Secession: Does a State Have a Right to Secede From the Union? Part II | Eastern North Carolina Now

    Publisher's note: Diane Rufino has submitted for publication a well developed article regarding secession, which we will publish in chapters. Here we continue with the second installment. The first installment can be found here.

    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 A government depends on the consent of those who are governed, which may be withdrawn at any time, thus dissolving the agreement and thereby invalidating the government.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: Above.
    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 Adam 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. 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?

    -> Article VII sets out the provision for original ratification, and Article IV empowers Congress to admit new States. But there is no provision of the Constitution that authorizes a state to leave the Union or bars it from doing so. The Constitution does not say anything about states leaving.
    -> There is no specific power granted to the federal government to prevent or reverse secession and the power to secede is not specifically denied to the states. Therefore, therefore that power is retained by the states, as guaranteed by the 10th Amendment.
    -> The Declaration of Independence is itself a document justifying secession.
    -> Texas v. White (1869). The Supreme Court said "Yes," but not unilaterally. (However, the decision has been put into question by the actions of President Grant and the government in setting conditions for the southern states to be "re-admitted" to the Union).

    QUESTION: Which was the first state to secede from the Union?

    -> South Carolina. It adopted its Ordinance of Secession on Dec. 24, 1860.

    South Carolina's Declaration of Secession is noteworthy among the declarations of the seceding states for the following reasons:

    1). It acknowledges the state's earlier intention (in 1852) to secede from the Union: "The people of the State of South Carolina, in Convention assembled, on the 26th day of April, 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue."
    2). It is structured very similarly to the Declaration of Independence written by Thomas Jefferson. "To the remaining United States of America and to the nations of the world, South Carolina declares the immediate causes which have led to this act (secession)." (Also see the language above)
    3). It explains the great principles asserted by the Colonies (States), as reflected clearly in the Declaration of Independence: (a) the right of a State to goverm itself; and (b) the right of a people to abolish a Government when it become destructive of the ends for which it was instituted. The fact is that each state was recognized by the mother country in the Treaty of Paris (1793) as a FREE, SOVEREIGN AND INDEPENDENT STATE.
    4). It gives a very good overview of the history of the colonies:

    "In pursuance of their Declaration of Independence, each of the thirteen States proceeded to exercise its separate sovereignty; adopted for itself a Constitution, and appointed officers for the administration of government in all its departments - Legislative, Executive and Judicial. For purposes of defense, they united their arms and their counsels; and, in 1778, they entered into a League known as the Articles of Confederation, whereby they agreed to entrust the administration of their external relations to a common agent, known as the Congress of the United States, expressly declaring, in the first Article "that each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not, by this Confederation, expressly delegated to the United States in Congress assembled.... Under this Confederation, the war of the Revolution was carried on, and on September 3, 1783, the contest ended, and a Treaty was signed by Great Britain in which she acknowledged the independence of the Colonies.

    In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and on 17th September, 1787, these Deputies recommended for the adoption of the States, the Articles of Union, known as the Constitution of the United States. The parties to whom this Constitution was submitted, were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority. By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. On the 23d May, 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken."

    5). It reinforces that the government is subject to the two great principles asserted in the Declaration of Independence (see earlier) - "We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence...."
    6). It explains the legal nature of the Constitution - as a compact (contract; an agreement; a social contract) - and acknowledges the parties to such compact (the states). It also explains that as such, the Constitution is subject to the law of contracts:

    "Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights..... We hold that the mode of its formation subjects it to the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.

    We assert that fourteen of the States have deliberately refused, for years past, to fulfill their constitutional obligations, and we refer to their own Statutes for the proof."

    7). Just as Jefferson submitted "facts to a candid world" of the history of repeated injuries and usurpations by King George of England, all having in direct object the establishment of an absolute Tyranny over the States, South Carolina listed proof that the Northern states deliberately failed to live up to their Constitutional obligations and therefore the compact is null and void:
    (i) First, those states intentionally interfered with or ignored the Fugitive Slave Clause of the Constitution (Article IV, Sect. 2) - Any person held in service or slave in one state must be delivered back to that owner.

    This clause "was so material to the compact, that without it that compact would not have been made. The greater number of the contracting parties held slaves, and they had previously evinced their estimate of the value of such a stipulation by making it a condition in the Ordinance for the government of the territory ceded by Virginia , which now composes the States north of the Ohio River....

    (ii) The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution.... Thus the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.
    (iii) The ends for which the Constitution was framed are declared by itself to be '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.' These ends it endeavored to accomplish by a Federal Government, in which each State was recognized as an equal, and had separate control over its own institutions. The right of property in slaves was recognized by giving to free persons distinct political rights, by giving them the right to represent, and burdening them with direct taxes for three-fifths of their slaves; by authorizing the importation of slaves for twenty years; and by stipulating for the rendition of fugitives from labor.

    We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution..."

    (iv) The Northern States have showed added hostility to the Southern states "by elevating to citizenship, persons who, by the supreme law of the land (Dred v. Scott), are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety."
    (v) "On March 4, 1861, Abraham Lincoln will take possession of the Government. He has announced that the South shall be excluded from the common territory, that the judicial tribunals shall be made sectional, and that a war must be waged against slavery until it shall cease throughout the United States.... The guaranties of the Constitution will then no longer exist; the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy."

    Other states, such as Georgia and Texas, offer many more reasons for the decision to secede.

    Secession -

    Americans seceded twice in our relatively short history as a nation. We seceded from the British Empire over its taxation of the colonies without representation and a denial of other fundamental human liberties. Thomas Jefferson set those reasons out very clearly for "a candid world" to see in the Declaration of Independence. Some of those reasons were: