LEGALITY of SECESSION
"The compound government of the United States is without a model, and to be explained by itself, not by similitudes or analogies," James Madison said late in his life.
For all the truth of that, the Founders had models and ideas in mind as they hashed things out in Philadelphia in 1787, and the notes taken that summer by Madison and others are full of them. The Founders were practical men, almost all of whom had had some experience in government. But they also were keen readers and alert to history, as it was known in their day.
Among the models or theories they often brought up in debate or correspondence are the writings of John Locke and Charles Montesquieu; the works of Hume and other writers of the Scottish Enlightenment; British history; and the accounts then available of the confederacies, democracies and republics of ancient Greece and Rome and the Germanic tribes.
All these sources tended toward common conclusions:
1. The laws should rule the government, not the other way around.
2. The government should be the servant of the people, not the other way around.
3. The best defense against danger of monarchial and democratic excesses was a "mixed government" of clearly prescribed spheres and balanced authorities.
The Federalists built the notion of mixed government into the U.S. Constitution. In many details, they strove for a balance between the one president, the few Senators and the Representatives of the many. Something that is lost and forgotten today is the pivotal role of the States in all this.
The conceptual breakthrough that allowed the United States to build a Constitution on the model of Britain's was the one that saw American states as the equivalent of hereditary baronies in the British system. That allowed the Senate -- whose members were appointed by the states under the original Constitution -- to form on the model of the British House of Lords. The power and independent authority of the states were essential elements in the mixed, balanced government formed in 1787.
The respect for them extended even to non-coercion. In the Convention that framed the Constitution it was proposed to give the government power to call out the army to force a wayward state to fulfill its duty. Madison said: "The more he reflected on the use of force the more he doubted the practicability, the justice and efficacy of it when applied the people collectively and not individually. -- A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."
There is a misleading delicacy in the word "balance." The balance of powers in the original Constitution of the United States was like the balance of an engine made for hard, fast work. The essence of that Constitution was this: The laws rule the government, the constitution embodies those laws, and the people -- in part on their own agency, in part through the states -- tune and drive the Constitution.
"The basis of our political systems is the right of the people to make and to alter their constitutions of government," Washington said in his "Farewell Address." "But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all."
And that includes the president who is elected under it and sworn to uphold it. It was built to stand the test of a crisis, and it did so; in 1814 the capital itself was burnt, American armies suffered defeat in the field and a populous section of the nation met to consider secession. Yet the Constitution still ruled.
So far from envisioning powers of government beyond the Constitution, even in times of "necessity," Hamilton went so far as to say that a Bill of Rights was unnecessary, "For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"
The presidency in particular, as the most "monarchical" aspect of the Constitution, was given extremely limited direct power. Where the "life, liberty or property" of a private citizen is concerned, the president's only power is that prescribed in the third section of the second article, which requires, "that he shall take care that the laws be faithfully executed."
"It is important, likewise," Washington wrote, "that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism."
The Founders all knew war first-hand; war on American soil, with a full third of their own countrymen against them, often in arms alongside the enemy. They built into their work machinery to handle treason and rebellion. But they also knew that crisis and war were favorite tools of demagogues. Hamilton reminded his readers of "the celebrated Pericles," leader of Athens, motivated by fear and personal pique, who led his nation into a bloody and ruinous war to save his own political skin and to escape the economic damage he had helped visit upon the state.
Hamilton saw that a leader who took America into war could use the circumstance to rob her of cherished liberties: "The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free."
"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong," Washington wrote, "let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield."
In Washington's "Farewell Address," the connection between perpetual voluntary union, and obedience to the Constitution, is explicit. His prayer for the country, he said, was, "that your union and brotherly affection may be perpetual; that the free Constitution, which is the work of your hands, may be sacredly maintained."
The cult of the union, as it evolved in the Civil War era, identified "liberty" and "union" as essentially identical. But to the Founders, "liberty" was tied to the balance of powers they had carefully woven into the Constitution: "Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian," Washington wrote. "It is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property."
A little-known fact of the Constitution is that two of the largest states -- Virginia and New York -- made the right to withdraw from the union explicit in their acceptance of the Constitution. And in such an agreement between parties as is represented by the Constitution, a right claimed by one is allowed to all.
The procedure of the articles of ratification of the Constitution in Virginia is described in depth, in original documents, in "The Documentary History of the Ratification of the Constitution," a wonderful work in progress from the State Historical Society of Wisconsin, volume X, p.1512 and after.
The Virginia convention ended its clause-by-clause consideration of the proposed Constitution on June 23, 1788, and the next day George Wythe proposed that the Committee of the Whole ratify the document. He also recommended amendments to be considered by the new Congress, in the manner prescribed by the Constitution.
This took the form of two resolutions, prefaced by a preamble expressing the belief that all powers not granted to the government by the Constitution were retained by the people and that the government could neither cancel, abridge, restrain, nor modify the people's rights except where the Constitution gave it such power.
Patrick Henry, who led the opposition to ratification, moved that it was premature to do so and he proposed a resolution "to refer a declaration of rights, with certain amendments to the most exceptionable parts of the Constitution, for the other states in the Confederacy, for their consideration, previous to ratification." Henry also presented at the same time a declaration of rights and structural amendments.
The next day (June 25) the convention sat as a Committee of the Whole. Both Wythe's proposal and Henry's were read again, and debated at length. Early in the afternoon, the matter came to a vote. The antifederalist proposal that a declaration of rights and amendments be submitted to the other states "previous to the ratification of the new Constitution" was voted down, 88 to 80. Then the delegates voted 89 to 79 to ratify the Constitution.
[The two-vote difference is because David Patteson of Chesterfield voted with the Antifederalists on amendments, but with the Federalists on ratification.]
The convention then appointed a committee of five to prepare the form of ratification. This "engrossed" ratification was read before the convention and accepted. On June 26, the engrossed Form of Ratification was read again, signed by President Edmund Pendleton, and transmitted to the Confederation Congress. The opening reads like this:
We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes ...The committee of five that wrote the ratification was Edmund Randolph, George Nicholas, James Madison, John Marshall, and Francis Corbin -- all of them Federalists and Madison and Randolph, of course, members of the Constitutional Convention that had met in Philadelphia in 1787.
But was this binding? Or was the Constitution merely a "take it as-is or leave it" proposition when put to the states?
Five states (Connecticut, New Jersey, Pennsylvania, Delaware, and Georgia) ratified the Constitution without a word about a bill of rights. The rest, following Massachusetts, advocated for one, and it became a major subject of contention as the antifederalists adjusted their tactics.
States went so far as to attach proposed bills of rights to their ratifications in some cases, and they urged their members in the new government to tirelessly advocate for them. Yet these were not "conditions" of their ratification. And it was made clear, in convention after convention, that a state's "conditional" ratification of the Constitution would not be accepted by Congress.
In New York's convention, for instance, on July 24, 1788, Antifederalist John Lansing Jr. moved that a resolution be adopted giving New York the right to secede from the Union if certain amendments were not adopted within a certain number of years. Alexander Hamilton, who had anticipated such a proposal, had written to James Madison several days earlier and posed the question to him. Madison, in his capacity as a Congressman, had replied, indicating that Congress would not consider a conditional ratification to be valid. Hamilton read the letter to the convention, and Lansing's motion was defeated on the 25th by a vote of 31 to 28.
So the right of secession claimed by Virginia and New York cannot be seen as "conditions" or amendments to the Constitutional proposal. If they were, those states' ratifications would have been rejected, as per Madison's letter. The other conditions listed as presumed in the preamble to the Virginia ratification -- the inability of the federal government to interfere in free exercise of religion and the press -- were agreed by all, federalists included, to be beyond the power of the federal government.
The question was not whether such rights would exist under the new government, but whether the rights, specifically those of individuals, needed to be made explicit in a bill of rights. Their being claimed in Virginia's ratification presented no obstacle to Virginia being accepted by Congress as the 10th state in the new union, because the powers claimed were consistent with the Constitution, as understood by those who drew it up and those who recommended it to the states for ratification. The right to secede claimed in the Virginia ratification has to be regarded in the same light.
In the 1787 debates in the constitutional ratification conventions of the various states, even those that did not make right of withdrawal explicit or implied in their articles of ratification were presented with a union that was anything but "inviolable." They looked to a union so well-made and so obviously mutually beneficial that it would prove inviolable. They did not make it so by threat of force.
In Pennsylvania, James Wilson, as the only member of the ratification convention who had also been a delegate at the Constitutional Convention, did the bulk of explaining and defending the new document. He equated the American states with the individuals in Locke's theory, giving up a part of their natural liberty in the expectation of more good and happiness in the community than they would have alone. "The states should resign to the national government that part, and that part only, of their political liberty, which, placed in that government, will produce more good to the whole than if it had remained in the several states."
And this implied the ability to take it back again. In the proposed Constitution, the citizens of the various states "appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with."
A Lockean principle, that any power given can be reclaimed again, echoes throughout the speeches. "If (the people) choose to indulge a part of their sovereign power to be exercised by the state government, they may. If they have done it, the states were right in exercising it; but if they think it no longer safe or convenient they will resume it, or make a new distribution, more likely to be productive of that good which ought to be our constant aim." Power resides in the people, divided into distinct communities of sovereign states.
Wilson told them again and again that, by accepting the Constitution, they were entering into an "experiment." "... I am sure that our interests, as citizens, as states, and as a nation, depend essentially upon a union. This Constitution is proposed to accomplish that great and desirable end. Let the experiment be made; let the system be fairly and candidly tried, before it is determined that it cannot be executed."
Consider the following as an insight into how the Founders would have regarded Lincoln's vision of a perpetual union of the American states, held together by the strong arm of the federal government.
The scene is the ratification debate in New York state in the summer of 1788. Alexander Hamilton is defending, against anti-federalist objections, the power granted to the federal government, under the proposed system, to levy taxes directly on the citizens rather than making requisitions from the states. This is one of the Constitution's specially enumerated powers. It is a defined path for the federal government to override state authority. Hamilton points out the obvious necessity for a government to be able to pay its bills: "if we have national objects to pursue, we must have national revenues."
Remember, this is the arch-Federalist speaking, the man whose name is associated more than any other in the Constitutional Convention with the authority of the federal government. He paints the picture of the country without this power, and of a state refusing a federal requisition:
"It has been observed, to coerce the states is one of the maddest projects that was ever devised. A failure of compliance will never be confined to a single state. This being the case, can we suppose it wise to hazard a civil war?The Constitution enumerated the powers of the federal government, not those of the states or the people. It gave the federal government just such powers as, the Founders understood, would prevent this kind of conflict. The power to tax citizens directly was among them. It did not give the federal government broad, unspecified powers of coercion to do the very thing Hamilton abhorred here.
"It is the due [external] restraint and not the moderation of rulers that constitutes a state of liberty; as the power to oppress, though never exercised, does a state of slavery." [St. George Tucker]St. George Tucker, who in 1803 wrote "View of the Constitution of the United States," a long essay attached to a Philadelphia publication of Blackstone meant to be used in the new nation. Since Blackstone was based on a monarchy, Tucker's commentary looked at the role and rule of law in a constitutional republic. It was, thus, as historian Clyde N. Wilson writes in a forward to Tucker's work, "the first extended systematic commentary on the Constitution after it had been ratified by the people of the several states and amended by the Bill of Rights."
Tucker's work was widely circulated in the Mid-Atlantic, the South and the West, and "it was for much of the first half of the nineteenth century an important handbook for American law students, lawyers, judges, and statesmen," in addition to being "a key document of Jeffersonian republicanism."
Tucker's view is the old one, decidedly federal, of a national government balanced from taking on dangerous powers by the independent judiciary and the power of the states. States rights, in his writing, is not a special pleading for slavery rights -- Tucker was opposed to slavery and devised a plan to end slavery in Virginia. The routine dismissal of any states rights argument on this ground won't apply to him.
Nonetheless, as Wilson points out in his introduction, Tucker's writing has languished in obscurity for a long time now, in part because "his view of the federal government as an agent of the sovereign people of the several states, and not as the judge of the extent of its own powers, was buried by the outcome of the Civil War."
Tucker takes for granted the right of secession, but he knows it is a step not lightly to be taken. The people of the several states consented to the Constitution not as a once-and-for-all commitment to eternal obedience, but with a right of withdrawal that is their right as the true sovereign of the nation. That view is affirmed by the nature of the Constitution itself and in the principles enshrined in the Declaration of Independence.
"The federal government, then, appears to be the organ through which the united republics communicate with foreign nations, and with each other. Their submission to its operation is voluntary: its councils, its sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent.
1. "Notes of Debates in the Federal Convention," p.45.
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