Revisiting Secession: A Constitutional Check on Federal Tyranny

[Jim Delaney]

Regarding the nature of this hallowed union of States, Americans must never, ever forget how the Founders viewed this union and the States which comprise it.

We must get past the adolescent, uninformed, politically correct and self-destructive notion that this union is inviolably indissoluble. This union is not indivisible and never has been.  To believe otherwise defies logic, commonsense and flies in the face of our founders’ understanding. Despite the relentless brainwashing over the years, a little honest research—without the blinders—is all that is required for readers to clearly understand the unassailability of a State’s right to secede.

 

From its inception, the united States of America has been a voluntary association of sovereign States. In truth, no States were coerced to become members of that association. The union is a contractual association, a compact of independent States, any of which may secede from that association should the other party to that contract, that being the federal government, fails to uphold its contractual obligations. To wit, as a condition of their ratifying the US Constitution, Virginia, Maryland and Rhode Island explicitly reserved their right to secede, and no objections from the Founders were raised. And, in accordance with the 10^thAmendment, because the Constitution does not prohibit secession, that power, like all other powers not specifically delegated to the federal government is reserved to the States.

 

No amount of revisionist history, lawyerly contrivances, political obfuscation, or otherwise misguided case law can nullify that fundamental truth. The judiciary is not sovereign and supreme. The States and the People are, and that is the way our founders intended it to be.

 

Further, without the approval of a duly-elected State legislature or, should it be impossible to timely convene the legislature, an invitation of the Governor, may force of arms  be applied by either the federal government or sister States to quell rebellion within a particular State or to otherwise impose the union’s will on any member of that compact. Because a misapplication of military force against a State or States may have been perpetrated in the past can in no way render that action lawful or constitutional.

 

To be specific, Article IV, Sec 4 of the U.S. Constitution provides that “The US shall guarantee to every State in this Union a republican form of government.” As such, it provides that the federal government shall protect each of the States of the union “against invasion, and on application of the legislature, or of the governor (when the legislature cannot be timely convened) against domestic violence.”

 

Extremely important to note is the admonition of James Madison respecting this federal guarantee: in Federalist 43, he stated that the authority of the federal union “extends no further than to a guaranty of a republican form of government”...and that“whenever the States may choose to substitute other republican forms, they have a right to do so.”

 

Conveniently overlooked by”nationalists”, proponents of a supreme central government, is the fact that during the Constitutional Convention in 1787, James Madison, father of the Constitution, expressed his revulsion with the notion of the federal government's committing armed force against any State for any reason outside that limited purpose clearly provided for in Art IV, Sec 4,  asserting that “a Union of States containing such an ingredient seemed to provide for its own destruction,” saying that “the use of force against a State would look more like a declaration of war” and, to the party being assailed, “would probably be considered as a dissolution of all previous compacts by which it was bound [to the union}.”

 

Thus, again, the only instance when the States or the federal authority may use force of arms against a State is if that State violates Art 4 Sec 4 of the Constitution, a provision which mandates that all State governments be republican in design. And only if a foreign entity has seized control of that State’s republican apparatus, thus rendering the legislature something other than duly-elected and/or the governor something other than duly-authorized, may the States and/or the federal government apply military force to bring that State back into compliance with the Constitution.

 

That said, with the acquiescence of Congress, it is manifestly obvious that Pres. Lincoln, for whatever reason, political or otherwise, overreached his constitutional authority by committing armed forces against the seceding Confederate States of America in 1861, plunging this nation into one of the bloodiest and costliest wars in its history. And only by force of arms and a gun to their heads did the victorious North illegally compel the vanquished southern States to officially repudiate their inherent constitutional right to secede--which begs the question that if the States did not have the residual and inherent power and right to secede then why would they be required to renounce that authority?

 

Asserting that the union was somehow indivisible, a concocted notion entirely foreign to the Founders, Mr. Lincoln, with much patriotic fervor, political fanfare,  lofty rhetoric, and faulty argumentation, brazenly flouted the constitution with impunity by violating the sacred right of those 11 sovereign States to legally secede from this voluntary union.   In truth, the Founders well-understood that this union of States was never intended to be any more perpetual, aka eternal, than the confederation of States which preceded it, and that the union's survival was solely dependent upon both parties to the compact fully upholding their obligations under that contract.        

 

It should be remembered that when any suggestion of calling forth military force against a State was brought up in the Constitutional or State Ratifying Conventions, the indivisibility notion was unanimously rejected by both framers and ratifiers alike. Irresistible and unavoidable conclusion: by plunging the union into war with the Confederate States of America, our childhood hero, Abraham Lincoln, was in clear violation of the original meaning, intent and spirit of the Constitution. In short, Mr. Lincoln, was dead wrong and our history teachers and textbooks have routinely and thoughtlessly foisted the myth of indivisibility upon generations of gullible children.

                  

In all of my research over the years, there has been no evidence that the myopic notion of union at any price was ever conceived of or in any way embraced by the Founders. In fact, there's considerable evidence that the Founders viewed the very concept of indivisibility as dangerous. The States’ inherent right to secede, to interpose, to resist an overreaching central government remains as unmistakable, unambiguous and unalienable today as it was in 1787.

For future reference, let that truth sink in. To safeguard individual liberty, constitutional governance, and the sovereignty of the States, the immediate fiduciary agents of We the People, if our resistance to tyranny must necessarily entail secession, then that rightful form of redress and resistance must be fully embraced and fearlessly acted upon.

 

If the clear choice is liberty or union, can there be any doubt as to a free people's choice? Of course not. And the Founders knew that very well.

[PHILIP SCHNEIDER]

Thanks Jim.

[Jim Delaney]

We clearly agree that case law and precedent--and most certainly the bloody clash of arms in 1861--has acutely influenced how Americans think about secession. That said, the framers and ratifiers are THE experts, and it is to their words we must be faithful.

Also, secession doesn't pre-ordain a clash of arms or a hostile marginalization by non-secessionists. We've come a long way since 1861, and it is impossible for me to believe that today secession would automatically trigger blood and gore. We're just not made that way. Conditions are so totally different now than they were in 1861. And, even if it did precipitate a bloody conflict, well, so what? So long as our sovereignty and liberty are safeguarded, it would be well worth it.

Finally, and despite what any of us think about secession, my sense is that our days as a union are probably numbered anyway. Today, the political, ideological, cultural and lingustic divisions are so pronounced that to expect the union to hold together in perpetuity under these divisive circumstances is, at best, wishful thinking. The founders foresaw this eventuality and did not shrink from it. What union in history has ever survived in intact in perpetuity? Why should we expect to be an exception. Again, the founders anticipated that as the nation became more unwieldy, divisive and ungovernable as a "republic", that the natural course would entail a break-up, this to retain the benefits of republicanism on an individual State or confederate basis and to prevent authoritarianism on a national level.

LIke the so-called "civil war", all the force of arms can accompish is a military victory--not an abrogation of foundational constitutional principles like secession, nullification and rebellion.

Looks like you and I are the only folks interested in this topic. Thanks for weighing in.

[PHILIP SCHNEIDER]

Our hearts are in the same place Jim. I wish our nation as it now stands could reference the original constitution and be able say, "this" is why we live as we do. But we can't.

 There have been thousands of pieces of legislation written since the constitution became the operational law of our land. Those legislative efforts have ultimately, hundreds of times, been examined by our supreme court and been found to be "constitutional" even when on their face they couldn't be FOUND in the constitution. Thousands of laws stand on the books as congressional law of the land but have no constitutional authority as amendments. It has made no difference, our country uses them as though they are part and parcel of the constitution.

 The point is that a State in today's world would have little success staying alive without being a cooperative part of the rest of the United States. Neighboring States would no longer have to treat a seceded State as an equal. The Federal Government would HAVE to treat a seceded state as an alien enemy bent on monopoly of it's own authority and power. The seceded State would have to have a constitution all it's own probably conflicting with the US constitution over the very change in law that made the State secede in the first place. There would be blood. I'm sure of it.

[Jim Delaney]

Philip,

Getting lawyers involved would definitely muddy the waters.They have a nasty habit of doing just that. Afterall, lawyers are trained how to win arguments, and not how to understand the original meaning and intent of the Constitution. Most lawyers I know readily admit to knowing precious little about the Constitution itself. Their understanding of law is almost exclusively based on case law precedents, many of which have proven to be notoriously revisionist and faulty.  Anyway, we can avoid the muddle of lawyers by remembering that the framers and ratifiers clearly asserted that "the people of each State in convention" are the ultimate authority in this federal system of governance. So, in deciding our political fate, if it's a choice between adhering to the contrived opinions of lawyers or to the straight-up decision of We the People, we should always opt for the latter. From my readings, there was no misunderstanding among the framers about the principle of secession. Truth is that without the assurance of a right to secede, the US Constitution would not have been ratified.

[PHILIP SCHNEIDER]

Jim, in MY humble opinion secession would be a political argument that would last years and would involve thousands of the highest grade lawyers to be found anywhere and would most likely turn violent if a State refused to continue it's responsibilities to the union.

As an example of the degree to which we can argue even the most minute of issues , I give you the "hanging chad".

As for secession being a non-violent exercise in States Rights, compare secession to the right to use rain water.

[Jim Delaney]

Philip,
My sense is that the very act of secession would be sufficient clarification. And remember that secession needn't be a violent, bloody act of resistance. In fact, given the demographic situation these days, I am certain that an act of secession, while politically unsettling to the power elite, would be entirely peaceful. I can't even imagine that such a foundational constitutional act would plunge the nation into another civil war. But, whether peaceful or not, and I still think the act would be peaceful, reasserting state sovereignty and safeguarding individual liberties trump our accommodating an overweaning, possibly tyrannical federal authority.

[PHILIP SCHNEIDER]

The civil war points out the necessity to clarify that there should be an enumerated secession amendment and why.

[Jim Delaney]

edhilip,

According to the founders, those unenumerated powers/rights not specifically delegated by the States to the federal government are residual powers left to the States and We the People. The 9th & 10th Amendments affirm the right to secede. Thus, a "secession amendment" would be redundant.

[PHILIP SCHNEIDER]

Our nation and it's people have failed to add important and historically necessary amendments to our constitution over time. The question of secession one of them.