On the Permanence of the Union
by William Rawle
The United States shall guarantee to every state in the Union a republican form of government, shall protect each of them against invasion, and on application of the legislature, or of the executive when the legislature cannot be convened, against domestic violence.
The Union is an association of the people of republics; its preservation is calculated to depend on the preservation of those republics. The people of each pledge themselves to preserve that form of government in all. Thus each becomes responsible to the rest, that no other form of government shall prevail in it, and all are bound to preserve it in every one.
But the mere compact, without the power to enforce it, would be of little value. Now this power can be no where so properly lodged, as in the Union itself. Hence, the term guarantee, indicates that the United States are authorized to oppose, and if possible, prevent every state in the Union from relinquishing the republican form of government, and as auxiliary means, they are expressly authorized and required to employ their force on the application of the constituted authorities of each state, "to repress domestic violence." If a faction should attempt to subvert the government of the state for the purpose of destroying its republican form, the paternal power of the Union could thus be called forth to subdue it.
Yet it is not to be understood, that its interposition would be justifiable, if the people of a state should determine to retire from the Union, whether they adopted another or retained the same form of government, or if they should, with the express intention of seceding, expunge the representative system from their code, and thereby incapacitate themselves from concurring according to the mode now prescribed, in the choice of certain public officers of the United States.
The principle of representation, although certainly the wisest and best, is not essential to the being of a republic, but to continue a member of the Union, it must be preserved, and therefore the guarantee must be so construed. It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.
The states, then, may wholly withdraw from the Union, but while they continue, they must retain the character of representative republics. Governments of dissimilar forms and principles cannot long maintain a binding coalition. "Greece," says Montesquieu," was undone as soon as the king of Macedonia obtained a seat in the amphyctionic council." It is probable, however, that the disproportionate force as well as the monarchical form of the new confederate had its share of influence in the event. But whether the historical fact supports the theory or not, the principle in respect to ourselves is unquestionable.
We have associated as republics. Possessing the power to form monarchies, republics were preferred and instituted. The history of the ancient, and the state of the present world, are before us. Of modern republics, Venice, Florence, the United Provinces, Genoa, all but Switzerland have disappeared. They have sunk beneath the power of monarchy, impatient at beholding the existence of any other form than its own. An injured province of Turkey, recalling to its mind the illustrious deeds of its ancestors, has ventured to resist its oppressors, and with a revival of the name of Greece, a hope is entertained of the permanent institution of another republic. But monarchy stands by with a jealous aspect, and fearful lest its own power should be endangered by the revival of the maxim, that sovereignty can ever reside in the people, affects a cold neutrality, with the probable anticipation that it will conduce to barbarian success. Yet that gallant country, it is trusted, will persevere. An enlightened people, disciplined through necessity, and emboldened even by the gloom of its prospects, may accomplish what it would not dare to hope.
This abstract principle, this aversion to the extension of republican freedom, is now invigorated and enforced by an alliance avowedly for the purpose of overpowering all efforts to relieve mankind from their shackles. It is essentially and professedly the exaltation of monarchies over republics, and even over every alteration in the forms of monarchy, tending to acknowledge or secure the rights of the people. The existence of such a combination warrants and requires that in some part of the civilized world, the republican system should be able to defend itself. But this would be imperfectly done, by the erection of separate, independent, though contiguous governments. They must be collected into a body, strong in proportion to the firmness of its union; respected and feared in proportion to its strength. The principle on which alone the Union is rendered valuable, and which alone can continue it, is the preservation of the republican form.
In what manner this guaranty shall be effectuated is not explained, and it presents a question of considerable nicety and importance.
Not a word in the Constitution is intended to be inoperative, and one so significant as the present was not lightly inserted. The United States are therefore bound to carry it into effect whenever the occasion arises, and finding as we do, in the same clause, the engagement to protect each state against domestic violence, which can only be by the arms of the Union, we are assisted in a due construction of the means of enforcing the guaranty. If the majority of the people of a state deliberately and peaceably resolve to relinquish the republican form of government, they cease to be members of the Union. If a faction, an inferior number, make such an effort, and endeavour to enforce it by violence, the case provided for will have arisen, and the Union is bound to employ its power to prevent it.
The power and duty of the United States to interfere with the particular concerns of a state are not, however, limited to the violent efforts of a party to alter its constitution. If from any other motives, or under any other pretexts, the internal peace and order of the state are disturbed, and its own powers are insufficient to suppress the commotion, it becomes the duty of its proper government to apply to the Union for protection. This is founded on the sound principle that those in whom the force of the Union is vested, in diminution of the power formerly possessed by the state, are bound to exercise it for the good of the whole, and upon the obvious and direct interest that the whole possesses in the peace and tranquility of every part. At the same time it is properly provided, in order that such interference may not wantonly or arbitrarily take place, that it shall only be on the request of the state authorities: otherwise the self-government of the state might be encroached upon at the pleasure of the Union, and a small state might fear or feel the effects of a combination of larger states against it under colour of constitutional authority; but it is manifest, that in every part of this excellent system, there has been the utmost care to avoid encroachments on the internal powers of the different states, whenever the general good did not imperiously require it.
No form of application for this assistance is pointed out, nor has been provided by any act of congress, but the natural course would be to apply to the president, or officer for the time being, exercising his functions. No occasional act of the legislature of the United States seems to be necessary, where the duty of the president is pointed out by the Constitution, and great injury might be sustained, if the power was not promptly exercised.
In the instance of foreign invasion, the duty of immediate and unsolicited protection is obvious, but the generic term invasion, which is used without any qualification, may require a broader construction.
If among the improbable events of future times, we shall see a state forgetful of its obligation to refer its controversies with another state to the judicial power of the Union, endeavour by force to redress its real or imaginary wrongs, and actually invade another state, we shall perceive a case in which the supreme power of the Union may justly interfere: perhaps we may say is bound to do so.
The invaded state, instead of relying merely on its own strength for defence, and instead of gratifying its revenge by retaliation, may prudently call for and gratefully receive the strong arm of the Union to repel the invasion, and reduce the combatants to the equal level of suitors in the high tribunal provided for them. In this course, the political estimation of neither state could receive any degradation. The decision of the controversy would only be regulated by the purest principles of justice, and the party really injured, would be certain of having the decree in its favour carried into effect.
It rests with the Union, and not with the states separately or individually, to increase the number of its members. The admission of another state can only take place on its own application. In the formation of colonies under the denominations of territories, the habit has been, to assure them their formation into states when the population should become sufficiently large. On that event, the inhabitants acquire a right to assemble and form a constitution for themselves, and the United States are considered as bound to admit the new state into the Union, provided its form of government be that of a representative republic. This is the only check or control possessed by the United States in this respect.
If a measure so improbable should occur in the colony, as the adoption of a monarchical government, it could not be received into the Union, although it assumed the appellation of a state, but the guaranty of which we have spoken, would not literally apply — the guaranty is intended to secure republican institutions to states, and does not in terms extend to colonies. As soon, however, as a state is formed out of a colony, and admitted into the Union, it becomes the common concern to enforce the continuance of the republican form. There can be no doubt, however, that the new state may decline to apply for admission into the Union, but it does not seem equally clear, that if its form of government coincided with the rules already mentioned, its admission could be refused. The inhabitants emigrate from the United States, and foreigners are permitted to settle, under the express or implied compact, that when the proper time arrives, they shall become members of the great national community, without being left to an exposed and unassisted independence, or compelled to throw themselves into the arms of a foreign power. It would seem, however, that the constitution adopted, ought to be submitted to the consideration of congress, but it would not be necessary that this measure should take place at the time of its formation, and it would be sufficient if it were presented and approved at the time of its admission. The practice of congress has not, however, corresponded with these positions, no previous approbation of the constitution has been deemed necessary.
It must also be conceded, that the people of the new state retain the same power to alter their constitution, that is enjoyed by the people of other states, and provided such alterations are not carried so far as to extinguish the republican principle, their admission is not affected.
The secession of a state from the Union depends on the will of the people of such state. The people alone as we have already seen, hold the power to alter their constitution. The Constitution of the United States is to a certain extent, incorporated into the constitutions of the several states by the act of the people. The state legislatures have only to perform certain organical operations in respect to it. To withdraw from the Union comes not within the general scope of their delegated authority. There must be an express provision to that effect inserted in the State constitution. This is not at present the case with any of them, and it would perhaps be impolitic to confide it with them. A matter so momentous, ought not to be entrusted to those who would have it in their power to exercise it lightly and precipitately upon sudden dissatisfaction, or causeless jealousy, perhaps against the interests and the wishes of a majority of their constituents.
But in any manner by which a secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal. The perspicuity and solemnity of the original obligation require correspondent qualities in its dissolution. The powers of the general government, cannot be defeated or impaired by an ambiguous or implied secession on the part of the state, although a secession may perhaps be conditional. The people of the state may have some reasons to complain in respect to acts of the general government, they may in such cases invest some of their own officers with the power of negotiation, and may declare an absolute secession in case of their failure. Still, however, the secession must in such case be distinctly and peremptorily declared to take place on that event, and in such case — as in the case of an unconditional secession, — the previous ligament with the Union, would be legitimately and fairly destroyed. But in either case the people is the only moving power.
But we may pursue the subject somewhat further.
To withdraw from the Union is a solemn, serious act. Whenever it may appear expedient to the people of a state, it must be manifested in a direct and unequivocal manner. If it is ever done indirectly, the people must refuse to elect representatives, as well as to suffer their legislature to re-appoint senators. The senator whose time had not yet expired, must be forbidden to continue in the exercise of his functions.
But without plain, decisive measures of this nature, proceeding from the only legitimate source, the people, the United States cannot consider their legislative powers over such states suspended, nor their executive or judicial powers any way impaired, and they would not be obliged to desist from the collection of revenue within such state.
As to the remaining states among themselves, there is no opening for a doubt.
Secessions may reduce the number to the smallest integer admitting combination. They would remain united under the same principles and regulations among themselves that now apply to the whole. For a state cannot be compelled by other states to withdraw from the Union, and therefore, if two or more determine to remain united, although all the others desert them, nothing can be discovered in the Constitution to prevent it.
The consequences of an absolute secession cannot be mistaken, and they would be serious and afflicting.
The seceding state, whatever might be its relative magnitude, would speedily and distinctly feel the loss of the aid and countenance of the Union. The Union losing a proportion of the national revenue, would be entitled to demand from it a proportion of the national debt. It would be entitled to treat the inhabitants and the commerce of the separated state, as appertaining to a foreign country. In public treaties already made, whether commercial or political, it could claim no participation, while the foreign powers would unwillingly calculate, and slowly transfer to it, any portion of the respect and confidence borne towards the United States.
Evils more alarming may readily be perceived. The destruction of the common band would be unavoidably attended with more serious consequences than the mere disunion of the parts.
Separation would produce jealousies and discord, which in time would ripen into mutual hostilities, and while our country would be weakened by internal war, foreign enemies would be encouraged to invade with the flattering prospect of subduing in detail, those whom, collectively, they would dread to encounter.
Such in ancient times was the fate of Greece, broken into numerous independent republics. Rome, which pursued a contrary policy, and absorbed all her territorial acquisitions in one great body, attained irresistible power.
But it may be objected, that Rome also has fallen. It is true; and such is the history of man. Natural life and political existence alike give way at the appointed measure of time, and the birth, decay, and extinction of empires only serve to prove the tenuity and illusion of the deepest schemes of the statesmen, and the most elaborate theories of the philosopher. Yet it is always our duty to inquire into, and establish those plans and forms of civil association most conducive to present happiness and long duration: the rest we must leave to Divine Providence, which hitherto has so graciously smiled on the United States of America.
We may contemplate a dissolution of the Union in another light, more disinterested but not less dignified, and consider whether we are not only bound to ourselves but to the world in general, anxiously and faithfully to preserve it.
The first example which has been exhibited of a perfect self-government, successful beyond the warmest hopes of its authors, ought never to be withdrawn while the means of preserving it remain.
If in other countries, and particularly in Europe, a systematic subversion of the political rights of man shall gradually overpower all rational freedom, and endanger all political happiness, the failure of our example should not be held up as a discouragement to the legitimate opposition of the sufferers; if, on the other hand, an emancipated people should seek a model on which to frame their own structure; our Constitution, as permanent in its duration as it is sound and splendid in its principles, should remain to be their guide.
In every aspect therefore which this great subject presents, we feel the deepest impression of a sacred obligation to preserve the union of our country; we feel our glory, our safety, and our happiness, involved in it; we unite the interests of those who coldly calculate advantages with those who glow with what is little short of filial affection; and we must resist the attempt of its own citizens to destroy it, with the same feelings that we should avert the dagger of the parricide.
This article was extracted from William Rawle, A View of the Constitution of the United States of America (Philadelphia, Pennsylvania: Philip H. Nicklin and Company, 1829). Click HERE to purchase this title.