There is certainly no shortage of opinion on whether the southern states had the right to secede from the union in 1860-61. After all, northern state governments as well as the election of Lincoln placed the south into a defensive posture to protect their particular institution. Secession has a long history in world governmental intercourse and the founding of American independence did not inoculate them from the threats of secession. States began to discuss secession even before the ink had dried on the new constitution.
Justification, regardless as to the state threatening secession, was founded on the belief that the states had the right to govern themselves and the right of the people to abolish a government when it becomes destructive to the ends for which it was instituted. Additionally, the common belief that permeated early American political thought was states remained free and sovereign, implying they were somehow independent from the central government and the other states that were the United States of America.
The concept that states could simply leave or secede from the union was simply not the case. The constitution did not allow for states to leave or secede from the union. To understand if and how secession and the constitution interact, it is first important to understand what the founding fathers thought on the subject of secession and if they were under the opinion that a state could just simply leave the union. Although states or parts of states had threatened to secede prior to ratifying the constitution, this is not the type of secession this paper is concerned with.
If states like Virginia or up-state New York had chosen not to join the union, withdrawing would not have been a constitutional issue but one to debate from the perspective of the Articles of Confederation or Declaration of Independence. During New York’s ratification process, considered to be one of the crucial states during this process, New York’s Anti-Federalist John Lansing proposed a ratification compromise that included the right for the state of New York to withdraw herself from the union within a certain number of years unless the amendments proposed were taken into account.
This is an interesting point in states’ rights history, a battle that would emerge again in the 1860s. However, during the ratification process, not one state rights advocate stood in support of Lansing’s proposal nor stood in argument. The argument being if such a right to withdraw had been thought to exist, Lansing’s proposal would have limited it so there would have been opposition to proposing any limiting time to withdraw from the union. To the contrary, the Federalists rose in opposition to any proposal that provided for any withdraw from the union, even at the risk of losing supporting votes for ratification.
This interaction did not happen in a vacuum. New York’s ratification process was being closely watched throughout the country. The message sent to all was this: the constitution did not permit unilateral state secession. In a letter to Alexander Hamilton, James Madison explained that the constitution requires an adoption in total, and forever. Additionally, Hamilton positioned that the terms of the constitution import a perpetual compact between the different states, and the oath to be taken stands in the way of any subsequent right of unilateral secession.
The oath of which Hamilton speaks of is found in Article VI of the constitution which states in part “The Senators and Representatives before mentioned, and the Members of the several State legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support the constitution… ” James Madison, the father of the constitution, and should probably be considered the father of the Bill of Rights as well, feared the sovereignty retained by the states as outlined in the tenth amendment implied the power of nullification, interposition, or secession.
Interestingly, the first two discussions regarding the amendment that would eventually become the tenth amendment initially included the wording “expressly” regarding powers not delegated to Congress by the Constitution. This terminology was rejected twice before being amended to strike the term “expressly” and adding “the people” to the amendment. Madison garnered support against the use of “expressly” when discussing the powers of the federal government.
To Madison, it was sible to confine a government to the exercise of express powers; there must be necessarily admitted powers by implication, unless the constitution descended to recount every minutia. What Madison seems to imply is that although the balance of power is enumerated between the branches of the federal government, the ability to govern the nation at the federal level should not be restricted to specific limitations prescribed by the constitution, but flexible and aligned more with the concept of the ‘necessary and proper clause that allows for some latitude in making laws and exercising those enumerated powers.
To the states and the people, the Tenth Amendment provided an avenue to dispute national government over-step which has been recognized over the years by the Supreme Court. However, the Supreme Court ruling the federal government has overstepped in implementing laws, they also ruled once a law was passed, the state has no authority to nullify a federal law. Madison and Jefferson clearly understood this when writing the Virginia and Kentucky Resolutions in protest to the Alien and Sedation Acts of 1789.
Virginia’s General Assembly concluded the states, not individually, could nullify federal law, however it would only be valid if upheld by the courts. Madison wrote that state nullification is more an expression of opinion, only valid if upheld by the courts. Madison’s thoughts on nullification are certainly aligned with the 1859 Supreme Court ruling in Ableman v. Booth where Chief Justice Roger Taney, an avid States Rights advocate, ruled that the Wisconsin Supreme Court could not invalidate federal law; in this case, enforcement of the Fugitive Slave Act.
States did not have to actively enforce federal laws within their territory but they could not interfere with its enforcement by federal agents. The Ableman v. Booth case coupled with the 1819 Supreme Court ruling by Chief Justice John Marshall in McCulloch v. Maryland declaring states could not impose taxes on federal institutions within their territories clearly establishes federal supremacy over the state in judicial matters, as long as the issue was supported by judicial review namely the United States Supreme Court. Legal intercourse between the federal government and state sovereignty is an important point in the secession argument.
In his book “The Constitutional Law of the United States” author H. von Holst argues in support of South Carolina’s rational for secession. Holst contends the states maintained their independent sovereignty from the union of states. If conflict of authority broke out between the federal government and the state, the decisive judgement was left to the state. Additionally, Holst supports the concept that the state can nullify any federal law they deem unconstitutional, that John Calhoun of South Carolina fully developed the doctrine of nullification.
However, this argument is in itself null and void as the Supreme Court ruled in 1859 states could not nullify a federal law unless the law was deemed unconstitutional by the Court. Holst claims that the right of secession is not a constitutional right but rather but inherent in the nature of the states. This claim has no necessary support as the seceding states never claimed a natural right to secede, to them, their right to secede was based on violations of the constitution levied against them and they were exercising their right to throw off a tyrannical government, one they had previously claimed an obligation to support.
This was also not based on any constitutional right to secede but rather an impression their constitutional rights as states was being violated, especially with regards to provisions of article IV, section 2 of the U. S. Constitution which essentially requires slaves, although the term ‘slave’ is not used in the constitution, that may escape to non-slave states are required, upon claim, be returned to the party to whom such service or labor may be due.
Reviewing the Ordinances of Secession as written and approved by the seceding states, the primary argument for secession was centered on a relatively few arguments. First and foremost was their concern for what they perceive as violations by the federal government in enforcing both article IV of the constitution and the requirements of the 1850 Fugitive Slave Act. Interestingly, not one state in writing their Ordinance of Secession referenced the tenth amendment which purportedly was the foundation of later arguments on states’ rights.
Essentially, the states right argument supposes the states have a right to secede as all “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States… ” Although none of the seceding states in their Ordinance of Secession proclamations make any reference to their independent and sovereign status as rationalization for secession, John Grahm in his book A Constitutional History of Secession makes several references to the fact that the states maintained their independence and sovereignty as states, primarily based on their status under the Articles of Confederation.
However, Grahm further supports his position that the states were independent and sovereign by referencing King George IIls statement at the signing of the Treaty of Paris in 1783 at the conclusion of the Revolutionary War where the King referred to each state by name and claimed they be “free, sovereign, and independent states. ” They were; from British rule. Whatever or however the southern states wanted to use the excuse their constitutional rights regarding Article IV were being violated, the courts had shown full support in their right to recover fugitive slaves, or persons held to service or labor.
For instance, in addition to the aforementioned constitutional article, the federal government passed an even more restrictive Fugitive Slave Act in 1850 which deprived alleged fugitive slaves due process guarantee’s such as right to trial by jury. Consequently, according to historian John Hope Franklin there were more than nine hundred fugitive slaves returned to southern owners between 1850 and 1861. Were all fugitive slaves returned? Absolutely not. However, there was great concern among free northern states that not all blacks taken into custody and returned south were in fact fugitive slaves. Some were actually free blacks.
Because of this many norther states passed laws such as that passed by Pennsylvania called personal liberty statutes to protect free blacks citizens. However, supporting the southern constitutional rights defined in Article IV, the Supreme Court ruled in 1842 and well before the new Fugitive Slave Act of 1850, such state statues unconstitutional. In 1859 the Supreme Court again supported the rights of southern slave owners when the Court ruled in Ableman v. Booth Wisconsin’s Supreme Court could not invalidate the Fugitive Slave Act of 1850 as it was a federal law which states had no standing to nullify.
