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    The 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The power to secede was not granted to the Federal government. Therefore...it is reserved for the States. – Dale May 18 '12 at 19:41
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    There is one hint that the South 'evolved' on this issue...read up on how they felt about New England states threatening secession in the War of 1812... – Oldcat May 6 '14 at 0:10
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    And if the south won the war there magically would have been a 'right' to secede. Can't we just admit this was settled by force and force is the number one determinant in whether a secession effort is valid. If the strength of the entity seeking to split off is such that it can win territory then it deserves that territory. – user12730 Jun 25 '15 at 12:34
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    If the South really thought it was legal, their first argument would have been law, rather than forceful seizure of the US military installations and firing on federal troops and ships. – Oldcat Sep 18 '15 at 21:37

17 Answers 17



NOTE: The Supreme Court ruling was after the Civil War












  1. A law previously implemented to prohibit secession
  2. A previous Supreme Court ruling prohibiting secession


      An example of "clear text" within the Constitution:


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    It's bizarre to argue that secession was legal in 1861, when the exact finding by the Supreme Court in Texas v White was that Texas' ordinance of secession in 1861, and subsequent acts of her legislature, were "absolutely null" and "utterly without operation in law" ie illegal. On what basis can we say it was legal, when the Supreme Court says it was illegal? The primary support for secession was "Compact Theory", and that had been rejected by the Court over 40 years prior to secession. – JimZipCode May 7 '14 at 16:40
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    @nicodemus13 Suspension of Habeus Corpus was totally valid under the Constitution. Article 1 section 9 explicitly allows it "in cases of rebellion." Ambiguity arises because it was the executive (Lincoln) who ordered the suspension, rather than Congress. But Congress was not in session; and when they convened they backed him up. So no Constitutional question arises. – JimZipCode May 7 '14 at 16:47












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  • This has been discussed in great detail throughout our chat chat.stackexchange.com/rooms/3447/… – E1Suave May 17 '12 at 18:26
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    @E1Suave: Your question was answered by the Supreme Court in its 1869 ruling. The ruling was not based on a law (i.e., an act of Congress); it was based on the Constitution as it existed in 1861. One more time, the Supreme Court ruled, in 1869, that secession was unconstitutional in 1861. If you disagree, take it up with them. – Keith Thompson May 17 '12 at 23:19
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  • Do the laws of nullification apply? – user14867 Sep 29 '15 at 22:06
  • @user14867 - Nullification has never been upheld by any federal authority. It is a myth. Admittedly, it is a myth with an unusually active (and dark) history, but a myth nonetheless. – T.E.D. Sep 30 '15 at 9:11
  • Yes, the logic of Article 4 is that Congress must agree to any sale or other disposal of US territory. This is why the Court decision in 1869 said that secession is only lawful if done with the consent of Congress, hence unilateral secession is illegal. But it is only illegal, not impossible: if a State declared for secession, there is no binding obligation on the President to declare war. – Ed999 Jun 2 at 12:45

Yes, the secession of the Confederate states was illegal.

It's important to understand that secession was not strictly, or merely, a “legalistic” matter. Secession was a hotly contested political issue that divided the electorate. It could not be settled by a judge. Any ruling in one direction or the other would be rejected by half of the population. See the last section here, esp the concluding two paragraphs, for a fuller discussion of this.

However, to the extent that secession was a LEGAL question, the “legalistic” aspect is very straightforward.

This answer is in three main sections: the law of the land, the arguments in support of the legality of secession, and why those arguments fail. Then there are two follow-up sections, on historiography and later legal commentators.

The Law of the Land

Unilateral secession has been illegal since the Articles of Confederation. No one ever mentions this, but the full title of that document was the "Articles of Confederation and Perpetual Union Between the States of [list]". (Emphasis added, obviously.) Article 13 laid out a possible mechanism for secession. It said:

"And the Articles of this Confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state."

That language is awkward for modern ears to parse. I bolded the word "them" above. If "them" refers to the Articles, then this is a sentence about amending the Articles. But if "them" refers to the States, then this could be construed as a sentence about changing the composition of the States or changing the membership of the Union. So here is a potential legal way out of the Union: propose it in Congress, win passage there, and then get it ratified by every state. We might call that a "consensual", cooperative, amicable secession. But there's no support in the Articles for unilateral secession, where a state just decides on its own to leave.

The Articles created a much weaker national government, than the Constitution did. It follows that the stronger and "more perfect Union" created by the Consitution is, if possible, even more perpetual than the Perpetual Union created by the Ariticles. Certainly not conditional, or "less perpetual". That's the exact reasoning used by the Supreme Court in Texas v White. The Constitution says it is the supreme law of the land: there's no room for a state government to suspend or nullify it.

Here's the relevant section from the 1869 Texas v White ruling, which defines the current law of the land:




Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law.

One might wonder: was the 1869 ruling consistent with what the Founders had to say?

The debates at the Constitutional Convention don't have much to say about secession – possibly because the issue was already settled by the "perpetual" nature of the existing Union. There is a letter from Madison to Hamilton on the topic, from the Ratification era. Madison says:


The money soundbite is right there, the last 2 sentences.

Madison had more to say on secession much later in his life, when he was in his 80s, in letters to Trist (1830), and again to Trist (1832), and to Rives (1833), and to Daniel Webster (1833). I'm not bringing any of those quotes inline, as the letters don't date from the Ratification era; but they are from the Father of the Constitution, so they are worth looking at. Madison was of course a Virginian and a slaveowner.

Weak old Buchanan (of all people!) also made a Ratification-argument. In Buchanan's 4th annual message, just two weeks before South Carolina seceded, he said:

In order to justify secession as a constitutional remedy, it must be on the principle that the Federal Government is a mere voluntary association of States, to be dissolved at pleasure by any one of the contracting parties. If this be so, the Confederacy is a rope of sand, to be penetrated and dissolved by the first adverse wave of public opinion in any of the States. In this manner our thirty-three States may resolve themselves into as many petty, jarring, and hostile republics, each one retiring from the Union without responsibility whenever any sudden excitement might impel them to such a course. By this process a Union might be entirely broken into fragments in a few weeks which cost our forefathers many years of toil, privation, and blood to establish.

Such a principle is wholly inconsistent with the history as well as the character of the Federal Constitution.

Buchanan also pointed out some pretty strong negative evidence: in the long fight for Constitutional ratification, no one ever tried to persuade reluctant states by arguing that:

"the moment that any state felt herself aggrieved she might secede from the Union. ... What a crushing argument would this have proved against those who dreaded that the rights of the States would be endangered by the Constitution!"

Generally the absence of counter-evidence is not the same thing as positive evidence. But this actually is a strong point. Constitutional ratification was protracted and difficult, with extensive discussion by the leading political minds of the day. They didn't just FORGET to mention a right to withdraw, if one existed.

Robert E Lee himself agreed with this view. In a letter to his eldest son in January 1861, he wrote:

Secession is nothing but revolution. The framers of our Constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy [league?] at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. It is idle to talk of secession. Anarchy would have been established, and not a government, by Washington, Hamilton, Jefferson, Madison, and the other patriots of the Revolution.

That word "Confederacy" in the above quote is confusing. The actual Confederate States of America did not exist when Lee wrote the letter. I think he's using it in the general sense of "league or alliance", basically another way to refer to the Union; or else to the govt established by the Articles of Confederation. Lee's assessment matches that of his fellow Virginian, Madison. And the way he calls out the "perpetual union" language precisely foreshadows the later Supreme Court ruling in Texas v White.

The argument in support of secession

The basic argument is that the states agreed to enter into the US Constitution, like a contract, so they could decide to leave (terminate). But by itself that argument is severely flawed. Either party can opt NOT TO ENTER a contract; entering into a contract is voluntary. But once a contract is entered into, it takes BOTH parties to dissolve it. One party can't dissolve a contract unilaterally.

To support unilateral secession, supporters invoke what is called "Compact Theory". Under Compact Theory, the Union is not a national government, but instead a compact between independent sovereign states. Somewhat like a League of Nations. Nations can unilaterally rescind treaties; so, under Compact Theory, could the states unilaterally rescind their membership in the US. Like France leaving NATO, or Australia pulling out of the UN.

You can see Lee referencing the theory in his letter to his son (above), in his use of the word "compact". Buchanan references it too, as "the principle that the Federal Government is a mere voluntary association of States, to be dissolved at pleasure by any one of the contracting parties." Compact Theory had a long and respectable pedigree in American politics; it was no fringe theory. Jefferson articulated it quite clearly in his 1798 draft of the Kentucky Resolutions.

This is really the entire argument. The states are not bound by anything like contract law. The states are sovereign, they entered into a compact, and they can withdraw from it at will.

Why the argument fails

Compact Theory had already been rejected by the Supreme Court in 1816, 44 full years before South Carolina seceded. The case was Martin v. Hunter's Lessee (1816). By the way, 4 of the 6 Justices who participated in that ruling were Southern (one of them was George Washington's nephew). The ruling was that the Constitution was not an agreement between the states at all; rather, as the preamble says, it was ordained and established directly by the people. Justice Story wrote as part of the majority:

“The Constitution was for a new Government, organized with new substantive powers, and not a mere supplementary charter to a Government already existing. The Confederation was a compact between States, and its structure and powers were wholly unlike those of the National Government. The Constitution was an act of the people of the United States to supersede the Confederation...”

The status of Compact Theory was reiterated in McCulloch v. Maryland (1819); still 41 years before secession. 5 of the 7 sitting Justices in that case were Southern (still including the nephew); and the decision was unanimous. McCulloch extended Martin, saying that "the constitution and the laws made in pursuance thereof are supreme ... they are binding on the states and cannot be controlled by them." This directly rejects Compact Theory, which would hold that the federal government is a creation of the states, where the states maintain superiority.

Both cases draw a distinction between the Articles of Confederation and the Constitution. In Martin the Court says that the Articles were a "Compact", but the new government is not. In McCulloch the Court says that there is no phrase in the Constitution, unlike the Articles, that "excludes incidental or implied powers". (Meaning that under the Constitution, the Fed govt has more power than what is explicitly mentioned in the document: it also has incidental or implied powers. The Fed govt did not have those under the old Articles.)

You can actually go back to Chisholm v. Georgia (1793) to see compact theory get its first beating from the Court. This was the original Court appointed by George Washington. That ruling was that the People directly established "a Constitution by which it was their will that the State governments should be bound." Supreme or sovereign power was retained by citizens themselves, not by the "artificial person" of the State of Georgia. 1793! The 11th amendment undid part of Chisholm, making it impossible for citizens to sue other states in federal court; but it conferred Sovereign Immunity, not Sovereignty. No support for Compact Theory there.

It's very straightforward. By 1820, Southern majorities of the Supreme Court had already rejected the only argument in support of the legality of secession, THREE TIMES. That's well before secession, and Texas v White.

That's just the actual opinions of the court. The standard work on Constitutional law in the 1800s was Justice Joseph Story's Commentaries on the Constitution of the United States (1833). Called "a cornerstone of early American jurisprudence" and still referred-to. Story doesn't mince words when it comes to Compact Theory:

In what light, then, is the constitution of the United States to be regarded? Is it a mere compact, treaty, or confederation of the states composing the Union... ? There is nowhere found upon the face of the constitution any clause, intimating it to be a compact, or in anywise providing for its interpretation, as such. On the contrary, the preamble emphatically speaks of it, as a solemn ordinance and establishment of government. The language is, 'We, the people of the United States, do ordain and establish this constitution for the United States of America.' The people do ordain and establish, not contract and stipulate with each other. The people of the United States, not the distinct people of a particular state with the people of the other states. The people ordain and establish a constitution,' not a confederation.' . . . Nor should it be omitted, that in the most elaborate expositions of the constitution by its friends, its character, as a permanent form of government, as a fundamental law, as a supreme rule, which no state was at liberty to disregard, suspend, or annul, was constantly admitted, and insisted on, as one of the strongest reasons, why it should be adopted in lieu of the confederation.

Story honestly goes on for like 20 pages on this topic. See volume 1 ,"book 3", chapter 3 of his commentaries (viewable on Google Books).

I'll let Daniel Webster summarize. Senators and congressmen cannot have the same force when speaking about the interpretation of the Constitution, as actual Supreme Court justices. The point is what the Supreme Court itself decided, along with the definitive Constitutional commentary of its day. But Webster expressed it with great clarity on the floor of the US Senate in 1830. See his "Reply to Hayne", collected in numerous places.

He has not shown, it cannot be shown, that the Constitution is a compact between State governments. The Constitution itself, in its very front, refutes that idea; it declares that it is ordained and established by the people of the United States.


When the gentleman says the Constitution is a compact between the States, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the States, as States, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a general government, which should stand on a new basis; not a confederacy, not a league, not a compact between States, but a Constitution; a popular government, founded in popular election, directly responsible to the people themselves, and divided into branches with prescribed limits of power, and prescribed duties. They ordained such a government, they gave it the name of a Constitution, and therein they established a distribution of powers between this, their general government, and their several State governments.

Webster's speech came in the midst of the Nullification Crisis. So from one perspective it is of limited utility as "proof": there was a whole other side in that crisis, with a counter-argument of their own. But Webster's speech is nice because he very neatly articulates the viewpoint of the three relevant Supreme Court decisions and Justice Story's Commentaries. A good summation.


If you're serious in asking the question (I suspect you are not), it's important to understand that in the historiography of the Civil War, this question is one of the Southern Apologist arguments. Saying that secession was legal until the Court issued its 1869 ruling in Texas v White, implies that there was no legal basis for the Court's ruling, ie it's pure judicial fiat. That's a pure Southern Apologist argument. The rest of the logic goes: "secession was not illegal until 1869, therefore secession was LEGAL up until 1869, therefore Lincoln's use of armed force to put down the slaveholders rebellion was illegal." The line of argument is used to paint Lincoln as a criminal, an aggressor, a dictator.

And it's not true. Texas v White was pure Stare Decisis: the opposite ruling would have violated previously stated law. The law underpinning the decision had been settled back in 1816.

Later Legal Commentary

There is some discussion about whether later legal commentary contradicts the argument from the 1816 and 1819 rulings. At least three times since 2000, judges have stated that the question of a state's ability to secede was unsettled prior to the Civil War. That has occurred in a Supreme Court ruling, in a Supreme Court justice's correspondence, and in a state supreme court ruling. These are below. I added emphasis in each, to pull out the common idea; there is no special emphasis in any of the original docs.

"At the time, the phrase 'one Nation indivisible' had special meaning because the question whether a State could secede from the Union had been intensely debated and was unresolved prior to the Civil War." ( Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6 n. 1, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). )


  • In 2010 the Alaska state supreme court wrote that:

"While a state's ability to secede was an unsettled question before the end of the Civil War, subsequent United States Supreme Court opinions have concluded that secession is clearly unconstitutional, and Lincoln's belief in a perpetual Union is reflected in what we have described as 'a plenitude of Supreme Court cases holding as completely null' the acts of secession by Confederate states."

Is there a contradiction here?

No. It's important to note that none of these jurists (except for the second half of Alaska, after the word "subsequent") reference any legal action or court rulings. SCOTUS 2004 does NOT say, "the question whether a state could secede was unresolved prior to Texas v White." Scalia does not write, "the constitutional issue resolved by Texas v White is that there is no right to secede." The Alaska court does not say, "a state's ability to secede was unsettled before Texas v White." What they all mention is the war. All of these jurists are saying that the Civil War itself settled the question. Not any court ruling: the actual WAR.

And that's the truth. Secession was not a legalistic question that the courts could settle, by examining the Constitution and accumulated Supreme Court precedent. A good comparison is the Dred Scott ruling. There, Justice Taney intended to settle the question of slavery in the territories, and of negro citizenship. The ruling did not come anywhere close to settling that question; if anything, it inflamed the controversy. The ruling is routinely cited as one of the incidents that escalated sectional tension, in the long lead-up to the war.

Likewise secession. Secession was a political (and military!) question. As late as the Summer of 1864, it was still an open question whether the Federal govt had the political support to defeat secession. Imagine if Lincoln had lost the 1864 election, it's easy to envision the winning "Peace Democrats" negotiating a peace, leaving the Confederacy in place. In that alternate hypothetical, a later SCOTUS would likely have to acknowledge that although secession might be de jure illegal, it had de facto occurred. That hypothetical Court might conclude that the US citizens had not shown a determination to maintain the Union; obviously it was possible to secede, since it had happened. It would be the opposite ruling not because the underlying law & precedents would have changed, but because the facts would have changed.

It took the WAR to settle the question of secession. That's what we see in history, and that's what the 21st century judges are commenting on.

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  • "Article 13 explicitly stated "the Union shall be perpetual."" Is this a full quote from the article 13? – kubanczyk May 4 '14 at 16:09
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    The full sentence reads: "And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State." Here's one source for the Articles: Univ of Minnesota – JimZipCode May 4 '14 at 22:36
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    This is clearly the correct answer, well researched and convincingly argued. – RI Swamp Yankee Jun 24 '15 at 15:03
  • Thanks @RISwampYankee . Disheartening to see the zero points for it. – JimZipCode Sep 25 '15 at 18:02
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    @JimZipCode: Just read this again, and unfortunately I have already up-voted it. Well presented and argued, and not yet getting the recognition it deserves. – Pieter Geerkens Nov 9 '15 at 23:46



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    You've got some ammunition here, since the Chief Justice in Texas v White had served on Lincoln's cabinet. The majority opinion could have been transcribed directly from some of Lincoln's speeches: the victors literally wrote the law. The saving grace is, the Court's decision was straight in line with prior Court decisions (referenced in other comments). In fact it's the opposite finding that would have been extraorinary, a violation of the judicial principle of Stare Decisis. So, you can rest your cynicism in this instance. :-) – JimZipCode May 7 '14 at 17:10

We can go into these long winded discussions on Supreme Court decisions and the law about secession. A document that is more important than the Constitution is being overlooked. The Declaration of Independence. Does this not give a state the right to break away from a government that has become destructive to the people. What did we do when be declared independence from England. Did the Southern states in succeeding declare independence from the United States. Here in the south you can see on some grave stones of Soldiers inscriptions stating they were fighting for Southern Independence. To say that the southern states, or any other state for that matter would have the right to declare independence. If secession is illegal then we committed an illegal act when we broke away from England. Also these decisions were decided after the war. What other way would they have went. I guess at the end of the day right and wrong are decided at the end of a barrel and bayonet.

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    This is an argument, not an answer. Furthermore, there is no doubt that the Declaration of Independence was illegal under British law; it was treason. – Mark C. Wallace Jul 4 '14 at 13:19
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    The Declaration is MORE important than the Constitution?? That's an interesting position. – JimZipCode Aug 16 '15 at 5:53
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    If the Declaration asserts a right for a "state to break away from a government that has become destructive to the people", how does that apply to the Civil War? The southern states broke away when their candidate lost the election; South Carolina seceded 2-1/2 months before Lincoln was inaugurated. There wasn't time for the government to become destructive to the people: the new government wasn't even in office. South Carolina seceded from a government where Southerners were President, Chief Justice of the Supreme Court, President Pro Tem of the Senate, and the last Speaker of the House. – JimZipCode Aug 16 '15 at 6:19
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    In other words, South Carolina seceded from a government that their section controlled. They weren't trying to break away from a government that HAD become destructive to their interests; they were assuming that the govt was in future GOING to become hostile to their interests. That's a big difference in justification. Also, it's ironic to reach for the Declaration to defend Southern secession, when that document states that "all men are created equal". That ideal was inimical to the Confederacy, and Alexander Stephens called it "fundamentally wrong" in his Cornerstone Speech. – JimZipCode Aug 16 '15 at 6:26
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    The Founders DID break British law when they revolted. They joked about being hung for signing the Declaration – Oldcat Sep 30 '15 at 22:14

In 2 court rulings this century the pre-civil war secession situation was described as either unresolved or unsettled, not illegal or unconstitutional.


In KOHLHAAS v. STATE OFFICE OF LIEUTENANT GOVERNOR http://ak.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20100115_0000025.AK.htm/qx, The Alaska Supreme Court ruled in a case involving the right to secede, that “While a state's ability to secede was an unsettled question before the end of the Civil War, subsequent United States Supreme Court opinions have concluded that secession is clearly unconstitutional, “

Also Justice Scalia in a letter http://www.newyorkpersonalinjuryattorneyblog.com/uploaded_images/Scalia-Turkewitz-Letter-763168.jpg observed "If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."


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    That's a footnote in the Elk Grove opinion; I wouldn't call it an important part of the finding. Scalia's remark looks off-the-cuff, and is anyway conditional. The text of the Texas v White decision is clear and unambiguous; the Union was perpetual from inception. It's also consistent with prior Court rulings, eg Chisholm v Georgia, Martin v Hunter's Lessee, McCulloch v Maryland. It's quite an extraordinary to claim that secession was legal, when the Court found it was not. – JimZipCode May 7 '14 at 16:52

JimZipCode wrote a long and passionate answer which tries to debunk many of the other answers here and claim that the law was settled before the Confederate states seceded. He brings up some interesting points that should be debated.

However, he also clearly goes too far. His choice of quotations is selective: I could just as easily come up with dozens of quotations from learned authorities from both the North and South before the Civil War that argue both sides of whether secession was legal or not.

The real meat of his answer, though, concerns whether stare decisis would already be in effect due to previous court rulings, thus making Texas v. White a restatement of previously settled law, rather than a novel interpretation.

He cites three previous Supreme Court cases as evidence. However, if there were indeed clear precedent, that matter should be made clear in the rulings of Texas v. White. When we examine that ruling thoroughly, there is no mention of any of the precedents cited in JimZipCode's answer, nor is there any clear reference to his notion of "Compact Theory."

To the contrary, the majority ruling written by the Chief Justice Salmon Chase (a former member of Lincoln's cabinet) clearly implies that there had been previous legal disagreement about this question:

We are very sensible of the magnitude and importance of this question, of the interest it excites, and of the difficulty, not to say impossibility, of so disposing of it as to satisfy the conflicting judgments of men equally enlightened, equally upright, and equally patriotic. But we meet it in the case, and we must determine it in the exercise of our best judgment, under the guidance of the Constitution alone.

Note that he clearly states that "we must determine it" according to "our best judgment," not that it was a matter of previously determined or settled law.

Furthermore, when we examine the dissents in the 5-3 ruling, they actually cite another case where John Marshall speaks directly to the definition of a state. Justice Grier writes:

I do not think it necessary to notice any of the very astute arguments which have been advanced by the learned counsel in this case to find the definition of a State, when we have the subject treated in a clear and common sense manner by Chief Justice Marshall, in the case of Hepburn & Dundass v. Ellxey. As the case is short, I hope to be excused for a full report of it as stated and decided by the court. He says:

The question is whether the plaintiffs, as residents of the District
of Columbia, can maintain an action in the Circuit Court of the United
States for the District of Virginia. This depends on the act of
Congress describing the jurisdiction of that court. The act gives
jurisdiction to the Circuit Courts in cases between a citizen of the
State in which the suit is brought and a citizen of another State. To
support the jurisdiction in this case, it must appear that Columbia is
a State. On the part of the plaintiff, it has been urged that Columbia
is a distinct political society, and is therefore a "State" according
to the definition of writers on general law. This is true; but,
as the act of Congress obviously uses the word "State" in reference to
that term as used in the Constitution, it becomes necessary to inquire
result of that examination is a conviction that the members of the
American Confederacy only are the States contemplated in the
Constitution. The House of Representatives is to be composed of
members chosen by the people of the several States, and each State
shall have at least one representative. "The Senate of the United
States shall be composed of two senators from each State." Each State
equal to its whole number of senators and representatives. These
clauses show that the word "State" is used in the Constitution as
signification attached to it by writers on the law of nations.

Now we have here a clear and well defined test by which we may arrive at a conclusion with regard to the questions of fact now to be decided.

Grier goes on to apply Justice Marshall's definition of "state" to the situation in Texas. From this, he concludes that Texas is not (and was not, during the Civil War) a "state," according to laws in force by Congress. He concludes:

I can only submit to the fact as decided by the political position of the government, and I am not disposed to join in any essay to prove Texas to be a State of the Union when Congress have decided that she is not. It is a question of fact, I repeat, and of fact only. Politically, Texas is not a State in this Union. Whether rightfully out of it or not is a question not before the court.

The other two dissenting justices (Noah Swayne and Samuel Miller) concur with Grier on this interpretation that Texas is NOT a state according to current law (though they agree with Chase regarding other issues in the case).

(By the way, Grier's opinion here was also implicitly endorsed by Congress and actually by many historical sources today which cite the dates of apparent "readmission" to the Union as happening between 1868 and 1870. These were the dates that representatives from these states were readmitted to Congress, and there were generally conditions placed on those states before the representatives were allowed to rejoin Congress. If secession were truly "unconstitutional" according to Chase's argument which effectively said secession never happened, then Congress was acting unconstitutionally by refusing to seat representatives -- as required by the Constitution -- until they capitulated. It also implies that the various plans to set conditions on "readmission to the Union" were legally nonsensical. The more consistent interpretation is that the states actually had seceded, at least according to pragmatic politics as Grier argues, as well as according to Constitutional requirements stated for what current states were entitled to. This doesn't argue whether secession was "legal" or "illegal," only that it had in fact happened, which implies that it wasn't thought unconstitutional on its face.)

TO SUMMARIZE: The cases cited in JimZipCode's answer were not actually mentioned or even hinted at in Texas v. White, so they clearly were not considered as settled precedent to which stare decisis must apply. The majority opinion itself implies that it is making a determination according to present judgment, and 3 of the 8 justices rejected that interpretation, instead citing a different precedent of John Marshall's, as well as current law in Congress, to claim that Texas was not a state.

Obviously dissents are not law. But here they are strong evidence that the matter wasn't even clearly settled among those on the Court in 1869, and the dissent actually lines up well with how the Executive and Legislative branches had been treating the states (i.e., as though they had actually seceded). And the majority opinion -- written by a member of Lincoln's cabinet who presumably had been aware of earlier legality of secession debates -- acknowledges that it's still an openly debated issue among many learned people which must be settled in this ruling.

Solely on the basis of the ruling in Texas v. White, a reasonable interpretation would conclude that the matter had not been settled law previously. This is not unusual in Supreme Court rulings: novel Constitutional interpretations are often applied retroactively to earlier circumstances that led to a case. In fact, it's difficult to figure out how the Court could function otherwise unless all Constitutional interpretation had been previously settled once and for all time. This does not imply the secession was "legal" in 1861, only that it was not clearly settled law at that time.

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  • Well thought out. I disagree, obvi, but it's a carefully reasoned answer. A few quibbles. (1) Not sure why you refer to my "notion" of Compact Theory: what I describe is the actual definition. (2) Sure, you can find dozens of quotations from learned authorities, but those cannot have the same standing with regard to Constitutional law, as actual Supreme Court decisions (and specifically those that reject Compact Theory). (3) And as you point out, Justice Grier's dissent is not the law. Still a well-written, informed answer. – JimZipCode Aug 16 '15 at 5:51
  • @JimZipCode: (1) The definition of "Compact Theory" is a modern one; SCOTUS in 1869 would not have used that exact term, but they didn't clearly refer to some related "notion" either. (2) None of your cases actually addresses secession, only primacy of federal law. I agree they can be related, but SCOTUS never directly said "No secession" until 1869; hence the continuing debates among learned folk until the Civil War. (3) Dissents are not the law, but the majority opinion was nonsensical with respect to how the law was actually operating in 1869 (and continued to for a bit afterward). – Athanasius Feb 26 '16 at 21:30
  • The definition of Compact Theory is not the slightest bit "modern". Jefferson elaborated it pretty clearly in the Kentucky Resolutions of 1798. – JimZipCode Mar 27 '18 at 8:20
  • The founding fathers who argued in favor of succession rights, Thomas Jefferson , George Mason, Patrick Henry, and James Monroe all had another thing in common. They all opposed the Constitution. – user27618 Mar 31 '18 at 2:32

The secession of the southern states was a violation of Section 10 of the US Constitution, to which all of those states had agreed. That part of the Constitution reads:

No State shall enter into any Treaty, Alliance, or Confederation; ..

By creating the Confederacy, they obviously were breaking this clause of the constitution to which they had previously agreed.

Of course, at the sovereign level there is no such thing as "illegal". Laws are for consenting communities that agree to live together under a fixed set of rules. When the communities fight, those laws are no longer valid. From the answers above you can see that the US Congress and Supreme Court, ex post facto, passed a bunch of "laws" that it was "illegal" for a state to succede, but at the end of the day, there are no laws, just force.

For example, lets say Congress passes a law that makes it "illegal" for anyone in Somalia to mine tin. Does that mean it is illegal for Somalis to mine tin. I suppose so, in the eyes of Congress, but probably not in the eyes of the Somalis.

For a law to have just force, the court must have jurisdiction. When a group seccedes, they may argue there is no longer any jurisdiction over them. For example, William Wallace, after being captured, was charged with treason, but he argued, correctly, that there was no treason because he was not a subject of the English king, Edward. That didn't stop Edward from killing him though.

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  • I always found the Confed's obsessive desire to rebel like Washington yet be 'legal' in the end to be very amusing. It's like Luke wondering if blowing up the Death Star was against the law. – Oldcat May 6 '14 at 0:07
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    "At the sovereign level there is no such thing as illegal." It's a nice claim. But by the Civil War era, the Court had already rejected the notion that the Consitution was a "compact of sovereigns" in at least 3 other cases: Chisholm v Georgia (1793), Martin v Hunter's Lessee (1816), and McCulloch v Maryland (1819). That was 40+ years before secession. – JimZipCode May 7 '14 at 17:04
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    @JimZipCode Jim, you become sovereign as soon as you start shooting people. – Tyler Durden May 7 '14 at 17:18
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    @Tyler Durden What if you only stab them or hang them? – JimZipCode May 7 '14 at 17:45

Of course secession is legal.

The only way that states join the United States is via a ratification of the Constitution in which they VOLUNTARILY agree to join.

Therefore, if they later reject that Constitution ("un-ratify" it, if you will) then they are no longer bound by its laws.

Secession is simply that process of rejecting the original ratification.

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    Tell that to Rhode Island, which only ratified the constitution under threat of being treated as a foreign power. – Mark C. Wallace Sep 30 '13 at 16:24
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    and the confederate states, who choose to secede and found themselves invaded, then forced back into the union with their state constitutions demolished. – jwenting Jan 21 '14 at 20:28
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    Let's say I'm a homeowner, and you're a carpenter. We enter into a contract: you are going to get some lumber and other materials, and build an addition onto my house; I am going to pay you $20,000. Then you go off and buy some lumber, maybe engage some subcontractors to do some shaping. A little bit of time passes. Can I just unilaterally change my mind and undo the contract? And not owe you any money? Of course not. Contracts can't be broken unilaterally; requires both parties. The process of "un-ratifying" is the same. Requires both parties; can't be done unilaterally. – JimZipCode May 7 '14 at 17:26
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    A marriage is also voluntary, but cannot be unilaterally dissolved at a whim. – Oldcat Sep 30 '15 at 22:16

I had originally answered yes; then I discovered the force bill. Section 5 of the force bill permits the President to use whatever force is necessary to preserve the Union. The US Congress had considered seccession, and explicitly authorized the preservation of the Union by military force.

UPDATE: @Garrett Albright asks a pertinent question. I grant you that my argument is indirect, but if the United States authorized military force to preserve the Union, then implicitly any effort to sever the Union is illegal.

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  • This seems to me to provide just cause for the use of force in response to the secession, but not necessarily affect the legality of the secession itself. – Garrett Albright Jan 22 '14 at 18:40

The 10th Amendment:





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  • Welcome to History SE! Thanks for your answer. +1 to get you going. – American Luke Oct 10 '12 at 17:56
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    That seems to make sense at a superficial level. But when you dig more deeply, it turns out that at the time the Constitution was ratified, the states did NOT have the power to secede, so could neither delegate them nor reserve them. The Articles of Confederation explicitly say that the Union is perpectual (article 13). This is some of the substabce of the ruling in Texas v White. – JimZipCode May 7 '14 at 17:20

It is simple, secession was and is legal. Look to the ratification documents from Rhode Island, New York and Virginia, three of the last four to ratify the Constitution. They state specifically, that the State can reassume the powers delegated through the ratified Constitution by the State in cases where they feel they are being injured or abused. This is a quote from the Virginia ratification document for reference.


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    Interesting text in the Virginia one. It agrees with the early Supreme Court decisions, that the Constitution "derived from the people of the US." That's probably unintentional, because paradoxically it's part of the argument that states DON'T have the power to secede. The Constitution gets its power from the people of the US, ie NOT from the states, and therefore the states are bound to it. See Chisholm v Georgia. – JimZipCode May 7 '14 at 17:37
  • So under your theory that a state can remove itself unilaterally, does that mean that the US can expel a state unilaterally? Congress can just rule to expel Rhode Island, and poof they're out? – JimZipCode May 7 '14 at 17:37
  • It doesn't really matter what the state puts in their documents if it goes against the Constitution and the SC's interpretation of it. The (unenforced) laws that require state officials to be Protestants or at least Christian aren't legal, either, even though they exist in eight state constitutions. – gormadoc May 18 at 14:22


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No its not legal they did not gain permission to secede and so thus they broke the law if they were to secede they would have had to go through several different courts and several different government actions would have to happen. They illegally withdrew from the u.s. and they had to pay the consequence for there actions.

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    H:SE prefers answers that are based on evidence, scholarship and research. Do you have any evidence to support your opinion? – Mark C. Wallace Mar 11 '14 at 1:12

The Articles of Confederation that the original colonies/states signed meant they joined the federal government in "perpetual union". But they different states would always threaten to leave the union if they did not get their way- meaning each state was it's own basic nation, just in an agreement to help one another more or less. However, seeing this problem keep coming up, they then decided to write the US Constitution- which in effect threw the Articles away and bound the states together under one goverment with the states holding certain rights of the own, but limiting their ability to operate as a free county on their own. Now in the event of armed rebellion but the PEOPLE of the state, not the governments, as well as the PEOPLE voting to leave the Union, not just the government making the choice for them- which is very much what happened in the Civil War when the state broke away, they did not do so at the full will of the people, but as the governmnet reprsentaives, who stood to gain power by breaking away, and not the best interest of the people. So yes, but doing the break away in that form, the South DID break away illegally, where as if put to a vote (just like Scotland did this week)where the people really effected go to choose, then that would ahve been legal had they left the union and then the Northern attacks would have been the illegal act. But after Reconstruction and the states rejoining the nation, State Rights were vastly limited by readmission and even in the states that did not leave, that is one fall out from the Civil War, that it allowed the Constitution to be changed without really anyone to stop them.

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    Do you have a source for seceding by referendum being legal? – Semaphore Sep 20 '14 at 6:05
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    Do you have a source for the notion "they then decided to write the US Constitution"? That is contrary to most histories I've read. – Mark C. Wallace Sep 20 '14 at 11:32
  • "they did not do so at the full will of the people" this isn't actually correct, at least in Virginia. virginiamemory.com/online_classroom/union_or_secession/unit/10/…. – lazarusL Oct 9 '14 at 0:12
  • The US Constitution has been upheld to be between the People and the Federal Govt. The idea that it is an agreement between the States and the Feds is called Compact Theory and it was shot down by SCOTUS at least three times prior to the Civil War. – Schwern Sep 25 '15 at 21:10

Was the succession of the confederate states illegal?


This question is not the same as, but is related to and informed by American Presidents on secession legality

This debate is older than our constitution(ratified 21 June 1788). The modern vestiges of this argument occur every four years during elections with the call for states rights and trepidation some feel of the Federal Government usurping these rights. It reared its head in the 1960's over integration, and in the 21st century over healthcare. It was first debated 1786, when a farmer and former Colonial Captain named Daniel Shays lead 4000 like minded farmers and would be revolutionists in an attack on the federal armory in Springfield Massachusetts. The differences between the founding fathers in Union Troops being raised and used to put down this rebellion gave rise and urgency to the ratification of the US Constitution.

On one side of the argument you have Thomas Jefferson who both opposed the ratification of the Constitution and believed it was every states right to leave the Union which it had freely joined.

Thomas Jefferson(March 4, 1801) in his First Inaugural Address said “If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it.”



James Madison (1788) At the Constitutional Convention, a proposal was made and rejected to allow the Federal Government to suppress a seceding state

“A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.”

On the other side of the Argument you have George Washington

George Washington 1783 It is indispensable to the happiness of the individual states, that there should be lodged somewhere, a supreme power to regulate and govern the general concerns of the…republic, without which the Union cannot be of long duration. That there must be a faithful and pointed compliance on the part of every state, with the…proposals and demands of Congress, or the most fatal consequences will ensue; that whatever measures have a tendency to dissolve the Union, or contribute to violate or lessen the sovereign authority, ought to be considered as hostile to the liberty and independency of America, and the authors of them treated accordingly….[W]ithout an entire conformity to the spirit of the Union, we cannot exist as an independent power.

The Core Secessionist Augment: In the Constitution succession is not outlawed, and thus by the tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; secessionists have a rational argument to be made.

From a historical perspective however, warnings come down to us in the federalists papers that dissolution of the Union is among the worst things the founding fathers could envision. Hamilton, Madison and Jay all agree that if such a thing were to happen it would condemn the two parties to fight 1000 years of wars along competing religious, economic, and social values; just as Europe had done in the centuries before.

Thus succession for unionists transcends hypothetical discussions and the logic of default arguments. They are transformational disputes at the root bundle of the republic.
Every succession attempt, whether Daniel Shay in 1786, South Carolina in 1832, or the entire South in 1861; has been meet not by legal petitions or counter arguments but by force of arms.

Shay's Rebellion
Thomas Jefferson on Shay's Rebellion
American Presidents and the legality of succession

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