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Posted at 7:30 AM ET, 11/23/2010

Chandra Manning: Did South Carolina have a Constitutional right to secede?

By Chandra Manning

Associate professor of history at Georgetown University

Manning

In a narrowly-defined sense, the answer to whether South Carolina had a constitutional right to secede from the Union depends on what one sees as the relationship between the Articles of Confederation and the United States Constitution. If one looks at the Constitutional Convention as what it professed (at least at first) to be, as a convention to improve, modify, and correct the Articles of Confederation, but not to reject it or the country created by the signatories to it entirely, then the Constitution prohibits secession, because the Articles of Confederation declared the Union to be “perpetual,” and the “more perfect Union” invoked by the Constitution implicitly accepts and affirms the “perpetual” union dictated by the Articles of Confederation. Abraham Lincoln understood the relationship between the Articles and the Constitution that way, as did the United States Supreme Court in the 1869 Texas v. White decision. But not everybody did, or does. If one sees the Constitution as a complete rejection of the Articles of Confederation, with no carry-over, then the Constitution neither permits nor forbids secession.

Moreover, to many Americans in 1860 and 1861, constitutionality was not really what mattered most anyway. Many a Confederate soldier believed secession to be unconstitutional, but supported secession anyway because more than the Constitution, as he saw it, was at stake. Similarly, many Union soldiers might well have been able to concede a constitutional right to secede, but not believe that circumstances in 1860 and 1861 warranted invocation of that right especially when the fate of representative government was at stake, which they firmly believed to be the case since the immediate catalyst for the secession of the first seven states was dissatisfaction with the results of a free and fair election.

In a larger sense, however, I believe that the United States Constitution is fundamentally unclear on secession; neither the “ayes” nor the “nays” have an airtight case within the text of the Constitution itself. What is more, if that question had been put to the Founders who framed and signed it, they would not have agreed among themselves. So it is not only that Americans in 1860 did not have a clear and unambiguous answer to the question of whether the Constitution permitted or forbade secession, they could not have one, because of the very process by which the Constitution had come to be. That deliberative process, with room for differing points of view, stands as one of the great legacies of the Constitutional Convention, and usually as one of its greatest achievements. Secession and subsequent civil war, however, represent the limits of that achievement, because in 1860 and 1861 deliberative process proved unequal to the crisis at hand.

By Chandra Manning  | November 23, 2010; 7:30 AM ET
Categories:  Views  | Tags:  Chandra Manning  
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Comments

I wish we would allow the South and South West to secede. They are a drain on our tax dollars.

Posted by: chicagostanford | November 23, 2010 4:38 PM | Report abuse

Dear Prof. Manning: to summarize your views, if the Constitution was an outgrowth of the Articles, then secession implicitly was not allowed, since the Articles referred to "perpetual" union and the Constitution referred to "a more perfect Union". If the Constitution represented an abrupt break from the Articles and the creation of a new Union, then it was silent on the issue of secession.

What evidence can you cite of the proceedings of the Constitutional Convention that lead you to believe it was convened and administered to improve upon the Articles of Confederation as opposed to creating a new, separate government? Many thanks for an interesting comment,

Posted by: dennismcintosh1 | November 23, 2010 6:18 PM | Report abuse

I'd give them the right to secede, and long as we can reserve the right to nuke them.

Posted by: colonelpanic | November 23, 2010 6:27 PM | Report abuse

Professor Manning.

Of course South Carolina had the right to secede from the Union. NY, VA, and RI all reserved the right to reclaim their sovereignty from the Union when they ratified the Constitution. Since all states entered the Union voluntarily and as equals, then each state had the right to secede - to withdraw from the Union voluntarily. Otherwise the ratification of those states of the Constitution was accepted fraudulently.

The word "perpetual" in the context of the Articles meant it had no expiration date. It did not mean "forever - no matter what." The AoC was a compact among states. As such it is only valid as long as its members abide by its terms. So it was with Constitution. If the terms are broken, the agreement is void. When a couple marry they promise to do certain things for as long as both shall live. That doesn't mean that if the promises are broken the marriage cannot be dissolved before one party to it dies. It can.

Also, the AoC and Constitution did not supersede the principles of the Declaration of Independence which states governments are formed to protect rights. When they become destructive to those rights, the people have a duty to change or replace them.

The Constitution was not the product of military conquest. It was the product of States agreeing to work together. When that failed, some states wanted out. They should have been allowed to leave in peace thereby validating the founding principles of the DoI. Instead Lincoln dropped the principle of government protecting individual rights and replaced it with the idea of unconditional majority rule.

South Carolina and the other 49 states have the right to secede. They have to or else the United State Constitution and the Declaration of Independence were frauds from the beginning.

The reason the Constitution is silent on secession is not because there was no right of secession. It is not in there because the Federal Government has no role to play in a State's decision whether to
remain in the compact or to leave it.

Read the Tenth Amendment. It is quite clear. When the Constitution is silent on something, the power of that something is reserved to the States or the people.

The idea that the inclusion of the word "perpetual" in the AoC means there was not a way out for the states is absurd on its face. Nevertheless, that has not stopped some drowning scholars, lawyers, and judges to desperately grasp for that straw.

Posted by: PappyYokum | November 23, 2010 9:29 PM | Report abuse

I think the focus on the word perpetual in the Articles of Confederation misses an important historical argument for the relationship between secession and the Constitution.

In 1851 Henry Clay wrote:
"In order to secure respect and submission to the Union, the Constitution expressly provides, 'that this Constitution, and 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.'

"Thus each and every one of the States has agreed, not only that its ordinary legislation, but that its Constitution, the higher law made by the people themselves in convention, shall, in any cases of conflict, be subordinate to the paramount authority of the Constitution, laws made in pursuance thereof, and treaties of the United States.

"If, therefore, any State were, either in its legislature, or in a convention of delegates of the people, to declare, by the most formal act, that it had seceded from the Union, such act would be nugatory and an absolute nullity; and the people of that State would remain bound by the Constitution, laws, and treaties of the United States, as fully and perfectly as if the act had never been proclaimed."

Clay's argument does not hinge on the process of ratification or the Article of Confederation. In fact, even if one felt that the Constitution was a complete rejection of the Articles of Confederation, Clay's argument still holds. Clay was also not alone in making this case prior to the civil war.

Posted by: eqbaldwin | November 24, 2010 12:07 AM | Report abuse

Henry Clay was mistaken. The Supremacy Clause states federal laws, to be valid and the supreme law of the land, have to be pursuant to the Constitution. The Tenth Amendment is part of the Constitution. That means any law enacted by the federal government that violates a right reserved to the states and to the people is in violation of the Constitution, and therefore invalid.

Since nothing in the Constitution grants the Federal government the power to decide if a state may separate from the Union, this power is reserved to the state.

Senator Clay over-reaches when he claims an act of secession is a nullity based on the Supremacy Clause. All the Supremacy Clause says is member states may not enact laws that interfere with duties and powers granted it by the Constitution. An act of secession by a state is not an absolute, or even partial, nullity because the states did not surrender their sovereignty or right to choose to leave to the federal government in ratifying the AoC or the Constitution, but explicitly reserved that right when doing so.

For example, in ratifying the Constitution of the United State, Virginia declared "We, the delegates of the people of Virginia, duly elected in the pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as most mature deliberation hath enabled us, to decide thereon, DO, in their 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, whenever the same shall be perverted to their injury or oppression; and that every power not granted thereby remains with them, and at their will. That therefore no right of any denomination can be cancelled, abridged, restrained or modified by congress, by the Senate or House of Representatives, acting in any capacity by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States."

Posted by: PappyYokum | November 24, 2010 8:10 PM | Report abuse

James Madison, a member of Virginia's Ratification Convention and sometimes referred to as the "Father of the Constitution," stated in a letter to Alexander Hamilton that Virginia had considered and rejected including conditions and reservations in it's ratification, and rejected them because they would have rendered the ratification null and void. His opinion was that ratification had to be "in toto and for ever." It strikes me that the language included in Virginia's, and a few other states' ratififications, were standard assertions of Lockean natural rights and sovereignty residing ultimately in "the people."

Posted by: marcferguson | November 24, 2010 10:05 PM | Report abuse

Virginia ratified the Constitution on June 26, 1788 and in it's ratification documement stated in part ..."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,..." ergo Viginia reserved fir itself the right to leave the Union.

Posted by: ewtruslow | November 25, 2010 9:04 AM | Report abuse

That would have been news to James Madison!

Happy Thanksgiving

Posted by: marcferguson | November 25, 2010 9:58 AM | Report abuse

I don't think it would be news to Madison.
Madison wrote a letter to Nicholas Trist in late 1832 during the Nullification Crisis over the Tariff of the Abominations. In it he reiterated what is written in the Virginia ratification document. He write "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."

In other words, Madison believed a State is bound to the compact of the Constitution until it is released by consent or so long as the abuse of its powers is not "intolerable." A state could not leave on a whim.

The question of who is to determine what constitutes an intolerable abuse of power is not answered. It can't be the federal government. It is the one doing the abuse: It would naturally conclude whatever it does is tolerable. It cannot be a majority of state governments because a majority of states may benefit from the abuse of a minority of states or of a single state. It can only be judged to be intolerable by the state or the people.

Happy Thanksgiving.

Posted by: PappyYokum | November 25, 2010 12:01 PM | Report abuse

That, I would submit, is the distinction between constitutional rights and the Lockean natural right of revolution, as invoked in the DoI. No doubt you noticed that further on in the same letter to Trist, Madison writes: "It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject."

In a letter the following March to William Cabell Rives, Madison counters the claim of the nullifiers, a claim that also underlay the notion of unilateral secession, that the Union under the Constitution was merely a league of sovereign nations. He goes on to say: "The conduct of S. Carolina has called forth no only the question of nullification; but the more formidable one of secession. It is asked whether a State by resuming the sovereign form in which it entered the Union, may not of right withdraw from it at will. As this is a simple question whether a State, more than an individual, has a right to violate its engagements, it would seem that it might be safely left to answer itself."

Madison is clear, it seems to me, that there is no constitutional right of unilateral secession, and though he recognizes the Lockean "natural right of revolution," since this is not a legal, constitutional right, there is no legal obligation for the other states or the federal government not to resist such an action, though he does admit that "In the event of an actual secession without the Consent of the Co-States, the course to be pursued by these involves questions painful in the discussion of them."

Posted by: marcferguson | November 25, 2010 1:58 PM | Report abuse

I interpret what Madison said a bit differently. I noticed what Madison wrote since I read to whole letter. You miss his point, I think. Madison saw the Constitution as a contract among individual states. As long as the terms of the contract were being fulfilled, no member bound by the contract could withdraw from it.

Thus the reference to SC and nullification. He wrote "a State ... may not of right withdraw from it [the Union] at will." In the same letter he stated a state could withdraw if circumstances warranted it. That is if the contract was ended by a consensus, or by an intolerable abuse of the contract. The contract of the constitution had to be ended by mutual agreement or by a breaking of its terms.

These conditions would make the agreement void. Madison's opinion, in the case of SC, was the tariff did not clear the bar for SC to withdraw from the Union. That is not saying States had no right to withdraw. His view was conditions did not meet those required to allow a state to withdraw.

I disagree with your interpretation. If there was no constitutional right of unilateral secession, then why did he describe a condition - intolerable abuse of power - under which a state might unilaterally secede.

The idea that states might have to be coerced to stay in the Union is contradictory to the idea of government deriving its powers from the consent of the governed. That may be why Madison found the idea of discussing such questions as "painful." Nevertheless, he viewed the Constitution as a contract that could be enforced as such. A contract, however, is only valid as long as its terms are being met. Once those terms are broken or ignored, the whole agreement becomes invalid.

Posted by: PappyYokum | November 25, 2010 7:35 PM | Report abuse

"If there was no constitutional right of unilateral secession, then why did he describe a condition - intolerable abuse of power - under which a state might unilaterally secede."

He didn't. He described the circumstances justifying the natural right of revolution, in the manner that Jefferson justified the particular circumstances leading to the American Revolution. There was no assumption by those who signed the DoI that Britain would peacefully acquiesce. The notion that any contract can be unilaterally judged null and void by one party to it is nonsensical and renders contracts useless.

Posted by: marcferguson | November 25, 2010 7:44 PM | Report abuse

PappyYokum,

You seem to miss the point of Clay's argument. The Supremacy Clause states that the Constitution and US treaties are the Supreme Law of the Land, without condition. Therefore, any act of South Carolina is subordinate to US Treaties and the Constitution according to the Constitution. US Treaties state that South Carolina is within the boundary of the United States. Therefore, South Carolina does not have the Constitutional authority to redraw that boundary. The states did give up this power in ratifying the Constitution. The statement from Virginia that you quote does not address the power of an individual state to withdraw from the United States.

Madison and Clay seem to agree, since you quote Madison as writing "a State ... may not of right withdraw from it [the Union] at will."

And the question of who is to determine what constitutes an intolerable abuse of power is answered in the Constitution as either the Supreme Court or the people at large through elections or amendment. The Constitution does not permit a single state to make that decision by itself.

Posted by: eqbaldwin | November 25, 2010 10:59 PM | Report abuse

"The notion that any contract can be unilaterally judged null and void by one party to it is nonsensical and renders contracts useless."

Exactly. And this is a major flaw in the constitutional system. Contracts are broken all the time and arbitration takes place to create a new one or decide on compensation to the injured parties or both. In the case of the Constitution there is no neutral third party to arbitrate a dispute. The SCOTUS is an interested party.

That is why participation in the Union has to be voluntary. Otherwise, blood will flow. In order for the states to remain in the Union, each must get more out of being a member than being independent from it as an incentive to remain a member. If members are coerced to remain, then it is no better than what was had when the states were British colonies. Why would any state join a compact from which there was no escape beside bloodshed?

I am not sure what you mean when you repeated talk about "the Lockean natural right of revolution." Are you saying that Virginia was saying it was ratifying a Constitution it knew would form a Union that could only be dissolved through bloodshed when things went wrong when the right to reclaim its sovereignty was reserved?

In 1825, Thomas Jefferson wrote a letter to Wm Giles in which he advised patience as the federal government accumulated more power to itself at the expense of the states. He hoped giving them time for reflection would allow for a resolution short of separation. However, he did see separation as last alternative to submission to a central government without limitation of powers. He wrote "Between these evils, when one must make a choice, there can be no hesitation." For him, separation was the final tool to stop tyranny. He advised a "temporary yielding to the lesser evil, until their accumulation shall overweigh that of separation."

It is obvious secession was considered by Jefferson as an option of last resort, just as it was for Madison. Obviously, each believed it could result in bloodshed, but one cannot conclude that simply because the federal government would very likely try to prevent a state from leaving the union with military force that there was no right - constitutional or natural - to do so.

Assuming a constitutional right of secession, there is no way to stop the federal government from violating the constitution by using military force to prevent a state from exercising that right even as it denies such exists. History has shown this to be true. Any body in charge of determining the limits of its own powers will soon determine it has none, or, as Thomas Paine wrote, a group answerable to nobody should be trusted by nobody.

Posted by: PappyYokum | November 25, 2010 11:10 PM | Report abuse

eqbaldwin:
I did not miss the point of Clay's argument. As I stated, Clay was mistaken. Clay argued the supremacy clause operated without condition. That is not true. It is not a blank check. The supremacy clause states that laws pursuant to the Constitution are the supreme laws of the land. That means only constitutional laws - i.e. laws compatible with the powers allotted to the federal government - are valid. Otherwise the Bill of Rights and all other limitation on the government in the Constitution are totally meaningless.

Clay says state laws are subordinate to federal law and that is true where the federal government has been given the power to make such laws. When the states ratified the constitution, they handed over the right to make foreign policy to the federal government, for instance. The Supremacy Clause states that federal judges are to find the federal law superior when it and state law conflict.
The question is whether the states gave the federal government the power and authority to pass laws preventing a state from seceding or if the constitution itself explicitly states it has such power.

The state of South Carolina is not United States property. By seceding, South Carolina is not redrawing U.S. boundaries. South Carolina is a State with an existence independent of its membership in the United States.

Madison said a State may not secede at will, but he doesn't say it may not secede at all. What he says is a state may secede if it is suffering intolerable abuse or through consensus. He doesn't say, if a state is suffering intolerable abuse it should replace representatives or offer amendments, or file a case before the SCOTUS.

Clay says any declaration of secession is a nullity because federal law and the constitution trump state law. As I wrote before, that depends on what powers were granted to the federal government.

"The Constitution does not permit a single state to make that decision [as to what constitutes intolerable abuse] by itself."

Where?

The SCOTUS is part of the federal government. It is not the go-to institution to determine what constitutes an abuse of federal power. That power to review laws for their Constitutionality is not given to it by the Constitution. It is one the SCOTUS declared unto itself. The history of its decisions speaks for itself.

Amendments to the constitution get started in Congress, unless a constitutional convention is called. And one never has. Congress will not send an amendment that will invalid its own legislation - or limit federal powers - to the states for their consideration.

A general election may replace people feeding off the system, but it will not change it.

If secession was never intended as an option, why did Madison, Jefferson, Calhoun, and others consider it valid one of last resort?

Posted by: PappyYokum | November 26, 2010 12:12 AM | Report abuse

PappyYokum,

The fact that you assert "The question is whether the states gave the federal government the power and authority to pass laws preventing a state from seceding.,.." indicates that you completely miss the point being made by Clay and others. No federal law preventing secession is at issue. The issue is that the Constitution, US treaties and any constitutional federal laws apply to a state despite what that state may do. That is the meaning of the supremacy clause. So the Constitution prohibits a State from declaring that a specific federal law does not apply to it and it also prohibits a State from declaring that all federal laws do not apply to it (ie. secession).

I did not claim that South Carolina is United States property. But I do think it a clear fact that South Carolina is within the boundaries of the United States and that those boundaries are defined by US treaties and US laws. In attempting to secede, South Carolina was obviously trying to redraw the boundaries of the USA; it is absurd to claim otherwise.

You acknowledge that "Madison said a State may not secede at will“. This answers the question of whether according to Madison a state has the Constitutional right to secede. The fact that Madison, Jefferson or Calhoun considered secession a possible choice doesn’t mean they considered it Constitutional. Some people may consider actions that are not strictly legal as still being called for in certain circumstances.

Posted by: eqbaldwin | November 26, 2010 8:54 PM | Report abuse

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