Introduction
Did the South have a legal right to secede? Is the United States a unified nation in which the individual states merged their sovereign rights and identities forever, or is it a federation of sovereign states joined together temporarily from which they can withdraw at any time? Whether or not states had the constitutional right to secede from the Union was the proximate cause of the Civil War. In the Secession Crisis of 1860-61, eleven southern states withdrew from the Union and declared themselves a separate nation – the Confederate States of America.
Secession threats were nothing new in the early years of the nation. South Carolina threatened to secede thirty years before the Civil War began over the nullification crisis emanating from tariffs. Before that, the Hartford Convention of 1814-15 brought together the New England states to consider secession, ultimately deciding against it. But in December 1860, South Carolina passed an Ordinance of Secession, becoming the first state to assert independence.
Secession was the response of eleven states to protect their planter class, who were reliant on slave labor and their property value. As the slave population grew, their strategy for continued financial profit depended on expansion. The election of Abraham Lincoln in 1860 demonstrated that these states no longer held national political power, which they believed threatened their economic future, precipitating the crisis.
The question raised is whether these states were within their legal rights to unilaterally declare they were leaving the Union. Since there was no specific constitutional provision stating that secession was illegal, it seemed that the law was ambiguous. The possible trial of Jefferson Davis for treason after the war was dropped, in part, from concern that he might not have been considered a US citizen once his state seceded; therefore, whether secession was legal or illegal might be a matter of opinion, and might not constitute treason.
In this article we will review the drafting of the Constitution, its precepts, relevant ante bellum Supreme Court decisions and quotations of the founding fathers to evaluate if in 1860-1861 secession could have been claimed as a constitutional and legal remedy to sectional disagreements.
Social Contract Theory & Natural Rights
Thomas Jefferson and James Madison derived their ideas of government from John Locke, an English philosopher and physician. Locke developed the concept that government is a social contract (in his Two Treatises of Government) in which the king receives the power to govern but has a responsibility to protect his citizenry. The people, who are the both the ones being governed and the ones from whom power derives (not divine rights as in medieval times), agree to an unwritten contract: the king governs but must work on the people’s behalf. They desire security, rights, and a living wage, or as was stated: “life, liberty and property”. If the government doesn’t do those things, then the people have the natural right to change the government and form a new one. Because the purpose of government is to protect individuals’ lives, liberty, and property, governments lack legitimacy if either they fail to offer such protection or attack the individuals they were created to safeguard. But before doing this, the people have to be sure that what the government has done is truly worthy of this drastic act.
When Jefferson wrote the Declaration of Independence, he appropriated Locke’s concepts that people are born with the unalienable (meaning natural) rights to life, liberty, and the pursuit of happiness (changed from property in committee; Benjamin Franklin didn’t want a misunderstanding of the word “property” to have only its modern context (owning “stuff”) when what is meant is the fruits of ones labor). The idea that a revolution is warranted when the king fails to deliver these conditions is the subtext of the first paragraph of the Declaration of Independence. The remainder of the document is a laundry list of actions King George and the English Parliament undertook showing that its citizens in the colonies had sincerely tried to work things out but deliberate actions had been taken that were clear violations of this trust; and thus, creating a new government was warranted. Specifically, the Declaration states:
“Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness”
This is a direct reflection of Locke’s principle of the natural right of people to choose a form of government conducive to their well-being. Jefferson, Franklin, Adams and Washington, the leaders of the Continental Congress, never suggested that doing this was legal under the laws of the British Crown; they stated it was their natural or inalienable right to do so. They knew that if caught, or the movement failed, they would be hanged.
The US Constitution
Madison started to write a constitution with Locke’s ideas plus separation of powers (the tripartite system taken from Baron de Montesquieu). Madison’s problem was applying these political philosophic concepts to create a working government in the former colonies. There was no king, there were 13 states, each with its own government and history, there were many highly intelligent but diverse opinions, there was slavery, there was a class divide of wealthy and poor, and they all have to compromise to build a nation. Twenty-one years after the Declaration of Independence, the colonies had already tried a loose confederation, and realized that they needed a more powerful central government to keep things running smoothly.
Madison begins the Constitution with the preamble: “We the People”; this is Madison’s way of saying that this document is a social contract. The people are creating a representative democracy that is to be a “more perfect union” than what had existed up until then. The Constitution’s primary purpose was to strengthen the horrendously weak central government under the Articles of the Confederation.
The Constitution defined the structure of the Federal Government and outlined its relationship to the states. There is nothing about the states being part of this agreement, and indeed, they are part of the government. There was no language that hinted that states could leave the union once they agreed to form it.
The ambiguity originates in the fact that there is no language that expressly recognizes or denies the right of state secession either. Madison did not put in a clause that says a state can not secede because he understood the state government to part of the government, not part of the people. Like the king can’t secede from his own government, a state can’t secede from the republic. The people still have the natural right of revolution — they put in the government and they can change it — but that’s not a legal remedy, it’s a natural one.
Once one takes as the foundation of a republic that it is a government of the people, then secession of states becomes illogical because the states aren’t party to the Constitution (the Confederate constitution recognized this problem and changed it in their version). States can’t secede because that makes no sense; they are part of the government not part of the people.
Patrick Henry understood exactly what the preamble suggested: “The question turns, sir, on that poor little thing—the expression, We, the people, instead of the states, of America. “
Rationale for the Constitutionality of Secession
The Constitution was ratified by a vote of the states, in which delegates acting as representatives of the people, consented to be a party to it. Article VII states that its legal enforceability came from the ratification of nine states. Therefore, secessionists argue, because the states voluntarily ratified the Constitution, they could unilaterally withdraw their consent and cease to be part of the Union. Is the Constitution a social contract in which the people cede power to the Federal government, or a multilateral treaty among sovereign states that can be terminated by the assertion of their power? The argument used by the seceding states was that the Constitution was a compact among the states, and therefore the states could decide to leave at will. Although the philosophical premise might have been that the Constitution is a contract created by the people, the political reality was that it was voted on by states with sovereignty and therefore each state could unilaterally decide whether to leave.
Variations on the idea that the states are sovereign and can reassert their independence at will are that the balance of power between the states and the Federal government was never intended to make states subsidiary; that all of the rights not expressly given to the Federal Government in the 10th Amendment of the Bill of Rights are reserved to the states; and that several states ratified the Constitution in their conventions reserving the right to withdraw.
The Refutation of States Being a Party to the Contract
Abraham Lincoln directly responded to these arguments in his First Inaugural Address. He presented 4 reasons why secession was not protected constitutionally:
- The idea of a national government agreeing to its own termination was absurd. No constitution of any country in the world would offer provisions supporting its dissolution.
- The Union is not a “voluntary association”. In ratifying the Constitution, the agreement was that the states were subsidiary to the Federal government. The Constitution is not a contract with the states, but rather with the people; and even if it were, the principles of contractual law would bar unilateral secession. Consent from all parties to a contract is required to rescind it. If one party pulls out, then they would be in breach of the terms.
- Third, Lincoln further pointed out that the country existed before the Constitution. The signatories of the Declaration of Independence were British colonists, and as such, they declared their independence as a Union – the United States. They signed as representatives of the people of their colony to declare the nation independent, not 13 separate countries. Hence, the states were never “sovereign” to begin with.
- Further, the Union was declared to be perpetual by the Articles of Confederation and Perpetual Union (note the title) and subsequently expressed to be made “more perfect” by the Preamble to the Constitution. The Constitution’s purpose was to strengthen the horrendously weak central government of the Articles of the Confederation, under which the Union was already perpetual. It certainly doesn’t follow that strengthening the central government would somehow make the Union non-perpetual. It’s very hard to see how a perpetual union, being made to be more perfect, could be so if it could be destroyed by any state at will. ”… in order to form a more perfect union” can mean a lot of things, but it can’t mean that we aren’t perpetual; or else it isn’t more perfect.
It was not the state legislatures that created the Constitution but “We the People of the United States” in conventions held in each state. The arbiter of the Constitution was, and remains, the Supreme Court, not the state courts or legislatures of the individual states. Consequently, the individual state governments possessed no legitimate authority to declare a severance of the Union. If it were to be severed at all, that would be a decision for the whole people of the United States who are the proprietors of the Constitution.
This was also James Madison’s personal opinion, expressed in a January 1, 1833 letter to Alexander Rives, discussing the Virginia ratifying convention:
…I do not consider the proceedings of Virginia in 98-99 as countenancing the doctrine that a State may at will secede from its constitutional compact with the other States. A rightful secession requires the consent of the others, or an abuse of the compact, absolving the seceding party from the obligations imposed by it.
And in his letter to Edward Everett:
The Constitution is a compact; that its text is to be expounded according to the provision for expounding it, making a part of the compact; and that none of the parties can rightfully renounce the expounding provision more than any other part.
Federal Supremacy Over State Law
Following are the clauses that make it clear that the Federal Government is the overriding authority:
Article 6 section 2
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.
Moreover, states do not have sovereign powers outside their own borders:
Article I Section 10 Clause 1
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Article I Section 10 Clause 3
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Article1 Section10 Clause 6: Supremacy Clause:
All laws made in pursuance of the Constitution…are the supreme law of the land
There was substantial judicial authority from before 1861 leading to the conclusion that secession was illegal and that the Union was perpetual and in law indestructible. Well before the war, the Supreme Court (SCOTUS) ruled against the states having the power to override the Federal government. The foundational concept that we were one nation, not 30 different ones, is fundamental to a republic. In Swift vs Tyson (1842), Justice Joseph Story’s conclusion that state statutes were not applicable to Federal law was seminal.
In Cohens v. Virginia (1821), the central issue was whether the SCOTUS had jurisdiction in a case decided by a state court. The SCOTUS ruled, “That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. . .. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared, that in the exercise of all the powers given for these objects, it is supreme. . . . The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire.” [19 U.S. 264, 413-414]
Further: “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]
In Madison’s Letter to Daniel Webster of March 15, 1833, he draws the distinction between secession and the natural right to revolution:
The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy.
There is both textual and contextual evidence that secession was not lawful under the constitution. The constitution provides for the admission of new states and the partition of states, but is silent on withdrawal. Rules of common law and judicial construction, familiar to the many lawyers among the convention delegates, would clearly provide that withdrawal is not permitted.
The Constitution expressly states that it is the supreme power of the land (Article VI. For this reason, secession by states would never be allowed. The supremacy clause provides that the constitution governs over conflicting state acts. Any ordinance of secession could not stand under the supremacy clause. The states were not “sovereign,” as they had surrendered the attributes of sovereignty to the federal government upon ratification (see the long list of things the states cannot do).
It was not the state legislatures that created the Constitution but “We the People of the United States” in ratifying conventions held in each state. The arbiter of the Constitution was, and remains, the Supreme Court, not the courts or legislatures of the individual states. Consequently, the individual state governments possessed no legitimate authority to declare a severance of the Union.
In Dodge v. Woolsey, (1855), the SCOTUS ruled, “Further, 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, anything 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.” [59 US 331, 348-349]
Sovereignty of States
Jefferson Davis stated in his Farewell to the US Senate Speech:
Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are sovereign.
This argument depends on the idea that originally the colonies, on declaring independence, were independent and then voluntarily ceded power to the Federal government; and at will, can re-assert its independence and choose to no longer be part of the Constitution.
Without question, the Constitutional Ratification conventions were held state by state. But the interpretation that therefore the states were the ratifiers, not the people, was not the intention of the founders. How the proposed Constitution would be set into motion was debated at length by the Constitutional fathers. Madison makes this point in his letter to Webster:
And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity.
The SCOTUS has consistently interpreted the Constitution to be an irrevocable compact and indestructible union, beginning well before the Secession Crisis of 1860-1. Chief Justice John Marshall, a representative to the Virginia Ratifying Convention, stated in Gibbons v. Ogden: “When these allied sovereigns 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.” [22 U.S. 1, 187]
[Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)]
In Fletcher v. Peck, the SCOTUS ruled, “But 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.” [10 U.S. 87, 136]
SCOTUS also rejected the argument that the states were parties to the Constitution. In McCullough v. Maryland, Chief Justice John Marshall wrote: “In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion. It would be difficult to sustain this proposition. The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligations, or pretenses to it. It was reported to the then existing congress of the United States, with a request that it might ‘be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.’ this mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states–and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.” [17 U.S. 316, 402-404]
During the debates on the Bill of Rights, Madison stated:
The honorable gentleman from Massachusetts (Mr. GERRY) asks if the sovereignty is not with the people at large; does he infer that the people can in detached bodies contravene an act established by the whole people? My idea of the sovereignty of the people is, that the people can change the Constitution if they please, but while the Constitution exists, they must conform themselves to its dictates. But I do not believe that the inhabitants of any district can speak the voice of the people: so far from it, their ideas may contradict the sense of the whole people.
Reserved Right of the State
The crucial argument rests on the fact that the Constitution does not expressly forbid secession and that the 10th Amendment reserves all rights to the states not delegated to it in the Constitution. Proponents of the legality of secession argue that since the Constitution is silent on secession, then it is a right of states:
“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 10th Amendment has been successfully used to invoke nullification, or invalidation, of several federal laws that a state has deemed unconstitutional with respect to the United States Constitution. Notably, this Amendment has been successfully utilized to nullify federal laws pertaining to gun rights, immigration, and cannabis. However, secession is not a “right” and therefore is not covered by this clause.
Moreover, the Federalist Papers and other ante bellum laws demonstrate that that was never the intent of those who drafted the Constitution, who envisaged it as permanent and irrevocable. Perpetual union was their goal, and they intended no loophole to undermine their work.
Several laws passed by Congress well before secession was a national issue clarify that the founders did not envision secession as a legal act. The Militia Act of 1792 that states it directly using this language: “Whenever it shall be that the laws of the United States be obstructed or opposed by any state, it shall be lawful for the President to call forth the militia”. The Force Bill of 1833 stated the same and was another example of Congress saying that there is no constitutional right of secession.
State Ratification of the Constitution
The Federalists, during the ratification debates, made it clear that no right to unilaterally secede from the United States would exist under the Constitution. This was overtly communicated and was not a secret. At least two states tried to ratify on the condition of having a right to withdraw. Patrick Henry and other anti-Federalists in Virginia, including George Mason, articulated the opposing anti-Federalist view. Strong debates on the matter followed and the Constitution was ultimately ratified.
Article V does not permit a single state convention to modify the federal Constitution for itself. Moreover, it makes clear that a state is bound by a federal constitutional amendment even if that state votes against the amendment. Note that this provision is inconsistent with the idea that states remain sovereign after joining the Constitution, even if they were sovereign before joining it. Thus, ratification of the Constitution itself marked the moment when previously sovereign states gave up any sovereignty and legal independence. George Washington, the President of the Convention, stated “it is obviously impracticable to provide independent sovereignty to the states…and yet provide safety to all”
Madison made very clear that either the state accepted perpetual union or would not be admitted. He wrote:“ My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. COMPACTS MUST BE RECIPROCAL, THIS PRINCIPLE WOULD NOT IN SUCH A CASE BE PRESERVED. THE CONSTITUTION REQUIRES AN ADOPTION IN TOTO, AND FOR EVER. IT HAS BEEN SO ADOPTED BY THE OTHER STATES. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification.”
Further proof lies in the New York Ratification debate when Alexander Hamilton was worried about it passing. James Madison stated the following in a letter “The Constitution requires ratification in Toto and forever…anything less and for only a limited time would be as defective as if partial adoption”. Hamilton and John Jay then took the position that reserving “a right to withdraw [was] inconsistent with the Constitution, and was no ratification”. The New York convention ultimately ratified the Constitution without including the “right to withdraw” language proposed by the anti-federalists.
The Federalist Papers were definite in the intention regarding the nature of state sovereignty and partial ratification:
Madison: Federalist 43: “The express authority of the people alone could give the Constitution validity…to require full ratification by the states would have marked a want of foresight”
John Jay in Federalist 4 “To all purposes we have been one people…as a nation we have made peace, as a nation made war”
SCOTUS later ruled on this question. Justice Marshall wrote: “The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties.” [17 U.S. 316, 404]
Weakening of the Federal Concept
Moreover, the reality is that every government is self-sustaining and none make allowances for any portion leaving it. It seems obvious there would be no legal process to destroy itself. The context and logic of the document required it to be self-sustaining. The Constitution grants Congress the power to borrow money on the credit of the United States. That vital power becomes meaningless if secession is possible. No prudent investor would lend to an entity that could dissolve before its eyes without recourse. Secession at will also suggests the lawfulness of expulsion at will.
These were the best legal minds of the day. Do you think they would have envisioned dissolution without providing the details of how to do it? How to apportion the national debt or deal with federal property? Lawful secession also undercuts two of the main goals of constitution making, the promotion of commerce and defense.
No mechanism has ever existed for removing states. One key aspect that would have needed addressing was/is the disposition of Federal land and property in departing states, and of course the Constitution has no such content. The rebels seized US property, or had it surrendered by military threat there was no provision for disposition of Federal property, since there was no provision for removing states. Hence, the firing on Fort Sumter was the initiating action for the war.
Conclusion
Many of the Founding Fathers took both public and private positions that the Union under the federal Constitution was perpetual. Daniel Webster and Abraham Lincoln are among the statesmen of the time who responded by making the case for perpetual unionism. The Civil War probably settled this issue with finality, whatever the original constitutional ambiguities. Chief Justice Salmon Chase ruled in 1869 in Texas v. White that secession is unconstitutional. So. did the South have a legal right to secede? No.
