The 14th Amendment – or, when is a State not a State? ... with reflections on secession
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws...
(Section 1: full text is found here.)
As a review of the full text makes clear, the 14th Amendment was intended to a) penalize the States which had seceded in 1861 and defended that decision by force of arms for the next four years, and b) make it clear that any further acts of secession would not be tolerated, either. But as a friend of mine accurately points out:
Before the 14th was "passed," the South was under martial law (itself unconstitutional). Southern states were told to "pass" this amendment if they wanted to rejoin the union.
A. If the South was not part of the union, how could it vote on a federal issue??
B. If it was part of the union, then there was no need for the jackboot methods used to control the South or martial law or provisions to become a federal state by "passing" an amendment.
C. The feds are just as sneaky today.
This is a very good point. If the states of the (surrendered) Confederacy were not in fact considered States of the Federal Union (*), how then could they vote on an amendment to the Federal Constitution? They would have no legal standing to do so. And if they were, why would they need to vote on this in order to "rejoin" the Union, of which they were already a part? You can't have it both ways, logically; yet both ways is exactly how the Union – having crushed the Southern Confederacy in an un-Constitutional (see below) war, now further humiliated them upon its conclusion.
(* Leaving aside the moral issues involved with "We're going to beat the crap out of you for leaving the Union, force you back in, then make you jump through all sorts of hoops and hurdles in order to get back in!" Anyone who thinks that is fair and just has a rather skewed view of fairness and justice, in my opinion.)
With respect to secession itself, another friend comments,
This Virginia's ratification act of the US Constitution, [dated] 9/17/1787, which was accepted by the federal government. Read it carefully. The great Virginian and American generals Robert E. Lee, Stonewall Jackson, and JEB Stuart certainly did. I'll bet your high school history teacher didn't, and I'm very sure your local neighborhood Antifa hooligans haven't either.
We the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the general assembly, and now met in convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, Do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby, remains with them and at their will; and therefore no right, of any denomination, can be cancelled, abridged, restrained or modified by the congress, by the senate or house of representatives acting in any capacity, by the president or any department, or officer of the United States, except in those instances in which power is given by the constitution for those purposes; and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.
With these impressions, with a solemn appeal to the Searcher of Hearts for the purity of our intentions, and under the conviction that whatsoever imperfections may exist in the constitution ought rather to be examined in the mode prescribed therein, than to bring the Union into danger by delay, with a hope of obtaining amendments, previous to the ratification: We the said delegates, in the name and in behalf of the people of Virginia, do by these presents assent to and ratify the constitution recommended on the 17th day of September, one thousand seven hundred and eighty-seven, by the Federal Convention, for the government of the United States; hereby announcing to all those whom it may concern, that the said constitution is binding upon the said people, according to an authentic copy hereto annexed.
It seems pretty clear from the text above that Virginia specifically retained, in its ratification documents, a stipulation that the Commonwealth (of Virginia, often called "the Old Dominion" due to its status as the first English settlement / colony in North America) retained the right to secede from the Federal Union should the latter cease to act in the best interests of the said Commonwealth: "the powers granted under the constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression."
And by implication, not just the Commonwealth, but everyone in the United States: "being derived from the people of the United States, may be resumed by them." It's rather hard to read this in any other way, without a perversion of language, logic, or both! And the fact that this ratification document was in fact accepted by the US Government seems to indicate pretty clearly that the entire document was accepted, including the reservation in favor of secession. Again, as I pointed out above, you can't logically have it both ways; yet both ways is exactly how the Federal government has insisted on having it, since 1861!
Interestingly, the South was not alone in invoking secession; New England nearly seceded over the War of 1812, and there were secessionist rumblings in that region again during the Mexican War and the acquisitions of land in the Southwest that followed. One wonders whether Federal troops would have been sent North rather than South, had history taken a different turn! But at any rate, it is clear that secession as a remedy for out-of-control Federal assumption of power is not and was not unique to the South, and indeed was considered pretty generally to be a valid remedy, prior to 1865.
When is a State not a State? And does might, in fact, make right? These are questions which are as much worth pondering in the 21st century as they were in the 19th.