The Right to
Secede
September 30, 1999
How can
the federal government be prevented from usurping powers that the
Constitution doesn’t grant to it? It’s an alarming fact that
few Americans ask this question anymore.
Our ultimate defense against the federal
government is the right of secession. Yes, most people assume that the
Civil War settled that. But superior force proves nothing. If there was a
right of secession before that war, it should be just as valid now. It
wasn’t negated because Northern munitions factories were more
efficient than Southern ones.
Among the Founding Fathers there was no
doubt. The United States had just seceded from the British Empire,
exercising the right of the people to “alter or abolish”
— by force, if necessary — a despotic government. The
Declaration of Independence is the most famous act of secession in our
history, though modern rhetoric makes “secession” sound
somehow different from, and more sinister than, claiming
independence.
The original 13 states formed a
“Confederation,” under which each state retained its
“sovereignty, freedom, and independence.” The Constitution
didn’t change this; each sovereign state was free to reject the
Constitution. The new powers of the federal government were
“granted” and “delegated” by the states, which
implies that the states were prior and superior to the federal
government.
Even in The Federalist, the
brilliant propaganda papers for ratification of the Constitution (largely
written by Alexander Hamilton and James Madison), the United States are
constantly referred to as “the Confederacy” and “a
confederate republic,” as opposed to a single
“consolidated” or monolithic state. Members of a
“confederacy” are by definition free to withdraw from it.
Hamilton and Madison hoped secession
would never happen, but they never denied that it was a right and a
practical possibility. They envisioned the people taking arms against the
federal government if it exceeded its delegated powers or invaded their
rights, and they admitted that this would be justified. Secession,
including the resort to arms, was the final remedy against tyranny. (This
is the real point of the Second Amendment.)
Strictly speaking, the states would not
be “rebelling,” since they were sovereign; in the
Framers’ view, a tyrannical government would be rebelling against
the states and the people, who by defending themselves would merely
exercise the paramount political “principle of
self-preservation.”
The Constitution itself is silent on the
subject, but since secession was an established right, it didn’t have
to be reaffirmed. More telling still, even the bitterest opponents of the
Constitution never accused it of denying the right of secession. Three
states ratified the Constitution with the provision that they could later
secede if they chose; the other ten states accepted this condition as
valid.
Early in the nineteenth century, some
Northerners favored secession to spare their states the ignominy of union
with the slave states. Later, others who wanted to remain in the Union
recognized the right of the South to secede; Abraham Lincoln had many of
them arrested as “traitors.” According to his ideology, an
entire state could be guilty of “treason” and
“rebellion.” The Constitution recognizes no such
possibility.
Long before he ran for president, Lincoln
himself had twice affirmed the right of secession and even armed
revolution. His scruples changed when he came to power. Only a few weeks
after taking office, he wrote an order for the arrest of Chief Justice Roger
Taney, who had attacked his unconstitutional suspension of habeas corpus.
His most recent biographer has said that during Lincoln’s
administration there were “greater infringements on individual
liberties than in any other period in American history.”
As a practical matter, the Civil War
established the supremacy of the federal government over the formerly
sovereign states. The states lost any power of resisting the federal
government’s usurpations, and the long decline toward a totally
consolidated central government began.
By 1973, the federal government was so
powerful that the U.S. Supreme Court could insult the Constitution by
striking down the abortion laws of all 50 states; and there was nothing
the states, long since robbed of the right to secede, could do about it. That
outrage was made possible by Lincoln’s triumphant war against the
states, which was really his dark victory over the Constitution he was
sworn to preserve.
Joseph Sobran
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