ORIGINAL: princep01
This, in turn, leads us to the hypothesis that the Confederacy's secession was legal, though even as a resident of Texas I confess the moral depravity of slavery that underpinned the whole dispute and desire to break away.
Nope, not legal. Article IV, Section 3 requires Congress to approve. They never did like the CSA very much
Moose, I agree with the last sentence, but I searched in vain for anything remoting saying that Congress must approve any state leaving the Union. The referenced article and the rest of the Constitution say nothing directly on point.
The article you reference has two paragraphs. The first paragraph covers creation of new states and, most interestingly, prohibits creation of any new states from within the jurisdiction of existing states without the consent of the state legislatures of both the old and new states and Congress. No way West Virginia was anything but a rump state created by force of arms (Well, and likely the weal of the people living in those counties). There is no way Richmond (the old state) agreed to the secession of those counties:). It was the Moaist definition of soverinty that created West Virginia.
The second paragraph talks about the right of Congress to dispose of and regulate the property owned by the United States within the soverign states. Again, not a peep about a state withdrawing from the Union. Joining the Union did not make a state the property of the US.
I have to disagree with your conclusion on the Constitutional legality of secession. Having studied, written and concluded long ago that the states, under the then existing Constitution, did have the right to withdraw, mine and the Confederacy's) legal victory would have been Pyhric at best. From a practical point of view, such a legal victory would have made the US an unworkable nation. While it is too bad that warfare was the means deciding the issue, it most surely did. The result is sealed the with the blood of our ancestoral countrymen.
On another note, even in Texas there were considerable pockets of pro-Union sentiment. Gov. Sam Houston was pro-Union and loudly so. Several counties in northeast Texas (Gainesville area) actually fought the Confederate authorities. Atrocities were committed by both sides. Nasty stuff.
Been many years since I looked at this topic. I did some reading last night to refresh.
On WVa: I did extend my comments a bridge too far by claiming Article IV, Sec. 3 covers Congress approving a secession. More on secession in a minute. But. That portion of the Constitution does cover the WVa situation. You are correct that it is a 3-part process. Two state leges plus Congress. And in the case of WVa that is exactly what was done. The Wheeling Convention was recognized by Congress as the legal lege of Virginia in 1862. The guys in Richmond were rebels. Lincoln said so, and the Richmond bunch had both proclaimed themselves gone from the Union (not a factor from the legal POV of Congress), but most importantly were acting that way. By 1862 the CSA's states were corporately and individually in violation of the Constitution's enumerated powers for states. To then, as you do, claim they had a right to act in violation of Article I, Section 10, but also turn around and claim they were still the legal legislature for purposes of preventing a state division is not perhaps Maoist, but still a little bizarre. Looking at it from Virginia's POV they could have it one way or the other--a seceded state or the legal lege of a Union Virginia--but not both ways vis a vis WVa.
On secession, a huge roiling pot of theories, going back to the Federalist Papers and even before. But a couple of things which are facts:
1) "No State shall enter into any Treaty, Alliance, or Confederation;" Article I, Section 10. The CSA was a confederation; it's right there in the name.
2) "No State shall . . . coin Money; emit Bills of Credit;" ; "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports"; "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."
The CSA, and its individual members, did all of these un-Constitutional things. They were then, rightly, branded as rebels, in active rebellion against the Union.
3) The USSC, in
Texas v. White, 74 U.S. 700 (1869), in original jurisdiction and with the Chief Justice writing the opinion, stated conclusively that Texas had never legally seceded and had in fact been a state in the Union since first admitted. This precedent is the basis for litigation afterwards and is still controlling so far as I can tell.
Beyond these facts one gets into some pretty deep political philosophy weeds. One branch argues that "the Union" predated the United States. In this view the Union is the substrate upon which first the Articles of Confederation and then the Constitution were laid. That the Union grew organically during the colonial centuries from shared effort and belief and this substrate formed the platform from which the Declaration sprang forth. In this view it is impossible to secede from the Union since the Union is the "universe" as it were of the nation.
In an offshoot of this view it is also argued, weakly it seems to me, that the question of sovereignty , so central to the CSA's argument on states' rights, is flawed since only the original thirteen states have true sovereignty. This gained through the severing of GB's sovereignty and establishment of a new form in 1776. All other states were formed from territory by acts of Congress and are thus a sort of piece of the whole and not separate as the originals are. Clearly Jefferson and other writers of the early 19th C. rejected this view and considered all states equal after admission. To do otherwise leads down some bad paths. But still, it's a theory.
Another argument in the secession line uses the Preamble's ". . . a more perfect Union . . ." to argue that, again, the Union already existed when the Constitution was ratified. It existed under the Articles, same entity. So the CSA, by claiming sovereignty stemming from constitutional ratification, was incorrect. In this view states had never had sovereignty which superseded the Union's. A counter to this is, however, that ratification took only a majority and not a complete number of the states in order for the Constitution to come into effect.
Yet another argument states the obvious fact that secession is not mentioned in the Constitution, nor has an amendment ever been moved through to correct this "oversight." Leading many to claim that it wasn't an oversight but on-purpose. Secession was discussed in the Federalist Papers and in many private letters between the Founders, yet it is not in the document. Why not? Jefferson I believe, in a treatise (?) around 1790 (?) said that the Union was a permanent entity UNLESS 1) revolution occurred, or 2) the States acted to change the Constitution is prescribed ways by amendment or by calling a constitutional convention to re-write the thing. In context, he considered the latter route sufficient means should the topic gain so much political force as to become pre-eminent, as it clearly did in the 1850s. That route was not taken in large part because the South didn't have the votes.
Finally, on the issue you raise concerning the second para of Article IV, Sec. 3. That portion reads:
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."
Clearly Ft. Sumter was federal property. But in the sense of this constitutional section, when taken together with both common law and the 5th Amendment, the federal government "owns" the entire territory of the Union. The doctrine of escheat is tangentially related, and has deep historical roots. Private property, and on a higher level state property, is at the sufferance of the federal government's granting of rights bundles. So long as compensation is paid the federal government may take and use any property, including that of the states. Federal eminent domain is paramount,. A state park, for example, may be taken to build an army base so long as the federal government pays for the taking. Under this Section the CSA's use of armed force to prevent the federal government access to and control of land in the southern states was on its face unconstitutional and further evidence of rebellion. A status that, once arrived at, gives the Executive, with congressional action to raise armies, federalize the militia, appropriate funds, etc., extraordinary power to address and suppress. (Including suspending habeas corpus, one of Lincoln's supposed "crimes" in southern sympathizers' eyes.)
So I think there is constitutional support for the anti-secession argument. And the Supreme Court thought so too, down to the present day when Justice Scalia has given several speeches on the matter, albeit on somewhat different grounds. (He argues in part that secession is de facto and de jure unconstitutional simply because the federal judiciary would not grant standing to argue about it.)
The CSA's core argument was that state sovereignty trumps any other, a view widely held before 1860. The Civil War settled the matter in the negative, and there has been no move since to make the pre-war view a part of the Constitution despite widespread petitions and grandstanding in recent years in Texas and many states to attempt to re-litigate the matter. It could be definitively settled by amendment. That path always existed in the 19th C. as well.
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