Threat of Secession Constitutional

By Douglas V. Gibbs

The States are voluntary members of the union. The States created the union with the intention of it being a voluntary compact between the States. Peaceful secession was considered by the Founding Fathers as an essential component of the federal compact, a way to discipline the federal government should the political class running the central government seek an unconstitutional path. If membership in the union was not considered to be voluntary, how could the compact be genuine? Voluntary membership is a key aspect of a free society. The ability to secede is a necessary part of sovereignty. If the States’ membership in the union is not voluntary, then the States are not sovereign.

Delegates of the sovereign States wrote the U.S. Constitution. If the federal government breaches the social contract called the United States Constitution, the States have a right as the originators of the contract to secede.

Alexander Hamilton, though a statist that did not appreciate the limiting principles of the United States Constitution as his colleagues did, recognized the voluntary nature of the States’ membership in the union. He proposed that the United States should be in a state of perpetual national debt, and since the States would be on the hook for their portion of that debt, they would be less likely to secede.

Hamilton knew that if the federal government would ever have the chance to become a centralized government that controls the States, rather than a federal government that serves the States, State Sovereignty would need to be neutralized, and the concept of secession would need to be considered unlawful, and defiant. Hamilton’s attack on the sovereignty of the States began early, and led to his attempt to try to rewrite history, arguing that the States had never been sovereign in the first place. As a statist, Hamilton recognized States Sovereignty as an important check and balance against the expansion of the central government. Hamilton dismissed the Jeffersonian concepts of strict constructionism, and knew that once State Sovereignty, and the threat of secession, was a forgotten footnote of history, the federal government could be unleashed to do whatever it wanted without the States standing in the way, or limiting its growth.

Nationalists like Hamilton failed to sell the idea of a leviathan government during the Constitutional Convention, and he knew he could never convince three-quarters of the States to ratify any amendment giving away their sovereignty, so he set out to manipulate the Constitution through “interpretation” and “implied law” to remold the federal government as a system of national supremacy. Through concepts like implied powers and judicial review, Hamilton’s statist successors have effectively carried out his argument against a limited federal government.

Secession is a valuable tool of the States to combat statism, and to halt the advances of an ever-expanding federal government. Losing a member of the union, in the eyes of the political class in Washington D.C., would not only represent a loss of revenue, but would be perceived as an act of defiance against the central powers. The States, as sovereign individuals, entered into the constitutional contract voluntarily, and they have a right to separate themselves from that contract, if they feel it to be necessary.

Thomas Paine, in his Rights of Man, wrote: “The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.”

In Federalist 45, James Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state.”

John C. Calhoun, representative from South Carolina and Vice President under John Quincy Adams said: “The error is in the assumption that the General Government is a party to the constitutional compact. The States formed the compact, acting as sovereign and independent communities.” Calhoun was a strong supporter of State Sovereignty, and nullification. He wrote in an essay in 1828 titled “South Carolina Exposition and Protest,” arguing that States can veto any law they consider to be unconstitutional. He pushed for secession, and asserted that nullification could lead to secession, and in fact that almost happened in 1832.

In 1832 was an episode known as the "Nullification Crisis," where South Carolina challenged federal tariffs they believed to be unconstitutional. The State legislature passed a proposal nullifying them, declaring the tariffs unconstitutional. In response to the South Carolina’s nullification measure, Congress passed the Force Bill, empowering the President to use military power to force States to obey all federal laws. President Andrew Jackson then sent U.S. Navy warships to Charleston harbor, and South Carolina then nullified the Force Bill, too. It all led to the Compromise Tariff of 1833, proposed by Senator Henry Clay to change the tariff law in a manner which satisfied Calhoun, who by then was in the Senate. The threat of secession was among the tools South Carolina used to ensure the federal government backed off, and returned to a more acceptable role.

John Quincy Adams also defended the right of the States to secede. In an 1839 speech he said, “The indissoluble link of union between the people of the several states of this confederated nation is, after all, not in the right, but in the heart. If the day should ever come (may Heaven avert it!) when the affections of the people of these States shall be alienated from each other; when the fraternal spirit shall give way to cold indifference, or collision of interests shall fester into hatred, the bands of political associations will not long hold together parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; to part in friendship from each other, than to be held together by constraint. Then will be the time for reverting to the precedents which occurred at the formation and adoption of the Constitution, to form again a more perfect Union by dissolving that which could no longer bind, and to leave the separated parts to be reunited by the law of political gravitation to the center.”

In his book, “Democracy in America,” Alexis de Tocque wrote, “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 and 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.”

When the average American hears the word “secession,” a good segment of the population will immediately think of the War Between the States. The uproar after the Dred Scott ruling became a focal point of the 1958 Lincoln-Douglas debates. While running for President, Abraham Lincoln famously said, “A house divided against itself cannot stand.”

After Lincoln won the presidency in 1860, without even being present on the ballots in the southern States, South Carolina seceded from the Union in December. Other States seceded, and the Confederate States of America had been formed, by the time Lincoln was inaugurated on March 4, 1861. The Civil War began a little more than a month later.

After the end of the Civil War the statists immediately convened constitutional delegations to declare the ordinances of secession by the southern States in 1860 and 1861 “invalid.” During the Reconstruction Period, the military governors also altered the Southern constitutions so that they denounced secession. Eliminating the right of secession was the federal government’s way of clearing the path for the national government to stride towards centralization.

The federal courts have also participated in the effort to eliminate the right of secession. In 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 case was over the Texas Ordinance of Secession. The majority opinion called the State ordinance “null,” and established a narrative 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. The Statists since the ruling have used it exhaustively to support their argument that secession is an illegal act.

In harmony with Hamilton and Lincoln, Chase’s opinion regarding the Texas v. White decision 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 collectivist mentality was also supported by Supreme Court Justice Joseph Story in his famous Commentaries on the Constitution of the United States.

Story channeled John Marshall and Alexander Hamilton in his reasoning, arguing that the Constitution was framed and ratified by the people at large, not the people of the individual States. “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 his argument Story reduced the States to the status of a province, or a county.

Story defended his position with the “Supremacy Clause” found in Article VI. The Supremacy Clause indicates that all laws of the United States made “in pursuance of the Constitution” were the “supreme law of the land.” Story contended that the letter sent by the Philadelphia Convention accompanying the Constitution to the State ratifying conventions was aimed at a “consolidation of the Union,” arguing that the Union’s existence was a collective endeavor, and one that could not be dissolved.

Those who most staunchly support the concept that secession is illegal consider it to be a traitorous act by the States. Such an argument supports the idea that the United States is a nationalistic collective, rather than a voluntary union of States in a constitutional republic.

-- Political Pistachio Conservative News and Commentary