The Theory and Meaning of America, Part 8
Is there a Right of Secession Under the Constitution?
In this installment, we will look at the issue of secession, and whether secession is a state's right under the Constitution. And we do this to establish the principle, once and for all, that the US Constitution, as the United States Supreme Law, is more than just one standalone document, that it is among several documents, among which are the Constitution by definition, and the Articles of Confederation and Perpetual Union, as well as the Declaration of Independence, all by specific reference in the Constitution. As we explore the facts, we will understand that, by that same evidence, not only was the right to secede given up by the states in 1781, but we will also confirm that the rights of the people are not established under the Constitution, but rather under the Declaration of Independence, and that the Constitution acknowledges that fact. That being the case, the means by which the people receive rights in the Declaration of Independence, as endowed directly from God, is codified as Supreme Law, every bit as much as any specific prescription written into the Constitution. Let's begin.
The argument for a state's right of secession rests in the notion that the Constitution is silent on that right, and according to the 10th amendment, any rights 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 argument for the right of secession contends that, since there exists no specific language within the text of the Constitution, language by which the states specifically delegated their rights of secession to be governed by the the federal government, then those who are of the mind, use that fact to claim that the states retained the right of secession under the Constitution.
But as we have learned in the previous installments in this series, the authority of the Constitution is limited not only by its own terms, but also by principles previously agreed and which served as given conditions under which the Constitution originally receive its authority. Because there is a flow of 'conditional authority' that runs from the Declaration of Independence, through the Articles of Confederation, which now terminates to presently reside within the Constitution, any conditions placed upon the use of that authority, which may have restricted the parties in the first two agreements, and which have never been removed or rescinded according to the prescribed manners that the first two agreements allow, those conditions still remain in effect today, even under the Constitution.
So if the states gave up the right to secede under either of the two agreements which preceded the Constitution, and which serve as the source of authority for the Constitution, those agreements being the Declaration of Independence or the Articles of Confederation, that right is forever forsaken UNLESS some provision of the agreement under which that right was originally surrendered allows it to be restored.
In our last installment, we learned that the union of 'free and independent states,' documented to be in effect under the Declaration of Independence in 1776, became a perpetual union of states, as agreed under the Articles of Confederation and Perpetual Union, ratified in 1781, an agreement which removed the right of secession, as agreed unanimously among the thirteen states who were parties to the agreement, its Article XIII stipulating,
Every State shall abide by the determination of the united States in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.
So according to the Articles of Confederation, the law in effect during the Consitutional Convention, the terms of which when fulfilled serve as the source of authority for the Constitution, those terms do not allow the states to secede from the union. If the union which existed under the Articles of Confederation, is the same union now existing under the Constitution, then that stipulation in Article XIII of the Articles of Confederation remain fulfilled, and must remain fulfilled, even today. Because one state agreeing to that stipulation served as an inducement for every other state to agree to it as well, which in effect changed the course of history for each other state, each state owns the right to enforce that stipulation on every other state. That is the most basic tenet of contract law. For this reason, even today, every state in the union is bound to it. The union which came into being as, 'free and independent states' under the Declaration of Independence, contingent on their own abiding preference to remain part of a union, however unbound to do so, became 'perpetual,' under the Articles of Confederation, indicating that this union, comprised as it was, shall have no end. In agreeing to that stipulation, the states in the union no longer remained, 'free and independent,' with respect to their status within the union. That being the case, no state would possess the right to end the union by seceding, that is, unless as the Articles of Confederation requires, each agreed "in a congress of the united States, and be afterwards confirmed by the legislatures of every State."
These principles became the focal point of the debate which raged leading up to the presidential election of 1860. In March of 1861, before Abraham Lincoln would take the oath of office as America's 16th president, seven states declared secession from the union, claiming authority under the Constitution to do so. Lincoln had some decisions to make. And whatever decisions he made he would have to convincingly explain to the new congress, a congress which would not even be seated for several months. So without an act of congress to back him up, and understanding that 'principle' has its moment before it becomes obsolete, Lincoln acted to save the perpetual union. He commanded a military response to the attack on Fort Sumter. He authorized the war department to begin raising an army. And he suspended the writ of habeas corpus.
On July 4, 1861, Lincoln addressed a special session of congress. And using the argument I offer above, he justified his actions to save the union. Here is an excerpt from Lincoln’s speech:
Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence, and the new ones each came into the Union directly from a condition of dependence, excepting Texas; and even Texas, in its temporary independence, was never designated a State. The new ones only took the designation of States on coming into the Union, while that name was first adopted for the old ones in and by the Declaration of Independence. Therein the "United Colonies" were declared to be "free and independent States"; but even then the object plainly was not to declare their independence of one another or of the Union, but directly the contrary, as their mutual pledge and their mutual action before, at the time, and afterwards abundantly show. The express plighting of faith by each and all of the original thirteen in the Articles of Confederation, two years later, that the Union shall be perpetual is most conclusive. Having never been States, either in substance or in name, outside of the Union, whence this magical omnipotence of "State rights," asserting a claim of power to lawfully destroy the Union itself? Much is said about the "sovereignty" of the States, but the word even is not in the National Constitution, nor, as is believed, in any of the State constitutions. What is a "sovereignty" in the political sense of the term? Would it be far wrong to define it "a political community without a political superior"? Tested by this, no one of our States, except Texas, ever was a sovereignty; and even Texas gave up the character on coming into the Union, by which act she acknowledged the Constitution of the United States and the laws and treaties of the United States made in pursuance of the Constitution to be for her the supreme law of the land. The States have their status in the Union, and they have no other legal status. If they break from us, they can only do so against law and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence and liberty it has. The Union is older than any of the States, and, in fact, it created them as States. Originally some dependent colonies made the Union, and in turn the Union threw off their old dependence for them and made them States, such as they are. Not one of them ever had a State constitution independent of the Union. Of course it is not forgotten that all the new States framed their constitutions before they entered the Union, nevertheless dependent upon and preparatory to coming into the Union.
Concerning a proposed right of state secession, for anyone who is bound to the truth, this long paragraph is worth diligent study. The contention that the states never existed outside of the union, and are therefore not defined or authorized outside of the union, is stated plainly in the Declaration of Independence. To wit:
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 doubt what Lincoln is telling us, to simplify things read only the bold highlights from the quote above, which express, ‘…the Representatives of the united States of America (the union of states)…solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States.’ As Lincoln tells us in his special address, it was the union of states which declared the states free and independent from the Crown of England. Thus the union is older than the states, declared the states to be states, and thus the states never exited outside of the union, entering the union at the precise moment the declaration took effect.
So if Lincoln is correct, and any consciencious reading of the declaration says he is, then the conditions described in the Declaration of Independence and in Articles of Confederation are conditions imparted to the Constitution in such a manner that fulfilling the conditions of each of the first two agreements, is a necessary condition for the third.
For further research on this question, anyone interested may consult the opinion of the US Supreme Court in the case, Texas v. White, 74 U.S. 700 (1868), in which the high court agreed with Lincoln, expressing that states have no right to unilaterally secede from the union, and thus, that the Confederate states during the Civil War always remained part of the United States of America under the Constitution.
In the next installment, we will examine what George Washington, the universally admired father of the America nation, had to say on the subject of the Theory and Meaning of America. Following that, we will investigate just what our founding fathers had in mind as they stood in line to sign the Declaration of Independence.
Hank