 9, 1861
Florida: which seceded January 10, 1861
Alabama: which seceded January 11, 1861
Georgia: which seceded January 19, 1861
Louisiana: which seceded January 26, 1861
Texas: which seceded February 1, 1861

The following list shows states that were admitted to the Confederacy later. The date they seceded from the union is shown first, followed by the date of admission to the CSA, clearly establishing that none of them violated Article 1, Section 10, either.

Virginia: seceded April 17, 1861. Admitted to the CSA May 7, 1861
Arkansas: seceded May 6, 1861. Admitted to the CSA May 18, 1861
North Carolina: seceded May 20, 1861. Admitted to the CSA  May 21, 1861
Tennessee: seceded June 8, 1861. Admitted to the CSA July 2, 1861
Missouri: seceded Oct 31, 1861. Admitted to the CSA Nov. 28, 1861
Kentucky: seceded Nov. 20, 1861. Admitted to the CSADec. 10, 1861

(North Carolina's dates of withdrawal and admission are the closest in time of all the states -- one day. But that's enough to remove North Carolina from the prohibitions of Article 1, Section 10 before entering into the Confederacy. What a difference a day makes, huh....)

I suspect Simpson's commenter will dismiss all this without a single neuron firing...  In any case, I'm not expecting him to try to refute it, or to acknowledge it at all.


  1. Simple fact. In all of these cases, the Yankee double standard is in play. If the North does it, then it's legal. If the South or West do anything, particularly if it conflicts with the North's interests or wishes, then it's not legal. In American politics, the North comes first, last and always.

  2. I think it is imperative to remember that the Constitution ratifications of Virginia, New York, and Rhode Island had clauses expressly stating that the powers delegated to the national government could be resumed by the State. The U.S. Congress accepted those ratifications with those clauses. Understanding that the States were equal, and what applied to one applied to all, it is inconceivable that secession was not legal. I note the U.S. government failed to bring charges against any Southerner for treason, though not for the want of trying. Particularly in the case of Jefferson Davis.

  3. New York and Rhode Island:
    "That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness..."

    "WE the delegates of the people of Virginia....do, in the name and on behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression..."

    1. You have to remember, BR, that the people we're dealing with, don't believe that Virginia is a legitimate state, or that Virginians, or any other Southrons for that matter, have any rights. They didn't send two million men to invade and conquer Dixie, in order to grant rights to anyone but themselves. For these people,the U.S. literally does not exist south of the Ohio river or west of Minnesota, Iowa and Illinois.

  4. Commenter!? Am I not more than just a generic term? Ms. (Mrs.?) Chastain, I have a name! I, an apparent nobody, have had an entire blog entry dedicated to my inane ramblings! I would think I should be credited for my idiocy.

    "I suspect Simpson's commenter will dismiss all this without a single neuron firing... In any case, I'm not expecting him to try to refute it, or to acknowledge it at all." - Here's a helpful tip, if you want to prove someone wrong, at least give them the courtesy of letting them know you're proving them wrong. You didn't even use my name. You could at least reply to my comment to let me know that you're creating a post dedicated to my comment. As a fellow Southerner, I would expect at least a polite, back-stabbing, "Bless your heart" comment directed at me.

    If you can set me straight, let me know. If my use of Article 1, Section 10 is misguided, let me know, I can handle it. My larger point was that pro-secessionists try to have it both ways; inside and outside of the Constitution. If there were a clear path to peaceful secession (aside from mutual separation), you would expect the same logic used every time.

    Although, I'm sure you've read Mr. Mackey's lengthy and detailed post explaining how legal secession isn't possible. He also has a reference to Thomas Jefferson's Reign of Witches letter in the comments explaining how secession is illogical in the sense of a voluntary Union.

    I would also add Madison's letter to Trist wherein Madison explains how secession is not allowed in a voluntary Union: The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater fight to break off from the bargain, than the other or others have to hold them to it.

    He also states rather pointedly: It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject. (That person apparently is not me.)

    Mr. Owen, don't sound so despondent. You matter, too. Really, you do.

    Eddie and Border Ruffian (quite the name you have there), thank you for the information.

    1. sledridge, I didn't use your name because I didn't have your permission to. I didn't reply to you at XRoads because I never know when Simpson will let my comment through, and when, Anthony Fremont-like, he will send it to the cornfield.

      I believe my whole blog post was setting you straight.

      If pro-secessionists try to have it both ways it is likely because they are not mental clones and they see the issue differently. I can't think of any issue where all people have the same beliefs about it.

      Al Mackey is certainly entitled to his opinion, far be it from me to say he is not. However, if a party to a voluntary union cannot leave it, then the union is not voluntary, which makes it a prison.

      The public is huge, it is made up of myriads of people with greatly divergent opinions; if Mackey thinks the claim to secession should be put down by public opinion, he's welcome to try to sway public opinion, but I'll stick with Thomas Jefferson, who said altering or abolishing their government (which would include secession from one government and the creation of a new one) is a Creator-endowed right of the people.

    2. Fair enough. I, heretoforwardfurthermoreandsoforth, do decree: I don't mind being quoted, if I'm quoted accurately. As you did.

      "However, if a party to a voluntary union cannot leave it, then the union is not voluntary, which makes it a prison." - No. Prison is involuntary. And it isn't a compact. As much as your mortgage or cell phone agreement may feel like prison, they aren't. And you can't simply walk away from them when you decide.

      As Madison states, it is a voluntary compact. You can't sign an agreement then decide, for yourself, when you are done with it. The other parties, by signing the same compact, have an interest in what you do. By seceding, you are causing harm to the other members of the compact as the makeup of the compact has lessened by you leaving. As Mackey pointed out in his entry, there is lengthy legal precedent for this. It isn't just "opinion".

      I'll stick with Madison... and Jefferson. As Jefferson pointed out, unilateral secession is the slipperiest of slopes. Unilateral secession from a compact is no compact at all. As Jefferson said, altering or abolishing their government is a right of the people... within the Constitution. Through the Constitution, we have the ability to do that. The context of the Declaration of Independence is that of an involuntary, unrepresented faction rebelling. The South was over-represented and voluntary signer of the Constitution. And they had no issues in getting what they wanted out of DC. And slavery, itself, was a violation of the Creator-endowed rights.

      I hope everyone has a blessed and Merry Christmas! Especially, you, Mr. Owen!

    3. "The South was over-represented and voluntary signer of the Constitution. "

      Over represented? Stretching as far as possible and including Delaware and Maryland, there were only 6 Southern States, to the 7 northern ones.

      Southern: DE, MD, VA, NC, SC, GA=6
      Northern: PA NJ, NY, CT, RI, NH. MA=7

    4. Googling like mad trying to find "...within the Constitution" in the Declaration of Independence.

      Somehow, I don't think Jefferson would have given this kind of authority to a document that hadn't even been written yet, and thus the content of which he did not, could not, know. DoC written 1776. Constitution written 1789...

    5. "You can't sign an agreement then decide, for yourself, when you are done with it."

      Sure I can... if I want to opt out of my phone contract before the ending date, I can pay a penalty and end it. If I want out of my mortgage, I can re-finance, or sell my house.... There are any number of ways it can be done.

      Many a contract includes, "This agreement may be ended by either party for any reason, upon written notice to the other parties..." or some such wording. Virginia, NY and Rhode Island had that kind of "out" in their contract with the US and since everything applied to all states, so did that "out."

    6. Eddie, I'm referring to the 3/5 representation of slaves. It gave the free population more representation than what they deserved.

    7. Connie, poor phrasing on my part. I was referring to the Reign of Witches letter then switched mid thought to the Declaration of Independence. Sorry for the confusion.

      Yes, you can leave after meeting the penalties or fulfilling the agreement or having someone else fulfill your responsibility to your lender before moving to another lender. How had the rest of the Union agreed to let the South go? Did the other members to the compact have a say in the lessening of the Union they had all agreed upon?

      And quoting Madison again, this time in regards to Jefferson: It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, vol. 2,1 with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact.

    8. sledridge,

      This should set aside the question of the legality of secession.

      No law had ever been passed that explicitly outlawed secession, the argument simply having been sidestepped by events. From the legal point of view it would have been difficult to accuse Mr. Davis of having committed any crime. Judge Chase felt there was no strong legal case against him for having been the president of the Confederacy, and added, with a surprising wisdom: "Lincoln wanted Jefferson Davis to escape, and he was right. His capture was a mistake. His trial will be a greater one. We cannot convict him of treason. Secession is settled. Let it stay settled."

      Updated 10/20/11

      The Chase quote is from "The Long Surrender", 1985, by Burke Davis
      His sources are..
      Southern Historical Papers, Vol. 37, pp 244-52
      "Why Jefferson Davis Was Never Tried" by George S. Boutwell, is in ibid., Vol. 38. pp. 347-49.
      "The U.S. vs. Jefferson Davis," by Ray F. Nichols, American Historical Review, Vol. 3, No. 2, January 1926, pp 266 ff.
      "The Trails and Trail of Jefferson Davis," a paper read before the Virginia Bar Association 1900, and published by this organization.


      Do you know that Lincoln never declared war because secession was illegal under any article or section. Do you know his basis for was to preserve the Union for the collection of revenue?

    9. The 3/5 representation had no bearing on the representation at the Constitutional convention.


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