The Constitution is silent on the matter of secession -- neither denying nor authorizing -- and up until the Civil War, the silence was the object of tortured interpretation. It was axiomatic among many antebellum constitutional scholars, both North and South, that if the states were once sovereign entities that had acceded to joining the union, then they implicitly retained the right to rescind the treaty and withdraw. In essence, it was argued, the Constitution's silence implied consent to the right of secession.

The 10th Amendment appears to back this argument. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States," the amendment reads, "are reserved to the States respectively, or to the people." In other words, states are delegated powers, not sovereignty. Sovereignty remained with the people of the state.

Antebellum thinking was typified by Alexis de Tocqueville's assessment in "Democracy in America." "In uniting together, [the states] have not forfeited their nationality; nor have they been reduced to the condition of one and the same people," Tocqueville observed in 1835. "If one of the states choose to withdraw from the compact, it would be difficult to disprove its right of doing so, and the Federal Government would have no means of maintaining its claims directly by force or right."

Secession was taught at West Point to young cadets like Robert E. Lee and U.S. Grant. Petulant states in the formative years of the republic habitually threatened it, with Yankees, and abolitionists especially, showing an early fondness for cutting loose from a union that increasingly catered to Southern slaveholder interests. In 1804, lawmakers in New England and New York plotted a failed secession movement, and eight years later, during the War of 1812, the threat to New England's trade with English Canada was enough to prompt a second and wider Northeastern cry for departure, resulting in the official complaint of the Hartford Convention of 1815.

So it was that on the eve of the Civil War, in the spring of 1861, secession as a basic American principle inspired dozens of Northern newspapers to editorialize on behalf of the Southern independence movement. New York City's newsmen were particularly noisy in their support. "If the cotton States decide they can do better out of the Union," said the New York Tribune, organ of abolitionist publisher Horace Greeley, "we insist on letting them go in peace. The right to secede may be a revolutionary right, but it exists nevertheless." The New York Herald offered: "Each State is organized as a complete government, possessing the right to break the tie of the Confederation. Coercion, if it were possible, is out of the question." The day after Jefferson Davis was inaugurated president of the Confederate States of America, the Detroit Free Press warned: "An attempt to subjugate the seceded States, even if successful, could produce nothing but evil -- evil unmitigated in character, and appalling in extent."

The counterpoint -- however unpopular in the press and on the street -- had the benefit of being espoused rather eloquently by the newly elected president. In his 1861 inaugural address, Abraham Lincoln distilled the anti-secession argument to its essence. He claimed that no American state had the right to secede because (among other reasons) "no government proper, ever had a provision in its organic law for its own termination." Somewhere out there, beyond the letter of the law, Lincoln said, the "organic law" of the government provides for the "Union" as an infinite entity, "indestructible" and "perpetual."

In fact, a "perpetual union" established in 1781 under the Articles of Confederation, grandfather to the Constitution, was indeed rendered, in the words of the Constitution's preamble, "more perfect" in the abiding document that was ratified by nine of the 13 states in 1791. "Perpetual union" was dropped from the Constitution's final language because the sovereign states refused to accept the concept -- in the written contract, anyway -- of an indissoluble bond under the new government. But the real significance of "more perfect union" is hardly clear: What exactly did the founders mean by "perfection"?

"How do we know," asks Columbia law professor Michael Dorf, writing in FindLaw, "that the 'perfection' of the Union required stronger rather than weaker bonds?" "A 'more perfect Union' between states presumably means they will be more perfectly joined," says Daniel Farber, a professor of law at the University of California at Berkeley and the author of "Lincoln's Constitution." However, Farber admits that the question of the legality of secession of 1861 is likely unanswerable, again, because of the silence of the founding document. "My conclusion is that, on balance, the anti-secessionist argument is stronger," he says. "But since the original Constitution doesn't expressly speak to the subject, it's impossible to prove this conclusion beyond a reasonable doubt."

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