Paul Finkelman's argument is that even if secession was a constitutional
right, it was not legitimate to invoke it in 1860-61 because he does not
approve of the reasons for its invocation then, which he describes as
disapproval of the outcome of the 1860 election.  My point had not been
that secession was justified in 1860, but that the Virginia Federalists'
explanation of the Constitution was authoritative in regard to its meaning
for Virginia.  I also noted that, as I explain in _The Politically
Incorrect Guide to the Constitution_, Governor Edmund Randolph's promise
that the new government would only have the powers it was "expressly
delegated" echoed the assertions of leading Federalists (Wilson, Cushing,
Pinckney, and Hamilton) in Pennsylvania, Massachusetts, South Carolina, and
New York, and George Nicholas's assurance that secession would be an option
was echoed by his fellow Federalists in New York and Rhode Island.

As to secession in 1860, two points:  1)  Virginia did not secede because
of the outcome of the 1860 election.  Its secession convention considered
the proposal to do that, and refused the proposal.  Virginia's secession
came later, in the wake of unconstitutional acts of the Lincoln
Administration.  2)  It does not matter why the Virginians decided to
secede.  We do not say, "The right to counsel is a good right, but O.J. was
a murderer, so we'll burn his house down if he tries to invoke it" or "The
right to privacy is good, unless you want to invoke it to shield your
medical decisions."  In short, only in regard to the right to secession do
opponents of invocation of the right point to the motives of those who
invoke it in weighing the right's legitimacy.  My analysis is that most
people who find themselves invoking rights do so for unsavory reasons (to
get away with murdering an ex-wife, say, as in O.J.'s case), and that's
what we should expect; after all, it's the political/moral minority that
has to fall back on rights talk.

I have recently been branded a "neo-Confederate" for making this argument
by a prominent Straussian magazine.  This seems to me rather akin to being
branded pro-ex-wife-murder for defending O.J.'s right to counsel.

Kevin Gutzman

I said I would bow out and I will, but I want to make two points.

First, I would like Kevin to show me one place in this discussion where I
suggested that the Constitution of 1787 created an "unlimited" central
government.  Since he has (I assume) read my book Slavery and the Founders,
he knows that I have long argued that the Central Government had no power
to end slavery where it existed, and since slavery was the key issue of the
era, that point alone should suffice to illustrate that I am not arguing
the constitution of 1787 or even the constitution of today created such a
regime.  Again, take a look at my articles on states rights in the
antebellum period and the use of separate and independent state grounds for
civil liberties in the modern period.  Arguing that there is not right to
secession does not lead to the conclusion the central government had
unlimited powers.

To argue secession was illegal does not imply an "unlimited federal
government."  The two are not the same at all.  My point is that there is
nothing to justify secession in 1860.  The South had effectively won every
presidential election by two since 1788.  (the two adams administrations);
the had controlled the Supreme Court for all but a handful of years; and
had also controlled the House and Senate more often than not.  Lincoln won
and suddenly the cry babies wanted to take their football and go home
because they had lost an election. If Losing the election is not grounds
for revolution.  Since the Constitution does not have a clause allowing a
unilateral withdrawal, there is not way to leave short of statute or
amendment.  The South might have gone to the Congress in Dec. 1860 and
asked for a statute allowing the states to leave. Buchanan would surely
have signed such a law and Taney would have upheld it.

Even if someone you can construe the Va. signing statement (that IS what it
is) to allow for withdrawl, there had to be a reason other than "we don't
like the result of the election."  Calling for troops to suppress the
unwarranted firing on a federal fort was emphatically not an attack on Va.
The offer of President Lincoln to put a Virginian in charge of the army (to
replace the Virginian -- Scott -- who was already in charge of the Army)
underscores that even by the standards of the Va. signing statement, Va had
no legal or legitimate reason to pull out.




Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494
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