Free Virginia!

December 28, 2000

As a Virginian (though born and raised in Michigan), I would like to remind my countrymen that Virginia is not a part of the United States. We withdrew from the old confederacy in 1861, joined the Confederate States of America (currently inoperative, alas), and were forcibly — and illegally — reannexed to the United States in 1865.

By now most Virginians are resigned to living under the U.S. Government. Not me. Virginia — the home of Patrick Henry, Thomas Jefferson, and Robert E. Lee — should be free.

When the sovereign state of Virginia ratified the U.S. Constitution in June 1788, it did so with this proviso: “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 and oppression.” That is, the people of the states could withdraw their consent and “resume,” or reclaim, the powers delegated to the U.S. Government.

New York and Rhode Island ratified the Constitution with similar reservations of the right to “resume” or “reassume” the powers “granted” therein. Either these conditional ratification acts were valid, and the states retain the right to secede, or the acts were void, and Virginia, New York, and Rhode Island have never legally joined the United States! But nobody at that time held that by adopting the Constitution the states were surrendering their “sovereignty, freedom, and independence,” which they maintained under the Articles of Confederation.

Lincoln argued against secession on grounds that the Union is even older than the states. A Union of what, Abe? At most, the Union can be only as old as the states that compose it. But the federal government didn’t spring into existence in 1776. That had to await the 1787 Constitution.

The Declaration of Independence, the most famous act of secession in history, said that the former colonies “are, and of Right ought to be, Free and Independent States” — that is, 13 sovereign powers, subordinate to nobody. Notice that it didn’t call those states “a new nation” or even “the Union.” That kind of talk came much later.

It was long customary to refer to the United States under the Constitution as a “confederacy” or “confederation,” as The Federalist Papers often do. Even Lincoln sometimes called it “this Confederacy,” as I did in the first paragraph. By definition, a confederacy is a voluntary association whose members are free to quit.

Far from being a new-fangled idea in 1861, the right of secession was implicit in the very language of American politics — in the words state, sovereign, and federal — from the beginning. It was also positively asserted many times, even in the North, before 1861. And an act of secession was neither “rebellion” nor “insurrection,” but the act of the same sovereign states that had ratified the Constitution in the first place.

It was not secession that was unconstitutional, but the suppression of secession. The North fought the Civil War by allowing its chief executive to exercise dictatorial powers, raising armies and money and suspending civil liberties without consulting Congress, and even arresting the Maryland legislature and installing a puppet government. This was “government of the people, by the people, for the people”? What happened to “the consent of the governed”?

The Northern enemies of secession weren’t always rigid in their principles: they did allow a pro-Union part of Virginia to secede from Virginia. That’s how the United States got West Virginia. Since Virginia never ceded that territory, as prescribed by the Constitution, that was the only real case of unconstitutional secession. To make matters worse, the North never admitted that Virginia had legally left the Union. How, then, could it be split without its legal consent?

After the war, the North forced the seceding states to ratify the Fourteenth Amendment as a condition of re-admission to the Union it insisted they had never legally quit. Yet most of those states had already ratified the Thirteenth Amendment, so they were apparently back in the Union after all.

The hypocrisy is dizzying. But wars aren’t necessarily won by the intellectually consistent.

Still, it’s not too late to set things right. Just give us our liberty back. And, while we’re at it, West Virginia.

Joseph Sobran

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