10 Legal Hist. 187 (2006)
An Indestructible Union... of Indestructible States: The Supreme Court of the United States and Secession

handle is hein.journals/ausleghis10 and id is 191 raw text is: Legal History (2006) Vol 10

'AN INDESTRUCTIBLE UNION ... OF INDESTRUCTIBLE STATES': THE
SUPREME COURT OF THE UNITED STATES AND SECESSION
PETER RADAN *
In November 1860, Abraham Lincoln was elected as President of the United States.
His election sparked the secession of seven southern states prior to his inauguration
on 4 March 1861. Lincoln's call for troops to suppress the rebellion of these states
prompted four more southern states to secede in April and May of 1861.1 Why these
eleven states seceded has been a much debated issue in American history ever
since. Undoubtedly the issue of slavery lies at the heart of the matter. Lincoln's
election raised fears in the South that, sooner or later, the economy and way of life
that was underpinned by 'the peculiar institution' risked being dismantled if the
southern slave states remained part of the United States. Whatever the causes of the
American Civil War may have been, the fact remains that the eleven seceding states
claimed that they had a right to secede, whilst Lincoln's administration believed
that no such right existed and further, that it was its duty to preserve the Union by
all means necessary, including the use of force.2
On 15 April 1869, in the case of Texas v White,3 the Supreme Court of the United
States, in a majority decision, declared that the United States was 'an indestructible
Union, composed of indestructible States' .' The majority opinion, written by Chase
BA, LLB, PhD (Syd), Associate Professor in Law, Centre for Comparative Law, History &
Governance, Macquarie University. The author thanks Professors Paul Kens and Mark
Brandon and an anonymous reviewer for their valuable comments and suggestions on an
earlier draft of this article.
For an account of the secession conventions in the eleven states that seceded and the four
states that voted not to secede, see Ralph A Wooster, The Secession Conventions of the South
(1962).
2      In this respect the Lincoln administration differed from that of its predecessor in that President
James Buchanan took the view that, although the secession of southern states was illegal and
unconstitutional, the federal government had no power to use force to prevent these states
from leaving the Union: James Buchanan, 'Fourth Annual Message', 3 December 1860, in
John Bassett Moore (ed), The Works of James Buchanan, Volume X, 1860-1868 (1960) 7, 10-
19.
3      Texas v White, 74 US 700 (1869).
4      Ibid 725. The decision in Texas v White was preceded by Chase CJ's circuit duty decision in
1867, in which he ruled that North Carolina's secession declaration and ordinance 'did not
effect, even for a moment, the separation of North Carolina from the Union': Shortridge v
Macon, 22 F Cas 20, 21 (1867).

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