This week, Arnold Loewy and Charles Moster debate the rights of states to secede from the Union, specifically during the Civil War. Moster is a former litigation attorney in the Ronald Reagan and George H.W. Bush presidential administrations who has offices in Lubbock, Amarillo, Midland/Odessa, Abilene and Georgetown. Loewy is the George Killiam Professor of Law at Texas Tech School of Law.
• Moster (Lincoln was dead wrong): The bells tolled proudly following the formal secession of the state of South Carolina on December 20, 1860. To the legislators of this proud state and the eleven states which followed and later formed the Confederacy, their legal right to exit the Union was not an esoteric debate topic but a reality. This “reality” was ultimately demonstrated indelibly and grotesquely at the First Battle of Bull Run on July 21, 1861, when more soldiers fell in the first hour than all of the battles ever fought in the United States to date. When the Civil War finally ended upon General Robert E. Lee’s surrender to Ulysses S. Grant on April 9, 1865, at Appomattox Courthouse in Virginia, 620,000 Americans or 2 percent of the population of the nation was obliterated. So much for esoteric issues.
The adage that the victors of war write the history is all too true. From the pages of school history books to the dramatic and award-winning recounting of the Civil War in Ken Burns documentary, the Confederate states are always depicted as the spoilers and traitors who were justly punished and humiliated for their evil acts.
However, nothing is further from the truth as the southern states had every legal right to secede and determine their own destiny. As heretical as it might seem, Abraham Lincoln was dead wrong (emphasis on “dead”) in declaring war against his fellow states and citizens. It was his decision to employ military force which resolved what should have been a constitutional question to be pondered at the time.
There is no provision in the U.S. Constitution which prohibits a state from seceding from the union. This is made clear by a proposal which was made at the 1787 Constitutional Convention to grant the new federal government the specific power to suppress a seceding state. James Madison, widely acknowledged as the key founding father of the Constitution and scholar, rejected this proposal stating, “A Union of states containing such an ingredient seemed to provide for its own destruction. The use of force against a state would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as dissolution of all previous compacts by which it might be bound." The assurance of state sovereignty is embodied in the Tenth Amendment of the Constitution, which reserves to the states all rights which have not been specifically delegated to the federal government. As the federal government was never delegated the right to force the states into violent submission, secession is properly a legal right which can be exercised at any time.
Thomas Jefferson, of course, made clear his distrust of an all-powerful federal government and palpable fear that the will of the people could easily be hijacked. As he stated in the Federalist Papers, “Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.”
The North settled the issue Professor Loewy and I are now debating with brutal force. That said, the ultimate question as to whether the federal government can militarily compel a state to remain in the Union is very much alive, as most of the states have offered petitions to exit the vehicle. If Texas or any state determines to secede the next time around, I would gladly offer my legal services to write the brief in support thereof. Of course, the likely rejoinder would be the deployment of federal troops and suppression of dissent. It’s not difficult to padlock a law office.
History does have a way of repeating itself.
• Loewy (Lincoln was a hero): In order to establish his point, Mr. Moster has found it necessary to turn one of America’s true heros, Honest Abe Lincoln, into a villain if not a traitor. Well, I disagree, I think that Lincoln was a hero in saving the union and in the process emancipating the slaves.
Let’s think about what our nation would have looked like if Lincoln had followed the advice of an early day Charles Moster. Slavery would have continued for decades, possibly into the 20th century. I don’t think that it would have continued forever, because eventually there would have been enough of a slave uprising that the concept of slavery would have been ended. At least I would hope so. More on that later.
Mr. Moster contends that: “[T]he Confederate States are always depicted as the spoilers and traitors who were justly punished and humiliated for their evil acts. However nothing is further from the truth as the southern states had every right to secede and determine their own destiny.”
Let’s get real, the southern states had no intention of letting their entire citizenry determine “their own destiny.” Rather, they intended for white land owners to determine their destiny and to avoid any union interference with their desire to keep African-Americans in slavery.
I will remind Mr. Moster that just four weeks ago on these very pages, he condemned the Dred Scott decision for allowing slavery to continue in the United States. If slavery was to end once and for all, bloodshed was necessary. But instead of condemning those fought to end slavery, Mr. Moster might consider blaming the bloodshed on those who caused it by attempting to secede from the union in order to preserve slavery, rather than putting the blame on those that fought to prevent such a catastrophe.
Had President Lincoln not acted as he did, I suspect that slavery would have continued for decades. I do not think it would have continued to the present day because I believe that eventually a slave rebellion, perhaps aided by liberators from the neighboring United States, would have put an end to the only reason for Confederacy existence.
But let’s assume at some future time some state has a better reason than the Confederacy for secession. Mr. Moster mentions that nothing in the Constitution forbids secession. He is right, but he ignores the fact that there is also nothing that permits it. The closest he can come is the Tenth Amendment, which grants all powers to the states that are not forbidden to them or delegated to the federal government, and despite Mr. Moster’s misstatement, it does not say “specifically.”
Of course, if a state has the temerity to secede from the Union, anything in the Constitution would be irrelevant to it inasmuch as the Constitution assumes that it is dealing with states that are part of the union. Once a state attempts to secede, it, of course, becomes a foreign nation and thus subject to all power that the federal government has over foreign nations. This would include the power to declare war on the seceding state, and thus force it back into the union.
So Mr. Moster, if Texas ever decides to secede from the union, a highly unlikely event despite occasional rhetoric to the contrary, I invite you to represent the Republic of Texas. I am confident, however, that in the unlikely event that the case ever gets to court, you will lose.
• Moster (The ends justify the means?): Time and again, Professor Loewy and his liberal academic cronies are so willing to jump the constitutional and “law abiding” ship of state to support a political proposition. His overriding premise is that a social objective justified the abandonment of the U.S. Constitution and the use of crushing and deadly force against states which were exercising their “reserved” rights and liberty to leave the Union. The effect of this argument espoused by Professor Loewy is anti-constitutional and Machiavellian in the true sense of the word as his “ends justify the means."
Professor Loewy admits that there is no language prohibiting the secession of states in the Constitution, and acknowledges the reservation of rights language in the Tenth Amendment. Much to his dismay, the states had every right to leave the Union in 1860, and the federal government had no basis whatsoever to oppose this decision with deadly force. Professor Loewy’s rejoinder to this argument is circular and fallacious - "Once a state attempts to secede it, of course, becomes a foreign nation and thus subject to the power of the federal government has over foreign nations. This would include the power to declare war on the seceding state, and thus force it back into the union.”
This is truly a frightening and autocratic proposition, as Professor Loewy acknowledges, that the states would have the right to secede under democratic principles and yet would be forced to return by the application of brute force. Rarely can we find a statement that so blatantly demonstrates the hypocrisy of liberals who feign adherence to democratic values and yet would abandon same at the drop of a hat to gain the desired end.
Students of American History can refer to numerous legislative efforts which were underway before the election of Lincoln to eradicate slavery and avoid the dissolution of the Union. This same political process was underway and successfully employed in other nations at the time. These appropriate constitutional efforts were never pursued as American farms and communities were transformed into the killing fields of the Civil War.
The ends never justify the means, and the failure of every democratic experiment prior to the formation of our great nation and ratification of the Constitution is proof positive. Indeed, History does have a way of repeating itself.
• Lowey (States do not have the right to secede): Wow! Mr. Moster has accused me of abandoning constitutional principles in the service of an ends justifies the means jurisprudence. To reach that conclusion, he falsely states: “Professor Loewy acknowledges that states have the right to secede under democratic principles.” I can find no place where I said any such thing, and I invite the reader to do the same. I suppose that if you can’t win a debate on the basis of what your opponent actually said, the next best thing is to make something up and prove your opponent wrong based on the made up statement.
There is nothing, I repeat nothing, in the Constitution that gives a state the right to secede. Indeed the entire document, which Mr. Moster at times appears to hold dear, is predicated on the assumption that there exists a union of states designed for perpetuity. Mr. Moster would like to pretend that the Tenth Amendment gives the states the power to secede. But surely that stretches linguistics to the breaking point. The Amendment says in its entirety: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people.”
Surely this provision implies continuity. It would be silly to give a state the power to dissolve its membership in the union and then credit the union’s basic charter with giving it the power to so act. Mr. Moster in prior debates has expressed his disdain for our Constitution, preferring to substitute something like the failed Articles of Confederation or the European Union. So, perhaps it is Mr. Moster who is engaging in anti-constitutional rhetoric, and yes even “ends justify the means” jurisprudence. He so wants to legitimate secession that he doesn’t care that it is contrary to whole point of the Constitution.
Mr. Moster tells us that prior to Lincoln, political efforts were underway to eradicate slavery. One has to ask what good they would have done. As it is, the Confederacy tried to leave the Union because they feared losing their precious right to subjugate other human beings to human bondage. If further legislation had been enacted, it is even more sure that there would have been secession.
Perhaps the best way to analyze this problem is via the first sentence of Mr. Moster’s penultimate paragraph. He reminds us that: “The ends never justify the means.” He dearly wants to end the Constitution that so many of us know and love. To accomplish that, he is willing to read it as containing the seeds of its own destruction. He does this by construing an amendment designed to govern states that are part of a union as if it gives them the right to leave that union and form their own government.
Well, Mr. Moster as you say, the ends do not justify the means, and a constitutional provision designed to govern member states cannot be read as a permission slip to leave the very union that granted them their rights as union members in the first place. And this is so, no matter how much you wish states could secede and form their own loose confederation.