The Fourteenth Amendment and the Unconstitutionality of Secession

34 Pages Posted: 13 Jun 2011 Last revised: 20 Jul 2012

Daniel A. Farber

University of California, Berkeley - School of Law

Date Written: July 19, 2012

Abstract

If the Civil War killed secession as a practical matter, the Fourteenth Amendment drove a stake through its heart as a constitutional matter. For Nineteenth Century Americans, citizenship involved both the citizen’s allegiance to the sovereign and the sovereign’s duty to protect the citizen’s rights. Lincoln and other Republicans believed that national citizenship was primary, while Southerners viewed state citizenship as the primary basis for allegiance. The first sentence of the Fourteenth Amendment confirms that national citizenship is primary and state citizenship is derivative; the privileges or immunities clause forbids state interference with the relationship between citizens and the federal government; and section 5 confirms congressional power to suppress any such state interference. In short, whatever might have been argued before the Civil War, the Fourteenth Amendment definitively resolved the secession issue.

Keywords: citizenship, Civil War, Fourteenth Amendment, privileges or immunities clause, Reconstruction history

Suggested Citation

Farber, Daniel A., The Fourteenth Amendment and the Unconstitutionality of Secession (July 19, 2012). UC Berkeley Public Law Research Paper No. 1862443. Available at SSRN: https://ssrn.com/abstract=1862443 or http://dx.doi.org/10.2139/ssrn.1862443

Daniel A. Farber (Contact Author)

University of California, Berkeley - School of Law ( email )

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Berkeley, CA 94720-7200
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