Questions of Secession (part three)

James Madison, c. 1821

part three of five

I’ve been chatting about secession lately with historian Nathan Hall of Richmond National Battlefield Park. Nathan has been studying the topic deeply for many years and recently spoke on it at the Richmond Civil War Roundtable. I think you’ll enjoy his thoughts, too.

Doug: Did the founders fail to anticipate the possibility of secession? Or, did they leave it intentionally vague?

Nathan: The United States Constitution presents something of a paradox when it comes to the concept of secession, or of how to address some part of the union of states voluntarily separating from the whole. Or course, the word “secession” does not appear in the U.S. Constitution or its amendments, causing one to wonder if the people who negotiated the text of the document somehow failed to foresee the potential for future conflict.

On one hand, if the authors had intended for the union to be dissolvable by some method, why not declare it explicitly in the text and enumerate the procedures that should be followed to complete the separation (as they did with the procedures for conducting elections, regulating commerce, etc., in detail)? On the other hand, if the authors intended that no state should be permitted to leave the union under any circumstances, why not explicitly state as much in plain language, as the previous constitution document—the Articles of Confederation—had done. The full title of the previous document was, in fact, “The Articles of Confederation and Perpetual Union,” and included the unambiguous passage: “the Union shall be perpetual.” When those articles were replaced by the U.S. Constitution, the new document contained no such explicit statement.

This does not mean, however, that the representatives who assembled to draft and debate the constitution failed to anticipate the potential for disunion in the future. Instead, the absence of explicit statutes regarding secession clearly indicates how divided they were upon the subject. Arguing fervently against the adoption of the constitution, the profoundly respected statesman Patrick Henry presciently identified precisely which ambiguities might one day be the basis for the fracturing of the union.

“The fate… of America may depend on this,” Henry said, “have they made a proposal of a compact between the states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing—the expression, We, the people, instead of the states, of America.” This distinction between whether the authority of the federal government originated with formal state governments or with the populace, considered as a whole, was exactly the crux of the eventual secession crisis.

Opponents of the constitution in New York in fact attempted to remedy any potential confusion by proposing that their ratification should be contingent on adding the proviso that “there should be reserved to the state of New York a right to withdraw herself from the union after a certain number of years.” In response, pro-constitution delegate Alexander Hamilton read aloud a letter from Virginian James Madison, who declared, “the Constitution requires an adoption in toto, and for ever.” (emphasis in original) Madison went on the note that, “The idea of reserving a right to withdraw was started at Richmond, and considered as a conditional ratification which was itself abandoned as worse than a rejection.” Hamilton and fellow delegate John Jay, in addition, told the convention that “a right to withdraw [was] inconsistent with the Constitution, and was no ratification.” When the debates had concluded, the New York convention ratified the constitution without the withdrawal provisions proposed by the anti-federalists.

Ultimately unable to fashion a compromise between two poles of an all-or-nothing proposition, the constitution’s creators allowed it to remain ambiguous. Thus, the secession paradox in the constitution is by design, not by mistake.

To be continued….

10 Responses to Questions of Secession (part three)

  1. Doug and Nathan: Excellent introduction to “the minds of the Framers of the Constitution” regarding their intentions and desires with creating the Document that includes in its first sentence, “in order to form a more perfect union…” And Federalist Paper No.6 also indicates awareness of “disputes of the past” and “conflicts that will arise in the Future” and appears to intentionally NOT address every possible Future cause of friction. Instead…
    Article III of the U. S. Constitution, Section 2 states: “The Judicial Power shall extend to all cases arising from this Constitution.” And the same Section 2 specifically includes “controversies between two or more States.” The Framers of the Constitution recognized that they COULD NOT address every conceivable dispute and dilemma presenting in the Future; and so no attempt was made to answer hypothetical questions ad infinitum. The Courts were designated as the arbiter to decide those issues if and when they arose.

    1. I’m really enjoying the comments and the engagements with this discussion. Particularly because, in keeping it somewhat short, I necessarily had to leave out certain lines of thought and relevant quotations that would flesh out the topic even further. You commenters are doing an excellent job of identifying and sharing documentation on the topic to dive deeper into the concept. Keep up the good work!

      On this particular topic, i.e. the discussion of potential secession after the ratification of the constitution, James Madison is a very fruitful source of interpretation on the topic, since people obviously looked to him for opinions on constitutional matters during his lifetime. To this thread I’ll add his thoughts from The Report of 1800, which was written partially in response to the disunionist thread evident in the emerging “compact theory.” He noted, “[T]he declarations of [the citizens or the state legislature], whether affirming or denying the constitutionality of measures of the Federal Government … are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force.”
      Needless to say, Chief Justice Marshall agreed and stated as much through the courts a few years later. The next section will continue this thread, including some of Thomas Jefferson’s divergence on this issue and into Andrew Jackson’s remarkably cogent constitutional analysis.

  2. There was no discussion of secession in the Federal Convention from the evidence we have. In fact, the evidence we have indicates the Framers expected the Union to be perpetual, which is why they said it was a “more perfect” union. Indeed, when Patrick Henry said it was a consolidated government and that Virginia could never get out of it, no one at all countered by saying secession was a possibility. When Henry talked about losing slavery and losing rights in his speeches, not a single person came forward and said, “Don’t worry. If it gets to that we’ll just secede.” In each state the Antifederalists all warned of the dangers of a centralized government under the Constitution, and no one at all said, “Don’t worry, if it gets too bad we can just secede.” Even Madison’s letter to Hamilton shows his understanding, that the ratification would be “for ever.” In other words, no secession. I disagree that they deliberately left it unambiguous. I read in this that they didn’t feel the need to say secession was not allowed because they felt it was obvious. During the North Carolina Ratification Debates, Gov. Samuel Johnston made the following observation concerning the Supremacy Clause on 29 July 1788:
    “The Constitution must be the supreme law of the land; otherwise, it would be in the power of any one state to counteract the other states, and withdraw itself from the Union. The laws made in pursuance thereof by Congress ought to be the supreme law of the land; otherwise, any one state might repeal the laws of the Union at large. Without this clause, the whole Constitution would be a piece of blank paper.” [Elliot’s Debates, Vol IV, pp. 187-188] He was not contradicted.

    1. Here’s what the Supreme Court said prior to 1860:

      “The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties.” [17 U.S. 316, 404]

      “The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.” [19 US 264, 389]

      Those two were written by Chief Justice John Marshall, a member of the Virginia Ratification Convention.

      As to the theory behind secession, James Madison, the Father of the Constitution, countered it:

      “Applying a like view of the subject to the case of the U. S. it results, that the compact being among individuals as imbodied into States, no State can at pleasure release itself therefrom, and set up for itself. The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect. It will hardly be contended that there is anything in the terms or nature of the compact, authorizing a party to dissolve it at pleasure.” [James Madison to Nicholas Trist, 15 Feb 1830]

      “The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater right to break off from the bargain, than the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of -98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a SINGLE [emphasis in original] party, with the PARTIES [emphasis in original] to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created. In the Virginia Resolutions and Report the PLURAL [emphasis in original] number, STATES [emphasis in original], is in EVERY [emphasis in original] instance used where reference is made to the authority which presided over the Government. As I am now known to have drawn those documents, I may say as I do with a distinct recollection, that the distinction was intentional. It was in fact required by the course of reasoning employed on the occasion. The Kentucky resolutions being less guarded have been more easily perverted. The pretext for the liberty taken with those of Virginia is the word RESPECTIVE [emphasis in original], prefixed to the ‘rights’ &c to be secured within the States. Could the abuse of the expression have been foreseen or suspected, the form of it would doubtless have been varied. But what can be more consistent with common sense, than that all having the same rights &c, should united in contending for the security of them to each.

      “It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, Vol. 2, with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject.” [James Madison to Nicholas Trist, 23 Dec 1832]

      Thomas Ritchie, editor of the Richmond Enquirer, wrote during the War of 1812, “No man, no association of men, no state or set of states has a right to withdraw itself from this Union, of its own accord. The same power which knit us together, can only unknit. The same formality, which forged the links of the Union, is necessary to dissolve it. The majority of States which form the Union must consent to the withdrawal of any one branch of it. Until that consent has been obtained, any attempt to dissolve the Union, or obstruct the efficacy of its constitutional laws, is Treason–Treason to all intents and purposes. . . . This illustrious Union, which has been cemented by the blood of our forefathers, the pride of America and the wonder of the world must not be tamely sacrificed to the heated brains or the aspiring hearts of a few malcontents. The Union must be saved, when any one shall dare to assail it.” [Richmond Enquirer, 1 November 1814]

      Look at the Federalist Papers. The first part is dedicated to showing why the preservation of the Union was essential, followed by a discussion of why the Articles of Confederation had to be replaced because they were insufficient to guarantee the preservation of the Union, followed by a discussion of why the Constitution was superior because it guaranteed the preservation of the Union.

      The Framers were concerned with keeping the Union together and felt the Constitution as they had framed it was sufficient to do so.

      1. Excellent point, re: the framers of the constitution not discussing unilateral secession, in the sense it came to be understood by South Carolina in 1860.

        Patrick Henry – the onetime arch Antifederalist – was worried about the union fracturing at the time of the Alien & Sedition Acts, and even by the close of the 18th century, his language was still that of revolution and not secession. “If I am asked what is to be done when a people feel themselves intolerably oppressed,” he said in his last public speech, “my answer is ready – overturn the government. But… wait at least until some infringement is made upon your rights that cannot be redressed; for… you may bid adieu forever to representative government. You can never exchange the present government but for a monarchy.”

        The idea of unilateral secession of the kind that South Carolina eventually attempted was something that shaped up over a few generations of political discourse, you’re right. We’ll be tracing that evolution a little further as the discussion continues…

  3. Al Mackey’s comments hit the nail on the head, although I would suggest that because secession was a legal question only legal decisions and documents establishing the law should be considered. The opinions and theories of the Framers and others are nice to weigh in the debate, but ultimately the law of the land is what decides whether a proposed course of action by a State is legal or not. Al correctly points out 2 antebellum Supreme Court decisions establishing that secession was not permitted by the Constitution unless all States agreed to it. There were other pre-1860 decisions establishing the illegality of unilateral secession, too, including:

    Fletcher v. Peck [10 U.S. 87, 136]: “Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution. She is a part of a large empire; she is a member of the American union; and that union has a constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several states, which none claim a right to pass.”

    Gibbons v. Ogden [22 U.S. 1, 187]: “When these allied sovereigns (i.e., States) converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns, the whole character in which the States appear, underwent a change.”

    Dodge v. Woolsey [59 US 331, 348-349]: “The constitution is not only supreme in the sense we have said it was, for the people in the ratification of it have chosen to add that ‘this constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.’ And, in that connection, to make its supremacy more complete, impressive, and practical, that there should be no escape from its operation, and that is binding force upon the States and the members of congress should be unmistakable, it is declared that ‘the senators and representatives, before mentioned, and the members of the state legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by an oath or affirmation to support this constitution.”

    If the United States is anything it is a nation built on law and the decisions of the Supreme Court (i.e., interpretations of the Constitution) form the basis of that law. The SCOTUS had decided MANY times that secession as South Carolina practiced it in 1860 was not only not permitted, it was illegal. There is no ambiguity on this question. The laws were in the books and the Southern States that formed the Confederacy, whatever their motivation, broke those laws, declaring themselves to be in rebellion against the United States.

    1. Definitely solid observations. It’s abundantly clear that the Supreme Court, under John Marshall’s early leadership, believed that it was and should be the arbiter of constitutionality. We take for granted today that this is the case and it would be difficult to imagine a functional government without it. I’ve always been fascinated by the period between 1788 and the time that the court formally asserted that power in 1803 – that’s a fifteen year period in which discussion and debate could include potential alternative venues for arbitrating constitutionality, including “interposition” – collective action by the states to counteract unconstitutional legislation, and unilateral nullification, which began to coalesce as a political theory at that time. Interposition never functioned effectively, nullification grew into secession, which could have been tested either by a court case or asserted with force (both were attempted and both failed), and we are left with the courts and their precedent in authority, as Marshall and Madison recommended at the start.

    2. Mr. Rossino makes some strong points and finishes with this: “The SCOTUS had decided MANY times that secession as South Carolina practiced it in 1860 was not only not permitted, it was illegal. There is no ambiguity on this question. The laws were in the books and the Southern States that formed the Confederacy, whatever their motivation, broke those laws, declaring themselves to be in rebellion against the United States.”

      I would argue, however, that the comments he cites in those cases were themselves subject to interpretation. Without a definitive statement saying that secession was illegal and unconstitutional, states could still argue that circumstances were not the same as in the cases under question and so the decisions in those previous cases did not apply.

      Combined with the extra-legal fact that the question of where one’s primary loyalty belonged clearly had not been settled, it seems quite reasonable to believe that secession, even if regrettable and a bad idea (which, in my view, it absolutely was), was not illegal in 1860.

  4. It is a bit ironic that, while the primary motivation for secession involved the preservation of slavery, the Constitution and case law offered better foundations of legal support for slavery than for secession.

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