to check an unconstitutional act of the central government,rnwhy have no states exercised this right over the past 40 years orrnso, when violations of the reserved powers of the states, especiallyrnby the Supreme Court, have been so blatant as to defy belief?rnOne answer is that the enormous patronage concentrated inrnthe central government has corrupted the states and renderedrnthem administrative units of the center—an effect Hamiltonrnsaid (and hoped) federal patronage would bring about. This isrncertainly true, but it is not the whole story. At some point in ourrnhistory, many Americans came to think that secession of a staternis ruled out by the Constitution; and without the right of secession,rnstate interposition loses its force. But is it true that there isrna constitutional prohibition to the secession of an Americanrnstate?rnThere are two incompatible theories of the Constitution tornwhich Americans have given their allegiance: the compact theoryrnand the nationalist theory. The compact theory was the understandingrnof the Framers and was first given formal expressionrnby Thomas Jefferson in the Kentucky Resolutions (1798).rnIn this theory, secession is legal, for the Constitution is a compactrnbetween sovereign states, which created a central governmentrnas their agent and endowed it with only enumerated powersrn(mainly defense, regulation of interstate commerce, andrnforeign treaties). No branch of the central government canrnhave the final say over what powers were delegated to the centralrngovernment and what powers were reserved to the states becausernthe central government is the agent of the compact andrnthe states are the principals. As a sovereign political society, arnstate may interpose its authority to check an unconstitutionalrnaction of the central government and, as tlie last remedy, mayrnrecall those powers it had delegated and secede from the federation.rnAs Jefferson put it in 1816: “If any state in the union willrndeclare that it prefers separation . . . to a continuance in union,rnI have no hesitation in saying, ‘let us separate.'”rnThe nationalist theory was a late arrival, first appearing inrnJoseph Story’s Commentaries in 1833. The nationalist theoryrnholds that the states were never sovereign. Upon breaking withrnBritain, the people descended into the philosopher’s “state ofrnnature.” From this nonpolitical state, the American peoplernspontaneously emerged as a sovereign political society. Thisrnsovereign people formed the Continental Congress, which authorizedrnthe formation of states as administrative units of therngeneral will. Not being sovereign, a state cannot legally secedernfrom the union any more than a county can, on its own, secedernfrom a state. Though an elegant system, Story’s jurisprudencernwas grounded in historical theses that are spectacular absurdities.rnThe former colonies did not lose their character as politicalrnsocieties by seceding from Britain. The Scottish philosopherrnDavid Hume wrote this memo to himself in the 1740’s:rn”The Charter Governments in America are almost entirely independentrnof England.” Each former colony declaredrnsovereignty for itself These new states formed the Articles ofrnConfederation, and Article II declared that “each State retainsrnits sovereignty, freedom, and independence.” During and afterrnthe war, states exercised the powers of sovereignty: buildingrnnavies, raising armies, issuing letters of marque, coining moneyrn(Ma.ssachusetts coined money as early as 1643), conqueringrnBritish territory in their own name, and negotiating agreementsrnwith foreign powers. After the war each state was recognized byrnname by the British sovereign as a “free, sovereign, and independentrnstate.” States reaflTirmed their sovereignty after the war,rnand New York, Rhode Island, and Virginia asserted theirrnsovereignty in the strongest terms by writing into their ordinancesrnratifying the Constitution the right to secede. There isrnno question that if the nationalist theory had been put to thesernstates, and they had been told that they were not and had neverrnbeen sovereign states, and that once in the union they could notrnwithdraw, there would have been no union.rnIt is frue that Hamilton, Madison, and Wilson had proposedrna nationalist constitution with federal control of the states, butrnthey were soundly defeated. Madison’s proposal almostrnwrecked the Philadelphia Convention, and Hamilton’s proposalrndid not even receive a second. Having just seceded fromrnBritain, the states were not about to consolidate themselves intornan American version of a cenfralized British state.rnThis leads to the second thesis of the nationalist theory: thatrnthe union is perpetual and cannot be divided. The SupremernCourt took up the question of secession in Texas v. Whitern(1869) and, predictably enough, ruled that the Constitutionrndoes not permit the secession of a state. The Court reassertedrnthe absurd nationalist doctrine that “the union created thernstates.” To this it tacked on the statement in the Articles ofrnConfederation that the union is “perpetual” along with thernPreamble to the Constitution that declares the intention tornbuild a “more perfect Union,” and concluded: “It is difficult tornconvey the idea of indissoluble unity more clearly than by thesernwords. What can be indissoluble if a perpetual Union, madernmore perfect, is not?” The force behind this conclusion, however,rnis more the cheers of a victorious army than the historicalrncoherence of frue constitutional reasoning.rnIf the union were indeed perpetual, as a matter of fundamentalrnlaw, there must at least have been a solid history ofrnunion continuity. But there was no such history. Those whornwent to the Philadelphia Convention were authorized only tornamend the Articles of Confederation. Instead, the delegatesrnproposed a new constihition and abandoned the requirementrnof the Articles that any frindamental change would require thernunanimous consent of the states. The new constitution wouldrntake effect if only nine states ratified it. Nine states did ratify,rnleaving North Carolina, Rhode Island, Virginia, and New Yorkrnfree to go it alone. Rhode Island refused to attend the convention,rnand by its veto made unanimous consent impossible.rnRhode Island remained out of the union as an independentrnstate for nearly two years.rnThat the union had been dissolved and was not perpetualrnwas openly acknowledged. In the Federalist, Madison said thatrnif some states refused to ratify, then “no political relation canrnsubsist between the assenting and dissenting states,” but hernhoped that one day a “re-union” should occur. Many arguedrnthat dissolution of the union was justified because states had violatedrnthe terms of the Articles on a number of occasions, andrnas Madison put it: “a breach of any article, by any one party,rnleaves all the other parties at liberty to consider the whole conventionrndissolved.” This is just the argument that Southernrnstates would later use to secede from tlie union in 1860-61. Finally,rnthe Preamble claims “to form a more perfect Union,” andrnthat, of course, is quite different from perfecting an old one.rnNor is the nationalist theory buttressed by the wording of thernConstitution. The Preamble, with its reference to “We thernPeople,” was tirelessly used by Story, Webster, Lincoln, and inrnTexas v. White, and has been used since to support the con-rn14/CHRONICLESrnrnrn