(Centennial Fellow) Responding to Bennett and Schaller on the matter of secession then and now, here's a somewhat different approach. First, who or what in fact, originally revolted and seceded from England? We all know the obvious answer, which is Jefferson’s. The first line of the Declaration states “when in the course of human events it becomes necessary for one people....” Thus, there had to have been, in some sense, a large group of people who consider themselves a nation. By this I mean, a group of people who have strong ties to a common identity. So, the nation of Israel is over 5000 years old, while the state of Israel is relatively young. Did this “nation” exist? It seems to me the best analysis here comes from Carl Degler who claims the colonies were split: one third for secession, one third against secession, one third who just did not care.
In fact, most of the political maneuvers which occurred between about 1774 and 1787 were performed by the colonies, if you prefer states. The way in which votes were taken in the Continental congresses, the discussions in Philadelphia over the Declaration of Independence, and the convention of 1787 were all taken by states. Therefore, the argument is that one people did not secede. Rather, the states, in some combination, seceded. This places the states as the forerunner of the Constitution. If the states wrote, ratified and passed the Constitution these states then have the right not to just secede, but merely leave. While I disagree with this line of thinking it is compelling.
Let us not forget that the Constitution was ratified by the states but not overwhelmingly. If one looks at the votes of the Constitutional ratifying conventions there is evidence for this.
Delaware, New Jersey, Georgia, Pennsylvania and Connecticut all passed the Constitution by wide margins. Next, in February 1788 Massachusetts ratified the Constitution by a vote of 187 -168. Maryland and South Carolina then ratified the Constitution by wide margins. New Hampshire was next. Their convention ratified the Constitution by a vote of 57 - 47. Virginia ratified by a vote of 87 - 76. New York, with the thinnest of margins, pass the Constitution by a vote of 30 - 27. A little math is called for. Let us look at some of the close votes. If we determine the number of votes, which, if changed, would have resulted in the failure of the Constitution in that state we see something interesting. Thus, a change of 10 votes in Massachusetts, would have brought down the Constitution by a vote of 177 - 178. A change of six votes in New Hampshire would have done the same thing, the vote total to 51 - 53. A change of six Virginia voters would’ve brought down the Constitution in that state by a vote of 81 - 82. Most interesting may be New York where if only 2 voters had changed their mind, the Constitution would’ve failed by a vote of 28 - 29. What would have been the political result if New York had not ratified? This possibility, of course, led to the Federalist Papers. North Carolina then ratified by an overwhelming majority and Rhode Island, waiting until 1790, ratified by a vote of 34 to 32. Therefore, if a total of 26 votes had changed in five states we would not have the Constitution.
Thus, a legitimate line of argument is created: the states revolted and declared independence, the states wrote the Constitution and the Constitution was not overwhelmingly accepted by the states, albeit ratification is ratification. If you will allow me that there are two reasonable arguments, one based on the idea that we are a united people, a nation and, that we are a conglomeration of state’s in a federal system where there is in essence a dual sovereignty; we are citizens of both the federal government and the state governments. Where are we then in American politics, beginning with the founding? We have two legitimate points of view on how the federal government and states interact. What happened, then?
In grand Madisonian fashion, we had a series of compromises to avoid secession. One is reminded of Edmund Burke’s comment, “Every human benefit, every virtue and every prudent act, is founded on compromise.” Why did these compromises fail leading to the use of force? If the Jeffersonian/Lincolnian argument of one people is correct why do they use force to impose their view on the south? A better question might be was the South wrong? Was the south so wrong that military action needed to be used?
The interpretation of the logic of the 10th Amendment may be needed. The Constitution sets out three sets of powers. First, are the enumerated powers given exclusively to Congress. The second set of powers are powers no government can use, e.g. an ex post facto law. All the rest of the powers reside in the people or the states. Since neither nullification nor secession are in any sense stated or implied in article 1 section 8, Congress has no control over these issues. They are in no sense, at least in the Constitution, prohibited powers. Therefore, the states have both the right of secession and nullification. My esteemed colleague, Greg Schaller admits as much: “ The Constitution is silent on the subject of states’' attempts to "de-ratify" their participation.” When silent, all powers go to the states except those powers which are prohibited.
What then of states’ rights? Prof. Schaller: “The repeated refrain of “states rights” or “property rights” was, of course, nothing more than the South’s claim to protect their “right” to own other human beings; a claim which Lincoln correctly argued is not grounded in the ‘laws of nature or nature’s God.’” If one understands the arguments of the South, states’ rights award of the most fundamental foundations of the Constitution. I think that in terms of property rights John Locke has given a sufficient enough argument. In arguing against the divine right theory of kings, Locke reasoned deductively that no one has inherent dominion over anyone else. The argument of the South that blacks were not human and therefore property is completely specious. My personal opinion is the South never really believed this either.
Not trying to put words into Prof. Schaller’s mouth but I think the implication is that states’ rights were destroyed by force. States’ rights were then sent off to some political Valhalla with passage of the 17th amendment. Thus, it can be argued that Abraham Lincoln destroyed states’ rights and paved the way for one of the most egregious alterations to the original Constitution. When the job of appointing senators by state legislatures ended effectively the representation of states interests was done away with. Senators no longer represent their states in the give-and-take and compromise of federalism. Rather, senators now represent the people of the state from which they are elected. There has also been, in my opinion, a sense that senators now represent the entire nation and not just their states. I have no proof for this, but it seems logical to me.
Let me finish by positing an example of how the loss of states’ rights has led to the mis -apportionment of representation between the states and the national government. Except for the willfully obtuse, all know that the cost and size of the federal government will rise massively in the future. According to the president much of the savings will come by shifting the burden of Medicare to the states. If senators still represented the interests of their state, where the ambition of the state’s counter the ambition of the federal government, the states would have seen their loss of income and loss of power and the Senate would not have gone for Obama care. Therefore, I think we should take the issue of states’ rights more seriously. I conclude that states’ rights include the right of secession.
What then of the secession in the Civil War? I think the South had the better legal argument, appealing to the Constitution. The North had the moral argument. Don’t forget in the painting of the famous Appomattox Courthouse both Lee and Grant were wearing white hats. Is the South in fact, the bad guy because of secession?