Michael Stokes Paulsen and his son Luke opine:
[A]t the heart of the Civil War, the crisis that triggered it, and the changes that it brought were enormous constitutional issues. Indeed, it is no exaggeration to say that the Civil War was fought over the meaning of the Constitution, and over who would have the ultimate power to decide that meaning. The Civil War decided—on the battlefields rather than in the courts—the most important constitutional questions in our nation’s history: the nature of the Union under the Constitution, the status and future of slavery, the powers of the national government versus the states, the supremacy of the Constitution, and the wartime powers of the president as commander in chief. It was the Civil War, not any subsequent judicial decision, that “overruled” the Supreme Court’s atrocious decision in Dred Scott v. Sandford creating a national constitutional right to own slaves….
The United States is the nation it is today because of Lincoln’s unwavering commitment to the Constitution as governing a single, permanent nation and forbidding secession. Lincoln’s vision of Union is so thoroughly accepted today that we forget how hotly disputed it was for the first seventy years of our nation’s history. The result was hardly inevitable. Lincoln’s vision and resolve saved the nation. Lincoln’s nationalist views have shaped every issue of federalism and sovereignty for the past one hundred fifty years. Compared with the constitutional issues over which the Civil War was fought, today’s disputes over federal- versus-state power are minor-league ball played out on a field framed by Lincoln’s prevailing constitutional vision of the United States as one nation, indivisible.
On the president’s constitutional duty: Lincoln understood his oath to impose an absolute personal moral and legal duty not to cave in to wrong, destructive views of the Constitution. He fought on the campaign trail for his understanding of Union and of the authority of the national government to limit the spread of slavery. Once in office, he understood his oath to impose on him an irreducible moral and legal duty of faithful execution of the laws, throughout the Union. It was a duty he could not abandon for any reason. [“The Great Interpreter”, University of St. Thomas (Minnesota) Research Paper No. 15-09, April 17, 2017]
Whence Lincoln’s view of the Union? This is from the Paulsens’ book, The Constitution: An Introduction:
Lincoln was firmly persuaded that secession was unconstitutional. Immediately upon taking office as President, in his First Inaugural Address, Lincoln— a careful constitutional lawyer— laid out in public his argument as to why secession was unconstitutional: The Constitution was the supreme law of the land, governing all the states. The Constitution did not provide that states could withdraw from the Union, and to infer such a right was contrary to the letter and spirit of the document. The Constitution’s Preamble announced the objective of forming a “more perfect Union” of the states than had existed under the Articles of Confederation, which themselves had said that the Union would be “perpetual.” Moreover, the Constitution created a true national government, not a mere “compact,” league, or confederacy— in fact, it explicitly forbade states from entering into alliances, confederacies, or treaties outside of national authority. The people of the United States, taken as a whole, were sovereign, not the states.
It followed from these views, Lincoln argued, that “no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.” Purported secession was simply an illegal— unconstitutional— rebellion against the Union.
Lincoln’s position, which the Paulsens seem to applaud, is flawed at its root. The Constitution did not incorporate the Articles of Confederation, it supplanted them. The “perpetual Union” of the Articles vanished into thin air upon the adoption of the Constitution. Moreover, the “more perfect Union” of the Constitution’s preamble is merely aspirational, as are the desiderata that follow it:
establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.
“More perfect”, if it means anything, means that the Constitution created a central government where there was none before. The Constitution is silent about perpetuity. It is silent about secession. Therefore, one must turn elsewhere to find (or reject) a legal basis for secession, but not to the Civil War.
The Civil War “decided” the issue of secession in the same way that World War I “decided” the future of war. It was the “war to end all wars”, was it not? Therefore, tens of millions of deaths to the contrary notwithstanding, there have been no wars since the Armistice of 1918. By the same logic, the thief who steals your car or the vandal who defaces your home or the scam artist who takes your life savings has “decided” that you don’t own a car, or that your home should be ugly, or that your savings are really his. Thus does might make right, as the Paulsens would have it.
There is in fact a perfectly obvious and straightforward case for unilateral secession, which I have made elsewhere, including “A Resolution of Secession”. You should read all of it if you are a rabid secessionist — or a rabid anti-secessionist. Here are some key passages:
The Constitution is a contract — a compact in the language of the Framers. The parties to the compact are not only the States but also the central government….
Lest there be any question about the status of the Constitution as a compact, we turn to James Madison, who is often called the Father of the Constitution. Madison, in a letter to Daniel Webster dated March 15, 1833, addresses
the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.
It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity….
[I]n The Federalist No. 39, which informed the debates in the various States about ratification….
Madison leaves no doubt about the continued sovereignty of each State and its people. The remaining question is this: On what grounds, if any, may a State withdraw from the compact into which it entered voluntarily?
There is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1869) — that States may not withdraw from the compact because the union of States is perpetual….
The Court’s reasoning is born of mysticism, not legality. Similar reasoning might have been used — and was used — to assert that the Colonies were inseparable from Great Britain. And yet, some of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that the Colonies were not obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States, as authorized by the people thereof.
In fact, the Constitution supplanted the Articles of Confederation and Perpetual Union, by the will of only nine of the thirteen States….
[I]n a letter to Alexander Rives dated January 1, 1833, Madison says that
[a] rightful secession requires the consent of the others [other States], or an abuse of the compact, absolving the seceding party from the obligations imposed by it.
An abuse of the compact most assuredly necessitates withdrawal from it, on the principle of the preservation of liberty, especially if that abuse has been persistent and shows no signs of abating. The abuse, in this instance, has been and is being committed by the central government.
The central government is both a creature of the Constitution and a de facto party to it, as co-sovereign with the States and supreme in its realm of enumerated and limited powers. One of those powers enables the Supreme Court of the United States to decide “cases and controversies” arising under the Constitution, which alone makes the central government a responsible party. More generally, the high officials of the central government acknowledge the central government’s role as a party to the compact — and the limited powers vested in them — when they take oaths of office requiring them to uphold the Constitution.
Many of those high officials have nevertheless have committed myriad abuses of the central government’s enumerated and limited powers. The abuses are far too numerous to list in their entirety. The following examples amply justify the withdrawal of the State of _______________ from the compact….
We, therefore, the representatives of the people of _______________ do solemnly publish and declare that this State ought to be free and independent; that it is absolved from all allegiance to the government of the United States; that all political connection between it and government of the United States is and ought to be totally dissolved; and that as a free and independent State it has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.
A New Cold War or Secession?
The Real Constitution and Civil Disobedience
A Declaration of Independence
The Constitution: Original Meaning, Corruption, and Restoration
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
Our Perfect, Perfect Constitution
Reclaiming Liberty throughout the Land
Secession for All Seasons
A New Constitution for a New Republic
Restoring Constitutional Government: The Way Ahead
Secession Made Easy
More about “Secession Made Easy”
How Libertarians Ought to Think about the Constitution
The States and the Constitution
Judicial Supremacy: Judicial Tyranny
The Answer to Judicial Supremacy
A Resolution of Secession
Polarization and De-facto Partition