Publisher's Note: Diane Rufino has supplied us with a most interesting concept: Should individual states ever consider secession as a last resort to seek remedy?
It is a rather long treatise on the subject so I have broken it into chapters. This is the second chapter. Reading the first chapter is a prerequisite to understanding the second.
QUESTION: What does the word "Secession" mean?
--> A separation from a community of a part of that community.
--> One party's voluntary withdrawal, or disassociation, from another party or from a Union of parties
--> Secession necessitates no attack, no usurpation, no threats, no takeover, no violence. It is a peaceful act. Violence only enters the picture when there is a tyrant ruler. Coercion and armed force are the favorite instruments of such rulers to halt a secession from their corrupt empire.
QUESTION: What did our Founders say about secession? What about our founding principles?
--> Our Founders understood that certain fundamental rights are inherent in man because of his relationship with the Creator. They reasoned: "How can we give consent to a government to make rules for us if we don't have the original power to make rules for ourselves?"
--> This is known as the Individual Sovereignty doctrine, advanced by the great philosopher on government, John Locke.
--> It was the sovereign people ("We the People") for who the Constitution was created.
--> If a sovereign people can create a government, then they can also dissolve it.
As our Founders understood, certain fundamental rights are inherent in man because of his relationship with the Creator. They reasoned: 'How can we give consent to a government to make rules for us if we don't have the original power to make rules for ourselves?" This is known as the Individual Sovereignty doctrine, advanced by the great philosopher on government, John Locke. It was the sovereign people ("We the People") for who the Constitution was created. In order to understand the premise for John Locke's theory on government, ask this question: Which comes first - individuals or governments? We know the answer.
Individuals, with certain fundamental sovereign rights, form into communities. They delegate their power over their rights and property to a local government to protect them. As John Locke explained: "Individuals have sovereign rights which no government can take away. (Government can only exercise power on behalf of the people). As such, government is morally obliged to serve people, namely by protecting life, liberty, and property."
John Locke was one of the first great thinkers of the Enlightenment Era (or age of Reason). He believed in the sovereignty of the individual - the inherent rights of the individual to self-protection. Locke understood that the individual has natural rights to life, liberty and property, and therefore has the right to protect them. It is from this basic premise that he explored the role of government. We can read his views in his extensive essays entitled The Two Treatises of Government, published in 1688 and 1689.
In the first treatise, Locke refutes the belief in the divine right of Kings. It is the second treatise, we see the essentials of Locke's political theory. In essence, he builds on Cicero's "Natural Law" theory where man derives his existence and therefore his natural rights from God. Locke takes the theory one step further and applies it to the intended role of government. So Locke's fundamental assertion, as was Cicero's, is that the state of nature has human beings enjoying most of their natural rights without the state. That is, the rights are not granted by the state. The fact that property could be freely exchanged, sold, or accumulated in that natural condition led Locke to argue that governments ought not interfere with most aspects of the economy and society. Moreover, no people living in a natural state of freedom would consent to have all their liberty taken away. Liberty is not the government's to take away. Therefore, any government requires the consent of the people to "protect the rights of life, liberty, and property" that the people themselves have the natural authority to do. (The right of self-protection). This, therefore, makes government 'conditional.' It also dictates that the role of the state ought to be limited to protecting life, liberty, and property from those few predatory members of the human race whom Locke referred to as the "quarrelsome and the contentious." According to Locke, everyone is entitled to live once they are created (Life), everyone is entitled to do anything they want to so long as it doesn't conflict with the first right (Liberty), and everyone is entitled to own all they create or gain through gift or trade so long as it doesn't conflict with the first two rights (Property).
Since the role of government is limited, its power should also be limited. Locke proposed that government be limited through a separation of powers scheme, where each branch checks the other.
It is easy to see how our Founder's were influenced by John Locke when designing our government and drafting our founding documents.
QUESTION: What is the purpose of a Constitution?
--> Locke wrote that the decision by a group of people to delegate authority to a government creates a constitution, a written agreement that sets limitations on government power and represents the consent of the people. Laws established for the community naturally flow from this initial agreement and therefore a constitution is superior to ordinary laws created by any legislature. Locke's idea of government is one of a limited constitutional regime. Locke saw constitutions as "social contracts" or "social compacts."
QUESTION: What is a "Social Contract" or "Social Compact?
--> A social contract is an agreement intended to explain the appropriate relationship between individuals and their governments. People form an implicit social contract, ceding their natural rights to an authority to protect them from abuse. According to the dictionary, a social contract (aka, social compact) is a voluntary agreement among individuals by which, according to any of various theories, such as those put forth by Hobbes, Locke, or Rousseau, organized society is brought into being and invested with the right to secure mutual protection and welfare or to regulate the relations among its members.
Locke saw constitutions as social contracts or social compacts. He explained that people escape their primitive state by forming into communities and thus entering a social contract under which the state provides protective services to its citizens. Locke regarded this type of contract as revocable. A government depends on the consent of those who are governed, which may be withdrawn at any time, thus dissolving the agreement and thereby invalidating the government. [In the case of a federation of states, for example, one state would no longer "give consent" and therefore dissociate itself from the contract, thereby dissolving its bond with the other states]. In his Republic, Plato introduced social contract theory. In a scenario involving Socrates, Socrates refused to escape from jail to avoid being put to death. He argued that since he had willingly remained in Athens all of his life despite opportunities to go elsewhere, he had accepted the social contract (thus he agreed to abide by the local laws, including submitting to the justice process). The idea of the social contract is one of the foundations of the American political system. This is the belief that the state only exists to serve the will of the people, and they are the source of all political power enjoyed by the state. They can choose to give or withhold this power. The origin of the term social contract can be found in the writings of Plato. However, English philosopher Thomas Hobbes expanded on the idea when he wrote Leviathan in response to the English Civil War. In this book he wrote that in the earliest days there was no government. Instead, those who were the strongest could take control and use their power at any time over others. Hobbes' theory was that the people mutually agreed to create a state, only giving it enough power to provide protection of their well-being. However, in Hobbes' theory, once the power was given to the state, the people then relinquished any right to that power. In effect, that would be the price of the protection they sought. John Locke, on the other hand, saw the relationship as still favoring the individual and the rights inherently bestowed on him. He believed that revolution was not just a right but an obligation if the state abused its given power against the individual. Thomas Paine, in his Rights of Man, wrote: "The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist."
This all makes sense. Local governments and social contracts/compacts make sense. A local government can provide services easier than individuals who must go to work and do other things. What is your fundamental liberty worth when you can't travel because you have to stay around to guard and protect your property? So, some government is necessary for maximum liberty. But the individual is careful to make sure that only certain services are delegated. As Madison explained in The Federalist No. 45, power was always meant to remain closest to the people. He wrote: " The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state." But a federal or central government was something different. It is a government that isn't close to the people. And our Founders understood that. For that reason, the Constitution was written for We the People to outline exactly what powers We are willing to delegate away - "in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." And the Federalist Papers explain the scope of those powers. They are very limited and specifically listed. The Constitution was ratified by the States in reliance on such an understanding.
QUESTION: Who are the parties to the social contract / compact that is our US Constitution?
--> The states, acting in the interests of "We the People." Citizens selected their delegates who then debated the decision to ratify or not ratify the Constitution and join with fellow states to delegate certain of their powers to a federal government. The Federal government was - is - NOT a party to the compact. In fact, it wasn't even actually created at the time many of the states signed of the Constitution. The government, therefore, has no enforcement power over the compact. Only the parties - the states - do.
QUESTION: How can the social contract / compact be dissolved?
--> In every compact or contract between two or more parties, there is mutual obligation. The failure of one of the contracting parties to perform a material part of the agreement entirely releases the obligation of the other. This, in fact, was the position of the state of South Carolina in its Declaration of Secession. It went one step further and said that where no arbiter is provided, each party is left to his own judgment to determine the fact of failure on a contracting party, with all its consequences.
--> There are those who oppose this view and say that in order to break a social contract/compact, all parties must agree.
--> Note that Secessionists analogized the Constitution to a treaty, not a contract - on the ground that each state was more like a sovereign nation than a human being. And under treaty law, unilateral rescission is permissible.
--> As we'll see in Texas v. White, the only Supreme Court case to address the issue of secession, the court included the federal government as a party to the social compact and also supported the view that a state could not be secede unless the federal government and the other states agreed to it.
John C. Calhoun, representative from South Carolina and Vice President under John Quincy Adams said: "The error is in the assumption that the General Government is a party to the constitutional compact. The States formed the compact, acting as sovereign and independent communities." Calhoun, for one, was a strong proponent of slavery and pushed for secession on that issue up until his death in 1850.
Senator John C. Calhoun from South Carolina
For years, he urged the North to "stop agitating the slavery question." He predicted the Civil War. On the floor of the Senate in February 1837, he asserted that slavery was more a "positive good" than it was a "necessary evil."
Calhoun was also a strong believer in states' rights and nullification (states could declare null and void federal laws which they held to be unconstitutional), a doctrine championed by Thomas Jefferson and advocated by the Anti-Federalists. Calhoun wrote an essay in 1828 entitled "South Carolina Exposition and Protest," in which he argued that a state could veto any law it considered unconstitutional.
In 1850, he published a book called "Disquisition on Government," in which he argued that a written constitution would never be sufficient to contain "the plundering proclivities of a central government." He argued that some mechanism is necessary for a consensus among the citizens of the states to limit the actions of Congress when they exceed constitutional boundaries. Consequently, Calhoun proposed giving citizens of the states veto power over federal laws that they believed were unconstitutional. He called this consensus of citizens the "concurrent majority." This veto power would be supported by Jefferson's nullification doctrine. To Calhoun (and Jefferson), states' rights meant that the citizens of the states were sovereign over the federal (he called it a "central") government which they had created as their agent. He also argued that since States are sovereign over the government and possess the right of self-determination and self-preservation, they inherently have the right of secession.
[Note: Between 1937 and 1995, not a single federal law was declared unconstitutional by the Supreme Court. Not one piece of legislation was seen as exceeding the scope of Congress's commerce power. So much for the argument made in Marbury v. Madison (1804) that the federal courts have the power of "judicial review" to hold the branches of Congress and the states to their constitutional limits (in order to, of course, to protect the delicate balance of power and to safeguard liberty). Instead, the courts have allowed, even endorsed, the federal government to expand beyond its enumerated responsibilities. The progressive Court of the 20th century has gradually allowed the government to encroach on individual liberty and by expanding and re-interpreting the Constitution, has denied the American people the ability to limit their government.]
Calhoun believed the doctrine of nullification could lead to secession, and in fact that very scenario almost played out in 1832.
In 1832, there was a major confrontation between South Carolina and the government over state interests and sovereignty. It is referred to as the "Nullification Crisis."
South Carolina believed that certain federal tariffs were unconstitutional and it passed an ordinance that nullified" them. The tariffs at issue favored northern manufacturing interests over southern agricultural concerns. The South Carolina legislature declared them unconstitutional and passed an ordinance nullifying them. (Such tariffs you might recall, were cited as one of the reasons for the secession of several of the southern states). In response to the South Carolina's nullification measure, Congress passed the Force Bill, which empowered the President to use military power to force states to obey all federal laws. President Andrew Jackson then sent US Navy warships to Charleston harbor. South Carolina turned around and nullified the Force Bill. Tensions cooled after both sides agreed to the Compromise Tariff of 1833, proposed by Senator Henry Clay to change the tariff law in a manner which satisfied Calhoun, who by then was in the Senate.
We have looked at the reasons individuals establish governments, we have looked at local government vs. federal governments, we have studied the concept of "social contracts," we have reviewed our founding principles and reflected about what our Founders had to say about secession and the right to dissolve bonds with government. But just in case there are those who are still unsure as to whether a state has the right to secede from the Union, we can look at legal authority.
QUESTION: Does a state have the legal authority to secede from the Union?