http://www.frontporchrepublic.com/?p=2879excerpt:
It is heartening that at last, thanks to a few off-the-cuff remarks by Texas governor Rick Perry on “tea-party” day, people are starting to talk about secession in these not-very-United States, and for the most part taking the concept seriously. (”Secession Talk,” as the New York Times put it, “Stirs Furor.”) It’s the first time it has been a genuine subject in American public discourse, says Emory University secession scholar Donald Livingston, since the war of Southern Independence was settled in 1865.
So it’s no surprise that a lot of people have completely misunderstood it, and that the nerve in their knees often impels them to declare it illegal and unconstitutional. Robert Schlesinger, a columnist for U.S. News, is typical: under a headline “Texas Can’t Secede,” he wrote that “one third of the voters think the state has the legal right to secede from the Union.” Then, so sure of his errant position he could get cutsey, he added, “Ummm, no,” and went on to scold them for being so ignorant.
But the plain truth is that Texas has that right, and so do the other 49 states.
In fact, there has never been a real question about the legitimacy of secession. It was the principle that led the 13 colonies to fight to get out from under the British crown in the war of 1776. It was the principle implicit in the 13 states ratifying the Constitution in 1789, made explicit in the ratifying documents of New York, Virginia, and Rhode Island. It was the option understood to be available to all states from that time until 1861, and considered by New England states at the Hartford Convention of 1814. No one put forth a compelling argument that secession was unconstitutional, and the fact that the US Congress in 1861 debated and failed to pass a law against it proves that it was not illegal even in that year.
Lincoln put forth various, and often greatly varying, arguments against secession, but, as Livingston says, relying on their refutation by pro-Unionist philosopher Christopher Wellman (A Theory of Secession, 2005), “Lincoln’s arguments are preposterous.” He was not relying on reason and history and philosophical argument, no more than his party did, but on instinct and temperament, with pride and egotism (”Not on my watch”) mixed in.
(In fact, so far as reason has to do with it, Lincoln had previously argued that “any people anywhere… have the right to rise up and shake off the existing government and to form one that suits them better,” and in his First Inaugural held that “if a majority deprives a minority of a clearly written constitutional right,” that would justify revolution.)
Of course it is true that the particular secession of 1861-65 did not succeed–but that didn’t make it illegal or even unwise. It made it a failure, that’s all. The victory by a superior military might is not the same thing as the creation of a superior constitutional right. In fact it dealt only with the question of whether secession would work that one time, decisively decided in the negative by an autocratic, unconstitutional usurpation of power and the waging of a deadly war that defied all civilized standards of warfare to date.
Amid all the talk today, it will be necessary for those who know history and the Constitution to refute those who throw up the rhetoric of “illegal” and “unconstitutional” and the like so that we can get on to an examination of its particular merits.