The Framers and Secession

I thought this would serve as a useful follow-up to Donald’s post below.   Putting aside the question of whether or not the Civil war was fought over slavery, or whether slavery served as the impetus for the war, the next logical question is: did the southern states have the right to secede?  The evidence, as supplied by the writings of the men who wrote our Constitution, suggests that the answer is definitively NO.

Mac Owens has gone to the trouble of analyzing this issue in great detail already.  It’s a very thorough piece, so I suggest that you read it in its entirety.  I will just pull one little selection from it in order to give you all a flavor.

The main reason was that while the Founders understood the right of revolution to be an inalienable natural right of individuals antecedent to political society, Calhoun, the architect of the theory of State sovereignty used to justify secession expressly repudiated the idea of individual inalienable natural rights. Calhoun dismissed the fundamental idea of the American Founding — that “all men are created equal” — as the “most false and dangerous of all political errors.” Given the large slave population of the South, this denial of the inalienable natural rights of individuals, including the right of revolution, was no doubt prudent.

Secession constitutes a repudiation of republican government as understood by the Founders. For Calhoun, sovereignty was not a characteristic of individuals, but of collective political bodies. Individual rights, such as they were, were prescriptive, not natural. If Calhoun was right, then the Founders were wrong.

For the Founders, the purpose of government was to protect the equal natural rights of all. They understood these rights to be antecedent to the creation of political society and government. The just powers of government are derived from the consent of the governed who possess the equal natural rights that republican government is supposed to protect. While the people never relinquish their right to revolution, in practice, this natural right is replaced by free elections, the outcome of which are determined by majority rule.

When the States ratified the Constitution of 1787, they pledged that they would accept the results of elections conducted according to its rules. In violation of this pledge, the Southern States seceded because they did not like the outcome of the election of 1860. Thus secession is the interruption of the constitutional operation of republican government, substituting the rule of the minority for that of the majority.

I also found this to be rather interesting:

Libertarians are correct in condemning the growing power of the federal government. However, this has less to do with Lincoln and the outcome of the Civil War than it does with the triumph of progressivism, the 19th century science of politics that substitutes “progress” for nature and justifies unlimited government power to direct and promote that progress. Like Calhoun’s political science, Progressivism dismisses the political thought of the American Founders based on equal natural rights as “false and dangerous.” Given the affinity of libertarians for Lockean liberalism, their favorable disposition towards Southern secession, an act based on Calhoun’s rejection of the principles of the American Founding, is hard to fathom.

Again, read the whole thing.

Of course we might also look to consult one of the primary authors of the Constitution to see what he thinks.

I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes “nullification” and must hasten the abandonment of “Secession.” But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy. Its double aspect, nevertheless, with the countenance recd from certain quarters, is giving it a popular currency here which may influence the approaching elections both for Congress & for the State Legislature. It has gained some advantage also, by mixing itself with the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.

It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity. They might, by the same authority & by the same process have converted the Confederacy into a mere league or treaty; or continued it with enlarged or abridged powers; or have imbodied the people of their respective States into one people, nation or sovereignty; or as they did by a mixed form make them one people, nation, or sovereignty, for certain purposes, and not so for others.

The Constitution of the U.S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it, it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes a Government into the usual Legislative Executive & Judiciary Departments; invests it with specified powers, leaving others to the parties to the Constitution; it makes the Government like other Governments to operate directly on the people; places at its Command the needful Physical means of executing its powers; and finally proclaims its supremacy, and that of the laws made in pursuance of it, over the Constitutions & laws of the States; the powers of the Government being exercised, as in other elective & responsible Governments, under the controul of its Constituents, the people & legislatures of the States, and subject to the Revolutionary Rights of the people in extreme cases.

It might have been added, that whilst the Constitution, therefore, is admitted to be in force, its operation, in every respect must be precisely the same, whether its authority be derived from that of the people, in the one or the other of the modes, in question; the authority being equally Competent in both; and that, without an annulment of the Constitution itself its supremacy must be submitted to.

The only distinctive effect, between the two modes of forming a Constitution by the authority of the people, is that if formed by them as imbodied into separate communities, as in the case of the Constitution of the U.S. a dissolution of the Constitutional Compact would replace them in the condition of separate communities, that being the Condition in which they entered into the compact; whereas if formed by the people as one community, acting as such by a numerical majority, a dissolution of the compact would reduce them to a state of nature, as so many individual persons. But whilst the Constitutional compact remains undissolved, it must be executed according to the forms and provisions specified in the compact. It must not be forgotten, that compact, express or implied is the vital principle of free Governments as contradistinguished from Governments not free; and that a revolt against this principle leaves no choice but between anarchy and despotism.

Donald has also linked to another letter written by Madison that crushes the idea that secession is constitutionally permissible.

One final note.  Even if one grants that there is certainly an inalienable right to revolution, there must be a very firm ground for said revolution . . . a long train of abuses, perhaps?  Not liking the results of one presidential election hardly constitutes a long train of anything.

Published in: on July 6, 2010 at 12:53 pm  Comments (11)  
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  1. The ONLY thing that determines whether secession is permissible or not is whether one is successful. That’s applicable to any rebellion. If you succeed, it’s legal; if you don’t succeed, then you’re screwed.

    Basically, what I’m saying is that once one party has resolved to dissolve the ties that bind that party to another political entity, it all comes down to whether that party can successfully defend that resolve, and the words of the Constitution or any laws that previously bound that party are wholly irrelevant. They are nonbinding on the newly formed entity that has successfully defended its decision to sever those ties.

    It all comes down to who wins, so any determination of whether the rebellion was “illegal” is necessarily an ex post facto one.

    Now, that said, from a Natural Law standpoint, I believe a decision to secede, because it will almost inevitably lead to war, must meet Just War criteria; thus, I believe you to be correct with respect to having to show either a “long train of abuses” in order to assert a right to rebellion (or, barring a “long train” some single act that is so shocking to the conscience as to itself sever the ties that bind).

    For what it’s worth, my own belief is that, not only did the South fail to meet this burden, but the American colonists’ claims giving rise to their “right” to rebellion were somewhat tenuous. I’m not sold that the so-called “long train of abuses” were either all that “long” or all that “abusive” in the context of their being members of what was, at that point, the freest society on Earth.

  2. From a purely pragmatic standpoint, you are correct. If the confederacy had won, it would have rendered the question somewhat moot. But from a moral standpoint, unless you are saying that might makes right (and haven’t we learned from Arthur and Merlin that it doesn’t), then no, secession is unconstitutional.

    Does the Constitution permit secession? No. Did the Framers envision allowing such a right? No. Had the confederacy prevailed, it wouldn’t have rendered the Framers wrong, just powerless to stop a willful group.

  3. As for Jay’s point about the American Revolution, there were a couple of posts at the American Catholic that explored this very issue. I can’t find them right now, but I’m sure someone else can find the link.

  4. If the Union were meant by the Framers to be perpetual, it would have been easy enough for them to include that in the Constitution. My guess is that they would have had a more difficult time passing such a proposal and such a Constitution.

    That’s not to say that the majority of the Framers didn’t so intend, but if it ain’t in there, it ain’t in there. It can’t be argued that secession is “unconstitutional” when the Constitution doesn’t actually say that, unless of course you want to go outside the actual words that people voted for to determine what is constitutional and what is not.

    I don’t happen to subscribe to that particular school of constitutional interpretation. My “originalism” begins and ends with the actual words that appear in the document. As I said earlier, if ain’t written in there and voted upon, it ain’t in there.

  5. “As for Jay’s point about the American Revolution, there were a couple of posts at the American Catholic that explored this very issue. I can’t find them right now, but I’m sure someone else can find the link.”

  6. My “originalism” begins and ends with the actual words that appear in the document. As I said earlier, if ain’t written in there and voted upon, it ain’t in there.

    The Constitution is a rather small document that does not cover a lot of ground. If we have to interpret the document when the language isn’t very clear on a specific issue, then the best way to understand the document is to understand what the Framers of the document desired.

    Let’ approach the issue this way. The Constitution is silent on the issue of secession. I’d have to go back to see if this was even addressed by the Constitutional Convention (I don’t think so). At any rate, it may not be specifically proscribed in the Constitution because the Framers didn’t want to speak on the issue. Alternatively, secession may not have been specifically outlawed by the Constitution because the Framers didn’t think it necessary to include such a provision. After all, they didn’t include a Bill of Rights in the original document, and many remained convinced that such a listing of rights was unnecessary even after passage. It may have been a self-evident truth to many of the convention goers that secession could not be allowed, and therefore there was no reason to include anti-secession language in the document.

    And that’s why we need to look at the words and thoughts of the Framers to understand what they thought about secession, and the overwhelming evidence suggests that they did not believe such a right existed. That they didn’t put that in the Constitution means only that they thought it self-evident, and an unnecessary addition.

    Still, in a larger sense you’re right. Whatever the Framers thought, the confederates thought otherwise. It’s really more of a moral argument as to whether or not the Confederates were acting as loyal constitutional guardians, or whether they were simply the equivalent of spoiled teenagers lashing out when they didn’t get their way for once.

  7. In regard to the Constitution and secession, I think that one reason why the Founding Fathers weren’t more specific is because they had already made their intentions clear in the Articles of Confederation. The preamble states:

    “Whereas the Delegates of the United States of America in Congress assembled did on the fifteenth day of November in the Year of our Lord One Thousand Seven Hundred and Seventy seven, and in the Second Year of the Independence of America, agree to certain articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, in the words following, viz:”

    The Articles end with the following passage:

    “And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said articles of confederation and perpetual union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the united States in congress assembled, on all questions, which by the said confederation are submitted to them. And that the articles thereof shall be inviolably observed by the States we respectively represent, and that the union shall be perpetual.”

    Article VI of the Articles states in part:

    “No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the united States in congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.”

    I believe the Founding Fathers regarded the United States of America as having come into being as a result of the Articles. Indeed, Article I names the country. The Constitution was meant to take the place of the Articles as to the form of the federal government, but it was not meant to plow ground that had already been plowed in the Articles. For example, the country was not renamed in the Constitution. If the Founding Fathers had been asked if the Union under the Constitution was to be perpetual I think their response would have been to point to the Articles, and state that the Articles so indicated.

  8. Great thought provoking posts.
    If a state cannot as you say constitutionally secede from the Union can it nullify national laws that it considers unconstitutional? And if a state can’t secede and it can’t nullify oppressive national laws then what were the state ratifying conventions thinking when they ratified that document? I have a hard time believing VA would have agreed to such conditions but they may have.

    The Claremont Institute article quoted in a previous post about the heresy of secession stated in the end that it was the progressives fault that the government is out of control. That may be true but do you really believe that the central government will voluntarily scale back its usurped dominion over the states? Is it really a matter of writing enough letters and donating to campaigns to get Washington to stop spending and getting entangled in foreign wars?

    I wonder what it would take for the current generation to say enough is enough. What will our “long train of abuses” include if anything?

  9. Those that signed onto the Constitution saw that there were checks in place to ensure that the federal government stayed within its appropriate sphere of influence. There were institutional mechanisms such as the separation of powers, checks and balances, and the relatively limited amount of power given to the national government. There were other mechanisms designed to give the states more authority, including the Electoral College and indirect elections of Senators. The indirect election of Senators was a way to make one half of Congress Representatives of the states rather than individuals. Unfortunately the 17th Amendment – my nominee for worst, non-repealed amendment, changed that.

    Much of what happened to minimize the efficacy of these institutional mechanisms occurred with the rise of the Progressives, as Owens indicates. I could (and in fact did) write entire chapters on what went wrong and possible ways to correct matters, but a) that would be a very long post and I don’t have time to get into the details, and b) that is a little outside of the scope of this historical blog. But believe me when I say I share your frustration. I just don’t think secession and nullification are or were answers to these problems.

  10. Thanks for the reply. I too see the 17th as a major culprit in all of this but I just don’t see any meaningful change coming from the level of government causing the problems. I suppose it might be possible for the states to do what’s never been done and jump start the amendment process, attempting to bypass the national government all together.

  11. Would the individual states have signed it if they thought they were signing something irreversible? Isn’t that just as important as what the framers intended?

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