Secessionist No. 9

Taking Secession Seriously: A Primer

by Hugh Williamson
*rehosted here with the express permission of Mr. Williamson.
Given the growing appreciation of the need for personal restraint and for institutional means for obtaining agreement amidst great social and political conflict, secession has become especially relevant to the present situation in the Western world – marked as it is by growing ethnic and cultural crises and social fragmentation. It is perhaps time to reconsider secession as a potential remedy – and as a return to the fundamentals of popular control.

The verb "secede" is derived from the Latin "secedere," meaning any act of withdrawal. Originally introduced in the seventeenth century as a concept of political theory, secession assumed the existence of the modern state, as well as the possibility of dismemberment of the state. In an American context, it has been misunderstood as simply the withdrawal by the Southern states from the Federal Union following the election of Abraham Lincoln to the presidency in November of 1860.

The structure of the political system, the original intentions of some framers of the constitution, and the citizenry's prevailing understanding of the political order during the Early encouraged a diversity of opinions regarding the fundamental nature of the union. Concerns arose in many quarters during the Constitutional Convention and ratification process, especially among the Antifederalists who feared that an overbearing national government would assume the authority of the states. Article Two of the Articles of Confederation had contained explicit provisions for protecting states, initiating a system whereby "each state retains its sovereignty." Various early state constitutions included provisions outlining the primacy of states in the confederal arrangement, often at the expense of a unified political order. The most popular form of amendment requested during the state ratification conventions and proposed to the First Congress concerned a reserved powers clause.
The defenders of the Constitution argued such a provision was unnecessary. James Madison suggested in Federalist 39 that each state was "a sovereign body" only "bound by its voluntary act" of ratification. Other Federalists, including James Wilson, Alexander Hamilton, and John Marshall at the Virginia ratifying convention, held that such a proposal was already present in the Constitution and that the new government would only have the powers delegated to it. Opposition to and suspicion of the proposed Constitution on the grounds that it would infringe upon the privileged status of the states was widespread.

On the other hand, the advocates of state authority viewed the states as the repository of reserved power, and many believed that states were invested with an equal, and perhaps superior capacity to judge infractions against the federal government. The most significant assurances to this effect came in the Virginia ratifying convention from George Nicholas and Edmund Randolph. As the spokesmen for the committee that reported the instrument of ratification, they noted that the Constitution would only have the powers "expressly" delegated to it. If Federalists disagreed with the stress on state authority, they generally viewed a reserved power clause as innocuous, and Madison included such a provision among the amendments he introduced in 1789.

In the First Congress, Elbridge Gerry, a founder and Antifederalist elected to the House of Representatives, introduced a proposal reminiscent of the Articles, leaving to the states all powers "not expressly delegated" to the federal government. Gerry's proposal was defeated, in part due to concerns about the similarity between the language of his amendment and the Articles. Others who took a states' rights or strict constructionist view of the Constitution, including Thomas Jefferson, persisted in defending state power. Before ratification of the Tenth Amendment, Jefferson advised President Washington that incorporating a national bank was unconstitutional. Jefferson would later compose the Kentucky Resolutions, which defended the states as the sovereign building blocks of the American nation and noted that the states retained a means of protection when threatened. To describe the process of state action Jefferson supplied a new term, nullification, to note the immediacy and severity of the "remedy" necessary to prohibit the federal government from absorbing state authority.

Defenders of the federal government, sometimes described as nationalists or loose constructionists, argued that the Congress must assume more power if the needs of the country were to be met. Most prominent among the advocates of increased federal authority was Alexander Hamilton. For Hamilton, the explicit protection of state perogratives was unnecessary as the political order already protected states. The Constitution, according to the nationalists, also contained provisions for the exercise of federal power, including the "necessary and proper" and "supremacy" clauses.
The Supreme Court addressed the controversy in its McCulloch v. Maryland (1819) decision. The High Court upheld the constitutionality of a national bank, even though such an institution was not specified in the Constitution. In dismissing a strict delineation of state and federal authority, the Court under the leadership of John Marshall extended the powers of Congress at the expense of the states. On the other hand, the Marshall Court affirmed the excepted notion that police powers belonged exclusively to the states. Under Chief Roger Brooke Taney (1836-1854), the Court assumed more of a strict constructionist posture.

The emerging defense of state authority, and ultimately, was an interpretation of the American political experience, with an emphasis upon the original dispersion of authority, sovereignty, and restraint within the Constitution of 1787. According to understanding, offered by Calhoun and Hayne among others, the original system was predicated upon reserving the states' sphere of authority, while delegating sufficient authority for particular and limited responsibility to the general government. For Calhoun, this original diffusion, buttressed by a prudent mode of popular rule, was the primary achievement of American politics. A necessary corollary to his understanding of the regime's historical evolution was the need to perpetuate the original vision of the Union for posterity's sake: "The Union: Next to our liberty, the most dear; may we all remember that it can only be preserved by respecting the rights of the states and distributing equally the benefit and the burden of Union," urged Calhoun. If, as Calhoun suggested, America had "departed" from its "original character and structure," a recovery of the older design was necessary.

For the defenders of states' rights and secession, the Declaration of Independence initiated the legitimate delineation of state and federal authority and a properly constituted mode of popular rule through first articulating the primary nature of the union. According to this view that was shared by Southerners and most Americans, the Declaration illuminated and explained the foundations of the American republic as also resting upon a political compact. In contradistinction to a social compact, a political compact did not unite individuals or governments. Instead, such an agreement formed a republic with the same equality of rights among the States composing the Union, as among the citizens composing the States themselves. The Declaration encouraged a political compact that had developed with "time and experience" into a model of political and social stability. The Declaration preserved the locus of authority within each individual state, and allowed for secession when government "becomes destructive of these ends, it is the right of the people to alter or abolish it." For many Americans, the Declaration expressed the foundation for popular rule and a territorial republic that came to fruition in the Constitution. While the Declaration appropriately described the status of "Free and Independent States" as intrinsic to the republic, the document also confirmed the conceptional thesis of secessionist political theory: the states' "ordained" or created the republic.
If the Declaration supplied the prologue to the original design for the republic, it was the Articles of Confederation, the first American embodiment of the design, that incorporated this insight into the fundamental law of the regime. For Southerners, the provisions and language of the Articles served as an authentic precursor to the American Constitution. The Constitution of 1787 was incomprehensible without first assimilating the defense of states' rights contained in the Articles. Drafted in stages from 1776 to 1777, the Articles extended and revised the Declaration's ennobling of diffused authority and the delineation of state autonomy, while establishing popular rulebased upon the deliberative, decentralized, community-centered participation of the citizenry. As in the case of the Declaration, the Articles perpetuated the original design for the territorial division of the country, into independent and sovereign States, on which the secessionist argument would later rest.

By strengthening the foundations laid by the Articles, the Constitution provided the final and most profound manifestation of the secessionist worldview's defense of popular rule and the diffusion of political authority. While the Declaration and Articles contributed to this evolving discernment, the Constitution presented the definitive maturation from a confederacy to a federal government, resting upon the authentic organic and delineatory manifestations of the states, although the citizenry retained final and complete political authority. Such a Constitution, in Calhoun's view, was most appropriately identified as a concurrent constitution because it served primarily as an exemplification of the states' role in preserving the regime. The Constitution also provided a careful "enumeration" and "specification" of power consigned to the general government. In other words, by forming a concurrent foundation for the political order it was argued that in times of crisis the states should exert their concurrent prerogative and repossess certain delegated power from the federal government if needed and in accord with the Constitution – especially in situations where the federal government had usurped power from the states. Through the adoption of the Constitution, the American people accepted a "joint supplemental government"that retained the states as the primary voice of the people.

In situations where the general government and the states were in conflict, each possessed a "mutual negative" on the other's actions, according to the secessionist argument. Defenders of secession often cited the record of the Virginia ratifying convention and the Tenth Amendment to the Constitution as primary evidence of the doctrine. The Virginia convention provided, along with its New York counterpart, the most erudite and complete commentary on the interpretation of the fundamental law besides the records of the Constitutional Convention itself. In situations of disputed authority, the states possessed the right of self-protection, with secession serving as the ultimate manifestation of such a response.

Struggles over the basis of the union arose after the ratification of the Constitution, including Jefferson's and Madison's response to President John Adams and the Alien and Sedition Acts of 1798. Defenders of state and national supremacy often changed positions depending of their political needs. In an effort to reduce the hardships incurred by the War of 1812, some New Englanders held a convention in Hartford, Connecticut, in 1814, as New England states were threatening secession. The first debate over secession in America took place in New England, not in the South.
The ensuing crises over Missouri statehood (1819-1820) and nullification (1832-1833) would increase secessionist tensions, but these problems would be resolved by compromise. The problem of slavery, compounded by the rise of abolitionism, would intensify the conflict. After Southerners were able to defeat the Wilmot Proviso, the Compromise of 1850 made resolution of the slavery problem more problematic. In 1854, Senator Stephen A. Douglas of Illinois, attempting to garner support from southern congressman for his legislation that would organize the territories of Kansas and Nebraska, reopened the issue of extending slavery into new areas. The passage of the Kansas-Nebraska Act unified resistance to slavery in the North, and by 1854 the Republican Party was dominate in the region. The election of James Buchanan to the presidency in 1856 and the constitutionally sound, but unpopular ruling of the Supreme Court in the Dred Scott case in 1857, widened the sectional divide.
Lincoln's election in 1860 galvanized Southern attitudes in favor of secession. In Lincoln, the South correctly feared its established way of life and fundamental rights would be threatened. The success of a minority political party, the Republicans, in electing a president was a source of some disdain as well. Agitated by the advocates of secession known as "fire-eaters," and the failure of other efforts to ameliorate the tension, South Carolina withdrew from the Union, having passed a secession ordinance on December 20, 1860; South Carolina was followed in quick succession by Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas. After the incident at Fort Sumter in April 1861, and Lincoln's call for troops, Virginia, Arkansas, Tennessee, and North Carolina adopted secession ordinances and eventually joined the Confederacy.

The remainder of the story, including the War of Northern Aggression, is much more familiar. Unfortunately, the fable of secession's demise as an authentic element in the American political and constitutional tradition is still preached with great vigor. The related and prevailing notion that the Supreme Court's Texas v. White decision (1869), and its defense of the "perpetuity and indissolubility of the Union," closed the debate over secession distracts the country from the enduring importance of the concept. In the decision itself, Chief Justice Salmon P. Chase conceded that the citizenry maintained a right of revolution and that the role of the people in exercising their constitutional right should not be diminished.
As we ponder the necessity of revitalizing the role of states and – especially their interposing and amending power so implicit in the Constitution – we could only augment authentic popular rule by allowing for a greater diffusion of authority. The critics of secesson have argued that restricting the ability of the general government to act might in some fashion produce its own variety of hegemonic or tyrannical rule. Unfortunately, these assessments misrepresent secession as a political concept destined to undermine the structure of the American regime. In actuality, secession may actually allow for the preservation of the original balance of authority and the fortification of a political system against the obstacles it faces. The vindication of a Southern defense of diffused authority can be witnessed in the negative effects of the centralization of political power in America and the world throughout this century.
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