The power of III

Summum ius summa iniuria--More law, less justice

05 February 2011

State's Rights: Did States created after the Constitution have the same rights and legal status?

From an letter to the editor/comment in the Montgomery AL Advisor

"On the 150th anniversary of secession, the question of its legality becomes a matter of interest again. In my opinion as a historian, of the states that declared secession, only Virginia, North Carolina, South Carolina, Georgia, and Texas have a case, because of all the Confederate states, only those five were independent before they joined the Union.
Since they voluntarily joined the Union, perhaps they could voluntarily also leave the Union. All of the other Confederate states, including Alabama, Mississippi, Tennessee, Florida, Arkansas and Louisiana, were not independent before they joined the Union.
They were federal territories before they were states. Having been created out of federal territory, they had less legal right to secede from the Union that created them. Most of the states that declared secession in 1860-1861 did not have the legal right to do so."

Daniel L. Haulman


I disagree.  The fault in the thinking is assuming that the word "federal" in "federal territory" means "national" or common to all.  The United States was not a singular national political entity until after 1865, and only became so through force of arms.  
By the Constitution, the states that founded the Union set the process by which new states could be created and admitted to the Union.  Those territories were created by the legislative branch as authorized under Article IV, Section 3.  

Before Statehood, the territory must hold a referendum, demonstrating through popular sovereignty, that the joining with the Union is the will of a majority of inhabitants able to vote.    
Every state admitted to the Union held a ratification convention or held a referendum, and voluntarily joined the Union.  The later states became cosignatories to a preexisting contract between equal sovereign political entities.  

If the process is reversed, as in 1860-61, a state holds a people's convention to discuss secession, and if the eventual vote is for secession, then the people of that state, as sovereigns, voluntarily and peacefully withdraw from the Union.

The language of "perpetual" union in the Articles of Confederation, and "a more perfect" union in the Constitution is often cited by nationalists to indicate that the Union was permanent (and by implication, involuntary).  

"Perpetual" only means indefinite, or without any defined timeframe.  "Perpetual" and "more perfect Union" say nothing about voluntary or involuntary nature of the compact between states.
The whole national theory falls apart with a look at the text of the Constitution and its ratification.  Article VII of the Constitution only calls for 9 States to ratify the Constitution to create a new Union.  

Not all 13.   

If 9 ratify, only 9 join.  The other States are in no way obligated to join the Union.  Only 11 of the 13 states ratified the Constitution initially.  

North Carolina was an independent sovereign nation, that is, not one of the United States, between New York's ratification in July 1788, and North Carolina's ratification in November 1789.  The coexistence was peaceful.  There was no military strife.  There was no coercion from the neigboring "united" States.  

Rhode Island was likewise independent until May 1790.  

The timeline of the formation of the 13 State Union is today not clear to even those with a decent knowledge of history.  
The point?  A "nation" was not founded in 1788.  A "federation" of States was created.  Every state or territory voluntarily joined the Union.  Normative contract law, known to attorneys and legislators at local, state, and federal law, indicates that voluntary contracts and compacts between equal parties can be dissolved or changed by voluntary withdrawl by one of the parties (unless otherwise specified and agreed to by such party in the contract).

In Summary:
Each new state was equal in legal standing to the original ratifying states.  

Each State joined the Union voluntarily, through defined process.

No specific clause of the Constitution speaks to illegality of secession, only that the timeframe of the compact between states is indefinite.

The Constitution between the States is like a contract between legally equal entities.  

Therefore, normative English and American contract law allows secession of a State from the Union.

Quod erat demonstrandum.


  1. Her are some words which may be on interest.

    "Resumption Of Delegated Powers"

  2. Just read it. Awesome. Thanks. I love the primary source material.

  3. Imagine how surprised I was to find out that Missouri was a "slave state loyal to the Union" when her legislature, on the run before a federal force of occupation (which is still here, I might add!), voted an article of secession on 31 October 1861 in Neosho. Missouri is the 12th star in the Battle Flag; Kentucky, also gravely insulted by this "map", is the 13th. Whoever drew up that fictitious graphic needs a history lesson. - Dutchy

  4. Actually, if you google images of "secession map", every graphic that I found reports it this way. From the Confederate side, the quorum reported in Neosho legally voted for Secession. From the Union side, the Missouri Constitutional Convention called by pro Secession Gov. Johnson elected no pro secession delegates, despite the strength of pro secession sentiment in Missouri. The convention voted to remain in the Union, and thus MO stays on the map as we see it.

    My understanding is that a state convention called specifically for determining an up or down vote for secession (a democratically elected group of men), not state legislators, is needed for Constitutionally legal State secession. This is because the ratification process was performed by the same mechanism. Secession is unwinding the legal process in the opposite direction.

    A complicated issue and history. The CSA had Missouri men, and so did the Union.

  5. Dutchy sez,
    Here we must differ, HM. The fact of the matter is that NO procedure used to secede at that time was recognized by Lincoln as legally binding. And I suspect we'll see an exact replay of that Federal stance in the near future... When the federal authorities play by their own make-as-you-go rules and tread all over the states, the states are no longer compelled to stay within the ever-shifting federal boundaries of 'fair play'. Our act of secession was legal enough for our incorporation into The Confederacy. That's plenty good enough for me!

    I'll not contest your statement that Missouri had divided loyalties and was claimed by both sides; this was the state of affairs to some extent practically everywhere. Most of the pro-Union MO side was confined to the rich and powerful St. Louis area and was bolstered by out-of-staters coming in. There was little taste for Yankee occupation in the rest of the state as the brutal war here progressed. Union men by 1863 were largely foreign troops and Kansas Redlegs in western and central Missouri. It pains me greatly that Missourians, Kentuckians, and Marylanders with strong southern sympathies are often treated as second-class patriots by our brothers in the Deep South. This sentiment does not extend to even Tennessee, which was under full federal occupation well before the end of the war.

    For the record, our duly elected governor at the time was Claiborne Fox Jackson, not Johnson.

    Best regards to you, HM. Still LOVE your blog!

    - Dutchy

  6. We don't really disagree here, Dutchy. You are absolutely right in everything you say, of course. The pro secession part of Missouri did what they had to, and what for them was right and proper.
    My comment on the Constitutionality of a state convention vs. legislators voting to secede is an academic point only.
    Thanks for the kind words. Keep the faith, bro.

  7. We should have made the blacks our slaves SICK SEMPER TYRNNIS!

  8. No it is properly said Sic Semper Tyrannis