The Constitutional Right of Secession
by James Spence
Secession is by no means a novel doctrine. In the first session of Congress under the new Constitution, it was threatened in the first serious contest that arose; and this in the presence of several of the framers of the Constitution. Again, when Washington expressed reluctance to be elected as President for a second term, Jefferson wrote to urge his assent; and the weightiest reason he assigned, in proof that the country required experience at the head of affairs, was this — that the coming election would involve great danger of a "secession from the Union" of those who should be defeated. It can hardly be supposed that this right would have been openly declared by members of Congress, or that the probability of the event would have been thus urged on Washington had it been regarded by public opinion as an illegal or treasonable act. It seems rather to be inferred that there existed in the minds of those, who with the facts so recent were most competent to judge, a conviction that the right existed and might be exercised — that able and just government would avoid it — but still that it was there.
The doctrine, indeed, has been maintained and loudly declared, both in the North and South, at frequent periods in the history of the Union. Jefferson, in his Ana, refers to that occasion of its being first raised in Congress, and observes that it was the Eastern, that is, the Northern States, who especially threatened to secede. He describes a walk with Hamilton, in which the latter painted pathetically the danger of the secession of their members, and the separation of the States. And the Northern States were the first to raise it practically. The war of 1813 was highly unpopular in that district, and when called upon by the President to supply their quotas of militia, they absolutely declined. In the words of Jefferson to Lafayette: "During the war four of the Eastern States were only attached to the Union, like so many inanimate bodies to living men." But they went far beyond inaction. They called a Convention at Hartford, of which the proceedings were suppressed, but the object is well known; a flag appeared with five stripes, secession was threatened in the loudest terms, nor can there be a doubt in the mind of any one who studies the events of that period, that the New England States would have seceded from the Union had the war continued.
The State of Massachusetts has threatened, indeed, on four separate occasions to secede from the Union. First, in the debates referred to on the adjustment of the State debts; secondly, on the purchase of Louisiana and its admission into the Union; thirdly, during the war of 1813; and fourthly, on the annexation of Texas, when, we believe, one chamber of her legislature actually passed a vote of secession. On these occasions it was no mere act of excited individuals, but the general voice of the community. Yet this State is now the loudest in denouncing it, when inconvenient to herself; and a bastile is now said to be preparing in the vicinity of Boston, for the incarceration of those as political prisoners, who simply utter the opinions which, when it suited, this very State has so often and so vehemently expressed.
It has been a popular illustration with the advocates of the Union, that if a State may secede, so may a county from a State, or a town from a county, until society break up into chaos. The fallacy of this is very obvious. A State claims to secede in virtue of her right as a sovereignty. When a county becomes a sovereignty it may prefer an equal claim, but then it cannot be a county. The comparison fails in other respects. The secession of a State from others is the case of men who separate; the secession of a county would be that of a limb torn from the body. There is also no such practical danger as that which has been described. The secession of a single State would be suicidal; it would be surrounded with custom-houses, cramped with restrictions, and crushed under the expenses involved. North Carolina and Rhode Island, after refusing to join the Union, and holding out for more than two years, were at last constrained to accede, by the same causes which will always prevent any State from attempting to stand alone. Practically the right could not be exercised, even if conceded, except by a number of States together, sufficient in resources to enable them to maintain their position, and to endure the heavy cost of a separate government. Indeed, if justly governed, it is by no means clear why there should be any desire to secede.
A much more subtle argument was used by Jefferson, since often repeated. He observed that if one State claimed the right to secede from the rest, the others would have equal right to secede from one State, which would amount to turning it out of the Union. The argument is based on the assumption that a State, claiming the one, and objecting to the other, would exhibit a conflict of principles. But a State would protest against ejection because it involves compulsion; and she claims a right to retire, because if compelled to remain, that is equally a compulsory restraint. Both really involve the same principle; ejection and imprisonment are equally acts of compulsion: and this principle is alike objected to in both cases.
It has been argued that a State would thus claim the right to exercise her will against the others, whilst denying them the right to use their will as against herself. But the case is not one of will within the limit of individual action, but of compulsion extending to, and exercised over, another. A State compelled to go or to remain has a forcible restraint imposed on its will; but in seceding it imposes no restraint on the will of others — they remain free to follow, or continue as before.
It has been urged that reasonable men would not have formed a system exposed to ruin at any time by the secession of its constituents. But the question is not whether the terms of the compact were wise or prudent, but simply what those terms are, and the force they possess. Men make injudicious wills, but these cannot be disputed on the ground of their narrow wisdom. The argument ignores, too, the facts which surrounded the framing of the Constitution. It was the result of a series of compromises. Hence that which may appear unreasonable for any community to have enacted for itself, is reasonable enough when viewed correctly, as the best system it was possible to compass under the circumstances.
Much stress has been laid on the term "supreme," as applied to the federal laws. In reality their only supremacy is in extent — in extending throughout the whole country, whilst the action of a State law is confined within its boundaries. Apart from this, the State is as supreme as the federal law. No question exists of relative rank, of any superiority; each is supreme in its own department, both are equally powerless beyond it. The Federal Government has indeed no absolute law-making power; for all its laws are liable to be declared void by the Supreme Court. That court declared null and void the most important law ever passed by the federal legislature — the Missouri compromise. It sits not merely as the interpreter, but as the judge of the law.
It has been argued that the present Constitution differs in principle from the Articles of Confederation, in enabling the Federal Government to act directly on individuals, instead of doing so through the State governments. The inference is drawn that the sovereignty of the States has been surrendered by this concession. Had such a right been committed to a foreign Government, or to any substantive power, this might have been a natural inference. But the Federal Government has no substantive power, and is only the joint agent of the States. These act directly on their own citizens, each through its special government or agent, in the great majority of cases. They agree to act on them through the Federal or common agent in certain other specified cases. This is simply a more effective manner of procedure, a question of detail, greatly improving the administration, but affecting in nowise the question of sovereignty. Further, it was pointed out by Madison in the Convention that the principle itself was not new, but existed under the Articles of Confederation, in several cases which he specified.
A federal republic is a partnership of republics. It has been argued that, admitting this to be the case, still, when once formed, it could not be dissolved by one without the consent of the others. But a very common form of partnership, in this and other countries, is partnership at will; from this any one party may retire without consulting the rest. And it seems to have escaped observation, how much wider are the powers of a sovereign State than those of a private individual. To a partnership of States the words of Madison apply: "When resort can be had to no common superior, the parties to the compact must themselves be the rightful judges, whether the bargain has been pursued or violated."
It has, indeed, been contended that the principles of a partnership at will could not apply, because this was to last for ever. On the point of duration the Constitution is silent, except in what is merely the expression of a desire, in the preamble, "to secure the blessings of liberty to ourselves and our posterity." On this subject there is no enactment or injunction. But on turning to the previous Articles of Confederation, we find in the title the words "perpetual union," and in the body, the express injunction — "And the union shall be perpetual." On this point they clearly possessed greater force than that of the Constitution; yet, notwithstanding this, they were terminated at the end of a few years, and that, too, with liberty to any State to leave the Federation altogether. The Union has, therefore, proved, by its own act, that terms of this nature have no force of law, but simply indicate the intention and the desire of the parties at the time. We find, too, that the Federal Government entered into a close alliance with France, the terms of which strongly enjoined that it should last for ever; yet these terms were held to be no obstacle to annulling it, without the consent of the other party.
On turning to the Constitution, it causes surprise to find that no prohibition of secession exists in it. Those who framed it were men well versed in public affairs, surrounded by angry passions, employed in the very act of breaking up a Constitution, if, indeed, it may not be said, of seceding from one of the States, for Rhode Island continued to adhere to it. They provided for a State dividing into two or more — for several uniting into one — for the admission of States yet to come into existence. Why, then, this remarkable omission? A contingency far more probable than these was that of a State becoming dissatisfied, and desiring to separate. Was such an omission the result of negligence, of inability to foresee so probable an event, or was it the result of design?
It has been contended that it would have been improper to forbid a State to withdraw — that it would have been "futile and undignified" to have added to a law, "And be it further enacted that the said law shall not be violated." But this is just what all law has to do; and that which does it not, is not law. Who had the powers of a lawgiver over independent, sovereign States, entering into a compact of their own free will? And where is the law, either to be violated or obeyed? There is a provision for a State separating into pieces, and this appears quite as undignified as to provide against a State, whole and intact, separating from the rest. There is provision against the treason of individuals; and if a State can also commit treason, it would be strange law that provided against crime on a small scale, omitting to deal with it when on a large one. The men who framed the Constitution were eminently practical men. It cannot be supposed that they would slight so formidable a danger. Why, then, the omission? For the soundest and wisest reasons, which we have on record from their own lips.
In the first place, had there been inserted in the Constitution a compulsory clause of this nature, it would have been impossible to obtain the ratification of the States. Very difficult, at the present day, would it be to obtain the assent to such a clause even of the Northern States. Theoretically nothing would be easier, but when it came to the point, it would hardly be possible to prevail upon Massachusetts, even at this day, to abandon, for ever, her often-asserted independence and sovereignty, and accept, in reality and truth, that position in which she is said now to exist — that of the province of a wider power. And if there would now be such practical difficulty, with the State whose present professions are those most favourable to the step, how great would have been the obstacles when all the States were to be included, many hostile to, and jealous of, the rest, and when the task was regarded, and proved to be, all but impossible, without this further and strong element of repugnance?
In the next place, the framers of the Constitution perceived, that should they forbid the retirement of a State, they must provide means to prevent it; otherwise it would be an idle precept, a mere solicitation to remain. Other questions might be referred to the Supreme Court, but a retiring State withdrew from its jurisdiction. Other forms of delinquency could be visited on individuals, but here was the action of a whole community. Goodwill must have died out before it could occur; argument would be vain; there could be no appeal except to force. But no force was to be created, adequate to an undertaking of this nature. The first act under the Constitution for regulating the military establishment, provided for a standing force of only 1,216 rank and file. True, in case of need this might be increased; but a cardinal principle with the people was to distrust standing armies; a subject on which their feeling was jealous in the extreme. It was impracticable to run counter to this, even so far as to provide the framework of an army equal to such an object. The only possible force would be that of the remaining States, to be employed in coercing those that desired to secede. On such a proposition the views of the two chief framers of the Constitution are on record. In the Convention, on the 31st May, 1787, Madison declared that "the use of force against a State would be 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; a union of States containing such an ingredient seemed to provide for its own destruction." Again, on the 8th June, he observed: "Any government formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress."
Hamilton, in that great authority the Federalist, after showing the futility of employing force against a State, concludes thus:
When the sword is once drawn the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extreme to avenge the affront, or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union.
In one of the debates in the New York State Convention, Hamilton made use of these words: "To coerce a State would be one of the maddest projects ever devised. No State would ever suffer itself to be used as the instrument of coercing another." His far-seeing description in the Federalist is but too applicable to the events of the present day; and remarkable it is that he, the master spirit of the Unionists, should have denounced as "madness" that coercion which is adopted by his followers at the present day.
But there was a consideration of still higher import. The Constitution was a voluntary act, framed on the principles of free, mutual assent, and common belief in its advantages. To introduce force as a means of maintaining it, would be repugnant to these principles. It would be a commencement on the voluntary system, to be continued under compulsion. Force is an attribute of monarchy; the throne represents and wields the strength of the nation. Each part is subservient to the whole, and none can revolt without foreknowledge of this force to encounter and overthrow. But the basis of a Federal Republic is the reverse of all this. It stands upon consent, which is the abnegation of force. In place of submission of part to the whole, the parties are co-equal. Compulsion is not only inapplicable, but opposed to the principle of the system. And the men of that day were too logical to be unaware of this; they declined to incorporate with the structure they were rearing a principle directly antagonistic to it.
There is another great constitutional authority, the fountain head of American politics — the Declaration of Independence — of which the first clause bears directly on this question:
We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that amongst 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 to these ends, it is the right of the people to alter, or abolish it.
These are the constitutional principles for the guidance of every citizen. When the people of Georgia, left in doubt by the silence of the Federal compact on the subject of secession, refer to these to enlighten them, to what conclusion must they come — what hesitation can they feel? They are told that the "pursuit of happiness" is "an inalienable right of man"; they feel that the government over them has become "destructive of this end"; they read that thereupon "it is the right of the people to alter or abolish it." It will, indeed, be said that the people referred to, are the whole people of the whole country, but this is not the fact. That, indeed, may promote the happiness of Georgia, which produces woe in California, at a distance of three thousand five hundred miles. By what arithmetic can the balance of happiness be adjusted between them? Further, the Declaration of Independence did not speak for all the people under the rule it denounced, but for a small portion of them only; nor did it speak for the people of the United States as a single people, but as separate colonies now claiming to be independent, the respective, original States. Clearly, then, this language is adopted by the people of each separate colony now a State, having a form of government over it of which it is to judge, and which, whenever so disposed, it may abolish.
Again, governments are unjust unless their powers are based on the "consent of the governed." Here the same question arises, Who are the governed who are to consent? Are the people of the State of Georgia to refrain from dissenting until they agree with the people of Oregon, more remote than England from Arabia? But this principle also was enunciated, like the last, for the guidance of each separate, distinct community. Upon these principles we can arrive at no other conclusions than these — that according to the Constitutional doctrines of America, whenever a State decides by the vote of a majority of its people, that the government over it has become destructive to the ends of its welfare and happiness, and no longer exists in its consent, such State has a right to abolish that government, so far as it concerns itself, or, in other words, has a right to secede from the Union.
This article was extracted from James Spence, The American Union: Its Effect on National Character and Policy (London: Richard Bentley and Son, 1862). Click HERE to purchase this title.