Liu on Secession and the Civil War

Han Liu, Tsinghua University School of Law, has posted Three Arguments of ‘Right to Secession’ in the Civil War: International Perspectives, which appears in the Hastings International and Comparative Law Review 41 (2017): 53-97:

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.