Still Fighting the Civil War

Somewhere in my formal education I learned, or thought I did, that the question of whether states can secede from the Union had been settled once and for all by the Civil War. Now living in Texas, I realize that many Texans don't think it's as settled a question as I once thought. Even Texas Governor Rick Perry hinted that secession is not out of the question. At an Austin "Tea Party" in April, Perry said:

"When we came in the Union in 1845, one of the issues was that we would be able to leave if we decided to do that. My hope is that America and Washington in particular pays attention. We’ve got a great union. There’s absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that. But Texas is a very unique place, and we’re a pretty independent lot to boot."

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Does Texas have some special rights as a result of the treaty of annexation between the Republic of Texas and the United States of America. Yes, but secession is not one of them. Texas negotiated the power to divide into four additional states at some point if it wanted to but not the right to secede. Perry is wrong on that front.

But many Southerners don't rely on any special rights Texas folklore claims. They still believe that the secessions that led to the Civil War were legal and the war itself was the illegal action. By the way, these people put the name Civil War in quotes, as they prefer to call it the War Between the States. It's a subtle but significant effort to emphasize the primacy of the States over the Union.

Was there a legal argument and not just military force behind the effort to preserve the Union? That's the question that, if I ever heard posed, I seem to have forgotten the answer to. Recently, I read "What Hath God Wrought: The Transformation of America, 1815-1848" by Daniel Walker Howe. The fundamental question of where sovereignty lies came up repeatedly in those early decades of the Republic, over questions of tariffs, a national bank, internal improvements, territorial expansion, and of course, slavery.

One theory, the one still held fast to by some 21st century Texans, is the theory that the Union is a compact of the states and that sovereignty still lies with the states. The other theory is that ultimate sovereignty lies with the people of the United States, not the states. The Constitution begins, "We the People of the United States," not "We the States" or "We the Peoples of the Several States."

In a landmark 1819 decision of the Supreme Court, McCullough v. Maryland, the Court agreed with this latter view. It held that the Constitution was a compact of the people. It held that the Constitution takes precedence over state sovereignty. It held that "If any one proposition could command the universal assent of mankind, we might expect it would be this - that the government of the Union, though limited in its power, is supreme within its sphere of action."

We know that the Supreme Court ruling didn't settle the matter. Four decades of debate, argument, heated feelings, threats and counter-threats followed, ultimately leading to Civil War. Now, a century and a half later, we know that the Civil War didn't settle the matter either. Governor Perry and the Tea Party protestors have neither the law nor history on their side, but they do have a certain unshakeable loyalty to lost causes.