Why Can’t We Take Secession Seriously?

Guest Blogger

This post was prepared for a roundtable on Federation and Secession, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Cynthia Nicoletti

Sandy Levinson has always taken secession arguments seriously. This is, in my eyes, one of his great virtues. There are very few scholars who would be willing to strip away the very heavy baggage attached to the secession question in America and to take a close look at the issue. It’s been almost impossible to treat this question in the abstract. But Sandy is the type of person who doesn’t take the established truth for granted. He’s willing to probe, investigate, and reexamine old questions. I’ve never been Sandy’s student, but I would imagine that he rarely tells his students that there’s no more to say about a particular research topic. He is willing to challenge the prevailing wisdom, and he’s unfailingly encouraged others to do so too. I am grateful for the support he’s given me in this regard.

The refusal to take secession arguments seriously has been of long-standing duration. In this essay, I want to reflect a little on the intersection between the strictly legal arguments about secession and the ways in which Americans treated those arguments in the aftermath of the Civil War. If the arguments for and against the existence of a state’s right to secede from the Union did not admit of a clear answer, one would be hard pressed to discern that murkiness from public discussion of the question in the late nineteenth century. Both Unionists and ex-Confederates were so confident in their views that they hardly acknowledged the existence, let alone the persuasiveness, of counterarguments. It’s as if they didn’t exist.

It’s certainly no secret that in the United States, the question of secession’s legality has always been politically inflected. It was never purely an academic question that could be divorced from its context as a pro-slavery argument. This is not to say that secessionist arguments have no content, or that they could not, in theory, be used to advance local self-determination as a morally neutral principle. But it is true that a pall hangs over the secession question and that it’s hard to evaluate the strength of an argument without thinking about the uses to which that argument should be put. It’s easy to see in hindsight that slaveholders were attracted to secession arguments because of their usefulness, in spite of their insistence that the arguments themselves had independent merit. They may well have had independent merit, but it was rare (although not impossible) to find abolitionists who believed strongly in states’ rights and secessionist ideology.

I don’t think there’s a very clear answer to the question of secession’s legality. The Constitution itself does not speak of perpetuity or of impermanence. It does not say whether the Union is one made by the states or by the people as an undifferentiated whole. In the 1860s, both secessionists and perpetual Unionists relied on structural inferences and historical circumstances to make their cases for and against secession. The founders themselves left the question alone, either because they did not perceive the secession of one group of states organized by region to present a pressing problem, or because they hoped to avoid the question through strategic silence.

Despite the lack of a definitive answer to the secession question, both proponents and opponents have seemed very sure about the correctness of their own analyses. In the aftermath of the Civil War, the Supreme Court provided an answer that seemed more perfunctory than thorough, and observers at the time understood that the Court’s answer was one that was necessary. In Texas v. White, the Supreme Court announced that the state’s purported secession from the Union in 1861 had been invalid because the U.S. Constitution did not permit secession. The United States was a permanent arrangement, created by the people as an aggregated whole rather than by the states. There was no such thing as a state’s retained right of secession, as the Union had always been indissoluble. The Articles of Confederation had deemed the Union formed thereunder to be permanent, and the Constitution had simply affirmed this permanence by declaring the Union to be “more perfect” than it had been under the Articles.

The Court rendered the opinion it had to in Texas v. White, which is not to say that the justices were insincere in endorsing a Unionist theory that accorded with the outcome of the Civil War. The justices were all Unionists, as Alabamian John A. Campbell had left the Court in April 1861. After living through four years of civil war, the members of the Court were surely themselves convinced of the correctness of the theory of perpetual Union. Their own thinking on the question may have been reflexive and deeply ingrained by that point. But it is nonetheless true that the Court had not treated the question very seriously or admitted that there was any logical heft to secessionist theory.

If Texas v. White’s resolution of the secession question was unsatisfying, so was the analysis provided in the Lost Cause literature of the late nineteenth century. This literature focused on the abstraction of secession rather than the reality of slavery as the animating reason for the Civil War. Both the Confederate President, Jefferson Davis, and its Vice President, Alexander Stephens, produced long, laborious volumes dedicated to the task of proving, through logic, the legitimacy of the secession argument. Stephens’s memoir, the aptly titled A Constitutional View of the Late War between the States, published soon after the war, was at least made livelier by framing the secession debates as a series of (imagined) colloquies between Stephens and thinkers who subscribed to other points of view. Davis’s Rise and Fall of the Confederate Government, which appeared sixteen years after the war’s conclusion, was probably more of a disappointment to the average reader. The two-volume set offered very little in the way of insider information about the inner workings of the Confederate government. Instead, a full volume was dedicated to a painstaking investigation into the underpinnings of the secession argument. These volumes were not anomalies. Certainly legal treatises written by southerners were replete with long proofs of secession’s legality, but so were popular publications like the Southern Historical Society Papers, which treated its readers regularly to extended discussions about the legality of secession. 

Were these pieces read and considered by their intended audience? I have to think not, because they weren’t precisely scintillating reads. Nor did their content differ much from one article or book to another. What these legal arguments did do, however, was to provide a gloss of moral legitimacy to the Confederate point of view. Presenting constitutional arguments for secession, even if they went uninterrogated, provided a way of elevating the war to a righteous struggle. It was not merely a struggle to defend slavery. Confederates could portray themselves (and think of themselves) as fighting for constitutional rights. The Yankees, by contrast, had trampled on the rule of law and resorted to the barbarity of settling legal arguments through force rather than reason. The extended arguments about the unassailable logic behind secession served an important purpose: they informed readers that the harm Unionists had inflicted had been two-fold. Not only did the victorious Yankees deny secession during the war, they later rubber-stamped Union victory with a pre-fabricated ruling in Texas v. White. 

What is perhaps most interesting about post-war discussions of secession is what both sides omitted. It cost too much for the Supreme Court to admit that the question had been settled through violence, or that it was even open to dispute. It also cost too much for the Lost Causers to admit that it was a close question. There was no sense that this was an argument with two sides, or that reasonable people could disagree about the question. Counterarguments were hardly presented, and when they were, they were not to be taken seriously. Because of this strange phenomenon, secession has gone mostly unexamined since the heyday of Lost Cause writing, probably because serious analysis risks unraveling the parallel assumption shared by both sides—that the conclusion was so clear that argument was unnecessary. 

Only iconoclasts like Sandy Levinson have dared to challenge this consensus. To take up the question at all is risky because it threatens the shared understanding that each side went to war to vindicate a clearly established legal principle that was threatened by an enemy who put politics ahead of the Constitution. If we admit that the legal question doesn’t have a clear answer, then perhaps its resolution should have been in a court and not on the battlefield. 

Cynthia Nicoletti is a Professor of Law and Professor of History at University of Virginia School of Law. You can contact her at cnicoletti@law.virginia.edu.