With all fifty states offering petitions
to the central government to leave the Union, the legality of secession is now
front page news in the United States. Can a state legally secede from the
Union? Many, including Supreme Court justice Antonin Scalia, suggest no. In a
2006 letter, available here, Scalia argued that a the question was not in the realm of
legal possibility because 1) the United States would not be party to a lawsuit
on the issue 2) the “constitutional” basis of secession had been “resolved by
the Civil War,” and 3) there is no right to secede, as the Pledge of Allegiance
clearly illustrates through the line “one nation, indivisible.”
Scalia is not the first Supreme Court
justice to establish this position. In the case of Texas v. White in 1869, Supreme Court Chief
Justice Salmon P. Chase wrote that, “The union between Texas and the other
states was as complete, as perpetual, and as indissoluble as the union between
the original states. There was no place for reconsideration or revocation,
except through revolution or through consent of the States.” The majority
opinion struck down the Texas Ordinance of Secession, calling it “null,” and
crafted a decision that rendered all acts of secession illegal according to the
“perpetual union” of both the Articles of Confederation and subsequent
Constitution for the United States. Chase did leave an opening, “revolution or
the consent of the States,” but without either, secession could never be
considered a legal act.
The arguments against legal secession
are generally based on both a historical concept of the Union and the language
of the Constitution itself. In the Texas
v. White decision, Chase began his legal challenge to secession
with a historical discussion of the Union. He suggested that the Union predated
the states and grew from a common kindred spirit during the years leading to
the American War for Independence. This “one people” mentality was best
articulated by Supreme Court Justice Joseph Story in his famous Commentaries on the Constitution of the
United States.
Story, who channeled John Marshall and
Alexander Hamilton, reasoned that the Constitution was framed and ratified by
the people at large, not the people of an individual state and thus held the
same legal position of a state itself formed from many counties. “The
constitution of a confederated republic, that is, of a national republic,
formed of several states, is, or at least may be, not less an irrevocable form
of government, than the constitution of a state formed and ratified by the
aggregate of the several counties of the state.” In one sentence, Story reduced
the states to the status of a county, shire, or province, and this general
argument was used as a hammer both during Reconstruction and after against the
sovereignty of the states.
Story additionally concluded, as did
Chase in 1869, that the term “perpetual” found in the Articles of
Confederation, deemed the Union indissoluble. Chase surmised that the
Constitution simply made the Union “more perfect” while Story suggested that
the Constitution superseded the Articles of Confederation but did not change
the permanent and “perpetual” nature of the Union. Story defended his position
with the “Supremacy Clause” found in Article VI, which states that all laws or
treaties made “in pursuance of the Constitution” were the “supreme law of the
land,” and he pointed to the letter sent by the Philadelphia Convention
accompanying the Constitution to the state ratifying conventions that the
Constitution aimed at a “consolidation of the Union.” Hence, to Story and
Chase, the Union continued to exist in an altered—i.e. consolidated—form and
could not be dissolved.
Another argument against secession
centers on the language of Article I, Section 10, which declares that “No state
shall enter into any treaty, alliance, or confederation….” To proponents of
this position, Article I, Section 10 unequivocally shows that the states which
formed the Confederate States of America were in clear violation of the
Constitution, thus invalidating their government and the individual acts of
secession which led to it. Abraham Lincoln indirectly defended this position by
declaring the seceding states were in “rebellion” and therefore still members
of the Union. The Constitution, then, was still legally enforceable in those
states, including Article I, Section 10.
Finally,
some will concede that the original thirteen states may have an argument for
secession due to the Declaration of Independence and Thomas Jefferson’s
language establishing thirteen “free and independent states.” But the other thirty-seven, formed at
least in part through the common territory of the United States, have no claim
to secession. They were not states until Congress granted them statehood and
consequently never constituted a sovereign legal entity, Texas and Hawaii to the contrary (though even Chase suggested that
Texas lost its sovereignty when it joined the Union in 1845).
These arguments seem like a fairly
strong case against secession. Three Supreme Court justices, one famous
president, a bloody war, and the language of a modern pledge of allegiance
offer conclusive proof that secession, while an entertaining philosophical
exercise, has no legal basis. Their various opinions and conclusions, however,
all have gaping holes.
Scalia’s positions are the most vapid.
Secession, as accomplished by the Southern states in 1860 and 1861 and as
discussed by the North at the Hartford Convention in 1815, is an independent
act by the people of the states, and accomplished in the same fashion as the
several conventions that occurred throughout early American history. The United
States would never be a party to a lawsuit on the issue because secession, both
de facto and de jure, is an extra-legal
act of self-determination, and once the States have seceded from the Union, the
Constitution is no longer in force in regard to the seceded political body.
This same rule applies to the Article I, Section 10 argument against secession.
If the Constitution is no longer in force—the States have separated and resumed
their independent status—then the Supreme Court would not have jurisdiction and
therefore could not determine the “legality” of the move.
The Union, then, through a declaration
of war could attempt to force the seceded States to remain, but even if
victorious that would not solve a philosophical issue. War and violence do not
and cannot crush the natural right of self-determination. It can muddle the
picture and force the vanquished into submission so long as the boot is firmly
planted on their collective throats, but a bloody nose and a prostrate people
settles nothing. Oliver Ellsworth of Connecticut said in 1788 that he feared a
“coercion of arms” in relation to a delinquent state. “This Constitution does
not attempt to coerce sovereign bodies, states, in their political capacity. No
coercion is applicable to such bodies, but that of an armed force. If we should
attempt to execute the laws of the Union by sending an armed force against a
delinquent state, it would involve the good and the bad, the innocent and the
guilty, in the same calamity.” Ellsworth recognized, as did the majority of the
founding generation, that force did not destroy sovereignty. It created
artificial supremacy, but sovereignty, the basic tenant of the founding, could
not be surrendered in such a manner. Sovereignty, in fact, cannot be
surrendered at all; it can be delegated, as in the powers granted to the
general government in Article I, but never surrendered.
His “Pledge of Allegiance” analogy is
the most absurd argument of the bunch. The modern pledge was written by Francis
Bellamy, a socialist minister who wanted to indoctrinate American
schoolchildren with a nationalist message, one based on the “great speeches” of
Daniel Webster and Abraham Lincoln in relation to the “One Nation which the
Civil War was fought to prove.” Sprinkle in some “liberty and justice” from the
French Revolution and you have a message that any good leftist nationalist can
embrace. The founding generation would not have said such a pledge, if for no
other reason that most did not view the United States as a “nation” in the
strict sense of the word, a single people.
The other issues involved in the debate
are slightly more complicated, but in several instances come back to Scalia’s
more simplistic analysis. In the Texas
v. White decision, Chase implicitly reasoned that the Union was an
“indissoluble” contract between the “American people” and the federal
government, or in this case the people of Texas and the federal government. All
contracts are intended to be perpetual. But if this were the case, how could
nine States ratify a new Constitution while four States remained part of
another Union in clear violation of the language of the Articles of
Confederation. Changes to the Articles required the consent of all thirteen
States, not nine, and thus the Constitution can be viewed, in part, as an act
of secession.
Moreover, James Madison argued that the
Union was a different type of contract. “We are not to consider the Federal
Union as analogous to the social compact of individuals: for if it were so, a
majority would have a right to bind the rest, and even to form a new
constitution for the whole… .” The Constitution was framed by the unanimous
consent of the States present in convention assembled in Philadelphia, but it
had no teeth until the States, in convention, ratified it. Even at that point,
Madison suggested, the States could not bind the rest into accepting the
document or remaining in the Union. The Constitution does not have a coercive
principle, as Ellsworth called it. An “indissoluble” Union would suggest that
it does.
Waging war “against them (the States)”
is an act of treason, and as per the Constitution, a State can only be
“protected” by the central government on the application of the legislature or
the executive in the case of invasion. Lincoln violated both constitutional
safeguards against coercion by the central government in 1861, of course only
if the states remained in the Union, as he insisted they did. If not, war
required a declaration from Congress, something Lincoln did not have, and by
declaring war, Congress would have recognized the Confederate States as a
legitimate government. Either way, Lincoln violated the Constitution, thus
rendering the “bloody nose” argument against secession void.
The “one people” argument was dissected
by John Taylor of Caroline and Abel P. Upshur in their respective commentaries
on the document. In his New
Views of the Constitution of the United States, Taylor contended
that the continuity between the Articles of Confederation and the Constitution
reinforced the sovereignty of the states, and declared that, “There are many
states in America, but no state of America, nor any people of an American
state. A constitution for America or Americans, would therefore have been
similar to a constitution for Utopia or Utopians.” This view is in sharp
contrast to Chase, who argued that continuity maintained a “perpetual” Union.
Taylor wrote, “This construction bestows the same meaning upon the same words
in our three constituent or elemental instruments, and exhibits the reason why
the whole language of the constitution is affianced to the idea of a league
between sovereign states, and hostile to that of a consolidated nation.”
Upshur was more direct in his defense of
both nullification and secession as a right of the sovereign States. Published
as a direct attack on Story’s polemic, Upshur’s A Brief Enquiry into the True Nature and Character of Our
Federal Government is perhaps the last great commentary of the antebellum
period. Upshur decried the “imaginative construction” of people like Story and
Webster and insisted that consolidation was never the aim of the Constitution.
In defending the right so the States to control the government and “interpose”
their sovereignty to curtail central authority, Upshur said:
The checking and controlling influences
which afford safety to public liberty, are not to be found in the government
itself. The people cannot always protect themselves against their rulers; if
they could, no free government, in past times, would have been overthrown.
Power and patronage cannot easily be so limited and defined, as to rob them of
their corrupting influences over the public mind. It is truly and wisely
remarked by the Federalist, that “a power over a man’s subsistence is a power
over his will.” As little as possible of this power should be entrusted to the
federal government, and even that little should be watched by a power
authorized and competent to arrest its abuses. That power can be found only in
the states. In this consists the great superiority of the federative system
over every other. In that system, the federal government is responsible, not
directly to the people en
masse, but to the people in their character of distinct political corporations.
However easy it may be to steal power from the people, governments do not so
readily yield it to one another. The confederated states confer on their common
government only such power as they themselves cannot separately exercise, or
such as can be better exercised by that government. They have, therefore, an
equal interest, to give it power enough, and to prevent it from assuming too
much. In their hands the power of interposition is attended with no danger; it
may be safely lodged where there is no interest to abuse it.
During the Philadelphia Convention of
1787, Gouverneur Morris of Pennsylvania outlined “the distinction between
a federal and a national supreme government; the former being a mere compact
resting on the good faith of the parties, the latter having a complete and
compulsive operation.” If the Constitution established a federal government,
and it did, then the Constitution did not have a “compulsive operation.” In
essence, the people of the states in convention could either interpose their
sovereignty to arrest the acts of the general government or withdraw from the
Union. Morris, a nationalist, recognized that the states still held sway when
he suggested that the Constitution be voted on by state and that the states,
not a consolidated people, had to ratify the document. The Constitution as
ratified in 1787 and 1788 is “a mere compact resting on the good faith of the
parties.” That compact can be unilaterally broken at any point by the same
people of the States which ratified it.
Neither the Framers nor the ratifiers
believed that the Constitution created a “consolidated nation” as Story
suggested. It was argued in all state ratifying conventions that the opposite
was true. The Union was made “more perfect” but never consolidated. The States
still had all powers not delegated to the general government, as the Tenth
Amendment to the Constitution clearly illustrates, and every State proposed a
“Tenth Amendment” in their suggested bill of rights in the months after
ratification. John C. Calhoun wrote that, “I maintain that sovereignty is in
its nature indivisible. It is the supreme power in a state, and we might just
as well speak of half a square, or half a triangle, as of half a sovereignty.”
In other words, delegated powers were still retained by the people of the
States at large for their exercise if they chose to rescind that
delegation. Sovereignty can never be divided or surrendered in part. If
the states had it in 1776 as Jefferson wrote, then they maintain that sovereignty
to this day and thus can exercise that sovereignty through an act of
interposition or withdraw.
As for those who suggest that a state
carved from the common property of the United States does not have the same
sovereignty as the original thirteen states, Jefferson made clear in his
Northwest Ordinance of 1787 that new states would enter the Union on “equal
footing” with the existing states, meaning that they had the same rights,
privileges, and immunities as the original thirteen, including the right of
interposition and withdrawal. Jefferson himself authored the Kentucky
Resolutions of 1798, a clear indication that he believed as much. Kentucky was
not one of the original states, but the people of Kentucky had the same right
of recourse that the people of Virginia had in opposing the unconstitutional
Sedition Act of 1798. If the argument against this position is correct, then
the original thirteen states, themselves pared from the territory of Great
Britain, would be illegal and illegitimate. That is not the case.
Secession and
interposition—nullification—are healthy discussions to have in a federal
republic. There mere threat can, and has, spurred the central government to
reform. The American people are not ready for secession. The states, the
economy, and the people are too dependent on the central authority. If nothing
else, Hamiltonianism has accomplished slavish loyalty to the system. Yet,
perhaps following the lead of John Dickinson of Delaware would be appropriate
at this critical juncture in American history. Americans as a whole
recognize that the debt is excessive, America is virtually bankrupt, and the
central authority is out of control. Secession is a manifestation of the fear
that the situation will not improve. Perhaps that is the case, but Dickinson faced
the same situation in the 1770s.
Often called the “Penman of the
Revolution” for his famous Letters
from a Farmer in Pennsylvania, Dickinson understood that a final
break with the crown may occur, but he urged his fellow colonists to be
cautious and explored every avenue for a peaceful resolution to the
difficulties facing the colonies through 1775 and argued against separation in
1776. His was a conservative constitutional defense of the “ancient
constitutions” of Great Britain. He recognized that Great Britain had the
authority to regulate trade, but insisted that local issues be directly handled
by the colonies, including the right of taxation. During the Philadelphia
Convention of 1787, he argued against nationalist innovations that would
destroy the traditional relationship between local and central authority so
long forged in America. Alterations could and should be made, but the federal
union had to be maintained.
The energy being placed in the secession
petition movement would be more productively utilized in calling for
conventions to amend the Constitution. Perhaps limiting the president to one
term, as the Hartford Convention proposed in 1815, requiring a two-thirds
majority to borrow money, or creating a committee of states to act as a final check
on the constitutionality of federal measures could be beneficial alterations to
the Constitution. The founding generation would certainly agree that changes
could and should be made through the amendment process. They did so twelve
times, including the Bill of Rights. All constitutional methods should be
exhausted before the American principle of self-determination is invoked, but
if conventions are called, and they must be at this point, all options should
be on the table. That would be the Dickinsonian solution to the problem.
“Experience,” he said in 1787, “must be our only guide. Reason may mislead us.”
Brion McClanahan is the author of The Politically Incorrect Guide to the
Founding Fathers
and The Founding Fathers Guide to the
Constitution.
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