Why a ‘National Divorce’ Cannot Be Civil, but Would Inevitably Mean Civil War

Many conservatives have talked recently about the need for a “national divorce” due to irreconcilable differences with the progressive left.  We should be clear about what we’re talking about, though, when we suggest the prospect of a “national divorce.”

We are talking about secession.  And secession, in America, is anything but a civil or amicable process, and it’s useless to imagine it would be otherwise. 

It’s only truly been attempted once, after all, and it led to the bloodiest war in our history.

Certainly, there are practical differences between secession and civil war.  But in America, these are distinctions without meaning, because with secession comes “civil war,” if one chooses, as we have, to characterize the American conflict of 1861-1865 that way. 

Perspective matters when it comes to defining these circumstances.  The American colonials sought independence in 1776, for example, and would have gladly done so peacefully.  In their eyes, the cause for independence from Britain was a righteous assertion of a natural right, and their war was a defensive one.  In the eyes of the British, however, the colonials were treasonous rebels to be subjugated with ruthless force.

Such was the state of opinions in 1861, in a remarkably similar set of circumstances.  However, there was a difference.  In 1861, the seceding states believed not only that their cause was righteous, but that they had asserted not only a natural right but the legal right to achieve independence via legislative self-determination.

And they certainly sought a peaceful separation.  As Jefferson Davis openly declared, the newly formed Confederate States of America in 1861 sought “no conquest, no aggrandizement, no concession of any kind from the States with which we were formerly confederated; all we ask is to be let alone.” 

Neither the declaration of the desire for a peaceful separation nor this presumed legal right to legislative self-determination by the seceding states made any difference, as we know.  The attempt was militarily thwarted with ruthless force by the Union armies in order to subjugate the treasonous rebels who sought independence.

Here is what’s most important for us to know today.  The war in 1861 was not because the seceding states desired war, or, contrary to popular fiction, because of the moral crime of their having practiced slavery.  The war was because there was a bedrock, nation-defining question around the legitimacy of state secession that had yet to be answered. 

That answer to that question was finally settled in 1865. 

It would certainly be convenient if we could accomplish an amicable “national divorce,” but that would require, at the very least, a nationally understood belief that states are willing participants in a voluntary union of American states.  Unfortunately, progressives certainly don’t believe that, and neither do most conservatives.

Herein lies the conflict of visions that once led us from the potential for peaceable secession of the states to violent reunification of a nation through open war in 1861. 

The question of whether our republic is a voluntary or perpetual union has long been a subject of debate.  In the Articles of Confederation which preceded the Constitution, the provisions therein were stipulated to be “inviolably observed by every state, and the Union shall be perpetual.” 

Inconvenient for those arguing in favor of the legal legitimacy of a perpetual union, however, is that the musings of Articles of Confederation are abrogated by the Constitution, and the latter is entirely silent on the matter of secession.  Any who have given even mild study to the diligence and care with which the Constitution explicitly enumerates the powers of the federal government should have difficulty explaining the absence of an explicitly defined federal mandate to militarily enforce a “perpetual union” if the Framers’ intention was to establish one. 

This leaves arguers in favor of our nation’s design as a perpetual union reliant on pure postulation.  Abraham Lincoln was one who unconvincingly argued in his First Inaugural Address that:

I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual.  Perpetuity is implied, if not expressed, in the fundamental law of all national governments.  It is safe to assert that no government proper, ever had a provision in its own organic law for its own termination.

Here, we see Lincoln, one of the most gifted orators and debaters in American history, is eliding the real point. He freely concedes that the Constitution may not “express” that the Union is perpetual, but that in the penumbra, one might say, of all foundational law of “national governments” is the implied suggestion that the government is designed to exist in perpetuity.  After all, he suggests, if national governments were not meant to perpetually exist, then they would have surely scribed into law a mechanism to destroy themselves.

The suggestion that a righteous mandate to forcibly maintain a perpetual union on the strength of “implied” rather than “expressed” power of the government is an extraordinarily weak justification for his treating the prospect of secession as “rebellion.” 

Furthermore, secession is not tantamount to “termination” of government. If two states secede from the Union, for example, the government would not cease to exist or be “terminated” -- it would just exist with fewer states, just as the addition of two states to the Union does not alter the Union’s state of existence, but only means that its form in that it will now be composed of two more states. 

There’s also an element of hypocrisy here that cuts against the argument Lincoln made in 1861.  He had spoken very favorably of the Texian revolution against the national government of Mexico, which must have also been, according to his logic in 1861, designedly “perpetual” in nature:

Any people, anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better.  This is a most valuable -- a most sacred right -- a right, which we hope and believe, is to liberate the world…

Interestingly, the reason that Lincoln held this view in 1848 leads us to the most important argument in favor of the United States having been formed as a voluntary Union of states, rather than a perpetual one.  And that is the Declaration of Independence.

Unlike the Articles of Confederation, the Declaration was not nullified by the Constitution.  It does not stand as a substitute for the Constitution but as the reason for its very existence. In short, the Constitution is the “how” of the United States, and the Declaration is the “why.”

It was from this fount that Lincoln undoubtedly drew in 1848, as is evident by the language.  Jefferson wrote in 1776:

[W]hen a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

What does any of this mean today? 

It means that state secession is, indeed convincingly, entirely consistent with the foundational principles of our republic.  But that simple truth no longer matters because the question as to whether we are a voluntary union (thereby allowing for civil separation) or perpetual one (thereby requiring ruthless force to maintain) has been precedentially settled through violence.  We are taught in our schools that the ruthless and forcible preservation of that union is righteous and well within the powers of the federal government.  And the vast majority of Americans, left and right, simply accept all of this as fact.

Couple with this the fact that states wishing to secede would necessarily be deficient in federal power, and we should have every reason to believe that the powerful federal government would see any effort by a subordinate state to leave the United States as an act of rebellion.

I maintain that secession and civil war don’t appear to be on the immediate horizon, given that the balance of power in government is such that neither side is hopeless to express its own regional autonomy, to some extent, or to exercise representative power at the federal level.  But the simple fact is that any talk of a civil or amicable national divorce is nothing but a fantasy -- and not a very helpful one, at that. 

Graphic credit: Curved Bracket CC BY-SA 4.0 license

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