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Was Southern secession a legal right?I've been assigned to a certain side in our...

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sirsmithers | Student, Grade 11 | eNoter

Posted December 7, 2012 at 5:46 AM via web

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Was Southern secession a legal right?

I've been assigned to a certain side in our upcoming formal AP US History debate. One side is arguing on the side of the South and one side is arguing on the side of the North. I've been assigned to the North and we've run into some issues. The South seems to have a stronger argument for secession in almost any way you look at it. They can argue the moral right to secede, the fact that the US was founded by revolution, the moral spirit of law, the fact that the Union was damaging their infrastructure and economy etc. The only way I can forsee how we might go about countering these points is by heavily basing our argument on actual legality. If there is another solid path to countering such, do tell. This is currently the only argument I forsee standing against the endless onslaught of Southern pro-secession points.

With that aside, my main question stands. Was Southern secession a legal right? 

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pohnpei397 | College Teacher | (Level 3) Distinguished Educator

Posted December 7, 2012 at 6:00 AM (Answer #1)

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At the time when the states of the South were contemplating secession, there was no clear law on whether they had the right to do so.  After the Civil War, the Supreme Court did issue a ruling in Texas v. White that held that there is no legal right to secede.  The Court noted that the Articles of Confederation said that the union between the states was perpetual.  The Constitution was later created so as to form “a more perfect union.”  The Court reasoned that a union that starts out being perpetual and is then made more perfect must still be perpetual.  If the union is made perpetual by the Articles of Confederation and the Constitution, there can be no right to secede.

Another line of argument that you might consider is the idea that the Union was not a pact among states but rather among the people of the United States.  The South argued that the Constitution was an agreement among states and that, therefore, any state could abrogate the agreement whenever it wanted to.  But this is not obvious from the words of the Constitution.  It is just as reasonable to argue that the Constitution is a pact made by the people of the country, not by the states and that the states therefore have no right to remove their people from the Union.

One more point you might make is that the logic of secession is destructive of all political bodies.  Therefore, it is not necessarily clear that there is a moral right to secede.  If, for example, there is a right for South Carolina to secede from the Union, there must be a right for a county in South Carolina to secede from the state.  A town must be able to secede from a county and so on.  This means that no one is ever bound to abide by the laws of any political body and can simply secede from it whenever they feel aggrieved.  This surely cannot be a principle on which any political action can logically be based. 

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