Upon ratification of the U.S.
Constitution, did the several states merge (part of) their sovereignty into a
nation? Or, did they form a federation of independently sovereign states,
joined together for convenience, but free to withdraw at will? Although the
American Civil War put an end to the debate for some time, the issue is not
dead nor is it irrelevant. Twenty-two percent of Americans, according to one
poll, believe that states have a legal right to secession. However, it seems
that none of these believers in secession taught my classes in primary and
secondary school. My lessons about the Civil War left me with an impression
that the Confederates were a senseless, if not evil people, who rebelled
against the Constitution. After studying the issue more closely, I have
concluded that, indeed, states have neither a moral, nor a legal right to
secession. But, the all too common straw man representations of the Confederate
views on secession, I think, are erroneous. The argument for secession deserves
a proper rebuttal.
My
understanding of the argument in favor of a right to secession can be summed up
in the following syllogism:
All sovereign states have the moral
and legal right to secede from the Union at will. All of the states of the
United States are sovereign states. Therefore, states have a moral and legal
right to secede from the Union at will.
Secessionists
claim an extra-legal, moral right to secession as well as a legal right of
secession implicit in the Constitution. They argue that the federal government
is an agent of the states and that the states can withdraw their delegated
support at any time. My main quarrel is with the second, minor premise of
secessionists, which holds that the states are independent sovereigns.
As a
threshold matter, it is important to recognize a difference between a right of
revolution and a right of secession. The right of revolution, as I view it, has
important preconditions to its exercise and, revolution almost inevitably
implies a war in which both sides are justified. The right to secession, on the
other hand, is without significant preconditions and implies that the larger
government has no right to use military power to force unity upon the seceded
state. In my opinion, advocates of a right to secession sometimes conflate a
right to revolution with the right to secession. Concerning the Civil War, the
comportment of Congress and of President Lincoln did not come anywhere close to
satisfying the preconditions of a right to revolution.[1]
The South didn’t have a problem with the text of the Constitution nor was their
quarrel about the political process (their constitution copies both
substantially); the South disagreed with the policies ,which were properly
enacted according to the Constitution. Using the terms of the Declaration of
Independence, the “Form of government” was not oppressive or detrimental to the
interests of the South, only the policies of the People playing by the rules of
the Form of government. Regardless, in this essay, I focus on rebutting the
argument that the states were independent sovereigns with a right to secede
from the nation, not that they hadn’t the Lockean right to revolution.
The secession argument hinges on
the claim that states were independent sovereigns after the ratification of the
Constitution. The arguments for and against secession as taken from the text
and history of the Declaration of Independence and Constitution seem to me, in
their aggregate, ambiguous or slightly in favor of finding the states
consolidated into one nation. Some of the documents and records speak of the
states as independent while others take the view that the states “were
independent not individually, but unitedly.” Some of the states ratifications
seemed to side with the right to secession while others explicitly rejected it.
Though none of the historical accounts are unambiguous. James Madison, known as
“the Father of the Constitution” during his life, wrote to the New York
Convention, “The Constitution requires an adoption in toto, and for ever.”
Three states reserve the right to claim independence if the federal government
“perverted” the Constitution to oppress the people. But, this looks more like a
Lockean right to revolution than an Antebellum right to secession as it is
pre-conditioned on perversion of the form of government and oppression.
Regardless, the Declaration of Independence is not binding by itself because it
does not describe the feelings and beliefs of the people in forming a
Constitution to correct the problems of the Articles, it justifies revolution
by proving that the preconditions to the right of revolution were satisfied.
My survey of the history and text
of the Constitution also gives no clear response. But, Patrick Henry and others
favored the Articles of Confederation over the Constitution largely because
they envisioned that the Constitution would bind the states together and
subject them to too powerful a federal government. Furthermore, Amendments to
the Constitution are binding on states even if the state voted against it—isn’t
that somewhat contrary to an implied right to secession? How could an agent of
the states force new and unconsented policy upon the supposedly independently
sovereign states?
The Constitution does not mention
state sovereignty outright. Advocates of both sides, in my opinion, get too
caught up in words and phrases like “perpetuity,” “People,” “States,”
“compact,” “union,” and “United States.” Both sides seem to attribute more
clarity to the words than their usage actually merits. That something is a
compact between states does not imply that there is a right to secession any
more than there is a right to secession from a contract or international
treaty. A union need not be at-will. Indeed, contracts and compacts, in law,
are assumed perpetual unless the text makes it clear that a more limited time
frame was intended. And, in contracts, you can’t pull out because things don’t
go how you had hoped.
The Supremacy Clause provides, “This
Constitution, and the Laws of the United States . . . shall be the supreme law
of the land; and the judges in every state shall be bound thereby, anything in
the constitution or laws of any state to the contrary notwithstanding.” Secessionists
read the Supremacy Clause as if it has an exception for secession that is not
in the text. The Constitution provides legitimate methods for altering the
Constitution, the law, and judicial actions: by the vote and by advocacy in the
marketplace of ideas. Implicitly then, other methods of changing federal
policy—like secession—should be illegitimate.
The Ninth Amendment provides, “The
enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.” And, the Tenth Amendment
provides, “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.” The Ninth Amendment clarifies that the Bill of Rights is not an
exclusive list of rights. The Tenth Amendment’s meaning is more enigmatic. Some
members of Congress wanted the word “expressly” to appear in the Tenth
Amendment. Ultimately, it was rejected because the Representatives thought that
such a restriction would cripple the federal governments productivity. The Tenth Amendment does not reject powers
implied by the Constitutional provisions and by the Necessary and Proper
Clause. James Madison seemed to view the Tenth Amendment as not guaranteeing
any particular rights to the States, but as a truism or simple residuary
clause. He said that the Tenth Amendment was “superfluous” except for emphatic
effect. Furthermore, explicit powers of the federal government preclude state
independence. How can you be an independent sovereign if you cannot make treaties,
coin money, control naturalization, command armies, or lay taxes? You can’t. Thus,
the arguments that appeal to the Ninth and Tenth Amendments in favor of a legal
right to secession strike me as insufficient.
Turning to policy considerations, it seems
most reasonable to assume the Framers, as a whole, did not contemplate a right
to secede from the constitutional compact without the consent of the other
states. The reasons the Constitution was adopted to replace the weak Articles
of Confederation was to ensure peace, facilitate commerce, and protect against
collective-action problems and systematic races to the bottom. An alliance of
states with a right to secede fails to accomplish any of these basic
objectives, to the detriment of American wellbeing. Independent sovereign
states that share a border have almost never maintained peace over the
centuries. A right to secede gives rise to conflicts of interest antithetical
to good policy and overcoming collective-action problems. It would increases
the risks of factional struggle, reduces the prospects for compromise, raises
the stakes of properly-made political decisions, introduces irrelevant
considerations into the decisions (e.g. we can’t do what is right because South
Carolina is getting uppity again), creates dangers of blackmail and other forms
of exploitation, and generally endanger the prospects for long-term rule of law
and self-governance. Lastly, free trade is compromised by a right to secession.
It seems to me most plausible that there is therefore no right to secede from
the constitutional compact.
The Antebellum supporters of a
right to secession were not unreasonable; the case is a rather close call—but,
in the end I believe the North was justified in enforcing the rule of law
through warfare and that the South was not justified in seceding from the
nation without meeting the preconditions to the right of revolution.
[1] President Lincoln apparently had substantial respect
for the Constitution. He consistently and often persuasively squared his positions
with the Constitution, he cooperated with an intrusive congressional oversight
committee. He sought congressional approval, at times, even when he probably
did not need it. He stood for election when he was least popular and during a
time of war and set up policies for an orderly transition should he be
defeated. Dictators and tyrants simply don’t do these kinds of things. I am not
convinced that the South was under the foot of any tyranny or oppression and
therefore had no right to act extra-constitutionally to secede. John Locke and
the Declaration of Independence affirm a right to revolution only where the
“Form of government” leaves the people with not legitimate or plausible
recourse and is tyrannical or oppressive. I sometimes see favorable arguments
for secession quote supporters of a right to revolution to support a right to
secession (e.g. James Madison); but the two things are quite separate.
