Discussing the Unilateral Exit Right…
Image courtesy of Wikipedia Commons
Since a conversation about Southern secession has been brewing over a couple of posts, and I got a question from LWA about why a unilateral exit right needs to be respect. Given that I’ve also had a few discussions with nevermoor about Southern secession, I thought I’d just throw it all in here.
To provide a reference point, I’m going to post a link to an article written by Clyde Wilson, a southern historian, and published at the Abbeville Institute, a website that devoted to defending southern tradition and history. I’m going to focus solely on the content pertaining to the Constitution, and given that the article is going to contain a lot of historical points that will generate strong disagreement, I respectfully in advance ask that we focus the discussion on the points I address here. With those disclaimers behind me, I’ll continue.
Let’s start with the basics:
According to the Declaration of Independence, governments rest on the consent of the people, who may alter or abolish them when they no longer serve their rightful ends. This is the bedrock American principle.
Yes. I agree with this.Secession as a natural right of the people to reclaim sovereignty for themselves as an extralegal/revolutionary act has been well established (see the Declaration of Independence). The people in each state have that right even today even if there’s no chance in hell of it happening.
In every system there must be, at least in theory, a sovereign —a final authority for the settlement of all questions. All Americans are agreed that the people are sovereign…State rights was not, despite what they will tell you, something that was made up to defend slavery. It was the most honoured American tradition, implicit in the way the United States Constitution was set up and made valid. The right of the people of a State to exercise their sovereign will and secede from the Union was taken for granted at the Founding of the United States.
The Constitution was built on the bedrock of popular sovereignty, i.e. the people being sovereign, and as I argued (maybe implied) in my two-part series (here and here), the concept of state sovereignty (i.e. states rights) played a critical role in the ratification process and the scope of power delegated to the federal government. I didn’t get a lot of push back on those two posts on that point so I’ll assume there’s agreement here as well.
At this point, I’m going to converge from my Madisonian self and explain the southern defense of the compact theory. Note that Clyde Wilson uses the term “a sovereign”, meaning a single sovereign and not, say, dual sovereigns. The underlying theory is that sovereignty, once established, can not be divided. A sovereign political unit remains a sovereign political unit until that political unit decides that it wants to transfer 100% of its sovereignty to another political unit.
Therefore, applying this principle to the Constitution and the relationship between the federal government and the states, one of only two possible outcomes could have occurred. Either each state retained 100% of its sovereignty for itself and ratified the Constitution in its highest sovereign capacity (i.e. the compact theory) or that sovereignty was transferred to a single American people forming a national government and ratifying the Constitution in that regard. Needless to say, both history and the Constitution itself (see Article VII) disproves the latter.
Assuming the Constitution is a confederal compact between thirteen wholly sovereign states, the structure of the Constitution is as follows:
Each of the thirteen states are co-equals in the compact. EDIT (thanks Mark!!!)
No state has the right to coerce any other state into compliance. This was a well-accepted concept under international law. Each of the thirteen states agreed to delegate specific sovereign powers to the new federal government, powers that it exercised themselves but now delegate to the mutual benefit to the parties to the compact.
While sovereign powers were delegated to the federal government, sovereignty remains with each of the thirteen states. Therefore, the federal government is merely an agent and not a sovereign. In effect, the federal government remains subordinate to the states because it is not a sovereign itself.
As it is also well accepted that sovereigns can freely and unilaterally enter and exit compacts at will, the same applies with the Constitution. To the extent that it has to respected, at least legally, the reason for that is that the nature of the relationship between the federal government and the states is such that the federal government, having no sovereign authority of its own and being subordinate to the sovereign states, has no legal authority to compel a seceding state from exiting the Union. None. Nada. Zip. Zero. Zilch.
Look at it this way, what recourse would the federal government have had if Virginia decided it no longer wanted to be a party to the Articles of Confederation and chose to operate as its own nation state?
Setting aside the causes for secession, the structure I described above provided the legal framework for secession. It describes how and why sovereign states have a right to unilaterally enter and exit into compacts and describes why a subordinate agent has no choice but to respect the wishes of the states.
I think this position is vulnerable to a number of different criticisms. The first is the framing of the compact theory vs. nationalist theory debate as mentioned above. One can eliminate the possibility of the Constitution as forming a national government without making a single affirmative defense in favor of the compact theory. The second is that there is strong historical evidence showing that both the Framers and ratifiers understood that the Constitution was going to create a system of dual sovereignty, meaning that the states were not retaining full sovereignty. I think it’s one of the reasons the anti-Federalists fought so hard to limit the powers of the federal government. The third is that the text of the Constitution supports the idea of a federal sovereign in several places – to list a few: 1) the Preamble (we the People of the United States as a defined term; 2) the concept of US citizenship (one can only be a citizen of a sovereign); 3) treason against the United States (a crime only committed against a sovereign); 4) the Supremacy Clause (the law of the land) and 5) Article V (binds non consenting states to constitutional amendments.
Still, even given the existence of a federal sovereign, the text of the Constitution remains silent on the matter of secession. While a federal sovereign can compel the state to comply to the Constitution, as it bind the people of those states, on what grounds can the federal sovereign compel states to remain a party to it other than the use of force? Historians have struggled with these questions for decades.
My answer is two-fold. First, as far as the legal arguments go, from what I understand, while Clyde Wilson is correct to suggest that the Founding generation took for granted a unilateral secession right, such a right was understood as an extralegal right of revolution against oppression. Because this was not an act of a sovereign state peacefully exiting a treaty and it required the southern states to reclaim sovereignty it had granted to another sovereign, the act becomes more of an extralegal nature. However, let us not forget that slavery is so connected to the causes of secession that the legal debates pale in comparison to the moral abomination secession attempted to defend.