23 January 2006 by Published in: General News 23 comments

One thing I’ve learned after ten years of very active participation in on-line Civil War discussion groups is that there are a few topics that never, ever lead to anything good, and which should be avoided at all costs. The primary one, of course, is the question of whether the secession of the Southern states in 1861 was illegal. Normally, I avoid that one like the plague, but yesterday, I made the mistake of jumping into that discussion in one of the e-mail groups to which I belong. Big mistake. I used some purely legal analysis to rebut the argument that just because the Constitution does not specifically address the topic does not make it legal.

Today, the following neo-Confederate hooey was posted in response:

“Eric, there is no law against secession; therefore you are going to prosecute the perpetrators? For what crime are you going to prosecute them? If you are indeed a lawyer, then you should know that your saying an action is wrong does not make it so. Many legal minds of the day, both before and after the Civil War stated there was NO LAW against secession. There is none. The writers of the Constitution did not consider the fact. Nobody stood over any of the 13 Colonies with a club and told them they had to agree to accept the Constitution. They were not forced to agree to accept it and they could reject it at any time. It is not ‘Confederate hoey’, thank you very much. It is history. In the end, states really do have rights.

You know, it was people in the role of leadership who thought they could make up their own rules as they went along that led to the Civil War to start with. Do any of you know any facts about the causes and the effects of the American Civil War or are you just talking?”

It bears noting that the author of this wonderful little neo-Confederate rant misquoted me. Nowhere did I write “Confederate hoey.” What I very specifically wrote was “neo-Confederate hooey.” Obviously, there is a significant difference.

Now, it’s my fault for violating my own rule and engaging in this discussion. I accept responsiblity for that bad decision on my part. So, to the extent that I did something stupid by engaging in this discussion, I guess I deserved a response, and perhaps even a neo-Confederate rant in response. However, there are few things that irritate me more than neo-Confederate hooey. These neo-Confederates have an agenda–the Lost Cause, at all costs, including disregard of the historic truth–and have no qualms about letting the truth get in the way of accomplishing that agenda.

I responded the only way I know how, in an equally insulting and snotty way that was intended to remind this person that she doesn’t know as much as she thinks she does:

“I choose not to waste my valuable time arguing subtle nuances of the law with someone who is not a lawyer and has neither the professional training nor experience to do so. I have a busy practice to worry about, a publishing company to run, and a book manuscript to complete. I have no time to waste in engaging in fruitless and eminently frustrating exercises that accomplish nothing but pissing me off.

I likewise choose not to waste my extremely valuable and all too rare free time engaging in an endless debate with you over this issue.

You have your opinion. I have mine. Leave it at that. And yes, if it was up to me, the leaders of the illegal secession movement, most prominently Jefferson Davis, would have been prosecuted for treason.

And, to answer your very insulting question about whether I know anything about the causes of the Civil War, you should be aware that I have spent more than 35 years of my nearly 45 years on this planet engaged in the intensive study of the American Civil War. After a two year break, my eleventh book on the subject is about to go to the printer, with another one due out at the end of June. My books have won awards. My record of Civil War scholarship speaks for itself, and I will not allow you, or any other neo-Confederate espouser of the Lost Cause, to insult me simply because you don’t agree with me. When the duration and intensity of your study, and your record of accomplishment in the field approximates mine, then you will have the privilege of insulting my professional work. Until then, I invite you to keep your opinions to yourself.

As a closing note, Trish is absolutely correct about Texas v. White.

You need not bother responding, unless you really feel the need to, as I will not respond to anything further posted by you about this topic.”

I signed the e-mail with my professional signature–the law firm’s full name, address, etc., that shows my name as a named partner. Now, I fully realize that this was really snotty and probably made me sound like a bit of a pompous ass, but I wanted this neo-Confederate to understand that her little games were not going to work with me, and that I’m not going to be intimidated by these sorts of arguments. It remains to be seen whether this will put this to rest for now, but I continue to fight the neo-Confederate wars every day of my adult life. It will flare up again. Of that, I have no doubt.

It’s kind of like the Bush White House–never let the truth get in the way of a good story or a good justification for doing something that it was going to do no matter what anyway.

In any event, I digress.

My point is that there are few things for which I have less patience and which irritate me more than people who are bound and determined to push their agendas and the truth be damned. I have made the correction and baiting of these people one of my life’s goals, and I usually wait until I know that I have a good point to make that I can support to pounce, and when I do, it’s swiftly and it’s aggressively. I despise these neo-Confederates who wouldn’t see the truth if they tripped over it, and I will continue to do this sort of thing whenever the opportunity presents itself.

Scridb filter


  1. Dave Kelly
    Mon 23rd Jan 2006 at 8:00 pm

    Even bringing this topic into your blog invites the vampire to enter the house….

    I know the feeling. The desire to wrap myself in the flag and smite the traitor to Applepieism is strong when you run into some die hard southron or libertarian who wants to scream at you that we should return to our True Republican Roots and assasinate Ceasar for the good of the people.

    The problem, I think, is that states rights and secession are truly part of the revolutionary intellectual babble of english whiggery that is retained in our schizophrenic political philosophy. The colonial states maintained staunchly their 175 year sense of sovereignty and submitted to unified nationalism with reservations. While most Americans understood that we had fundamentally accepted a nation-state status with the final Constitution, many of the instruments of government reflected a tension of rules in the way they ceded authority. The example I am most sensitive to was the absence of a real national army until after the War of 1812. The States managed militia was the backbone of Defense until this decentralized management of force failed to win the objectives of that war.

    I usually wind up calling neo-confederates ‘provincials ‘. The assignation causes great distress. But narrow-minded sectionalism and retention of rights at any cost is the luxury of a very myopic world view. Slavery was a political disease that needed reform. The slaveholding states secession was foolhardy; a slap in the face to those founders who saw them selves as building the American Empire (I use that term with amusement – the US Senate used it in their farewell message to George Washington.)

    We adore our snotty nosed kid past, and the sublime virtue of pouting and getting what we want no matter how distracting it is to the household. The indiscretion of secession was a tragedy. But we are loath to kill our kids when they transgress. We neither wished or could afford to have the southern states stand in a corner for 150 years for their act against national interest. Folks who insist that the South was right are minimalists failing to see the strategic scope of their affectation. They have a constitutional right to be silly – until they start making bombs. Then I put my uniform back on and start whistling “marching thru Georgia”.

  2. Mon 23rd Jan 2006 at 8:05 pm

    That was some response Eric. Your right that the mistake was getting involved in the first place, but once you do you can’t get out without engaging in at least one response. Now don’t you feel better that you got it all out?

  3. Mon 23rd Jan 2006 at 8:10 pm


    LOL. Well said. I like the idea of calling them provincials–that seems very appropriate to me.

    And your statements accurately reflect precisely how I feel about this particular issue.


  4. Mon 23rd Jan 2006 at 8:12 pm


    LOL. That WAS a good rant, wasn’t it? 🙂

    And yes, it feels much better. 🙂


  5. Paul Taylor
    Mon 23rd Jan 2006 at 10:29 pm


    Have you ever read “When in the Course of Human Events?” I’ve only thumbed through it, but would like to know your opinion if you have read it.


  6. Mon 23rd Jan 2006 at 10:46 pm


    No, can’t say that I have. Sorry.

    Honestly, I wasn’t even aweare of it until I just looked it up in response to your comment. It sounds interesting, though.


  7. Stephen Graham
    Tue 24th Jan 2006 at 1:43 am

    It’s so rare that Booklist comes out and pointedly denounces a book.

  8. Barry Summers
    Tue 24th Jan 2006 at 10:58 am

    I an’t a lawery and I don’t want to play one on tv but I think our history is about if it sucks get out. I.E Dec of Inp it sucks being under the King. Articles of Conf they suck lets get out.

    We the People in order to form a more perfect union…. The South says this an’t perfect no more lets get out. In hindsight it was dumb to leave but was it legal…heck if I know.

    I like what Pickett said in the “Novel” Killer Angels It is like we formed a club and now we want to leave and you want to force us to stay. Again dumb to leave but was it legal.

    I like the Vampire a-now-a-gee. Now days it does not take much to bring them out. Sherman was a great general…get your cross out. All Grant knew was attack staight ahead… Jackson’s horse was named Elise…Forrest did so walk arcoss the TN river… Any thing will bring them out.

    Barry Summers
    SOB, Some of my best friends are provincials, I married a Yankee, and I vote for GW 2 times. I love America.

  9. Tue 24th Jan 2006 at 12:50 pm


    Thanks for the good laugh; I needed it.

    And I won’t hold your voting for GWB twice against you. 🙂


  10. Cash
    Tue 24th Jan 2006 at 7:36 pm


    My condolences. As you know, I regularly engage these folks on the subject of secession and why it was an unconstitutional act. Usually they never learn, even when you point to James Madison himself saying the Constitution didn’t allow secession or when you point to a US Supreme Court ruling that secession was unconstitutional. I’ve only found one person who had the intellectual integrity to actually admit he was wrong about it. Go figure.

    Well anyway, I enjoyed reading your response. If you heard a “YEAH!” coming from way west of you, it was me. 🙂


  11. Trish Winston
    Tue 24th Jan 2006 at 7:55 pm

    I thought your response was spot on. It is frustrating to read neo-confederate screed. The choice seems to be to let them post unchallenged or tilt at windmills.

    It is a shame that these folks get through our educational system.


  12. Lanny Thomas Tanton
    Tue 24th Jan 2006 at 10:46 pm

    Dear Eric,

    I sympathize with your sentiments. As a born Yankee now living (proudly) in Texas, I sometimes have to talk carefully around my dear friends who appear to be under the illusion that the Confederacy was justified and will, miraculously, some day rise again. Well, as one preacher I heard, speaking on a different issue, put it: “A dog can whip a skunk any day of the week, but it just isn’t worth it.” Perhaps another quotation is relevant here, too–by Lincoln: “Once a dog quits biting me, I leave him alone.” Some issues are rooted more in the psychological than logical.

  13. Andy
    Tue 24th Jan 2006 at 11:40 pm

    Eric, all I can say is wow….after reading that reply it reminds me why I never win any of the debates with my wife who just happens to have a JD after her name as well. Good work.


  14. Wed 25th Jan 2006 at 12:27 am

    Cash, Trish, Lanny, and Andy,

    Thanks very much for your feedback. It, of course, goes without saying that I agree with all of you. Trish, you’ve been right in the middle of that particular skirmish, and I’ve very much appreciated your support throughout the process.

    As I said, I pick and choose my moments carefully, but when I do decide to pitch in, it’s usually with everything I’ve got. This was clearly one of those instances.


  15. Wed 25th Jan 2006 at 1:30 am

    Dear Mr. Wittenberg: I feel awful about raising this point, as I share your feelings about Neo-Confederates. But there is something worth discussing in the political writings of John C. Calhoun, principally his theory of concurrent majorities. In his “Disquisition on Government” (published posthumously in 1851) he laid out this theory, intended as a means to prevent majorities from abusing minorities, by vesting something like a veto in the latter. As interpreted by his successors, it did provide a serious intellectual–although not legal–basis for secession. Historian Jon Roland points out that today, while Calhoun’s racism can be dismissed without much thought, “his discussion of the problem of protecting the rights of a minority against a persistent majority, and how the problem might be solved constitutionally, is relevant today as special interests combine to exceed the constitutional limits on powers originally intended by the Founders, and in seeking benefits for themselves, operate to infringe the rights of others.”

    I note this because Calhoun’s writings have always struck me as a bit underrated. He graduated from Yale, and served in Congress in 1810 and was James Monroe’s Secretary of State. I mention these things because his early career intersected with a few of the Framers (with whom he had contact) as well as giants such as John Marshall. Calhoun was an active constitutionalist–and a serious thinker whose writings, while they ultimately helped advise those leading the rebellion, still resonate on several levels.

    Love your provocative posts! Sexy!

  16. Wed 25th Jan 2006 at 9:20 am


    Thanks for writing.

    Your post is the sort of thoughtful and well-reasoned discourse that I appreciate a great deal, because it demonstrates that you’ve not only studied the topic, you’ve also reasoned this stuff out.

    I agree with you, by the way. Calhoun was a great man, but his South Carolina roots obviously make him a major figure in secession lore.


  17. Cena
    Thu 26th Jan 2006 at 9:46 am

    An interesting take on Calhoun’s concurrent majority can be found in:

    Safford, John L. “John C. Calhoun, Lani Guinier, and Minority Rights.” PS: Political Science and Politics, Vol. 28, No. 2 (Jun., 1995), 211-216.

    Lani Guinier was (is) a black Jewish woman briefly proposed by President Bill Clinton as a nominee for the U.S. Supreme Court. Guinier was an advocate of allowing minorities specifically affected by a given piece of legislation the right to veto (nullify) that legislation; in effect, she was a proponent of the ideas of John C. Calhoun.

    Calhoun, in formulating his ideas about nullification (of which secession is an outgrowth), was basing them on the sentiment expressed here (among others):

    “..the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who adminster the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy..”

    That’s from the Kentucky Resolutions of 1798, written by none other than Thomas Jefferson. While I am not an advocate of secession, then or now, I think the argument about it (in general, not this particular one) frequently ignores/forgets that the division between Jeffersonian/Hamiltonian ideas about the nature and relationship of the federal government to the states had not been resolved by the 1830s (Calhoun’s first Ordinance of Secession), nor by 1861.

    Dave Kelly’s first paragraph was right on…the issue of states’ rights was real and not an abstraction. In fact, we still argue about it today (see Roe v. Wade, gay marriage, etc.) The ‘neo-Confederate’ you quote also has a point in saying that (paraphrasing) ‘secession wasn’t against the law (i.e., addressed in the Constitution) then or now.’ Although you didn’t address this point, it’s a valid one, and I think it’s part of the reason that the argument continues in 2006.

  18. Tue 31st Jan 2006 at 8:31 am

    More fun “hooey” can be found at The Civil War Cavalry forum in the ‘Forest’s Escort’ thread.


    …and there’s pictures too. 😉

  19. Tue 31st Jan 2006 at 9:38 am


    Thanks for passing that along–I checked it out. Too funny.


  20. DK
    Thu 21st Jan 2010 at 5:39 am

    Legality in a revolution is pretty much irrelevant.
    All revolutions are illegal but they are also all legal. It was illegal for the United States to declare themselves a constitutional republic against the British – so if you really want to go down the rigid logic then you should also state that all US generals of the united states military officers should also be put to death for treason on behalf of the British government as well.
    Basically all constitutions are fundamentally irrelevant. They work to keep solidarity when citizens are getting along, but when social cohesion breaks down the only real power is within the people to destroy and create the documents you obsess over.
    You don’t have to be a lawyer to understand that, just read a history book.

  21. Constitutionaliat
    Mon 12th Jul 2010 at 3:35 pm

    LOL. I have to chuckle at people like Eric who miss the question every time. You see, the question is not whether the South was RIGHT to secede. The question is: IS SECESSION LEGAL? Is there anything in the Constitution which states that a state may leave the others if the people of said state decide to do so.

    From the 1861 example: Why did the United States government take so long to consider armed invasion of the Southern states? If secession had been illegal, why didn’t the government just send in the troops right away? Why allow these so-called ‘Rebel’ states to form their own government, complete with a President, a Congress, its own Constitution? Had the United States acted immediately, I might be more inclined to buy into your neo-Unionist hooey (touche’).

    BUT: Let us take the example to the modern day, and something that most of us can get a fair grip on since we see it in our newspapers and on our TV sets.

    Drug cartels have obviously invaded the state of Arizona. They have set up sniper posts in the mountains. They have threatened, and in some cases carried out those threats, against AZ law enforcement officers. The Federal government (whose job it is to repel invasions) hasn’t done jack-shit to stop the invasion, so AZ has enacted a law to deal with the problem. In typical liberal-idiot fashion, the Obama syndicate (ooops, I mean adminstration) turns around and sues AZ for defending itself in the only way it can. Furthermore, it allows the government of the country from which the cartels come to file an Amicus Curae (Friend of the Court) brief whining about the treatment of its citizens WHO ARE IN ARIZONA ILLEGALLY IN THE FIRST PLACE! Now, if Governor Brewer were to call the legislature into special session and call for an ordinance of secession to take AZ out of the Union because the USG has failed to do its job to protect the people of AZ from invasion, IS SHE JUSTIFIED? I say HELL YES.

    What say you?

  22. Mon 19th Jul 2010 at 3:57 pm

    What say I? I say that you’re a gutless coward who won’t sign his neo-Confederate bullshit with a real name, which means that you are entirely irrelevant.

    And that’s the bottom line. One of the beautiful things about owning this site is that I get to decide who is allowed to post here, and you’re no longer allowed.

    Goodbye, neo-Confederate coward.

  23. Ben
    Sat 09th Nov 2013 at 12:37 pm

    hey Barry,
    You said that Jackson’s horse was named Elise.
    I am curious which Jackson this is.

    thank you for the information

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