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July 2008

Seperate States

A good article followed by good discussion on one of the topics I find fascinating… the theoretical right (or absence there of) of states to leave the United States. For the record, I was quite convinced by Jefferson Davis’ arguments in his memoirs that despite the loss in the war, and subsequent post-war SCOTUS opinions, the South probably SHOULD have been able to leave peacefully.

Now, the question of if the South’s reasons for leaving were legitimate, or if it would have been proper for the North to let them leave, recognize their independence as a separate and sovereign country, but then immediately declare war on the new country for purposes of making it submit and ending slavery and perhaps reincorporating it later… that’s a completely different question. That’s probably the way I think it should have played out. But that isn’t what happened, so it is a sort of moot point.

Anyway, good discussion in the article (and attached comments) for those interested:

Secession, Ignorance, and Stupidity
(Ilya Somin, The Volokh Conspiracy, 24 Jul 2008)

I don’t think that belief in a right of secession by itself demonstrates ignorance about either law or American history. The Constitution is famously silent on the issue of secession. It doesn’t explicitly guarantee states a right to secede, but also doesn’t explicitly forbid secession. Interestingly, the Articles of Confederation explicitly stated that the union is “perpetual” (which seems to foreclose secession), but the Constitution which superseded the Articles does not include any such language. This silence has led to ongoing debate over the constitutional status of secession. Prior to the Civil War, many respected scholars and political leaders claimed that secession was permitted by the Constitution. Many were apologists for slavery, but by no means all. For example, political leaders from several northern free states asserted that they had a right to secede at the 1814 Hartford Convention. In light of this history and the ambiguity of the constitutional text, I don’t think that belief in a right to secession is at all unreasonable, much less a sign of obvious ignorance or stupidity.

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