Something extraordinary has happened over the last decade or so—something neither the Republican nor Democratic leadership seems to understand. A large and growing number of Americans are now openly saying that much of what the central government does is not simply wasteful, corrupt, and destructive but illegitimate as well. This year the central government will spend about $1.7 trillion, more than it spent (even adjusting for inflation) from the Revolutionary period through 1940. And next year it will no doubt spend more than that. But Americans are concerned not just that the spending of nearly two trillion dollars in one year by 435 “representatives” and 100 senators for an empire of 265 million subjects would lead to plunder and corruption; they are also concerned about how the money is spent.
The unprecedented power concentrated in Washington supports a universalist egalitarian ideology that is openly hostile to the inherited moral, religious, and cultural traditions of American society. Largely through the enormous patronage concentrated at the center, this ideology has come to dominate state governments, universities, and the media, and has had a corrupting influence on the mainline churches. Today Americans stand by impotently, but with smoldering resentment, as they watch their tax money being used to suppress or extinguish their own cultural inheritance. What is to be done?
A furor was raised over the November 1996 issue of First Things, in which a number of contributors argued that individuals should consider open resistance against the central government (especially the Supreme Court) in those areas where it had offended Christian conscience and natural law. Now, resistance in the name of conscience is not entirely to be despised, but it often leads to terrorism. John Brown did some thinking about natural law, and his conscience told him to murder innocent families in their sleep. He was greatly applauded by New England transcendentalists and by Northern universalist Christians who had lost their trinitarian faith, and he is still applauded by their progeny today. Things could get ugly indeed if this sort of “Christian” began to place his conscience in the scales against the rule of law.
But there is another form of resistance to federal tyranny not considered by the contributors to First Things—and one, moreover, that is constitutional. I have in mind the remedy that Jefferson, in the Kentucky Resolutions, and Madison, in the Virginia Report, called state “interposition.” A state, as a sovereign political society that has delegated to the central government only enumerated powers, has the constitutional authority to interpose its authority to protect its citizens from tyrannical actions of the central government. Any genuine federal system that is serious about preserving the distinct moral cultures of its political units must allow some form of state interposition. But state interposition cannot be effective unless it can be enforced, and in a federal system this can only mean the ultimate right of a state to secede from the federation. The Canadian constitution, for example, through its “notwithstanding” clause, allows a province to nullify actions of the central government in the area of civil rights; and it is generally understood that a Canadian province can secede. It was through state interposition that 15 republics of the former Soviet Union were able to secede.
If American states have the constitutional right and, as Jefferson insisted, the constitutional duty to interpose their authority to check an unconstitutional act of the central government, why have no states exercised this right over the past 40 years or so, when violations of the reserved powers of the states, especially by the Supreme Court, have been so blatant as to defy belief?
One answer is that the enormous patronage concentrated in the central government has corrupted the states and rendered them administrative units of the center—an effect Hamilton said (and hoped) federal patronage would bring about. This is certainly true, but it is not the whole story. At some point in our history, many Americans came to think that secession of a state is ruled out by the Constitution; and without the right of secession, state interposition loses its force. But is it true that there is a constitutional prohibition to the secession of an American state?
There are two incompatible theories of the Constitution to which Americans have given their allegiance: the compact theory and the nationalist theory. The compact theory was the understanding of the Framers and was first given formal expression by Thomas Jefferson in the Kentucky Resolutions (1798). In this theory, secession is legal, for the Constitution is a compact between sovereign states, which created a central government as their agent and endowed it with only enumerated powers (mainly defense, regulation of interstate commerce, and foreign treaties). No branch of the central government can have the final say over what powers were delegated to the central government and what powers were reserved to the states because the central government is the agent of the compact and the states are the principals. As a sovereign political society, a state may interpose its authority to check an unconstitutional action of the central government and, as the last remedy, may recall those powers it had delegated and secede from the federation. As Jefferson put it in 1816: “If any state in the union will declare that it prefers separation . . . to a continuance in union, I have no hesitation in saying, ‘let us separate.'”
The nationalist theory was a late arrival, first appearing in Joseph Story’s Commentaries in 1833. The nationalist theory holds that the states were never sovereign. Upon breaking with Britain, the people descended into the philosopher’s “state of nature.” From this nonpolitical state, the American people spontaneously emerged as a sovereign political society. This sovereign people formed the Continental Congress, which authorized the formation of states as administrative units of the general will. Not being sovereign, a state cannot legally secede from the union any more than a county can, on its own, secede from a state. Though an elegant system, Story’s jurisprudence was grounded in historical theses that are spectacular absurdities.
The former colonies did not lose their character as political societies by seceding from Britain. The Scottish philosopher David Hume wrote this memo to himself in the 1740’s: “The Charter Governments in America are almost entirely independent of England.” Each former colony declared sovereignty for itself These new states formed the Articles of Confederation, and Article II declared that “each State retains its sovereignty, freedom, and independence.” During and after the war, states exercised the powers of sovereignty: building navies, raising armies, issuing letters of marque, coining money (Massachusetts coined money as early as 1643), conquering British territory in their own name, and negotiating agreements with foreign powers. After the war each state was recognized by name by the British sovereign as a “free, sovereign, and independent state.” States reaffirmed their sovereignty after the war, and New York, Rhode Island, and Virginia asserted their sovereignty in the strongest terms by writing into their ordinances ratifying the Constitution the right to secede. There is no question that if the nationalist theory had been put to these states, and they had been told that they were not and had never been sovereign states, and that once in the union they could not withdraw, there would have been no union.
It is true that Hamilton, Madison, and Wilson had proposed a nationalist constitution with federal control of the states, but they were soundly defeated. Madison’s proposal almost wrecked the Philadelphia Convention, and Hamilton’s proposal did not even receive a second. Having just seceded from Britain, the states were not about to consolidate themselves into an American version of a centralized British state.
This leads to the second thesis of the nationalist theory: that the union is perpetual and cannot be divided. The Supreme Court took up the question of secession in Texas v. White (1869) and, predictably enough, ruled that the Constitution does not permit the secession of a state. The Court reasserted the absurd nationalist doctrine that “the union created the states.” To this it tacked on the statement in the Articles of Confederation that the union is “perpetual” along with the Preamble to the Constitution that declares the intention to build a “more perfect Union,” and concluded: “It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?” The force behind this conclusion, however, is more the cheers of a victorious army than the historical coherence of true constitutional reasoning.
If the union were indeed perpetual, as a matter of fundamental law, there must at least have been a solid history of union continuity. But there was no such history. Those who went to the Philadelphia Convention were authorized only to amend the Articles of Confederation. Instead, the delegates proposed a new constitution and abandoned the requirement of the Articles that any fundamental change would require the unanimous consent of the states. The new constitution would take effect if only nine states ratified it. Nine states did ratify, leaving North Carolina, Rhode Island, Virginia, and New York free to go it alone. Rhode Island refused to attend the convention, and by its veto made unanimous consent impossible. Rhode Island remained out of the union as an independent state for nearly two years.
That the union had been dissolved and was not perpetual was openly acknowledged. In the Federalist, Madison said that if some states refused to ratify, then “no political relation can subsist between the assenting and dissenting states,” but he hoped that one day a “re-union” should occur. Many argued that dissolution of the union was justified because states had violated the terms of the Articles on a number of occasions, and as Madison put it: “a breach of any article, by any one party, leaves all the other parties at liberty to consider the whole convention dissolved.” This is just the argument that Southern states would later use to secede from the union in 1860-61. Finally, the Preamble claims “to form a more perfect Union,” and that, of course, is quite different from perfecting an old one.
Nor is the nationalist theory buttressed by the wording of the Constitution. The Preamble, with its reference to “We the People,” was tirelessly used by Story, Webster, Lincoln, and in Texas v. White, and has been used since to support the contention that sovereignty resides in the American people in the aggregate. But the original wording of the Preamble was in the style of the Articles: “We the people of the State of New Hampshire, Massachusetts,” etc. This wording passed unanimously, but was changed by the committee on style on the grounds that it was not known which states would ratify. The change was considered trivial and brought forth no response, as it would have had it carried the radical meaning with which nationalists later endowed it.
But perhaps nothing shows more clearly the absurdity of the nationalist theory than the manner in which the Constitution was authorized. It was not ratified by majority vote of the American people in the aggregate but by the people of the respective states. Each state ratified the Constitution for itself alone, with no authority to bind the people of another state. The question of whether the new union would be indivisible was not raised at the Philadelphia Convention. The would-be nationalists at the Convention had been soundly defeated. And, having just voted to dissolve a union said to be “perpetual,” they were in no position to argue that the new union would be indivisible.
From the very beginning, and throughout the antebellum period, the Constitution was regularly described as a compact, the union as a confederation, and, most importantly, as an “experiment,” implying that it was divisible. This idiom was publicly established by Washington in his Farewell Address: “Is there any doubt whether a common government can embrace so large a sphere? Let experience solve it.” It is, he continued, “well worth a fair and full experiment.” In only 60 years, experience would show conclusively that the experiment of the union, having swollen to some ten times the landmass of Washington’s “so large a sphere,” had failed.
Everyone used the language of the compact theory because it was natural to Americans. Under British rule, each colony negotiated directly with the Crown for its rights and duties. Having become states, each saw its relation to the other in terms of a compact. Would-be nationalists were compelled to speak of the Constitution as a compact between sovereign states. Consider the comforting words Madison had in the Federalist for those who feared the states would be swallowed up into a political marriage from which there could be no divorce. Ratification, he said, “is to be given by the people, not as individuals composing one entire nation; but as composing the distinct and independent States to which they respectively belong.” Each state “is considered as a sovereign body independent of all others, and only bound by its own voluntary act. In this relation the new Constitution will . . . be a federal and not a national Constitution.”
Hamilton explained, in Federalist 28, how a state could protect itself from federal tyranny. The people would have the authority “through the medium of their state governments, to take measures for their own defense with all the celerity, regularity, and system of independent nations.” Even James Wilson could speak of the people of the states as sovereign: “those who can ordain and establish may certainly repeal or annul the works of the [central] government.” These statements, by the most important of the would-be nationalists, speaking the language of the compact theory, contain all the elements necessary for the doctrines of state interposition and secession later developed by Jefferson and Calhoun.
Hamilton understood that these consequences did follow, which is why he called the Constitution a “worthless fabric.” But he hoped that a clever administration, by concentrating patronage to the center, could “triumph altogether over the state governments and reduce them to entire subordination.” In this he was right, but it would take time and would not be accomplished without violence and the first modern total war directed against a civilian population.
It is important to understand that the compact theory was the only theory for the first 40 years of the union. There were, of course, criticisms of this or that act of state interposition or threat to secede. But these did not constitute an alternative theory; they were typically counsels of prudence or entreaties to give the “experiment” a chance. In fact, Daniel Webster, who became an eloquent defender of the new nationalist theory, began his career as a New England secessionist.
But nothing shows more clearly the deeply established belief in the compact theory than the many acts of nullification and threats of secession in every section of the union throughout the antebellum period. State nullification was asserted in Jefferson’s Kentucky Resolutions (1798) and in Madison’s Virginia Report (1799). Connecticut and Massachusetts endorsed nullification in 1808 and in 1814. Vermont nullified fugitive slave laws in 1840, 1843, and 1850. Massachusetts did the same in 1843 and 1850, and declared the Mexican War unconstitutional in 1846. In 1859, Wisconsin asserted the supremacy of its supreme court over that of the U.S. Supreme Court (the latter has jurisdiction only over those powers delegated to the central government by the states). Northern governors used nullification to block the unconstitutional centralizing policies of Lincoln. And there were many other instances.
Secession was also considered an option available to an American state. The region that most often considered secession was New England: over the Louisiana Purchase in 1803, the embargo in 1808, over war with England in 1814, and over the annexation of Texas in 1843. From the I830’s to 1861, New England Abolitionists argued strongly for secession of the Northern states from the union. Typical was this declaration of the American Anti-Slavery Society: “Resolved, that the abolitionists of this country should make it one of the primary objects of this agitation to dissolve the American Union.” It is for this reason that Abolitionists such as Horace Creeley and those who wrote for Frederick Douglass’s Douglass Monthly could support secession of the first Southern states that formed the Confederacy. Jeffrey Hummel, in Emancipating Slaves, Enslaving Free Men (1996), has revived this Abolitionist argument that secession was the best way of dealing with the problem of how to end slavery.
Many of the strongest supporters of secession were Northeastern Federalists who had favored a nationalist constitution. If anyone was a nationalist, Gouverneur Morris of New York was. He was a major figure in the Philadelphia Convention and was disappointed in the Constitution, but he knew it was a compact between sovereign states and that secession was an option. In 1812 he published an essay in the New York Times calling for the secession of New York and New England to form a more perfect union. This essay led to the Hartford Convention in 1814 with the object of forming a New England Confederacy.
Federalist William Rawle was head of the Pennsylvania bar and a nationalist who was also disappointed in the Constitution. But he too knew that the Constitution was a compact from which a state could secede. His widely acclaimed A View of the Constitution of the U.S.A. (1825) was one of the first Commentaries on America’s fundamental law. It was the text on constitutional law used at West Point from 1825 until 1840. In it, Rawle outlines the steps necessary for the legal secession of an American state. By 1861 every Southern state had taken those steps.
Foreign writers who had studied the Constitution concluded that a state could secede from the compact. Tocqueville wrote: “If one of the States chose to withdraw from the compact . . . the Federal Government would have no means of maintaining its claims directly either by force or right.” Lord Brougham, in his magisterial study of constitutions, published in 1849, taught that the American Constitution was a compact from which a state could secede. He described the union as a “treaty,” a “Federacy of states,” and as “the Great League.”
John Quincy Adams, in his famous speech celebrating the jubilee of the Constitution (1839), went out of his way to argue that a state could secede. What holds “the several states of this confederated nation together,” he said, is not “in the right” but “in the heart.” Should common affection and interest fail, then “far better will it be for the people of the disunited states to part in friendship from each other, than to be held together by constraint.” One must follow the “precedent” (Adams recognized, as Texas v. White would not, that the union had been dissolved before) “to form again a more perfect Union by dissolving that which could no longer bind, and to leave the separated parts to be reunited by the law of political gravitation to the center.” Four years after this speech, the former President, along with other New England leaders, would call for the dissolution of the union over the annexation of Texas.
In the late 1850’s, anticipating the secession of South Carolina, there was a movement in the mid-Atlantic states to form a “Central Confederacy.” It would include such states as New York, Delaware, New Jersey, Virginia, Tennessee, Maryland, and connected states. Such a confederacy, it was argued, was the conservative and moderate core of the union; it could prevent war and provide a rallying point around which the disaffected states of the Deep South could one day return should they secede. Here was a splendid case of the Constitution under the compact theory working as it should. The sectional crisis between North and South could only be solved constitutionally by actions of the sovereign states themselves. I’he movement by prominent leaders to form a Central Confederacy was cut short by Lincoln’s decision to send Massachusetts troops into Maryland. Blood was drawn, and states had to choose sides.
Virginia, Tennessee, North Carolina, and Arkansas had voted to remain in the union even after the Deep South states had seceded. They reversed themselves only after Lincoln demanded troops to coerce the seceding states back into the union. To these people, it was clear that the constitutional tradition they had inherited prohibited the coercion of a state. Hamilton had argued just this at the New York ratifying convention: “To coerce a state would be one of the maddest projects ever devised. No state would ever suffer itself to be used as the instrument of coercing another.” But Massachusetts could and did. A new order of men had entered the world whose souls were shaped by the ideology of the French Revolution and the hubris of the Industrial Revolution which has everywhere demanded consolidation and centralization.
In none of the enumerated powers granted by the states to Congress in Article I, section 8 is there authority to prohibit secession. The only conceivable power is the authority to “suppress insurrections.” And it was this power that Lincoln seized upon to justify coercing the seceding states back into the union. But an insurrection is an attempt to overthrow either the central government or the government of a state. The orderly secession of a state, authorized by the people in convention (the same instrument authorizing entrance into the union) is not an attempt to overthrow either a state government or the central government. It is an act of the people to withdraw those powers delegated to the central government and to govern themselves. This, of course, is a serious matter, but it is not insurrection. It was not prohibited by the Constitution in 1861, and it is not prohibited today.
So deep was this understanding that, when secession of Southern states seemed imminent, no less than three amendments were proposed to the Constitution to make secession illegal. By the Ninth and Tenth Amendments, what is not prohibited to the people of the states by the Constitution is permitted. The attempt to prohibit secession by an amendment is clear proof that secession was permitted by the Constitution.
Americans have yet to come to terms with the stark immorality and barbarism of the invasion of the Southern states to preserve the union. The war was the bloodiest of the 19th century, leaving 1.5 million killed, missing, and wounded. The moral question becomes insistent when considered in light of the peaceful secession of 15 republics from the Soviet Union and other peaceful secessions after 1990. Here in America was a union formed by secession from the Articles of Confederation, itself a union grounded in the secession of 13 self-proclaimed sovereign states from the British empire; a union in which the constitutional right of state interposition and secession had been acknowledged in every section throughout the antebellum period; a union only 70 years old that had swollen to some ten times its size in only 50 years and by that expansion had rapidly created new majorities, minorities, instability, and conflicts between great sectional interests; a union seeking to deal with a great sectional crisis in the way that was most continuous with its inherited constitutional tradition, namely, by peaceful secession of sovereign states by conventions of the people. Lincoln opposed this with a sophistical “nationalist” theory, not 30 years old, that inverted some 80 years of American constitutional experience with its perverse historical doctrine that the union created the states.
But the violence of war was not sufficient to destroy the federated polity of the Founders; though weakened, it remained intact. the Southern states were now ruled by Southerners loyal to the union; they returned their members to Congress and immediately ratified the 13th Amendment abolishing slavery. But when the 14th Amendment was floated in Congress, they rejected it, as did many non-Southerners, fearing that it would concentrate too much power in the central government. In hopes of getting the amendment ratified, and fearful of being reduced to a minority by a union of Southern and Northern Democrats, the Republican Congress expelled the Southern states, declaring them conquered provinces and placing them under military dictatorship. Nothing had changed in these states; if they had the authority to ratify the 13th Amendment, they also had the authority to vote against the 14th Amendment.
Lincoln had invaded the Southern states on the grounds that a state could not secede from a union that was perpetual, organic, and indivisible: “indestructible states in an indestructible union,” as Texas v. White would put it. This formulation was, of course, nothing but a mask for power, and it ignored the fact that Virginia had been dismembered without its consent and in violation of the Constitution to create the Republican state of West Virginia, and that Congress had dismembered the union itself by expelling the Southern states that in theory had never left the union and had just recently ratified the 13th Amendment.
Although there is no space to argue the point here, it seems clear enough that, even without the Southern states, the 14th Amendment was not legally passed by Congress. But even if it had been, Forrest McDonald has shown that it was not constitutionally ratified by the states. Yet this so-called amendment has been manipulated by the Supreme Court to turn the Constitution on its head through the “incorporation doctrine.” This doctrine, through judicial alchemy, has transmuted the Bill of Rights, which was designed to protect the states from the central government, into a grim rod of antinomic liberal individualism used to subvert the independent political societies of the states. The arbitrary use that has been made of the 14th Amendment and the consequent destruction of the social fabric that has resulted from it is, nevertheless, a faithful imprint of the violence and arbitrariness of its birth, and indeed of the birth of the entire nationalist theory.
British philosopher Alasdair MacIntyre has observed that to read current decisions of the Supreme Court is to witness reenactments of Shiloh and Gettysburg. there is today no intellectually coherent American jurisprudence. The Constitution is a grant of authority by sovereign states to a central government endowed with only enumerated powers. Incoherence necessarily arises from trying to read this document as the constitution of a unitary state—as Story, Webster, Lincoln, and the gaggle of judicial activists spawned by the Warren Court have done.
Reform can only come through reviving the states as the substantial moral communities and constitutional agents they once were. Runaway judicial activism must be countered with the constitutional remedy of state activism. As far as the concentration of power at the center is concerned, it matters little who is President or which party controls Congress. The center will not (and perhaps, cannot) reform itself Political energy must now be spent in forming a third party devoted to genuinely federal principles and in electing state representatives and senators endowed with the civic virtue to reclaim those powers the states have allowed to drift away and to interpose state authority to check unconstitutional action of the central government.
Such reform would of course overturn a large body of law and judicial precedent. But righting long-standing constitutional wrongs is more important than precedent. Nationalist liberals, in pursuit of a unitary state, have never worried about precedent. The Warren Court and the rush of judicial activism that followed it have overturned constitutional practices of more than 150 years. But the oldest of these usurpations is only some 40 years. Surely that is not a sufficient span of time to legitimize a massive corruption of American’s fundamental law.
Some would acknowledge that usurpations by the central government have occurred, but would say that they were justified in the name of a “higher law” to eliminate racial and sexual discrimination. In a genuinely federated polity, there will be practices in some political units that will be considered unjust by those in other units; and it is understandable that those believing themselves to suffer injustice will be disposed to look for a remedy from the center. Consequently, there will always be a political market for concentrating power at the center in the name of human rights and for endlessly expanding the definition of human rights. Most of the totalitarian regimes of the modern period, from the Terror of the French Revolution to the Marxist regimes of the 20th century, have claimed to support human rights. What made them totalitarian was the destruction of those independent political societies (states, principalities, regional authorities, the Church) that had hitherto been a means of corporate resistance to tyranny from the center. The people were then free of any injustice these intermediate orders might perpetrate, but they were also bereft of their protection. What has prevented the American polity from becoming totalitarian is not the current liberal notion of an ever expanding number of individual rights—for that has moved the regime decidedly in a totalitarian direction—but the stubborn survival of its federated character. This bulwark, however, is in disrepair and will not survive unless it is understood, politically acknowledged, and imaginatively cultivated by state governors and legislators.
There is indeed a “higher law” derived from the knowledge of things human and divine. And one of the many things it teaches is that, in a polity of 265 million souls, the moral evils that humans are inclined to pursue can be handled better in a genuinely federated polity of distinct political societies—each pursuing its own vision of the human good and in moral competition with other societies—than in a unitary state. In a regime of continental scale and size, a federation of states that preserve their distinct moral cultures, through interposition and secession, is morally superior to consolidation into a one-dimensional and dehumanizing unitary state.