Although the nation recently recognized the 150th anniversary of the end of the War of Northern Aggression, we are still plagued with questions about the legality of secession, issues and inquiries that unfortunately may never end. In exchanges on social media over the years, I have argued our principles as passionately as anyone can, while kindly, but at times very bluntly, being informed that secession was, in fact, treason. Most Southern patriots have heard similar charges, particularly in the halls of academia.
So, after a century and a half, what are we to make of this? Are Southern political principles still valid today? Is secession really illegal? Is it treason and rebellion? Is the compact theory dead? Was it ever sound to begin with? The issue comes down to two opposing viewpoints.
For the South, and those holding Jeffersonian views, the nature of the Union is the “Compact Theory” of government, which holds that the states, coming together and operating with authority from the sovereign people in those states that elected the delegates, crafted the Constitution as a compact, or contract, among themselves, forming an agent, the federal government, to possess certain delegated powers. In other words, the states served as the creator; the federal government the creature.
For the North, and those with Hamiltonian opinions, the concept is a “National Union,” a notion that the states are in a subservient role to the federal government, that the Union came first, that the states were created by the Union and therefore hold no sovereignty, special rights and status. And those that argue in favor of this National Union, in which the states are mere provinces with no way of escape, suggest that secession was settled “on the battlefield,” if not “by the Supreme Court” in Texas v. White in 1869.
But bullets and bayonets did not settle the issue, for we true Sons of the South believe that “ideas are bulletproof,” or as John F. Kennedy once said, “A man may die, nations may rise and fall, but an idea lives on.”
Nor is the issue of secession in any way trivial, as some allege. It is all-important, for if secession was legal, then the South was right and Lincoln’s war was an unlawful act of naked imperialistic aggression upon an independent nation.
On the other hand, if secession was, and remains, illegal, and therefore treasonous, then the South was wrong and Lincoln’s war of conquest was justifiable in putting down an insurrection led by a group of rebellious criminals.
So how can we definitively determine if secession is legal or not? Though at times these theories can be complex, confusing, and even abstract and conceptual, the legality of disunion can be simplified and reduced to one basic question, a query that is THE central question in the whole debate: Where does sovereignty reside in American society? The answer to this question will tell us whether the Southern states had a right to break away from the Union and form their own country.
First, let us define sovereignty. Simply put, it means “supreme power.” In every society, Sir William Blackstone informed us, there is a sovereign. It can be in the form of an individual, like a monarch, or perhaps a committee of rulers, or even an assembly, such as the British Parliament, but there is always an entity that holds supreme power or ultimate authority, decisions from which were final. Sovereignty, Blackstone said, was unitary and could not be shared or limited in any way.[1]
In the old divine right monarchies, sovereignty was in the hands of the King, a gift, they contended, from Almighty God. In the age of parliamentary supremacy in England, Blackstone believed it resided in Parliament. But in America, we began an experiment that truly made the American Revolution unique and even radical: sovereignty in the hands of the people.
Yet even a concept ostensibly as simple as “the sovereign people” is wrought with complex arguments and counter-arguments. Which people does “We the People” refer to? Are we indeed a nation of one people, meaning the oft-used “American people,” or one made up of many sovereign entities, as in “the people of the individual states,” with each state retaining its sovereign character?
By determining the resting place of sovereignty, we can establish the very nature of the Union. Was the Constitution, and therefore the Union, a compact between the states, as argued by Jefferson, Calhoun, and others, or was it, in the words of Daniel Webster in the famous Webster-Hayne debate in 1830, “ordained and established by the people of the United States,” meaning the whole of the American people?
This is extraordinarily important, for as nationalist Supreme Court Justice Joseph Story wrote in his famous Commentaries on the Constitution, “If the Constitution is a compact then the States have a right to secede.”[2] So the resting place of sovereignty will tell us everything about the nature of the Union and the right of secession.
As noted earlier, sovereignty can only rest in one place, not in several. Though political scientists and theorists have erroneously concluded that the genius of the American system of governance is the concept of “dual” or “divided sovereignty,” the fact is such a concept would be impossible.
As John C. Calhoun put it in his Discourse on the Constitution, sovereignty cannot be divided, only power as it relates to sovereignty. The idea of divided sovereignty, wrote Calhoun, involved a “perplexing question — how the people of the several States can be partly sovereign, and partly, not sovereign — sovereign as to the reserved — and not sovereign, as to the delegated powers? There is no difficulty in understanding how powers, appertaining to sovereignty, may be divided…. But how sovereignty itself — the supreme power — can be divided — how the people of the several States can be partly sovereign, and partly not sovereign — partly supreme, and partly not supreme, it is impossible to conceive. Sovereignty is an entire thing — to divide, is — to destroy it.”[3]
So the issue comes down to a simple dispute: Sovereignty, as an indivisible power, resides in either the whole American people or the people of the states. Or, to view it as a question the way Lincoln posed it: Which came first, the perpetual national Union or the states?
So let us first look at some of the evidence the nationalists use to destroy our federal republic and then we can demolish their fable with historical facts.
The nationalists, like Daniel Webster, Joseph Story, and Abraham Lincoln, stake their claim on just a few pieces of evidence, which have no solid historical basis. In fact, their whole line of argument did not exist at the time of the Founding and would not emerge for decades. As Kenneth M. Stampp has written in his book The Imperiled Union, “the case for state sovereignty and the constitutional right of secession had flourished for forty years before a comparable case for a perpetual Union had been devised.”[4]
The Webster-Story-Lincoln argument would not emerge until around 1830, when the nationalistic forces within the federal government began their assault on states’ rights and their move toward a consolidated “perpetual” Union.
The first piece of evidence they point to is the opening words to the Constitution’s Preamble: “We the People.” But that’s hardly evidence of anything. The Preamble is nothing more than an opening statement and has no inherent power. Even Gouverneur Morris of Pennsylvania, the man credited with writing the exact language of the document as the head of the “Committee on Style,” wrote that the Constitution “was a compact not between individuals, but between political societies, the people, not of America, but of the United States, each enjoying sovereign power and of course equal rights.”[5]
Our first constitution, the Articles of Confederation, had phrased the issue a little differently in its Preamble, as the “Articles of Confederation and perpetual Union between the States.” The nationalists, though, concentrate on the word “perpetual,” as though that solidified the Union as an unbreakable bond.
Yet this piece of evidence also holds no real weight. According to Professor Kevin Gutzman, a scholar of the Constitution, as well as a historian and constitutional attorney, the word “perpetual,” as used in those days, did not mean “forever” or “cannot be broken.” Treaties between nations at the time often used the word “perpetual” to mean the agreement had no sunset provision, but the treaty could, in fact, be broken, and many were.[6]
Other language contained in the Articles of Confederation – Articles I, II, and III – give credence to this more conservative notion of “perpetual union.” Article I specifically referred to the Union as a “Confederacy,” which is a decentralized form of government, and, in Article II, that each “state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” Furthermore, Article III refers to the Union as a “firm league of friendship.” None of these phrases are indicative of a permanent alliance between the states.
But it was Lincoln himself who provided the most compelling re-writing of history, with his July 4, 1861 special message to Congress. In his address, Lincoln, in his oft-used methods, re-defined sovereignty and re-wrote the entire history of the Union, all to suit his own needs and desires. He wrote:
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 this, 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.[7]
But history tells a far different tale than that embraced by the lawyer from Springfield. The states do enjoy a status far above mere provinces, which is essentially the position Lincoln assigned them; they did not gain their independence and liberty from a Union that had yet to exist; and many of the states not only framed state constitutions before the Union, they also began referring to themselves as states, long before any Union, because the Articles of Confederation themselves, the first effort at union, was not crafted until 1777 and did not go into effect until 1781.
Lincoln, though, gave credence to his arguments by wedding the Union to the Declaration of Independence, which is why, in his 1863 address at Gettysburg, he used the famous phrase “four score and seven years ago,” thereby birthing the Union in 1776. But Lincoln was simply wrong.
For starters, the original Richard Henry Lee resolution of June 7, 1776 seems to dispute Lincoln. It read: “Resolved, That these united colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”[8]
It was at that point that the colonies began forming state conventions and drafting state constitutions, nearly a month before the Declaration was adopted and signed. For example, Virginia’s constitution was enacted the same month, June 1776, as the Lee Resolution. There was no Union in place at the time, nor can the Declaration of Independence in anyway be viewed as a Union-forming document.
In fact, if you look at a written copy of the Declaration, Jefferson used the phrase “united States,” using a lower case “u” that clearly meant “states that are united together.” It was not seen then as the name of a new national union but “Free and Independent States” that were “Absolved from all Allegiance to the British Crown” and had full powers that all other “Independent States may of right do.”[9]
Furthermore, the Framers of the Constitution at the Philadelphia Convention would not have agreed with Lincoln’s assessment of the Union. The word “sovereignty” may not have been used in the Constitution but the writings of the Framers tell a different story. James Wilson, a signer of both the Declaration and the Constitution, and one of the original six justices of the Supreme Court, called the thirteen new states “Thirteen Sovereignties.”[10]
Oliver Ellsworth, also a Framer and the nation’s third Chief Justice, said much the same thing, referring to the states as “Thirteen Sovereign Bodies.” Ellsworth also said to the Connecticut Ratifying Convention in January 1788, the new Constitution “does not attempt to coerce sovereign bodies, states, in their political capacity.”[11] This by itself shoots down Lincoln’s entire theory of the Union.
And how did the Constitution come into being and how did it gain its power? By the states, of course. First, the states sent delegates, elected by the people in those states, to the Philadelphia Convention, thus proving the Constitution is a creation of the states.
Secondly, the Constitution gained all of its power not by a national plebiscite but by the states, acting through special ratifying conventions. Or as James Madison put it, the meaning of the Constitution “must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it received all the authority which it possesses.”[12] So the Constitution gained all of its power from the people acting through their states, not by the people of the whole country.
But how can we prove our argument right and the nationalist theory wrong? In the realm of science, a hypothesis must be tested to prove its validity. So let us test these respective theses – the compact theory vs. the national union – to see which one holds up to constitutional scrutiny.
And the test shall be on the question of sovereignty and its resting place: To possess sovereignty, one must retain the ability to exercise it. And here is where the national union argument fails the test, for there is no political mechanism in the Constitution for the American people, as a whole, to exercise sovereignty, therefore, they do not possess it. One simply cannot hold or possess supreme power without any means of exercising it. Any such assertion would be an illogical argument. Yet to believe that sovereign power is in the hands of the whole of the American people is to believe just such an irrational argument.
By contrast, sovereignty, in the hands of the people of the states, is exercised frequently. Delegates from the individual states crafted the Constitution. Delegates elected in their states, acting through state ratifying conventions, gave the Constitution its power, according to Madison. Of this, Albert Taylor Bledsoe writes: “When it was determined that the Constitution should be ratified by ‘the Conventions of the States,’ and not by the legislatures, this was exactly equivalent, in the uniform language of the Convention of 1787, to saying that it shall be ratified by ‘the people of the States.’’’[13]
Sovereignty in the hands of the States is also exercised in the election of the President and Vice President, with both offices being chosen by the states, acting through the Electoral College system, and not by a national popular vote. Senator Uriah Tracy, in a debate on the Twelfth Amendment, remarked on the Electoral College: “He [the president] is to be chosen by electors appointed as the State legislatures shall direct, not according to numbers entirely, but adding two electors in each State as representatives of State sovereignty.”[14]
The Constitution provides that these electors, or “representatives of State Sovereignty,” are to be chosen in the manner prescribed by the state legislatures, in Article 2, Section 1, Clause 3: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”
The Framers conceived the Senate, with its members originally elected by the legislatures in the states, as representing the sovereignty of the states. Fisher Ames of Massachusetts, a delegate to the state ratifying convention, referred to Senators as “ambassadors of the States.”[15]
The House also possesses a few features that allow the states to exercise their sovereignty, most notably in a disputed presidential election in which no candidate receives a majority of the electors, whereby the House is tasked with choosing the new President – voting by state, not as individual members.
The Constitution can also be amended by the actions of three-fourths of the states in convention and there’s nothing the federal government can do to prevent it.
Furthermore, the Constitution, in Article 5, Section 3, Clause 1, prohibits the altering of the territory of a state without the state’s permission. This is an important fact that is generally overlooked. The reason for this provision is simple: Sovereign territory cannot be altered without the approval of the sovereign.
The US Supreme Court upheld this doctrine in the 1845 case of Pollard’s Lessee vs. Hagan, a decision that concerned Alabama’s water rights, where the Court held that the state “is … entitled to the sovereignty and jurisdiction over all the territory within her limits … to maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states.”[16]
The evidence is clear – sovereignty resides in the individual states, thereby giving each the authority, if it chooses, to, in the words of Alexis de Tocqueville, “withdraw its name from the contract.” Despite the musings of judicial activists or a lawyer from Springfield, the verdict of history is on the side of the South.
[1] Kevin Gutzman, The Politically Incorrect Guide to the Constitution (Washington: Regnery Publishing, Inc., 2007), 6, 9.
[2] Joseph Story, as quoted in Mildred Lewis Rutherford, Truths of History (Athens, GA, 1920), 2.
[3] John C. Calhoun, “Discourse on the Constitution and Government of the United States,” in John C. Calhoun: Selected Writings and Speeches, edited by H. Lee Cheek, Jr. (Washington: Regnery Publishing Inc., 2003), 81.
[4] Kenneth Stampp, The Impending Crisis: Essays on the Background of the Civil War (Oxford: Oxford University Press, 1980), 35.
[5] Gouverneur Morris, as quoted in James Ronald Kennedy and Walter Donald Kennedy, Was Jefferson Davis Right? (Gretna, LA: Pelican Publishing Company, 1998), 185.
[6] Gutzman, 12.
[7] Abraham Lincoln, “Special Session Message,” July 4, 1861 – http://www.presidency.ucsb.edu/ws/?pid=69802.
[8] It is customary for the words “united colonies” in the Lee Resolution to be capitalized but if you look at his hand-written notes, they are not, so I did not capitalize them. See “Our Documents” – https://www.ourdocuments.gov/doc.php?doc=1.
[9] Brion McClanahan, The Politically Incorrect Guide to the Founding Fathers (Washington: Regnery Publishing, Inc., 2009), 36.
[10] Rutherford, 2.
[11] Oliver Ellsworth, “Speech in the Connecticut Convention,” January 7, 1788, in Records of the Federal Convention, edited by Max Farrand (New Haven: Yale University Press, 1911), Volume 3, p. 241.
[12] James Madison to Thomas Ritchie, September 15, 1821, in The Writings of James Madison, edited by Gaillard Hunt (New York: G. P. Putnam’s Sons, 1900-1910), Volume 9, p. 72.
[13] Albert Taylor Bledsoe, Is Davis a Traitor, or Was Secession as a Constitutional Right Prior to the War of 1861? (Richmond, VA: Hermitage Press, 1907), 73.
[14] Uriah Tracy, “Speech in the US Senate,” December 2, 1802, in American Eloquence, edited by Frank Moore (New York: D. Appleton and Company, 1872), 434.
[15] Fisher Ames, as quoted in Bernard Janin Sage, The Republic of Republics (New York: Gould Publishing House, 1881), 82.
[16] Pollard’s Lessee v. Hagan (1845) – https://supreme.justia.com/cases/federal/us/44/212/case.html.
