A Legal Review of Secession, 150 Years Later, by Attorney Terry E. Hogwood

Thursday, Nov 15, 2012

Introduction

The Civil War [aka War Between The States] (or The War of Northern Aggression, depending on your personal view) ended in 1865. However, the legality of secession by the Southern States simply will not die 150 years after Texas formally seceded from the Union and joined the Confederate States of America. As late as May, 2011, secession by part of the State of Arizona from the rest of the State is being proposed. Secession is often bandied about by politicians on both sides of the spectrum but do any of its proponents really understand what secession, from a legal standpoint, is and isn’t?

This article will explore the illegality of secession through the style United States Supreme Court cases dealing directly with the issue. As much as possible, the article will let the Court, through its own words, explain what secession is and its legal effect on the seceding states. All emphasis within the following quotes, unless otherwise noted, are those of the author.
           
                        Texas - 1861

            The Texas Ordinance of Secession, at least in the opinion of its drafters and the people of Texas, officially separated Texas from the United States in 1861. It was adopted by the Secession Convention on February 1 of that year by a vote of 166 to 8.

            The Texas Ordinance of Secession - (February 2, 1861)

“The ordinance of secession submitted to the people was adopted by a vote of 34,794 against 11,235. The convention, which had adjourned immediately on passing the ordinance, reassembled.  On the 4th of March, 1861, it declared that the ordinance of secession had been ratified by the people, and that Texas had withdrawn from the union of the States under the Federal Constitution.”1

                        Alaska - 2003

“Scott Kohlhaas drafted an initiative calling for Alaska's secession from the United States or, in the alternative, directing the state to work to make secession legal, and submitted the initiative, along with one hundred signatures, to the lieutenant governor.”2                                                  

            The Background

Texas seceded from the United States on March 4, 1861.

The Confederate States of America declared War on the United States.- "An Act recognizing the existence of war between the United States and the Confederate States” - May 6, 1861.

The US never declared war on the Confederate States. Abraham Lincoln (and not Congress, since war was not and would not be declared) did issue a Proclamation that an insurrection existed in the states of SC, GA, FL, AL, MS, LA, and TX on April 15, 1861 (Messages & Papers of the Presidents, vol. V, p 3214). The Congress of the United States retroactively approved these initial actions of the President. 12 Stat. 326 (1861).

The Confederate States surrendered April 9, 1865 (Lee surrenders to Grant)

“Order” is restored in the Southern States via the Reconstruction Laws.3.

Jurisprudence Language By the Winners

A very strong clue previewing the rulings of the Supreme Court of the United States on the issue of the illegality of the secession of the Southern States can be found in the preparatory language of the Court leading up to its decision in the seminal case of Texas v. White, 74 U.S. 700 (1869). The following is a selection of the Court’s classification of the Confederate States’ attempted secession.

Texas v. White, 74 U.S. 700 (1869)

“...At the time of that outbreak, Texas was confessedly one of the United States of America, having a State constitution in accordance with that of the United States, and represented by senators and representatives in the Congress at Washington.  In January, 1861, a call for a convention of the people of the State was issued, signed by sixty-one individuals.  The call was without authority and revolutionary...” 

“...Thus was established the rebel government of Texas.”

...War having become necessary to complete the purposed destruction by the South of the Federal government, Texas joined the other Southern States, and made war upon the United States, whose authority was now recognized in no manner within her borders.

Significant Case Holdings in Date Order

The Amy Warwick, 67 U.S. 635 (1863)

Context

This case involved vessels (and their cargoes) which were seized during the Civil War. One of the significant issues in the case was whether the President of the United States had the right to institute a blockade of ports in possession of persons in armed rebellion against it.

The Supreme Court entered into a detailed, logical analysis of the effect of secession by the Southern States and the right of the United States to react to their secession. The first inquiry was whether a state of war existed when the vessels were seized, remembering that the Congress never formally declared war on the Confederate States. In fact, Congress passed an act “approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., as if they had been issued and done under the previous express authority and direction of the Congress of the United States.”4  On the issue of the declaration of war, the Court held:

“        Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government.  A civil war is never solemnly declared; it becomes such by its accidents--the number, power, and organization of the persons who originate and carry it on.  When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and they contest a war.  They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.”5

The Court acknowledged that only Congress could declare war. However, Congress could not declare war against a state(s). According to the Court, only the president had the authority to use the military force of the United States to combat an armed insurrection as was encountered during the Civil War.

             “       By the Constitution, Congress alone has the power to declare a national or foreign war.  It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution.  The Constitution confers on the President the whole Executive power.  He is bound to take care that the laws be faithfully executed.  He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.  He has no power to initiate or declare a war either against a foreign nation or a domestic State.  But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.”6

The Court concluded that, in light of the “insurrection” of the Southern States, the President of the United States had the right to institute a blockade of the ports in the possession of the rebelling states and that all neutral countries/citizens were bound to recognize same.

Texas v. White, 74 U.S. 700 (1869)

Context

             This case involved the bringing of an original action in the United States Supreme Court by the State of Texas for the recovery of payment from certain bonds of the Federal Government. The issue before the Court was whether Texas, after the end of the Civil War (1867), was entitled to bring an original action in the United States Supreme Court as one of the states of the United States even though it was still attempting to comply with the Reconstruction Acts.

 

To answer the very significant question of jurisdiction of the Court, an analysis of the actions of Texas prior to its succession, during its succession and after the end of the Civil War was performed by the Court. Its findings were as follows:

Statehood Prior to the Civil War

The Republic of Texas was admitted as a state into the Union on December 27, 1845. By its admission into the Union, Texas and all of its residents were immediately vested with all the rights, and became subject to all the responsibilities and duties, of the original States under the United States Constitution.

“        From the date of admission, until 1861, the State was represented in the Congress of the United States by her senators and representatives, and her relations as a member of the Union remained unimpaired.  In that year, acting upon the theory that the rights of a State under the Constitution might be renounced, and her obligations thrown off at pleasure, Texas undertook to sever the bond thus formed, and to break up her constitutional relations with the United States.

Secession

On February 1, 1861, a convention of secession was called (and subsequently sanctioned by the legislature) where an ordinance to dissolve the union between Texas and the United States was adopted and Texas declared to be a separate and sovereign state. The relationship to the United States (and its government) was disclaimed - Texas seceded from the Union. Texas thereafter joined with the other Confederate States and declared war on the United States.

“.......The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion, which these events made inevitable.  During the whole of that war there was no governor, or judge, or any other State officer in Texas, who recognized the National authority.  Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State, except under the immediate protection of the National military forces.”8

.            Status of Texas After the Civil War

And so, the Court came to the filing of the original action by the State of Texas in 1867. The issue clearly before the Supreme Court was whether it had jurisdiction to hear the case. That is, was Texas one of the United States entitled, under the Constitution, to bring its original action before the Court? The issue was raised in light of Texas’ secession, formation and joinder with the Confederate States of America’s declaration of war against the United States, the defeat of the Confederate States and the imposition of the Reconstruction Acts upon Texas and the other seceding states. Stated another way, was Texas a State within the meaning of the Constitution immediately after the Civil War and prior to compliance with all of the requirements of the Reconstruction Acts?

The Court held the following:

1.            “  The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States...”9

2.            “.....When, therefore, Texas became one of the United States, she entered into an indissoluble relation.”10

3.            “.....And it was final.  The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.  There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.”11

No citation to the Constitution nor to any prior writings were alluded to by the Court. According to the Court, Texas never left the Union, despite its secession, reformulation into the Confederate States of America and declaration of war on the United States. Texas was before, during and after the Civil War a part of the United States of America (unless it had won the war).

             “Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.  They were utterly without operation in law.  The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired.  It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.  If this were otherwise, the State must have become foreign, and her citizens foreigners.  The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.”12

“        Our conclusion therefore is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred....”13

Based on the foregoing analysis and legal conclusions, the Court held that Texas was and had remained a State of the United States and was thus entitled to bring its original action before the Court.

White v. Hart, 80 U.S. 646 (1872)

Context

A suit was instituted in the Georgia Superior Court AFTER Reconstruction, as it applied to Georgia, was deemed terminated and Georgia had accrued to all of its former rights of representation in the Congress of the United States. Georgia had also amended its Constitution. The suit involved recovery on a promissory note which was secured by a slave. The reconstituted Georgia Constitution, as approved by the Congress of the United States (as required under the Reconstruction Acts) contained a provision that prohibited the enforcement of such a contract. The issue before the Court was whether Georgia/Congress could pass legislation which invalidated a contract that, when made, was legally enforceable. The following is an analysis of the effect of the Reconstruction Acts visited on the southern states. The legal requirement under the Reconstruction Acts that State Constitutions be amended and approved by the Congress will become significant in the Florida case determining the three league limit of Florida’s offshore jurisdiction.

All of the Confederate States, after their surrender, were governed by the Reconstruction Acts. These acts applied until each Confederate State complied with the terms and provisions of the Acts, including the amendment of their respective state constitutions to recognize the rights of freed slaves. This amended constitution had to be approved by Congress before each state could regain its representation rights in the United States Congress.

The court defined the acts of the individual states in seceding and prosecuting the Civil War:

“......  The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence.  The late rebellion was without any element of right or sanction of law....The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress.  That body made the laws and the President executed them.  The granted power carried with it not only the right to use the requisite means, but it reached further and carried with it also authority to guard against the renewal of the conflict, and to remedy the evils arising from it in so far as that could be effected by appropriate legislation. At no time were the rebellious States out of the pale of the UnionTheir rights under the Constitution were suspended, but not destroyed. 14

Again, the Court is of the opinion that the Confederate States had never left the Union. They, and their citizens had, however, lost the right to be represented in the Congress. The Reconstruction Acts provided certain requirements that each state needed to satisfy (in the opinion of the Congress) before their rights of representation in the Congress would be restored.

 

The Civil War Continues

United States v. Florida, 363 U.S. 121 (1960)

Context

When Florida was admitted into the Union it got to keep, as a condition for statehood, its claim to submerged lands adjacent to its state shoreline boundaries. Then came succession and the Civil War followed by Reconstruction. As part of its congressionally mandated duty under the Reconstruction Acts, Florida was required to amend its constitution in certain particulars.

“Florida claims that Congress approved its three-league boundary in 1868, by approving[3] a constitution submitted to Congress as required by a Reconstruction Act passed March 2, 1867. 14 Stat. 428. That constitution carefully described Florida's boundary on the Gulf of Mexico side as running from a point in the Gulf "three leagues from the mainland" and "thence north westwardly three leagues from the land" to the next point. The United States concedes that, from 1868 to the present day, Florida has claimed by its constitutions a three-league boundary into the Gulf.[5] The United States also admits that Florida submitted this constitution to Congress in 1868, but denies that the Gulf boundary it defined was "approved" by Congress within the meaning of the Submerged Lands Act.[6] This is the decisive question as between Florida and the United States.15

The Court held that the Florida constitution, as rewritten and approved by Congress under the Reconstruction Acts, did indeed contain a three marine league boundary. It further held:

“...Thus, by its own description, Congress not only approved Florida's Constitution, which included three-league boundaries, but Congress, in 1868, approved it within the meaning of the 1867 Acts. In turn, the approval the 1867 Acts required appears to be precisely the approval the 1953 Act contemplates.”16

 

Due to its careful consideration and attention to its offshore boundaries, Florida had affirmed by the Court its constitutionally mandated three league boundary as the same appeared in its constitution which, in accordance with the dictates of the Reconstruction Acts, was approved by the Congress prior to the restoration of Florida’s right to representation.

Kohlhaas v. State, Office of Lieutenant Governor, 147 P.3d 714 (Alaska - 2006)

Context

Secession, long thought to be relegated as a historical aberration, once again raised its head in this new century. This time, it was an individual in Alaska seeking to force the state to place the issue of secession on the Alaska initiative ballot. A modern state court was thus faced with the question of whether the issue of secession was one which Alaska residents could vote on and thus was a proper subject for placement on the initiative ballot. Prior to court review, the lieutenant governor declined to certify the issue for ballot placement since, in his opinion, the initiative sought an unconstitutional end - SECESSION.

The Alaska Supreme Court agreed with the lieutenant governor. That is, it found that it was unconstitutional for Alaska to even consider seceding from the United States. It further found that neither Alaska, nor any other of the states of the Union, possessed the right to secede before admission to the United States and thus, no state would retain such a right under the Tenth Amendment after admission.

“  When the forty-nine-star flag was first raised at Juneau, we Alaskans committed ourselves to that indestructible Union, for good or ill, in perpetuity.”17

Since the act of secession was found to be unconstitutional, the Alaska Supreme Court found that the citizens could not vote on the issue as a referendum item. Alaska would not be seceding from the Union. 

NOTE: Second case on same issues reached same conclusion Kohlhaas v. State, Cause No. S-13024 (Alaska 2010)

Conclusions

Under present federal Supreme Court jurisprudence:

Postscript

Arizona

The right to secede simply will not die. In 2011, it is not conservative activists seeking secession but rather liberal activists. According to Reuters, a group of liberals want to split Arizona into two states and want voters to decide the issue in the next Presidential election (see Alaska). 

According to Reuters (May 10, 2011): “A group of lawyers from the Democratic stronghold of Tucson and surrounding Pima County have launched a petition drive seeking support for a November 2012 ballot question on whether the 48th state should be divided in two.”

“The ultimate goal of the newly formed political action committee Start our State is to split Pima County off into what would become the nation's 51st state, tentatively dubbed Baja Arizona.

“The ballot measure sought by Arizona secession backers is a nonbinding measure asking Pima County voters if they support petitioning state lawmakers for permission to break away.”

“Before secession could occur, it would have to be approved separately by the Legislature, and by a second, binding referendum by residents of the proposed state.

Endnotes

1.            Texas v. White, 74 U.S. 700 at Page 704 (1869)

2.            Kohlhaas v. State, Office of Lieutenant Governor, 147 P.3d 714 at Page 715 (Alaska - 2006)

3.            Acts of March 2d and March 23d, 1867

4.            The Amy Warwick, 67 U.S. 635 at page 670 (1863)

5.            The Amy Warwick, 67 U.S. 635 at page 666 (1863)

6.            The Amy Warwick, 67 U.S. 635 at page 688 (1863)

7.            Texas v. White, 74 U.S. 700 at Page 722 (1869)

8.            Texas v. White, 74 U.S. 700 at Page 724 (1869)

9.            Texas v. White, 74 U.S. 725 at Page 725 (1869)

10.            Texas v. White, 74 U.S. 700 at Page 725 (1869)

11.            Texas v. White, 74 U.S. 700 at Page 725 (1869)

12.            Texas v. White, 74 U.S. 700 at Page 725 (1869)

13.            Texas v. White, 74 U.S. 700 at Page 725 (1869)

14.            White v. Hart, 80 U.S. 646 at Page 650 (1872)

15.            United States v. Florida, 363 U.S. 121 at Page 123 (1960)

16.            United States v. Florida, 363 U.S. 121 at Page 124 (1960)

17.            Kohlhaas v. State, Office of Lieutenant Governor, 147 P.3d 714 at Page 720 (Alaska - 2006)

JWR Adds: As the preceding article illustrates, it is the victors who write the history books and write the post facto legal opinions. They determine what is "legal" and "justified." But if successful, it is those who were branded "rebels", "traitors", or "seccesh" who get their portraits stamped on the new coins. Modern day secession can work. Just ask the people of world's newest country, South Sudan. The secession of predominantly Christian South Sudan was not just magnanimously handed to them by predominantly Muslim Sudan. The South Sudanese had to fight for their independence, in a costly and protracted civil war.

The White House opened up a data mining public petition web site that quickly resulted in more than 675,000 people in 50 states politely pleading for secession. Unfortunately, this is a futile effort. The Federal government presently does not recognize any right to secede. In essence, secession is not accomplished by asking permission. Rather, it is accomplished by a state (or subdivision thereof) simply declaring their secession, with the full knowledge of the consequences. Audentes fortuna iuvat. This very nearly happened in 1941, with the State of Jefferson, but our nation's entry into World War II completely overshadowed and quashed that movement.

I now have high hopes for the American Redoubt movement, and the spin-off Redoubts in other regions. As conservative demographics and constituencies solidify in the Redoubt regions, the prospect of meaningful change becomes more likely. Vote with your feet!


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