James Buchanan was a lonely man. By December of 1860, the nation regarded the 15th President of the United States as a hapless failure. The consensus was simple and unflinching. James Buchanan could not fill the office of the President. Buchanan wisely cast himself aside for the 1860 general election, acknowledging grave intra-party dissatisfaction. Two sectional Democratic candidates arose in his wake: the northern-backed, rip-roaring Senator Stephen Douglas of Illinois, and the southern-backed, evasive Senator John Breckinridge of Kentucky. The party’s geographic divisions cleared the way for Senator Abraham Lincoln’s victory on the back of the fledgling Republican Party, which campaigned on halting the expansion of slavery. Shadowed by today’s canonization of Lincoln, the 16th President’s actual 1860 platform and slavery policies were suspiciously murky.
Regardless, a damning political sentence awaited Buchanan: his party abandoned him, and as South Carolina prepared to break its bond with the Union, so fractured Buchanan’s cabinet and the nation. With Lincoln’s protracted arrival in Washington awaiting his March 1861 inauguration, James Buchanan, confronted the lamest of lame duck presidencies. Secretary of State Lewis Cass resigned in outrage over Buchanan’s inaction toward the nascent Confederacy, as did the Secretary of the Treasury, Howell Cobb. They lampooned the President for his refusal to mobilize the federal military and quell the eminent Southern Rebellion.
Yet, the question of legal secession was still unsolved. Whether the President retained constitutional authority to forcibly maintain the Union and override the states was ambiguous. And as was rare for him, Buchanan finally took a firm stance on his presidential authority.
In an address to Congress on December 10, 1860, James Buchanan lamented the Union’s imminent collapse. He then added this:
“It is beyond the power of any president, no matter what his own political proclivities may be, to restore peace and harmony among the states. Wisely limited and restrained as is his power under our Constitution and laws, he alone can accomplish but little for good or for evil on such a momentous question.”
In Buchanan’s defense, there was not yet war in the United States, and the Constitution provided no recourse for a President to forcibly maintain the nation. Once South Carolina attacked Fort Sumter, the act of secession transformed into treason, and military action was constitutionally viable. Yet if a modern-day state (or group of states) declares independence through democratic, bloodless methods, there is no explicit mechanism in the Constitution for the United States to forcibly retain that state. Any military action the United States then takes could be interpreted as illegal. And perhaps, as the nation’s individual states grow apart, secession should not be rejected as a policy decision. But one opinion from Chief Justice Salmon P. Chase, a Lincoln appointee, jeopardizes this argument.
The Conquests of Chief Justice Salmon P. Chase
The current and long unquestioned stance on the legality of secession is entirely founded in the 1869 Supreme Court decision, Texas v. White. In Texas v. White, the plaintiffs (the Reconstruction-era Texas state legislature) sued the then-Confederate Texas Legislature, alleging that they illegally sold bonds issued by the United States, arguing that this legislature was wholly illegitimate. Chief Justice Salmon P. Chase, a Radical Republican and former Ohio Senator, wrote for the majority and ruled in favor of the Reconstruction Government. The decision itself was rather mundane—the Confederate government of Texas was null and void; it illegally sold Treasury bonds and the current Reconstruction government remained the owner of said bonds. Then, Chief Justice Chase controversially declared that the State of Texas never ceased to be an American State—despite its act of war against the United States. Chief Justice Chase took another extraordinary step by declaring:
“…When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”
In his opinion, the Ohioan reimagines the Constitution. Dissenting Justice Grier noted the absurdity, lambasting Chase’s decision and dismissing Texas’s argument as a “plea of insanity.” The Constitution excludes the words ‘perpetual’, ‘indissoluble’, and even ‘final’. Nevertheless, Chase embedded these certainties into his written opinion. Chief Justice Chase’s rationalization for this language? The Articles of Confederation, which were all but repealed by the Constitutional Convention. The only applicable text from the Articles regards the governance of territories and, importantly, guidelines for admission of new states to the Union. This text, maintained from the Articles, lies in Article IV, Section 3, Clause 1 of the Constitution, which reads:
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
Article IV creates a clear, Congress-controlled process for admission. Interestingly, the 1861 admission of West Virginia was on shallow constitutional grounds. The Court which ruled in the fledgling state’s favor in Virginia v. West Virginia (1871)? None other than Chief Justice Chase’s.
But wherein the Constitution is clear on admission, it goes mute on departure. This is where Texas v. White faults. Chief Justice Chase did not rule erroneously, he simply wrote his ideal policy and pretended it was the Constitution.
The Constitution is explicit on secession in its omission of the subject because the Founders did not know how to handle the question. Yet, this omission left the issue up to a fantastical interpretation by the judicial branch—that secession is equivalent to treason and immediately punishable by military occupation. In the Confederacy’s case, secession was treason, as the seditious breakaway state attacked and conspired against the United States over its desire for the expansion of slavery. But if a state democratically declares that the Union has failed in its promise as a Republic, there is no constitutional basis for hawkish recourse from the United States to force a state’s return, other than the deeply flawed Texas v. White decision. Put simply, Texas v. White poses a serious threat to peace in America. The danger may arrive sooner than any American imagines. We must consider how this thread would take shape, and why some states could be justified in weighing secession from the Union.
Secession as A Popular Policy Movement
The events of the past year spotlight the threats confronting democracy in the United States—whether it be the Capitol riots (and the Congressmen who still voted to invalidate the 2020 election), egregious voting restrictions passed by dozens of state legislatures, widespread gerrymandering (the courts continue to permit it in its most egregious forms), or the diverging, polarized political realities that Americans occupy. Despite the federal government resting in Democratic hands, so-called moderates oppose the removal of the antiquated filibuster, quashing Democratic efforts to install effective democracy reform. Even if Senators Sinema and Manchin concede and eliminate the filibuster, the conservative Supreme Court will wring no hands in legislating from the bench and likely overturn key progressive reforms. Given how some Republicans questioned the election’s integrity in 2020, it takes very little imagination to invoke a 2024 scenario where Democrats secure a clear Electoral College victory, only for swing-state legislatures across the country to throw out individual state results with fantastical claims of fraud. A potential Republican-controlled Congress would fail to act or even abet antidemocratic methods. The Supreme Court could either fail to act, or side with the Republican Party. (Justice Breyer naïvely claimed that the court is not a political institution. He’s wrong.) An unelected, losing President would take the Oval Office, and America’s status as a democracy would be null and void. The only remedy would be for Democratic-run states to hold independence referendums, and let the people decide whether this 250-year long project is worth sacrificing.
These states would be in adequate financial standing to secede, and they possess large populations with preexisting, sturdy economic infrastructure. They would be well-positioned for international support. The conservative institutions of the Senate and the judicial branch could no longer stifle progressive policy if these states seceded. Regional and allied blue-state nations would likely slash income inequality and accelerate social mobility, creating more prosperous unions than the one it left. There is little doubt that if these states hold sovereign and individual referendums on secession, and they succeed, these states would be viable in independence. But Salmon P. Chase’s ancient fealty to the Articles of Confederation could imperil these efforts and risk a continent at war.
War, Chaos, or None of the Above?
Chief Justice Chase’s pen is all that the United States would require to justify military action against seceding states. Had he not uttered indissoluble and perpetual, the argument against peaceful and popular secession is limited. But Chase was adamant, and stare decisis would certainly be deployed by a conservative judiciary to validate federal occupation. Chase’s digression that “[t]here was no place for reconsideration or revocation, except through revolution or through consent of the States,” would not suffice as a blue-state defense. Yet the note draws some intrigue. Could blue states negotiate with the states denying them victory and ask for a bilateral disunion? Perhaps, but Republican-controlled governments may balk at their weakened financial prospects (blue states provide them with quite a bit of aid) and the cold shoulder awaiting them from key players in the global economy.
The regrettable reality is that war or forceful occupation would likely await this dissolving nation. How the military would react is uncertain. The chances of a “soft coup,” where the fairly-elected Democratic victor takes power via military support despite subversive Republican acts are not null. But that is an irrefutable sign of an irreparable government and country. Americans may confront a shattering nation in a few years, and a 150-year-old Supreme Court opinion could propel America into its second civil war.