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DO STATES HAVE THE RIGHT TO SECEDE AFTER ALL?
by Jim Delaney, blogging at Opinerlog
(Jul. 23, 2011) — No nation is immutable; historically, nations evolve and devolve. And there’s no historical precedent which would uphold the assertion that America will be an exception to this rule.
And though our Founders had hoped their carefully crafted Constitution which created a confederated republic would remain intact in perpetuity, none deluded themselves into believing that, for better or for worse, the inherent depravity and fallibility of man wouldn’t inevitably, and likely irretrievably, alter both the nature and structure of American society and government. Thus, from a historical perspective, the reconstruction of our society and its model of governance is likely inescapable.
Today, there is a degenerative ideological struggle for the very soul of our nation, both political and cultural. The increasingly acrimonious contention between big government (centralization of authority) and small government (decentralization of authority) proponents has led to a deeply polarized American citizenry along what may be accurately described as statist/socialist and constitutionalist/capitalist lines. In truth, political, economic and cultural indications clearly suggest that this ideological divide is most likely irreconcilable. But, take heart. This in no way preordains a bloody clash of arms for these “united States” to peacefully and satisfactorily readjust to this tectonic ideological divide. Although secession is no longer merely a remote possibility, what shape this readjustment will look like in the end is anyone’s guess.
But, first, let’s very briefly examine the enduring myth that secession is illegal, unconstitutional, treasonous, or otherwise constitutionally prohibited.
Not even Daniel Webster, a particularly ardent nationalist and respected orator, could prove that the Constitution was anything but a compact, aka contract, among the States and with the federal government requiring all parties to that contract to abide by the clearly defined terms of that agreement. As has always been the case, when a party violates the terms of a duly executed contract, that contract is, of course, null and void.
We need but to look to history to understand that even at its inception and early development, liberty-loving Americans have never been of one mind. Just as the thirteen colonies individually abolished their political bands with England, eventually acceding to confederation and, subsequently, to a “more perfect” constitutional federal union, a nationalist would, indeed, be sorely challenged to show that any of the States ever freely, knowingly or contractually surrendered or otherwise delegated their fundamental rights as sovereign entities to an omnipotent, overarching national government. Quite the contrary. Representatives of the original 13 colonies, which had individually agreed to secede from British rule, eventually fashioned a constitutional federal system of governance which painstakingly incorporated the core unifying principle of state co-equality and dual sovereignty in a constitutionally-balanced federal system of governance.
In the Treaty of Paris (1783) which concluded the Revolutionary War, Britain explicitly recognized the independence and sovereignty of each of her 13 former colonies as did the American delegates who signed the treaty. Thus, from the outset, and most certainly during the drafting and ratification of the constitution, state sovereignty and the core principle of co-equality was enshrined with nary a word of protest or disagreement on the part of the framers, ratifiers or from the people themselves.
Since ratification of the Constitution in 1787, North Carolina and Rhode Island being the last States to join the union in 1790, Americans have been buffeted by threats of and movements toward secession in the north, south, east and west–NOT, as revisionists would have us believe, just in the south. State nullification of federal laws and civil disobedience have characterized America’s experiment in constitutional self-government since its inception. Though the War of Secession in 1861-1865, erroneously described by revisionist historians as the “Civil War,” seemed to have put an end to the notion that the several states “are and of right ought to be free” of unconstitutional constraints on their liberties by their co-equal partners in union, nullifying or otherwise repudiating federal overreach have become as commonplace today as they were before the War of Secession, aka War of Northern Aggression. In fact, as the ideological divide has sharpened in recent years, state and citizen resistance to federal encroachment has become even more pervasive and assertive than even before 1861. (Just type “nullification” or “secession 2010, 2011” in your browser. Or go to the 10th Amendment Foundation or 10th Amendment Center for a comprehensive examination of historical and contemporary nullification actions. You’ll be astounded by the relevance and sheer number of serious nullification and secessionist movements in today’s America.)
Even Abraham Lincoln, often ideologically convoluted on the subject of secession and the sanctity and inviolability of the union, posited on the floor of Congress in 1847 that “any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right, a right which we hope and believe is to liberate the world.” And in his 1861 Inaugural Address, he proclaimed that “whenever the people shall grow weary of the existing government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it.” So much for indivisibility in perpetuity. Not even the preeminent “one nation, indivisible” advocate himself believed that.
Logically, since secession was never in any way prohibited under the constitution, under the 10th Amendment, therefore, States have clearly reserved the right to secede from the union. In fact, contingent upon their ratification of the Constitution, and without any voices of objection raised by either the Framers or other states, Virginia, Maryland and Rhode Island explicitly reserved their right to secede, i.e., to reassume those powers granted to the federal government, should their sovereign rights be violated by the latter. (Note: Virginia cited its conditional ratification of the Constitution as a legal basis for her subsequent Ordinance of Secession.)
As H. Newcomb Morse points out in the Stetson Law Review, “because the Constitution did not forbid secession, then every state acceding to the Constitution had the implied right of seceding from it” as well. To wit, the 10th Amendment clearly stipulates that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Slam-dunk obvious to all but the hardened big-government nationalist that nullification and secession remain perfectly constitutional and anything but treasonous.
Further, in the Madison Papers, James Madison observed that implicit in the contractual relationship between the states and the federal government “a breach of any one article by any one party [to this contract], leaves all other parties at liberty to consider the whole convention as dissolved.” Thus, if the Founders intended the union to be legally indissoluble, would not the Framers and Ratifiers have specifically included that prohibition in the Constitution? Of course. And given that the northern armies were removed from southern states only after those states had each incorporated into their constitutions a clause specifically relinquishing their right to secede in the future, a reasonable person must logically conclude that the inherent right of secession most certainly existed before the Confederacy’s defeat. Like, how could the states surrender a right unless they had it in the first place? Also, were any leaders of the defeated Confederacy tried for treason by the victorious North? Nope! As Gene Kizer noted in his Right of Secession, “there were no treason trials against former Confederates because any one trial would likely prove the legal right of secession, and imminently practical Northerners were not about to lose in a court of law what they had won on the battlefield.”
Thomas Jefferson’s Kentucky Resolutions of 1798 reaffirmed state sovereignty and independence and the absolute right of the states to determine for themselves when the Constitution which embodies the state-federal contract is violated by the federal government. In short, Jefferson observed that “the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government.” And in his draft Declaration of Protest in 1825, Jefferson noted while the states greatly valued the “blessings of their Union” that “they would, indeed, consider such a rupture as among the greatest calamities which could befall them; but not the greatest. There is yet one greater, submission to a government of unlimited powers.”
Without specifically reviewing the litany of American nullification and secessionist activities here, the reader is encouraged to research, among others, the following nullification and secessionist events in our country’s history: New England’s Hartford Convention which set New England on the course of secession, precluded only by the sudden conclusion of the War of 1812 in 1815; the Tariff Compromise of 1833 which merely delayed the inevitable constitutional showdown between the South and the North; nullification by ten northern states of the Fugitive Slave Laws of 1850; the Kentucky and Virginia Resolutions of 1798 authored by Jefferson and Madison in opposition to the Alien and Sedition Acts, etc………
In the Constitutional Convention of 1787, the word “accede” (agree to), which is the opposite of the word “secede,” was liberally used to describe the legal relationship between the ratifying States and the Union. And to short-circuit any specious argument that the Constitution was not a co-equal compact between the States and the federal government, these quotes from James Madison himself:
“That this assembly doth explicitly and peremptorily declare, that it views the powers of the federal government as resulting from the compact, to which the States are parties.” (Virginia Resolutions of 1798)
“[The Constitution is] a compact among the States in their highest sovereign capacity.” (Madison’s letter to Mr. Everett in 1830)
Some have and will continue to desperately advance the argument that the preamble of the Constitution speaks about “We the People” as the forgers of the Constitution, thus undermining the compact argument, the latter which forms the legal basis for the right of a state’s withdrawal from the union. In fact, the Constitution was, indeed, ratified by the people of each state, but in special State constitutional conventions and not directly by the people. Thus, it is obvious that the Constitution was not ratified (acceded to) by a referendum of the general American population of a non-existent supreme nation state. In fact, the use of the words “We the People” in the preamble was necessitated by the practical matter of the Founders not being able to accurately predict which of the States would eventually accede (join) and which would not. Thus, listing the individual sovereign states in the preamble as parties to the union before all States actually acceded was impractical. In fact, had the Convention listed the States and all but one acceded, then the “union” would have been invalid owing to an absence of unanimity. Thus, the Constitution applied only to those states which ratified it which, at the beginning, consisted of only nine of the thirteen States. Implicit then is the fact that from the outset States were not and could not be coerced into joining the union. Thus, ratification was a strictly voluntary process and the framers never delegated authority, either explicitly or implicitly, to the federal government or to any of the other states to coerce individual states into joining or remaining in the union.
An astute and highly-regarded student of American democracy, Alex de Tocqueville, in his Democracy in America, observed that “the union was formed by the voluntary agreement of the States; and in uniting together they have not forfeited their nationality, nor have they been reduced to the condition of one of the same people. If one of the States chooses 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 either by force or right.”
That said, what most folks don’t know and precious few historians will tell them is that the South did not simply awake one morning and heedlessly gallop headlong into a glorious, rebel-yelling War of Secession merely to keep slaves in bondage. Not at all. Secession was carefully debated and some of the greatest legal minds of the day were engaged in those debates. Of singular importance in the South’s decision to peacefully withdraw from the union–and only with the consent of the citizens in each state–was the conveniently overlooked fact that for decades the onerous federal taxation of the South had effectively retarded the South’s industrial development, thus ensuring its prolonged dependence upon slave-based agriculture. To wit, no less than three-fourths of all taxes were paid by 6 million Southerners, all of which was spent in the North where nearly 20,000,000 citizens resided! Clearly, a disproportionate and unconstitutional burden on the South. Also, for years, high-minded Northerners actively and illegally aided and abetted slave revolts in the South which resulted in murders, rapes and no small amount of property damage. Of fundamental importance too is the fact that the wealthier North which relied upon a captive Southern market to sustain its prosperity was averse to allowing the South to peacefully withdraw from an increasingly unproductive and economically onerous union with the North. Thus, though reluctant to make the break, the South, feeling itself victimized and bereft of reasonable options, could no longer rationally justify its remaining in the union at any cost. And, of course, that was their right then, and it remains the constitutional right of all states today.
And this extremely important point: though Article 10.1 of the Constitution reads, in part, “No State shall enter into any Treaty, Alliance or Confederation…without the consent of Congress,” as a practical matter the southern States did not violate this article in 1861 because they hadn’t confederated or allied themselves with one another until AFTER each had separately withdrawn from the Union. Only after they had each withdrawn from the United States of America did they individually opt to become members of a new Union, that being the Confederate States of America.
So, whether the revisionists and nationalists like it or not, both nullification and secession are completely legal and respected constitutional principles. Clearly, our Founders would solidly espouse the view that if nullification were to fail to safeguard individual liberty, constitutional order and the rule of law, then secession would be the only reasonable, albeit unfortunate, lawful recourse.
Back now to America’s transformation and our path forward.
When in the 50’s Nikita Khrushchev warned that the Soviet Union and Communism would “bury” the USA and the West, he was only half right. I believe that the American union as we know it is being “buried,” but it is Americans who are doing the shoveling and the Progressives who are hastening the process. Since the advent of Progressivism over a century ago, America’s transformation has been under way. What the Soviets couldn’t accomplish by bluster and intimidation, Progressives have been striving to achieve with surprising success and rapidity. But not all Americans have been content with that conversion.
Greatly contributing to the accelerating political and cultural polarization in the country is the current de facto President’s tactical reliance on racial politics and class warfare to further exacerbate those societal divisions necessary to “fundamentally transform the United States of America,” the goal of which is to usher in a socialist/statist system of government, something totally foreign and, indeed, anathema to most Americans.
In a persuasive article appearing on the FactsNotFantasy blog, author Alan Caruba succinctly summarizes the accelerated makeover Obama and his predecessors have been perpetrating. To wit, the federal government has seized control of one-sixth of the nation’s economy by “asserting control over the provision of healthcare;” the administration has seized control of GM and Chrysler “arbitrarily casting aside the rightful expectations of their bondholders and other creditors;” the administration is favorably considering a UN treaty “that would render the Second Amendment null and void;” it has sued Arizona for enacting an immigration law that mirrors its own and has joined legal forces with foreign countries to similarly sue Arizona and other states which are attempting to stem the tide and cost of illegal immigration in their territories; the FCC is asserting its control over the internet despite a court order to cease and desist, and the explosion of an overreaching and extremely costly federal empire of agencies with “no legitimate basis in the Constitution” has become the order of the day (Department of Education, EPA, Department of Energy, to name a few). And as the big-government tide continues with breathtaking rapidity, grassroots and state-level push-back has begun in earnest. Nullification and secessionist movements are growing in popularity and strength, and both options are now considered by many thoughtful Americans as perfectly legitimate and even inevitable.
If Americans cannot soon reverse the Progressive/Statist tide and return to their constitutional and republican roots, the slide toward disunity is most certainly irreversible.
Finally, being inevitable in the human experience, change should not necessarily be feared or stubbornly resisted. If the cultural and political changes serve to safeguard the liberty, security and happiness of a society, then it should be embraced. However, should the changes occasion chaos and a reckless disregard for individual rights and the individual pursuit of happiness, then it is up to “we the people” to re-direct the course of events. Unity simply for the sake of unity is hollow and self-defeating. The challenge, then, is to either 1) forge a workable division of the union which would safeguard state and regional self-determination, or 2) fully restore federalism as originally intended by our Founders to preserve our political unity while protecting diversity among the states. The only other choice is for us all to quietly submit to an authoritarian national government. What shape the eventual transformation takes is completely in our hands, and that is precisely where it should be.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these, are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed. That, whenever any form of Government becomes destructive of these ends, it is the Right of the people to alter or to abolish it, and to institute new Government, laying its foundation on such Principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future Security.” — Declaration of Independence, July 4, 1776
“The several States composing the United States of America, are not united on the principle of unlimited submission to the General Government.” — Thomas Jefferson, Kentucky Resolutions, 1798
“It should be remembered that the founders, by their own actions, showed that they considered liberty more precious than unity.” — Robert F. Hawes, Jr. One Nation, Indivisible? 2006
“The ultimate authority, no matter where any of its derivatives may be found, resides in the People alone.” — Thomas Jefferson