Explaining my views one by one:
A state does not have the right to secede.
First, let's separate this from Yankee's argument that winning the Civil War would have given states the "right" to succeed. In practical terms this is correct, but you're basically saying that "might makes right", and that's not what I am attempting to solve here. The question is: under the laws of the United States that existed in 1860, and which were recognized as legitimate by all parties, did a state have the legal right to secede?
Let's start with two statements that I believe to be fact:
1. There is nothing in the Constitution that allows for a state to secede.
2. There is nothing in the Constitution that disallows a state to secede.
I disagree with your #2. I know there are posters such as Christo and others who have tried to argue that since the explicit phrase is not there - i.e., No state shall have the right or ability of secession from this Union.... - that by default it is not an enumerated power and the act would therefore fall under the 10th Amendment at best leaving such power to thestates to decide for themselves. I can understand the grasp of logic to that argument but it doesn't take into account the body of the Constitution and the means to get there.Initially, you have to realize that this country - the United States of America - in current form actually began under the Constitution, but there were two other legitimate "countries" before it. By that, I mean we had three separate and distinct organizational methods of this country, with the current third being one that has perpetuated. The first, of course, was the unified front - such as it was - in revolution by the seating of the Congress. At that time, the original colonies were legal entities of the British crown. When they demanded and then fought for independence they were still property of the crown until the very moment that the Treaty of Paris was signed.
Throughout that time the "country" was indeed a collection of independent "nations" (the states) working together for a common good. Althogh you have to use the term working together very losely. It's actually amazing that the Congress held it together long enough to win the war.Had a state at any time during that revolution pulled out of the agreement to reassert its loyalty to the crown it would have had the "legal" ability to do so. But once the Treaty of Paris was executed and ratified by its members, the colonies were free independent states with some minor contral patchwork understanding. That understanding, however, broke down immediately.
The states all considered themsevles independent nations and refused to honor certain respective parts of the treaty. There was no central federal power to control them, and little desire by the states to allow it to be born. Enter the Articles of Confederation. To be sure, the AoC were adopted in 1781, but the ToP wasn't executed until 1783. While the states did work within some confins as the AoC demanded all that document was for those 2-3 years was more proof of the criminals actions of the traitors in the colonies who were rebelling against the crown. It can not be called the legitimate governmental document of this country until the Treaty of PAris was ratified.
After the ToP was ratified, the AoC became the law of the land - weak as it was. The ToP took so long to ratify by our leaders because the Congress lacked any authority to demand the presence of the necessary quorom to sign the thing. The "central government" had to taxing power. It had to request every from the states such that, at most, it was basically an oversight committee that had recommendation power, but not enforcement power. The states were a loose confederation of some sort - call them independent nations if you will, but they weren't quite that either. They had a history of about 30 years of working together to begin with so they weren't entirely autonomous, but they weren't one and the sum of parts either.
Doing anything in a central manner was useless. Individual states went out of their way to make individual treaty and policy with foreign countries and even other states. There was basically no enforceable central or unifying authority. And the result was pretty much disasterous.
Enter the Constitution. With all that as backdrop, certain key provisions were made part of this new government with a central legislature. The Congress would have taxing authority. The Congress would speak with one national voice in matters of war. No state shall confederate with another or a foreign power. Only Congress can coin money. Only Congres has the supreme legislative power. Only Congress had the power to ensure that a republican fom of government existed in the states. Only the President was in overall command of the entire military. And on and on and on. And to assuage the fears of some that the central government would become a monster, the Senate was created as the political arm of the individual states. (I won't go into a 17th amendment diatribe here.)
Once ratified it became perpetual and the supreme law of the land. Sure, the AoC said it was perpetual as well, but the manner in which the AoC was modified by enacted the Constitution was a legitimate method whereas making armed insurrection wasn't. And yes I know there is an argument that says the Constitution was an illegal document because of the terms of the AoC but it certainly didn't matter by 1860 as the states had ratified the Constitution by then in one way or another.
Specifically because there was no central powerul Congress the Constitution was made. Specifically to stop states enterting into treaties with each other and foreign powers the Constitution was made. Specifically so that there was a supreme law was the Constitution made. Those reasons are important. And it became the supreme law of the land. There was no law higher then it. Any act in contrevention of the Constitution is illegal. It's illegal because it is in violation of the Constitution. Just as the revolution (which can certainly be dubbed a British civil war between the Crown(north) and colonies(south)) was a criminal endeavor and the AoC upon ratification was a tratiors pack, so too was the war made by the south a criminal endeavor and their confedeartion plan a traitors pact.
There is no value or merit to the argument that the states did not violate the Constitution because they left first and then made war. There is no legal basis to make that distinction. Once a member of the coutnry under the Constitution, the state was bound by the Constitution. Any act made in contrevention of the Congress and the supreme law was illegal. And the PResident is charged with enforcing that law. In this case, enforcment took the mantle of raising an army to deflect a massive rebellion.
But even though the above is correct in a legal sense and a Constitutional sense, it still doesn't matter. If the southern states truly believed what they were fighting for was anything more then a simple disagreement about policy and an inability to act with any true honor in governmental affairs, they didn't then need any legal justification. They were honorable criminals just as the revolutionaries were to the British crown. That is what is so maddening about the supporters of the south in the history books and talks here. They didn't need any legitimate argument under the Constitution to do what they did if they beleived it was the right thing to do. There was a higher more important "law" to adhere to. There was a foreign government enforcing unjust law no different then the crown to the colonies in 1776. Frnakly, staying under that banner is more legitimate and easily defended then trying to twist obvious words and intent of the Constitution to legitimize something that would make the Constitution as worthless as the AoC.
