I find it interesting how the placement of a few simple letters, or words, before a person’s name bestows the semblance of authority and wisdom. Take for instance how if you put the letters PhD before someone’s name you automatically assume they are an expert on a subject and you should just accept that what they say is the truth.
The same principle applies towards people in positions of authority within our government, such Supreme Court Justices; their decisions are believed to be the final word as to what is and what isn’t constitutional. It almost seems like those in positions of authority look down upon us common folk, believing us to be incapable of critical thought – which sadly is true in most cases.
That said, not everyone in this country can be lumped into the category of Ignoramus Americanus; some are highly intelligent and knowledgeable. Although it is rare, it is not unknown to meet people who make it their life’s mission to seek out and acquire knowledge and truth. Yet it seems that just because we don’t have a diploma from an institution of higher learning, (indoctrination is more likely the case), our opinions are not as valid as someone having the letters PhD preceding their names.
I don’t have a PhD and I graduated from high school with a mediocre C Average, yet when I went to an Open House at my son’s school years ago his Civics Teacher told me that I should be teaching his class; because I knew far more about the subject than he did. But, since I did not have a PhD, or a teaching degree, I could not have fulfilled the State’s requirements; meaning someone less knowledgeable on the subject was allowed to teach our youth about how their system of government is supposed to work.
A few years back I wrote a lengthy treatise which supported the position that all gun control laws were a violation of my right to keep and bear arms and that the 2nd Amendment is the ONLY permit I need to own and carry a firearm. In it I asked a simple question: By what authority do you enact and enforce any law that infringes upon that right. I then sent that treatise to the governor of my home State, his Attorney General, every member of the Supreme Court, the President, my representative in the House, my two State Senators, and the U.S. Attorney General.
I got a short note from Kamala Harris, (who was the State Attorney General at the time), stating that the State Attorney General is NOT OBLIGATED to respond to questions presented them by the public. The only other person to respond was Supreme Court Justice Stephen Bryer, who wrote that my argument was ‘interesting.’ Although he did not respond to any of my arguments, he was the ONLY one to respond, and for that I give him a certain degree of thanks. Yet in every other instance, because I was a mere peasant it was felt that my question did not warrant a response from those who are supposed to be working for me according to the powers granted them by State and federal Constitutions.
The point I’m trying to get at is that those in positions of authority seem to think that we, the public, are stupid and ignorant, and that we should not question the things they say or do; that our job is to simply accept what they say without question and obey whatever laws they enact. I’m sure King George III felt the same way about the Colonists, but luckily for us they felt otherwise.
I know that was a rather lengthy preface, but I felt it necessary to address the matter before I got to the meat and potatoes of this essay. The whole reason for writing this essay is due to the fact that my friend, Jamie Bell, sent me a link to a question and answer forum where someone had asked, “Can a U.S. state secede from the Union? Is there a clause in the Constitution which allows states to secede from the Union, or can this process be done by voting?”
There are actually 3 questions in that sentence:
-Can a U.S. State secede from the Union?
-Is there a clause in the Constitution allowing for secession?
-Can secession be accomplished by voting?
Before I begin to address the question I think it would be wise to define what secession is. According to the dictionary, secession is defined as: to withdraw formally from an alliance, federation, or association, as from a political union, a religious organization, etc.
Could it not be said that in 1776 the signers of the Declaration of Independence were seceding from the British Empire? The wording of the Declaration of Independence certainly seems to be describing the formal withdrawal from a political union, “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them…”
But, as I often do when I have a thousand ideas bouncing around inside my cranium, I get ahead of myself. What drove me to write this was not the question posed on that forum; rather it was the answer provided by William Murphy, a teacher of American History at State University of Oswego in New York. Professor Murphy holds all the proper credentials to be an educator in an institution of higher learning, and I wonder how many students have passed under his tutelage; only to have their minds filled with factually inaccurate information.
I could provide Professor Murphy’s entire answer, but I fear this is already going to be rather lengthy, so I will try and provide a short synopsis of what he said. The gist of his answer is that the States did not have the right to secede; that the outcome of the Civil War and a subsequent Supreme Court ruling established that as fact.
Here is what the esteemed Professor says, “Under the legal, constitutional and political system that currently exists in the United States, unilateral secession by any state is impossible. There is no right of secession. It is not a power that exists for the states. The Civil War literally resolved this question.”
As it pertains to the outcome of the Civil War, I suppose the good professor means that might makes right; that whoever has the biggest, best led and best equipped army can trample upon the rights of a weaker and less equipped people. I have often wondered what might have happened had the Confederacy not lost at Gettysburg and sent the Union forces retreating from the field of battle. Would that have crippled the North, causing Lincoln to admit defeat? Or what would have happened if the Confederate Leadership would have acted on Stonewall Jackson’s plan to sever the railroads that serviced Washington D.C.; isolating it from the rest of the country – would Lincoln have capitulated and allowed the South to remain separate from the Union?
Those are questions that will never be answered, but it makes one wonder whether or not the Supreme Court would have ruled differently in Texas v White had the South won the Civil War; and it is upon their ruling in that case that the esteemed professor rests much of his reply. The relevant passage the professor provides as the basis for his answer states, “The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?”
Before I get into my explanation of why I believe secession was among the many rights held by the individual States, allow me to pose a simple question for you to ponder; with a little background information first.
In 1787 a document was introduced for consideration among the States which would, if ratified, replace the Articles of Confederation as the outline for whatever system of government his so-called Union would have. However, instead of a unanimous vote, as the Articles of Confederation required, only a 3/4 vote of approval was required to put this new system of government into operation.
Are you aware that the government we currently live under went into effect while there were still two States who had yet to ratify the Constitution; that those States, for all intents and purposes, were not part of the Union? Those States were North Carolina and Rhode Island. While North Carolina quickly ratified once a Bill of Rights was introduced in Congress, it took tiny Rhode Island a bit longer to agree to become part of the Union. The government of this Union treated Rhode Island as a sovereign nation, and imposed heavy tariffs upon them in an effort to coerce them into ratifying the Constitution and rejoining the fold.
How is it then that the professor can make the claim that the Union was indivisible, yet for a brief period Rhode Island was not a part of it? How can that be?
Now if you will recall I have already provided the definition for the word secede, but now I must ask you, how was this Union formed? Prior to the Revolution each Colony was distinct and separate from the others; each with their own internal governments to manage the affairs of the individual Colonies. The only time they joined together in any effort was when they were threatened by outside forces; such as when they mutually assisted each other during the French and Indian War.
The idea of a political union began during the years leading up to the Revolution, and is explained by a graphic produced by Benjamin Franklin:
While the majority of the resistance to British Law was centralized in tiny Massachusetts, they knew that they could not defeat the British alone; that the other Colonies would have to join them in the fight against the tyranny of King George III. It was during this time that two documents were written which gave birth to this so-called Union.
The first was the Declaration of Independence, which stated, “We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States…”
If you’ll pay close attention to the wording you’ll see that the word united is not capitalized; meaning it is not a pronoun, it is an adjective. What this means is that the Individual Colonies, or States if you wish to call them that, were united in cause, but separate and independent in all else; something that is clarified by the last sentence of that passage, “That these united Colonies are, and of Right ought to be Free and Independent States…”
You could very well say that the delegates to the Continental Congress were ambassadors for their States; acting as the voice of those they represented back home. Therefore, any actions they took were with the blessing and authority bestowed upon them by the States they represented.
The second document to come from that body which is of importance is the Articles of Confederation. As a constitution is nothing more than a document outlining a system of government, then it could be said that the Articles of Confederation was America’s first constitution. So what does that document say?
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.
The Articles of Confederation may have been written by the Continental Congress, but they were adopted by the States; meaning the States acceded to join together in a Union, or Confederation, for the specific purpose outlined within that document. So what does accede mean? Well accede is defined as: to give consent, approval, or adherence; agree; assent; to accede to a request; to accede to the terms of a contract.
There is a legal maxim which states that whenever the terms of a contract are violated by one party, the contract becomes null and void; binding no one to the terms contained within it. Therefore, if any State should seek to tyrannize, oppress, or subjugate another, then the contract, or compact between them became null and void and each State would be free to decide whether it would return to a status which it was no longer part of any Union.
It’s funny because Professor Murphy also quotes from James Madison in support of his position that a State cannot secede, “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 fight 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 party, with the parties 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.” Yet does Madison not say that the States could be absolved from the compact by an intolerable abuse of the power created by it?
That is very similar to the wording Jefferson used in the Declaration of Independence, “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
It is also quite similar to what John Locke said in his Second Treatise, “Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who. have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society.”
Oh, but the Civil War resolved the question of secession and the Supreme Court upheld it by their ruling in Texas v. White; so that makes whatever actions Lincoln took to hold the Union together okay…right? Well not so fast.
You do recall Thomas Jefferson, right? He authored the Declaration of Independence and was the 3rd President under the newly established system of government outlined by the Constitution. So you’d think that what he had to say about secession, or on the dissolution of the Union might bear some weight on the matter.
In his first Inaugural Address the newly elected Jefferson stated, “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”
Damn, that sure sounds to me like Jefferson was saying a State could dissolve the bonds which held it to the Union; even though he may have felt it was foolish and impulsive. But there’s more.
Three States, Virginia, New York, and Rhode Island included wording within their ratification statements that said they could sever the ties which bound them to the system of government they were agreeing to, and resume their previous status as free and independent States. Those three statements are as follows:
Virginia – We the Delegates of the People of Virginia … Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression
New York – That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness
Rhode Island – That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness
Those statements were not maybe kind of things, they were conditions established by those States by which they agreed to accept the implementation of the system of government outlined by the Constitution; and should that system become harmful or oppressive, they retained the right to sever any and all ties which bound them to it.
But Neal, the Constitution does not grant them the right to secede. You’re right, it does not. However, it does not specifically prohibit it either; it simply does not say anything about it – unless you consider the phrase, ‘A more perfect Union’ as being binding upon the States. But that phrase is ONLY found in the Preamble, and the preamble grants no authority to the government, as affirmed by Joseph Story in his Commentaries on the Constitution, “And, here, we must guard ourselves against an error, which is too often allowed to creep into the discussions upon this subject. The preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the constitution, and not substantively to create them.”
So if the Constitution does not specifically mention it, how can I make the claim that it was a right retained by the States? Simple, the Bill of Rights says so in the 9th and 10th Amendments. The 9th Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Therefore, just because secession is not listed as being among the rights of a State, it does not mean the right does not exist.
Then the 10th Amendment 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.” Therefore, as the Constitution does not explicitly state that it is within the power of the federal government to bind the States to a Union, that power does not exist, and that since the Constitution also does not prohibit the States from leaving the Union in any explicit terms, then that right is reserved to the States or the people.
Now you might be saying that I’m stretching things a bit, that just because those two amendments imply that the right of secession exists doesn’t necessarily make it so; that the Union was meant to be forever. Did you know that the idea of seceding, or dissolving the Union was not a uniquely Civil War idea; that it had been discussed prior to the South actually doing it? Oh, you weren’t aware of that; allow me to enlighten you.
John Taylor was a U.S. Senator, representing the State of Virginia. In 1794 he was considering retiring from the Senate and was approached by Rufus King, a Senator from New York regarding an issue of great importance.
The two men retired to a private room to talk, whereupon King proposed a peaceful dissolution of the Union into two segments. From a transcript of that conversation I offer the following as proof that a dissolution of the Union was considered long before the Civil War, “On the 8th or 9th instant Taylor asked leave of absence of the Senate, and expressed seriously his intention to resign. King soon after invited Taylor into one of the committee rooms, and informed him, that he wished to converse with him seriously & candidly upon a very important subject. He stated that it was utterly impossible for the union to continue. The Southern and Eastern people thought quite differently. That the former clogged and counteracted every operation of government. That when Izard and Smith of South Carolina were out, the Southern interest would prevail. That the Eastern would never submit to their politicks, and that under these circumstances, a dissolution of the union by mutual consent was preferable to a certainty of the same thing, in a less than desirable mode.”
Although it never came to fruition, there was also talk among some New England States of seceding from the Union during the administrations of both Thomas Jefferson and James Madison over differences of opinion on the powers government should be exercising.
In 1803 the Massachusetts Senator, Timothy Pickering wrote, “I will rather anticipate a new confederacy, exempt from the corrupt and corrupting influence and oppression of the aristocratic Democrats of the South.” Pickering would go on to say, “There will be a separation…and the white and black population will mark the boundary.”
Pickering’s colleague, Senator James Hillhouse agreed with those sentiments, saying, “The Eastern States must and will dissolve the Union and form a separate government.”
If you put aside the issue of whether or not a State had the right to secede, and look at why they might secede, you will see that it is all partisan politics. Those speaking of secession in the late 1700’s and early 1800’s were opposed to the policies of Jefferson and Madison; both Democrats. Then in 1860 the South actually did secede when a Republican, Abraham Lincoln won the presidency.
It you truly look at the history of this country, and many of the arguments offered in opposition to the Constitution, you will find that there were a great many wise and virtuous men who felt that this country was not meant to be a single consolidated Union under a strong central government. They felt that such an idea led to the inevitable erosion of State’s Rights and the loss of the individual liberty of the people…and they were right.
To say that the States, or any portion of them, must submit forever to a system, or Union, that was harmful to their internal welfare is to say that they must submit to tyranny and servitude; which is the exact opposite of what those who fought in our Revolution believed.
Jefferson declared that to be so in the Declaration of Independence, and reaffirmed it in his Inaugural Address. Even Thomas Paine wrote, “There never did, there never will, and there never can, exist a Parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the “end of time,” or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void.”
To make the claim that just because the North was victorious in the Civil War makes their actions justifiable is akin to saying that if 5 armed men break into my home whatever they force me to do is okay because they are bigger and stronger than me. And for someone to quote the Supreme Court in defense of that position is ludicrous. Of course the SCOTUS would rule that secession was not legal; how could they not? Had they ruled that secession was legal under the Constitution it would have condemned the North and Abraham Lincoln; something they could not allow to happen if they wished the government to persevere.
Professor Murphy claims that the Civil War resolved this issue; and I agree. However, I don’t believe as he does that the outcome of the Civil War upheld the principles this Union was established to serve; I believe it was the final nail in the coffin to those principles and we’ve lived under a tyrannical form of government ever since; with the States being nothing more than subsidiary holdings of the central government, with little to no sovereignty and independence.
I guess that’s what separates me from people like Professor Murphy. He bases his opinion upon the actions during the Civil War, and subsequent rulings on secession, while I base my argument upon the thoughts of those who lived before the issue was put to the test by the Civil War.
Which of us is right I will leave to you to decide…