When the American colonists seceded from Britain in 1776, Europe was shared out among great monarchies.  Only Switzerland was republican, but Americans were determined to enjoy a republican style of government in the New World.  The republican tradition went back over 2,000 years to the ancient Greeks and consistently taught that a republic must satisfy three conditions.  Self-government: The citizens should make the legislation they live under.  The rule of law: Legislation should be made in accord with a more fundamental law known to all citizens through custom or natural reason.  Human scale: The republic should be small.

Most of us would accept the first two conditions but not the third.  We talk of the French and American republics, and of the People’s Republic of China, as if size no longer mattered.  But for over two millennia the most brilliant ancient, medieval, and modern republics rarely had populations over 200,000, and most were considerably below that.  Ancient Athens, one of the largest Greek republics, had around 160,000.  When a larger sphere of politics was needed—e.g., for defense or ease of trade—the remedy was a federation of small republics, as with the Swiss federation.

The vast territory Americans acquired after independence seemed to doom them to a centralized monarchy, whether they wanted it or not.  This was not perceived as a problem at first because, with the exception of regulating trade, the crown had left the colonists pretty much to themselves.  David Hume could write in Scotland in the 1730’s that “the Charter governments in America are almost entirely independent of England.”  Although the territory was vast, the population was sparse.  Being made up of small, rural Protestant communities, Americans enjoyed a republican style of politics on a scale smaller than that of the ancient Greeks.  The largest city was Philadelphia, with around 30,000 people.  New York did not reach the size of ancient Athens until around 1830.

As the territory filled with population, Americans confronted the problem of republicanism and size.  The solution was division and secession.  Part of Virginia seceded and formed the state of Kentucky.  Western counties seceded from North Carolina to form the state of Franklin.  That movement failed, but out of it came the state of Tennessee.  Maine seceded from Massachusetts.  The Republic of West Florida seceded from the Louisiana Purchase territory, but was annexed by the United States in 1810.  Nevertheless, this act of secession was burned into the memory of the southwestern people.  The flag of the West Florida Republic was a single white star on a blue ground.  When Texas seceded from Mexico it used that flag as the canton of its national flag, and named itself the “lone star Republic.”  In 1861, as Southern states joyfully seceded to form a federation of their own, a song was written in tribute to the Republic of West Florida’s “bonnie blue flag that bears a single star.”  After “Dixie,” “The Bonnie Blue Flag” was the most popular song of the Confederacy.  That ensign is still flown in the South.

Secession was not the only way of preserving republicanism in a vast territory; a state could also cede part of its territory.  Virginia had conquered a vast stretch of territory in the northwest that included the present states of Ohio, Indiana, Illinois, Wisconsin, and Michigan.  Virginia statesmen argued that Virginia could not both be a republic and rule such vast territory.  Consequently, the territory was ceded to the Confederation as common territory from which new states could be formed.

But Jefferson thought Virginia was still too large for republican government.  He proposed dividing it into “ward republics.”  Unlike counties, which are mere administrative units of state legislatures, these would be small republics with considerable self-rule over local affairs.  Jefferson modeled them on the New England towns that, at the time, had not been consolidated into state governments.  These little republics nullified the embargoes of Jefferson and Madison, military conscription, and the War of 1812.  Jefferson deplored their “selfish” policies but admired their spirit, and said later that he felt his administration “tremble” under the remonstrances of the New England towns.

Republicanism was preserved in the vast territory of early America by an ethic of secession and division.  Had America remained within the territory of the original 13 states, she could have developed, through repeated secessions, into 50 states as we have today.  And if Jefferson had his way, each of these would be divided into small republics similar to the Swiss cantons.

But that was not the path taken.  The temptation to monarchy was greatly strengthened by the Louisiana Purchase, which more than doubled the size of the Union.  This unexpected threat of monarchy prompted the first secession movement.  Leaders in New England and New York argued that the purchase was unconstitutional and part of a conspiracy by Virginia and the South to dominate the Union.  Virginia, they said, wanted to become “the Austria of America.”

Jefferson’s response was that America would certainly become an empire, but not a centralized empire.  She should become what he called “an empire of liberty.”  As Americans moved west, they would reenact the primal scene of the American colonists.  They would clear forests, build communities, and, when developed enough to govern themselves, form states and secede from the mother union as the colonists had seceded from the mother country.  This process, if carried out to the Pacific, could yield two, three, or more unions of states on the continent.  In a letter to Joseph Priestly on January 29, 1804, Jefferson said he would be happy to have a Mississippi Confederacy alongside the old Atlantic Confederacy and suggested that other confederacies might be formed on the Pacific coast.  Each would contain “Free and independent Americans, unconnected with us but by ties of blood and interest, and employing like us the rights of self-government.”  This was a common outlook among Jeffersonians.  There was no danger that Jefferson’s “empire of liberty” would become too large for the purposes of self-government, because if it did, there was a remedy in secession.  He wrote 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.’”

Fifty years after the Louisiana Purchase, the United States would acquire large parts of Mexico and the Oregon Territory.  Without the exercise of secession and division, a regime of this monster size would collapse into a centralized monarchy.  From 1804 to 1860, there was a zero-sum battle over who would control the center and dominate the Union.

This battle for domination was aided by a nationalist theory of the Constitution put forth by Joseph Story and Daniel Webster, and established with fire and sword by Abraham Lincoln.  Sovereignty, they said, was vested in the American people in the aggregate, not in the people of the several states.  Upon seceding from Britain, the colonists descended into what Hobbes and Locke called “a state of nature,” or anarchy.  This aggregate, through revolutionary action, formed a political society whose will was represented by the Continental Congress.  This Congress authorized the formation of states.  It was this preposterous theory that Lincoln faithfully followed in his First Inaugural when he said that the Union is older than the states and, in fact, created them as states.

But the theory was moribund from the beginning.  Locke and Hobbes taught that a state of nature does not exist if there is a legislature.  The colonial legislatures never ceased to exist and simply transformed themselves into the legislatures of independent states.  They were recognized by name as sovereign states in treaties with Britain, France, Holland, and Sweden.  Article II of the Articles of Confederation says that “each State retains its freedom, sovereignty, and independence.”  A state cannot “retain” sovereignty unless it has it, and in joining the Union, no state renounced sovereignty.  What motivates the nationalist theory is not an honest look at the historical founding of America, but political ambition legitimated by the philosophical theory of the modern unitary state.  This ambition appears forcefully in Hamilton, who argued at the Philadelphia Convention for a president for life, a senate with members for life appointed by the president, and state governors appointed by the president—in other words, monarchy under another name.

Lincoln inherited this nationalist ambition.  The states, he said, were not sovereign political societies and could neither nullify nor secede.  He compared them to counties in a unitary state: “What is this particular sacredness of a State? . . . If a state, in one instance, and a county in another, should be equal in extent of territory, and equal in number of people, wherein is that State better than a county.”  For Lincoln, as for all devotees of the modern unitary state, there is only a central authority having a monopoly on coercion over individuals in a territory.  The French Revolution was the first to try wiping the slate clean of independent social authorities.  The French state, for example, does not recognize ancient Corsica as a political society, but only as an administrative unit of central authority ruling individuals.

In describing the states as counties, Lincoln took his bearings not from the American Revolution but from the French.  The French and the American state are both described today as “indivisible” republics, which means that secession is absolutely prohibited.  But to rule out secession in a regime the size of the United States or France is to sever the ancient teaching of the republican tradition that size and scale are internally connected to self-government and the rule of law.  But is that true?  How does a post-Lincolnian America of continental scale, “one and indivisible,” measure in terms of self-government and rule of law?

Congress is composed of 435 representatives and 100 senators.  A lawmaking majority, including the president, is only 269 people.  (And if Congress acts by a quorum, which it often does, the majority is only 135!)  This small body rules 309 million people and commands a budget of $3.55 trillion, plus the inevitable deficit that brings it close to $5 trillion.  The ratio of representatives to population in the House is 1 for every 710,345 people—an absurd ratio for the claim of self-government.  The first Congress had 1 representative for every 60,000 people (or 10,000 voting citizens), a ratio Madison thought inadequate for a country of nearly 4 million.  But if this—in his view—inadequate ratio were applied today, there would be more than 5,000 members of the House.  Much too large for a lawmaking body.  But does that mean that Madison’s ratio is wrong or that the Union has become too large for the purposes of self-government?

Judging from the size of legislative bodies around the world, 435 is about the right size.  When the population reaches 435 million, there will be one representative for every million persons.  But if the current size of the House cannot be increased as population expands, then we have reached the point at which all pretense to self-government must be abandoned.

The out-of-scale ratio of representation could perhaps be tolerated if the central government were to stay within the bounds of its enumerated powers—mainly regulation of commerce, defense, and foreign treaties.  When Nancy Pelosi was asked where the Constitution grants Congress power to compel individuals to buy health insurance, she simply laughed.  Congress and the imperial presidency can pretty much define the limits of their powers with little fear of being policed by the Supreme Court—which is just another federal agency.  Its main use of judicial review (a power nowhere granted in the Constitution) is to declare state actions unconstitutional.  It has invaded the police powers of the states to regulate education, morals, religion, abortion, speech, health, voting rights, law enforcement, marriage—matters at the heart of republican life.  By votes of five to four, unelected judges can act as social engineers on an aggregate of 309 million people.

The remedy?  Recover the practice of pre-Lincolnian America, where republicanism, nullification, and secession went hand in hand with a regime of continental scale.  With this ethic, the states kept the central government in check.  As of 1860, it was virtually out of debt and imposed no inland taxes.  It lived off land sales and a tariff on imports.  Today, the federal debt is over $13 trillion.  In addition, the United States has commitments (Medicare, Social Security, etc.) estimated by some experts at $100 trillion.  And still more spending programs are created.

The states must begin to recall the constitutional powers they have allowed to slip away.  They must once again take on the role of defining and enforcing the Constitution through acts of state interposition and nullification designed to reach concurrence with the other states.  And if it is said that a Union of 50 states is too large and unwieldy for that kind of politics, then the proper response would be to divide the Union into regional federations where the people have more control over the legislation that governs them and the fundamental law to which legislation must conform.

If the United States were divided into five unions—the North, Midwest, Southwest, Pacific Northwest, and South—each would have a GDP larger than that of Britain or France.  The South, if Oklahoma were included, would have the second largest in the world, after Japan.  Even if all had the original Constitution, they would soon evolve into different political societies.  The 11 American states that seceded in 1861 retained the Constitution of 1789 with only a few (but very significant) reforms that were designed largely to prevent runaway centralization.  In one of these, the amendment process originates in the states.  Any three states could propose an amendment to the Confederate Constitution, and only two thirds were needed for ratification; whereas in the U.S. Constitution, amendments begin in Congress and require three fourths of the states for ratification, unless a full two thirds of the states “call a Convention for proposing Amendments.”  Since 1790 over 10,000 amendments have been proposed, but only 30 have left the congressional gate, and 27 have passed.

This salutary republican reform in the Confederate Constitution could not have been enacted in the United States in 1861.  The nationalists would have blocked it.  But it could be enacted in a regional federation of 11 states where the American republican tradition was stronger.  Likewise, the Canadian federation has ten provinces in a federation of 34 million (smaller than California).  Its constitution allows a province to secede, and it even enshrines nullification by allowing a province to opt out of federal laws pertaining to civil rights.  Again, size matters.  Smaller regional federations of ten or so states make consensus on a substantial constitutional reform more likely.  Constitutional reform in the United States will likely await a division of the Union in the direction of smaller regional federations.

The move to divide the Union in the direction of a republican scale can only come from the states.  As sovereign parties to the constitutional compact, they must assume again what Madison called the “duty” to protect their citizens from unconstitutional acts of the central government.  This can be done only by prudential interposition and nullification—and by reviving the discourse of secession and division—not as the lawless, revolutionary act that post-Lincolnian nationalists view it to be, but as a necessary and lawful constituent of the republican tradition mapped to a continental scale.