Three Arguments of ‘Right to Secession’ in the Civil War: International Perspectives

46 Pages Posted: 21 Feb 2018

See all articles by Han Liu

Han Liu

Tsinghua University - School of Law

Date Written: February 10, 2017

Abstract

Secession becomes a source of controversies again both within and outside the United States. In both political discourse and public imagination, the image of secession of the South in the mid- Nineteenth century, as well as the Civil War it triggered, occupies an important position. Conducted in blood, the end of the Civil War is usually thought to establish a constitutional rule that no state shall secede from the Union. Challenging the conventional understanding, recent legal scholarship has shown that the legality/constitutionality of secession did not receive a definitive, legal answer at Appomattox. But the question remains: Why so? Explaining the puzzle, this article traces out the debate over the “rights of secession” before and during the Civil War, putting it into contemporaneous international horizons. It argues that, the Civil War cannot resolve the legality of secession because Southern secessionism actually resorted to not only legal/constitutional arguments, but also revolutionary and nationalistic justifications, both of which were extralegal. The dispute eventually went to a violent solution, because secessionists, with these arguments, had already moved beyond the law. In the contemporaneous legal imagination, secession belongs in the domain of sovereignty that involves war and violence, not the arena of law and the court.

Keywords: Secession, Constitutional Right, Revolution, National Self-Determination, Nationalism, American Civil War, Federalism, Sovereignty

Suggested Citation

Liu, Han, Three Arguments of ‘Right to Secession’ in the Civil War: International Perspectives (February 10, 2017). Hastings International and Comparative Law Review, Vol. 41, No. 1, 2017. Available at SSRN: https://ssrn.com/abstract=3121050

Han Liu (Contact Author)

Tsinghua University - School of Law ( email )

Tsinghua University Law School
1 Qinghuayuan Road
Beijing, Beijing 100084
China

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