A discussion of secession ultimately centers on the question of “quitting,” and more specifically, when is it right to quit, if ever? There are two basic questions that must be asked: first, does such a fundamental right exist; and second, is it Constitutional.
Whenever talk of secession arises, whether in the early to mid 1800’s in America or now, a dissatisfied group of citizens expresses their frustration by demanding a break of political ties and a separation from the Union.
It is essential from the outset to clarify a few terms, specifically a distinction between secession and revolution (at least in the minds of Jefferson, Madison and Lincoln). While revolution and secession both represent a breaking of ties with others, I will attempt to show how Lincoln’s understanding of the difference between the two was much greater than just semantics.
The key distinction between the two concepts is of intention, ultimate goals, and most importantly, basis. For Lincoln, the distinction could most clearly be seen by comparing the cause of 1776 vs. the cause of 1860-61. In Lincoln’s mind, one breaking of ties was just, while the other was not.
In the Declaration of Independence, Jefferson provides us with the theoretical argument for revolution, as well as the practical evidence based upon this theory of why the colonists were just in their cause of breaking their “political bands” with Great Britain. The Declaration affirms that when a group’s God-given rights have been denied (and when political means to remedy the problem have failed), the ties can be broken. Essential to the American Revolution then, is the fact that the natural rights of all men were being denied. At this juncture, a people can legitimately break their political bands and seek their independence. In Lincoln’s mind, this is the legitimate nature of revolution.
We can contrast this with the political separation of 1860, when the South, after losing an unquestionably constitutionally held election, unsatisfied with the results, decided to sever their political ties with the North. For Lincoln, the claimed right of separation on the part of the South could not have been more different then the cause of revolution and liberty in 1776. Following the South’s secession, Lincoln repeatedly questioned what fundamental right was being denied for which they could legitimately “quit” the Union? In his mind, no such claim or cause existed. 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.” Rather, it is the essence of corrupt political rule which is based in the denial of natural rights.
Lincoln often compared the institution of slavery with the claimed “divine right” of Kings, both of which were a denial of individuals’ fundamental rights, where some were placed in a position to rule over others by the mere chance of birth. Both institutions are a denial of a person’s God-given liberty and, as such, both can be legitimately revolted against. For Lincoln, there was only one group who could lay claim to a legitimate right to “quit” in 1860, and it certainly wasn’t white southerners. Rather, it was their African slaves. Lincoln never denied a legitimate right of breaking political ties. What was essential was the nature of the cause. Quitting because you don’t like an election outcome or because you fear you will lose your claim to own another person both fail the test of legitimate causes.
While some suggest that the difference between secession and revolution is merely semantic, for Lincoln it was clear that the basis and intentions for breaking ties was more than that.
Our second question is this: does a right of secession exist within our constitutional framework. The answer to this question is simple: no. The Constitution is silent on the subject of states’ attempts to “de-ratify” their participation. More fundamentally, the underlying premise is one of perpetuation. The preamble of the U.S. Constitution makes this clear:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The Union was not to be temporary, but permanent, designed not just for the present but for posterity. The inference is clear: this was a Union intended to last.
Finally, a political society based on the idea that “quitting when unhappy” with the political twists and turns of our government is destined for destruction. Lincoln described secession in this way: “Plainly, the central idea of secession, is the essence of anarchy. A majority, held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinion and sentiments is the only true sovereign of free people. Whoever rejects it, does, of necessity, fly to anarchy or despotism.” The nature of quitting, if held as a fundamental, stand alone principle, will ultimately lead to anarchy, soon to be replaced by despotism.
Constitutionalism demands an adherence to the laws, even if we do not like the decisions that are being made. I may not support a war, but I am obligated to pay my taxes and support it – perhaps even fight in it – as a part of my obligation as a citizen. Likewise, states are obligated to obey the laws of the land as a part of their commitment to the perpetuation of the Union. The solution to bad laws is found in our system of free and frequent elections. Lincoln famously stated in his July 4, 1861 address to Congress that “ballots are the rightful and peaceful successors of bullets; and that when ballots have fairly and constitutionally decided there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by war; teaching all the folly of being the beginners of a war.”
Constitutionalism requires us to accept election outcomes, and then pursue change in later elections. This is not to suggest that ties can never be broken. As mentioned above, Lincoln truly believed that southern slaves did indeed have a legitimate claim to break ties with their oppressors.
The South never claimed that they were revolting from the North, nor did they base an appeal to quit in the Declaration or some other natural law basis of rights. To do so would have forced them to explain how in nature their cause was legitimate, and how their continued support for the institution of chattel slavery was moral. Had the North been denying a fundamental natural right of the southerners, the South would have had an absolute claim to revolt against its northern oppressors. No such claim can be made.
With current discussions of secession being thrown around and an increasing public opinion in support of a right of secession, we would do well to consider Lincoln’s warnings. If we ever reach a point where some demand a breaking of the political bands that have held this Union together for over 200 years, we must be certain that all political means to remedy the problem have been exhausted and that the cause be one grounded in the laws of nature and nature’s God
Editor: A poll from 2008 on secession talk in the USA caught my attention and that of Centennial Fellow Vincent McGuire, who teaches politics at CU-Boulder. James Bennett, author of The Anglosphere Challenge and contributor of this month's Centennial Review on the roots of American liberty, himself a Centennial Fellow, penned this thoughtful commentary at our invitation. The poll findings and a few words from Vince and me follow the main article.
James Bennett writes: I think the most important point made in the Zogby poll is the one at the end, that secession sentiment is something that arises in times of stress and increased political polarization. It's the sort of would-be silver-bullet solution that some types of people are prone to embrace without any detailed or realistic analysis. It's also an old American tradition to talk about secession. It's interesting to read the opening sections of Jay Winik's April 1865 where he lists the major secessionist plots and conspiracies that emerged in the early decades of the Republic; reading them, one is tempted to conclude that preservation of the Union did require at least a minor miracle. Particularly in Texas and Hawaii, which were once generally accepted members of the international system of nations, it is a solution that will always have a certain amount of sentimental attraction.
It's also the case that the USA is not a nation in the sense used by Herder or List; in fact, no English-speaking nation meets such definitions. There is no desire on anybody's part to construct a nation-state that would include all English-speaking people and exclude all others; there's not even a name for such a thing. We are quite happily divided into a number of self-governing polities that have the status of nations in the international system. Over the past two centuries, there has been quite a bit of sorting-out as to who was in what polity, and of course in North America, a substantial amount of warfare in regard to the matter. It was settled by force in 1814 that Canada would not be part of the USA, and in 1865 that the Southern states would be. But also, referenda, legislative campaigns, and legal processes have determined that Newfoundland would not, and later would be part of Canada, that New Zealand would not be part of the Australian federation, but that Western Australia would remain so despite a 1933 referendum vote to secede. Even today, it is not impossible that Quebec will not be part of Canada, nor Scotland part of the United Kingdom, within a decade or two.
What we in the English-speaking world seem to have evolved is an approach to statehood and nationhood that has two levels; one being the relatively close-knit regional communities that share a wide assortment of the sorts of ties Burke described -- associational, denominational, commercial, familial, sportive, ethnic, and only lastly political. They can often be traced by the footprint of media markets or professional sport team allegiances. In the USA, states are typically made up of one to three such communities, but they have typically worked out a political modus vivendi, and states each form a genuine political community. At a higher level, these communities have come together as unions, typically but not always formally federative. The four big ones are the UK, the USA, Canada, and Australia. Because all four unions were formed after substantial literacy had been achieved, these unions were debated and discussed very widely, and the terms of union were laid out explicitly. In Britain, for instance, in 1706, the proposed Union was debated widely at the congregational level in the church of Scotland, where the majority of men and women were literate. Because of the rational, explicit bargaining process by which these unions were formed, I call them "Lockean bargains". Thus our political fabric consists of a Burkean warp and Lockean weft, so to speak, and has proved to be quite a durable fabric.
Of course, subsequent history then imparts Burkean qualities to these Lockean bargains. Shared experience and sacrifice, particularly in wartime, creates natural sentiments of patriotism, and dictates a unique national narrative that most share in turn. (Civil war and sharp division, in contrast, create counter-narratives and erode the wider patriotic sentiments. We saw this in the American South.) Successful narratives create a sense of nationhood as strong or stronger than those of entho-relgious nation-states.
So, what does all this have to do with the recent upsurge of secessionist sentiment, or the question of legitimacy of secession? I would say that, at the beginning, the United States was seen by most through the lens of compact theory. Certainly, if we can imagine one of the 13 states voting to rescind its ratification of the Constitution the day after it had sent the ratification off, we would expect the other states might have been annoyed, but very few would have considered that they would have a moral or legal right to raise troops and invade the recalcitrant state. (Hamilton might have...) By the time of the Nullification Crisis, Andrew Jackson felt entirely justified in threatening to march into Charleston and start hanging people. And by 1861, the population was deeply divided between a unitary and compact understanding of the matter.
As John points out [below], the unitary theory won out, being on the side of the bigger battalions. But where would that leave us today if a state voted clearly by referendum to secede? As a classical liberal I am attracted to compact theory. And in fact, there are several Constitutional paths to permitting secession; most clearly, by a constitutional amendment setting forth ways and means of doing so.
We are accustomed to thinking of secession as a replay of 1861. But we may see a different cast to the matter. Consider that the current Administration has supported the proposed statehood of Puerto Rico. This may yet be accomplished within this Congress, possibly by the same questionable tactics by which the healthcare nationalization bill was passed. And say that, in a subsequent Republican Congress, a substantial element of the Puerto Rican electorate approached Congress and requested that statehood be undone, either to achieve separate nationhood or to revert to Commonwealth status. If a mechanism were created to permit this, it would be, (as opposed to finding a justification for nullifying the recognition of statehood) legally speaking, a form of secession, and it would be difficult to enunciate a legal theory by which this would not also be available to, say, Hawaii. The US has always maintained that if Puerto Rico clearly expressed a desire for full independence, it would grant it, as it similarly had done for the Commonwealth of the Philippines. Where would the Right stand on this question?
My own position, to the extent mine is settled, is that although I believe in compact theory at some basic level, it must be highly qualified by Burkean considerations. Membership in a union and a federation includes promises and trusts. We have all shaped our actions on the expectation that the Union will stand and that the costs we have incurred on behalf of our fellow citizens will be reciprocated, if not dollar-for-dollar, then in some generic and ultimately ongoing fashion. Secession treats this intergenerational bargain as a game of musical chairs in which the obligations cease when the music stops. This was not the understanding under which Americans for the past century, at least, have made sacrifices of life and fortune for each others' sake, and we violate, at least to some degree, the trust that was involved in those sacrifices if we permit secession too lightly or with mere legalistic justification.
So I am left with the conclusion that although secession can be justified under some circumstances -- as heirs to the Signers of the Declaration, I think we are obliged to grant such -- there must needs be a strong bias toward the continuation of the Union, so long as it is a Union of the free.
Earlier, McGuire had written: When I saw this Zogby poll on the web, it struck me as something we should be discussing. To which Andrews replied: Well, to me it's pretty simple. The Union formed by the Constitution of 1787 is perpetual de jure, and was validated as such de facto by the Civil War. I see no reason to alter that arrangement, and many good reasons to keep it as is. I will ask some of our other Centennial Fellows to offer their perspectives as well.
AND HERE'S THE POLL ITSELF:
A new [July 2008] Zobgy/Middlebury Institute poll reports that 22 percent of respondents believe that states have the right to peaceably secede from the United States. The figures go up considerably among liberals, Latinos, blacks, young people and Southern residents. From the press release:
The level of support for the right of secession was consistent in every region in the country, though the percentage was slightly higher in the South (26%) and the East (24%). The figures were also consistent for every age group, but backing was strongest among younger adults, as 40% among those age 18 to 24 and 24% among those age 25 to 34 agreed states and regions have secession rights.
Broken down by race, the highest percentage agreeing with the right to secede was among Hispanics (43%) and African-Americans (40%). Among white respondents, 17% said states or regions should have the right to peaceably secede.
Politically, liberal thinkers were much more likely to favor the right to secession for states and regions, as 32% of mainline liberals agreed with the concept. Among the very liberal the support was only slightly less enthusiastic – 28% said they favored such a right. Meanwhile, just 17% of mainline conservatives thought it should exist as an option for states or regions of the nation.
Asked whether they would support a secessionist movement in their own state, 18% said they would, with those in the South most likely to say they would back such an effort. In the South, 24% said they would support such an effort, while 15% in the West and Midwest said the same. Here, too, younger adults were more likely than older adults to be supportive – 35% of those under age 30 would support secession in their state, compared to just 17% of those over age 65. Among African Americans, 33% said they would support secession, compared to just 15% of white adults. The more education a respondent had, the less likely they were to support secession – as 38% of those with less than a high school diploma would support it, compared to just 10% of those with a college degree.
To gauge the extent to which support for secession comes from a sense that the nation’s current system is not working, a separate question was asked about agreement that "the United States’ system is broken and cannot be fixed by traditional two-party politics and elections." Nearly half of respondents agreed with this statement, with 27% who somewhat agree and 18% who strongly agree. [Emphasis mine]
The telephone poll, conducted by Zogby International, included 1,209 American adult respondents. It was conducted July 9-13, 2008, and carries a margin of error of +/- 2.9 per cent.
('76 Editor) Recovering the Founders' Constitution in American state and federal government, and reviving the civic virtues and character our Founders saw as indispensable to liberty -- one huge challenge in the political realm and another in the cultural realm -- these were the action points emerging from "Constitutional Principles for Legislation," a conference for state legislators from throughout the West, sponsored by the Centennial Institute and the Rocky Mountain Family Council on Oct. 30-31 at Colorado Christian University. Fifteen state senators and representatives from five states took part, along with participants from think tanks and policy organizations, CCU faculty and students, and guests from metro Denver. The legislatures of Colorado, Kansas, Oklahoma, Wyoming, and New Mexico were represented. Schedule conflicts prevented the attendance of interested legislators from Arizona, Idaho, Montana, Nebraska, and North & South Dakota. Former US Senator Bill Armstrong, now president of Colorado Christian University, gave the keynote address on "Mapping Our Way out of the Wilderness." Other speakers and panelists included Jon Caldara of the Independence Institute, Shari Weber of American Majority, Kevin Miller of Vanguard Forum, political scientist Greg Schaller, former Colorado Treasurer Mark Hillman, and Rob Witwer, author of a forthcoming book on liberal takeover strategies in the states. John Andrews and Jim Chapman co-chaired the conference. We're already planning the next Constitutional Principles conference for June 2010. If you are interested in attending, please mail us at firstname.lastname@example.org. Some photos from this year's event are below. The program outline and attendance list are linked here... legis conf prog & attend 111809.doc (128.50 kb)
SATURDAY SESSION: Jim Chapman of Rocky Mountain Family Council (center) opens the second day of the conference with a talk on keeping civil society strong in order to restrain the growth and intrusiveness of government.
SOME OF THE PARTICIPANTS: Rep. Timothy Hallinan, CO Sen. Greg Brophy, CO Rep. Cheri Gerou, KS Sen. Karin Brownlee, WY Rep. Pete Anderson, and NM Rep. Tom Taylor pose after adjournment, urging the Centennial Institute to convene another such event next year. We intend to.