Is Secession Legal?

0:00I'm honored to be here and I'd like to thank, of course, Marshall DeRosso who couldn't make it for inviting me to be here and this is my second time at Mises and it's great and I spoke here about three years, four years ago now when my politically incorrect guide to the founding fathers hit the shelves, so it's an honor to be back. Now, I just want to start with the fact that, as Mark said, many of us are not used to the idea of secession. I was indoctrinated at a younger age because Clyde Wilson was my graduate director in graduate school. And so he had a wonderful sign on his wall, Calhoun for Senate, and it was great. So from the time I hit South Carolina for and even before that in meeting Clyde, I've always been interested in the topic of secession.

0:51So I'd like to actually start today with a quotation. This is going to involve some audience participation again, so we're playing Jeopardy today. I want you to tell me who said this. We are, sir, from principle and habit attached to the union of the states, but our attachment is to the substance and not to the form. It is to the good which this union is capable of producing and not to the evil, which has suffered unnaturally to grow out of it. If the time should ever arrive when this union shall be holding together by nothing but the the authority of law, when its incorporating, vital principle shall become extinct, when its principle exercises shall consist in acts of power and authority, not of protection and beneficence, when it shall lose the strong bond which it had hitherto had in the public affection, and when consequently we shall be one, not in the interest and mutual regard, but in name and form only, we, sir, shall look on that hour as the closing scene of our country's prosperity.

1:53The separation of the states as an event fraught with incalculable evils, and it is among our strongest objections to the present course of measures that they have, in our opinion, a very dangerous and alarming bearing on such an event. If a separation of states should ever take place, it will be on some occasion when one portion of the country undertakes the control to regulate and to sacrifice the interests of another, When a small and heated majority in the government taking counsel of their passions and not of their reason, contemptuously disregarding the interests and perhaps stopping the mouths of a large and respectable minority, shall by hasty, rash and ruinous measures threaten to destroy essential rights and lay waste the most important interests. Anybody know who said that? Not Lincoln. Good guess. Not Jefferson. Yes, sir.

2:42Daniel Webster in 1812, the great expounder, the man who argued that we don't have a compact. There's no compact there. We're one nation. We're one people. Daniel Webster said that in 1812. Of course, his objective at that time was to denounce the Madison Administration and, of course, the Union of the South and the West against the North. of the North. What they thought was a problem because of the Embargo Act and of course the War of 1812 and all the evils, he said, were coming from that. This was part of something called the Rockingham Memorial and he sent this letter to James Madison saying, you need to stop this stuff because if you don't, we're going to secede. So how can Daniel Webster say that in 1812 and then just a few years later say, you know Calhoun, you're crazy.

3:33Hayne, you're crazy. There's no way you can call this a compact. It's just a theory. Well, it's really a compact fact. So my topic of discussion today is secession legal, and I'll just make it short and sweet. Yes, thank you for your time. Secession is absolutely legal. And I'm actually going to base my talk today on a paper I wrote for the American and Conservative, which generated a lot of fun comments when I published it. But I'm going to start a little bit with some history, a history lesson of course, and all this should be familiar to you. Of course, the American War for Independence was a movement of secession. We had 13 independent states, as Thomas Jefferson called them in the Declaration of Independence, seceding from the British Empire.

4:20And of course, when the Treaty of Paris was officially ratified in 1783, each state was named, not as one conglomeration. Conglomeration. So we all know that these states were independent then. The Articles of Confederation and Perpetual Union, as it was called, and I'll get into that term perpetual union in a second. But of course, each state was recognized independently and each state maintained its sovereignty. So of course, that is a union of sovereign states. It's the Constitution. Even Hamilton called it the Constitution. Madison called it the Constitution. We just had a different Constitution after that. And I think we have to be very careful. in a second, of talking about secession from the Articles of Confederation, because in some ways it actually plays into the hands of the other side.

5:05And I'll mention what I mean by that. It was discussed in the 1790s by Northerners. For example, Rufus King and Oliver Ellsworth once cornered John Taylor of Caroline and said, hey look, John, we know this union isn't working well for us, and you're always trying to block stuff. Why don't we just separate now? We see that the Union is not going to work for a long period of time. We should just break up now. You know, let's make this a quick and painless divorce. And Taylor was taken back by this. He said, I don't understand why they're saying this. But of course, later on, Taylor would say secession was perfectly natural and logical. Secession, of course, was discussed in 1798 when the federal government passed the Alien and Sedition Acts. And there were several who said, for example, Nathaniel Macon in North Carolina who said, you know what? Nullification is kind of a silly idea. Let's just secede. It makes more sense. We don't like the union. Just get out.

6:02Why do we have to nullify something that we all know is unconstitutional? Let's just leave the union. So there were many Southerners who thought nullification was just not even important. Just get out of the union. And then we had the Essex Junto in Massachusetts and Connecticut. And these are, of course, members of the founding generation who thought that the Louisiana Purchase was going to destroy the Union because you're going to have all these farmers come in here and these farmers aren't going to vote for us. So we need to get out of the Union now. Let's have our Northern Confederation and forget about this Southwest Alliance. Then, of course, I already mentioned Daniel Webster and many of these same individuals were part of the Hartford Convention at the tail end of the War of 1812 when they were openly talking about secession. The other thing they were talking about, of course, were a series of constitutional amendments which would forever alter the power of the general government.

6:52And one of the interesting things, of course, was a one-term limit for president. They all saw the executive as the bastion of abuse in this government. They knew that this is where the problems would come later on, and they were right. Of course, they wanted to curtail the power of the South by getting rid of the three-fifths clause of the Constitution and, of course, making it to where presidents had to rotate. You couldn't have the Virginia dynasty, they were ticked off that all these Virginians kept on getting elected and none of these Massachusetts could get into the executive office. And of course, the abolitionists later on wanted to secede. William Lloyd Garrison very openly said in the 1840s, you know what, this is a slave republic, let's get out, we'll leave the republic to them. and in fact this was the wedge that perceptive northerners started using in the 1820s and forward. They knew that the south and the west were united along economic interests. They're all

7:44farmers but yet if you could bring up this slavery issue you can break that alliance and then Henry Clay of course of course ingeniously started pulling the west into the northern sphere and that made the south the permanent minority rather than the north. So this was a political game that worked well for the north and the nationalists and then of course it was ultimately are really discussed and accomplished by the South between 1850 and 1861. Since then, though, it's been crickets chirping. What's happened? We all know, as Mark said, that the war essentially created a climate where anytime you say secession, well, that's a dirty word. You can't say that because all you're going to do is just try to enslave the rest of the population. You elites who are succeeding are going to enslave everybody else. Of course, that's the way it works. because accession is a pro-slavery movement.

8:30Well, of course, we know it's not true. Throughout American history, it's not true. In fact, it's a movement of liberty. So it's people exercising their self-determination. Now, in the antebellum period, several commentators on the Constitution said this was plausible. Well, the most famous being William Raw, who in fact was a Pennsylvanian, who said, you know, states can secede from the union. That makes sense. It's perfectly natural to think that it can happen. And of course, then there's John C. Calhoun saying the same thing, Abel Upsher, who was a very prominent Whig in the true sense that he was opposed to executive authority, was saying the same thing. And, you know, as I already mentioned, Northerners had said this as well. So the issue comes down to sovereignty, of course, and legitimacy.

9:21If the people decide in popularly elected conventions that they are no longer part of that government, then of course secession happens in fact, because you have said it happens. And that is a very strong argument for it. Now, what I'm going to do actually is detail first and foremost the arguments against secession as legal, and then I will break them apart, and tear them apart. Now, and I'm actually basing this on a letter supposedly written by Antonin Scalia, the great originalist in the Supreme Court. We all know he is, because that's what everybody tells us he is. He wrote in 2006 apparently that the secession was out of the realm of legal possibility for several reasons.

10:07One, because the United States would not be a party to a lawsuit on the issue. 2. The constitutional basis of secession had been resolved by the Civil War, and 3. There is no right to secede, as the Pledge of Allegiance clearly illustrates through the line, One Nation Indivisible.

10:26That proves it. I mean, if there's any argument against secession, it's got to be the Pledge of Allegiance. You know, why, we should just fold up our books and go home, forget this conference, because Francis Bellamy told us that we're in one nation, indivisible. And of course Scalia was not the first Supreme Court justice to establish this position. In the case of Texas v. White in 1869, Supreme Court Chief Justice Salmon P. Chase wrote that the union between Texas and the other states was as complete, as perpetual, as indissoluble as the union between the original states. There was no place for reconsideration or revocation except through revolution or through the consent of the states. That's his quote. The majority opinion in this case struck down the Texas Ordinance of Secession calling it null and crafted a decision that rendered all acts of secession illegal according to the perpetual union of both the Articles of Confederation and subsequent Constitution for the United States. We also have to say that it's the Constitution

11:32for the United States, not of the United States. Chase, of course, did leave an opening. He said revolution of the consent of the states, but without either, secession could never be considered a legal act. The arguments against legal secession are generally based on both a historical concept of the Union and the language of the Constitution itself. In the Texas v. White decision, Chase began his legal challenge to secession with a historical discussion of the Union. He suggested that the Union predated the states and grew from a common kindred spirit during the years leading to the American War for Independence. So forget about these colonies and then later states. It was just a common, we're just all sitting around the campfire. You know, we need to be in a union together. That's what it was.

12:18It was one people. This one people mentality was best articulated by the Supreme, by Supreme Court Justice Joseph Story and his famous commentaries on the Constitution of the United States. Story who channeled John Marshall and Alexander Hamilton and really that's what you have this channeling of each other you know it's like they died and they got out their Ouija board and kept on channeling each other for it. Reason that the Constitution was framed and ratified by the people at large not the people of an individual state and thus held the same legal position of a state itself formed for many counties this is his quote this is story's quote the Constitution of a Confederate Republic that is of a national Republic those two Formed of several states is, or at least may be, not less an irrevocable form of government than the constitution of a state formed and ratified by the aggregate of several counties of the state.

13:11Now, this is very important in what he said here, because in one sentence, store or reduce the states to the status of a county, shire or province, because the union is nothing more than what we have in a state. The General Argument was used as both a hammer during Reconstruction and after the sovereignty of the states was abused by the war. Story additionally concluded, as did Chase in 1869, that the term perpetual found in the Articles of Confederation deemed the Union indissoluble.

13:59Chase surmised that the Constitution simply made the Union more perfect, while Story suggested that the Constitution superseded the Articles of Confederation but did not change the permanent and perpetual nature of the Union. Story defended his position with the Supremacy Clause, found in Article 6, which states that all laws or treaties made in pursuance of the Constitution were the supreme law of the land. And he pointed to the letter sent by the Philadelphia Convention accompanying the Constitution to the state ratifying conventions that the Constitution aimed at a consolidation of the Union. Hence, the Story and Chase of the Union continued to exist in an unaltered, i.e. consolidated form and could not be dissolved. So there you have it. What they're saying is we have a consolidated nation from the beginning.

14:46We've never had individual states. We've never had states joining a confederation. It's always been one nation. Another argument against this session centers on the language of Article 1, Section 10 of the Constitution, which declares that no state shall enter into a treaty, alliance, or confederation. To proponents of this position, Article 1, Section 10 unequivocally shows that the states were formed, which formed the Confederate States of America were in clear violation of the Constitution, thus invalidating their government and the individual acts of secession which led to it. Abraham Lincoln indirectly defended this position by declaring the seceding states were in rebellion and therefore still members of the Union. The Constitution then was still legally enforceable in those states including Article 1, Section 10. So this is very ingenious. The arguments they're These are fairly strong arguments, but they're easily destroyed.

15:36Finally, some will concede that the original 13 states may have had an argument for secession due to the Declaration of Independence and Thomas Jefferson's language establishing 13 free and independent states. But the other 37 states, well those formed at least in part through the common territory of the United States, have no claim to secession. They were not states until Congress granted them through their benevolence and so on. These arguments seem like a very strong case against secession.

16:26Free Supreme Court, justices, one famous president, a bloody war, in the language of a modern pledge of allegiance, all for the conclusive proof that secession, while an entertaining philosophical exercise, has no legal basis. His opinions and conclusions, however, all have gaping holes. First and foremost, let's deal with Scalia. Secession as accomplished by the southern states in 1860 and 1861, and as discussed by the North in the Hartford Convention of 1815 and others, is an independent act by by the People of the States and accomplished in the same fashion as the several conventions that occurred throughout the American history. So again, the Confederate states were formed by conventions. In fact, larger majorities than even existed in 1776 when the original states broke away from the British Empire.

17:14So this was the act of a people and self-determination. The United States would never be a party to a lawsuit on the issue because secession, both de facto and de jure, is an extra-legal act of self-determination, and once the states have seceded from the Union, the Constitution is no longer in force in regard to the seceded political body. It can't happen. This same rule applies to Article 1, Section 10, against secession. If the Constitution is no longer in force, the states have separated and resumed their independent status, then the Supreme Court would have no jurisdiction and therefore could not determine the legality of the move. So the states acceded to the Constitution, and in fact I want to talk about Albert Taylor Bledsoe, I don't bring up in this paper, Mike Church and I are actually working on an edited version of his, it's Davis the Trader.

18:02If you've never read it, you can wait until he has it and then you can get from Mike Church. But of course Bledsoe brings up this point quite often and says the states acceded so they can secede. The Union then, through a declaration of war, could attempt to force the seceded states to remain, but even victorious, that would not solve a philosophical issue. War and violence do not, and cannot, crush the natural right of self-determination. It can muddle the picture and force the vanquish into submission, so long as the boot is firmly implanted on their collective throats. This is Oliver Ellsworth, a secessionist.

18:49He said in 1788 that he feared a coercion of arms in relation to a delinquent state. He said this, This constitution does not attempt to coerce sovereign bodies, states, in their political capacity. No coercion is applicable to such bodies but that of armed force. If we should attempt to execute the laws of the Union by sending an armed force against As a delinquent state, it would involve the good and the bad, the innocent and the guilty, and the same calamity. Ellsworth recognized, as did the majority of the founding generation, that force did not destroy sovereignty. It created artificial supremacy, but sovereignty, the basic tenet of the founding, could not be surrendered in such a manner. Sovereignty, in fact, could not be surrendered at all. It can be delegated, as in the powers granted to the general government in Article 1, but never surrendered.

19:35It cannot be divided either. Now Scalia's Pledge of Allegiance analogy is the most absurd argument of the bunch. The modern Pledge of Allegiance is written by Francis Bellamy, a socialist minister who wanted to indoctrinate American school children with a nationalist message, one based on the great speeches of Daniel Webster and Abraham Lincoln in relation to the one nation which the Civil War was fought to prove. Sprinkle in some liberty and justice from the French Revolution and you have a message that any good leftist nationalist can embrace. The founding generation would not have said such a pledge if there were no other reason that most would not view the United States as a nation in the strict sense of a word, a single people. The other issues involved in the debate are slightly more complicated, but in several instances come back to Scalia's more simplistic analysis. In the Texas v. White decision, Chase implicitly reasoned that the union was indissoluble contract between the American people and the federal government, or in this case, the people of

20:29Texas and the federal government. All contracts by nature are intended to be perpetual. We know that. You get a marriage contract, it's intended to be perpetual. But is it? You get into a business arrangement, it's intended to be perpetual as long as you're making money. But if you're not, you break the contract. But if this were the case, how could nine states ratify a new constitution while four states remain part of another union in clear violation of the Articles of Confederation? The dangers of the Articles require the consent of all 13 states, not nine, and thus the Constitution can be viewed in part as an act of secession. Now again, I mentioned this is a little dangerous because the basic tenets of the Constitution is that they were maintaining the union of the Articles of Confederation. It was more perfect, but it was still the same union. So in that case, the story is actually correct, but that union, of course, had sovereign independent communities, political entities, states.

21:22So I think that's what we have to remember. It's fine to say that, that this union stayed the same, but if that stayed the same then the articles are still in effect essentially with some changes. That's the Constitution. Moreover, James Madison argued that the union was a different type of contract. He said, We are not to consider the Federal Union as analogous to the social compact of individuals, for if it were so, a majority would have the right to bind the rest and even to form a new Constitution for the whole. And that's not what happened. The Constitution was framed by the unanimous consent of the states present in convention assembled in Philadelphia, but it had no teeth until the states, in convention, ratified it. Even at that point, Madison suggested the states could not bind the rest into accepting the document or remaining in the Union. The Constitution does not have a coercive principle, as Ellsworth called it, and indissoluble union would suggest that it does.

22:13Waging war against them, the states, as it says in the Constitution, is an act of treason. A state can only be protected by the central government on the application of the legislature or the executive in case of invasion. Lincoln violated both constitutional safeguards against coercion by the central government in 1861, of course, only if the states remained in the Union, as he insisted they did. If not, war required a declaration from Congress, something Lincoln did not have, and by declaring or Congress would have recognized the Confederate states as a legitimate government. Either way, Lincoln violated the Constitution, thus rendering the bloody-nose argument against secession void. This one-people argument was dissected by John Taylor of Caroline and Abel P. Upture in their respective commentaries on the document.

22:59In his new views of the Constitution of the United States, Taylor contended that the continuity between the Articles of Confederation and the Constitution reinforce the sovereignty of the states, as I just mentioned, and declared that there are many states in America, but But no state of America, nor any people of an American state. A constitution for America or Americans would therefore have been similar to a constitution for utopia or utopians. That's a wonderful line. This view is in sharp contrast to Chase to argue that continuity maintained a perpetual union. Taylor wrote, this construction bestows the same meaning upon the same words in our three constituent or elemental instruments and exhibits the reason why the whole language The passage of the Constitution is a finance to the idea of a league between sovereign states and hostile to that of a consolidated nation.

23:47Upshur was more direct in his defense of both nullification and secession as a right of the sovereign states. Published as a direct attack on stories polemic, Upshur is a brief inquiry into the true nature and character of our federal government. It's perhaps the last great commentary on the antebellum period. Upshur declared that imaginative construction of people like Story and Webster and insisted that consolidation was never the aim of the Constitution. In defending the rights of the states to control the government and interpose their sovereignty to control central authority, Upshur said, the checking and controlling influences which afford safety to public liberty are not to be found in the government itself. The people cannot always protect themselves against their rulers. If they could, no free government in pastimes would have been overthrown.

24:36Power and patronage cannot so easily be limited and defined as to rob them of their corrupting influences over the public mind. It is truly and wisely remarked by the Federalists that a power over a man's substance is a power over his will. As little as possible of this power should be entrusted to the Federal Government, and even that little should be watched by a power authorized and competent to arrest its abuses. That power can be found only in the states, and this consists the great superiority of the federative system over every other. In that system, the federal governor is responsible not directly to the people en masse, but to the people in their character of distinct political corporations. However easy it may be to steal power from the people, governments do not so readily yield it to one another.

25:23The confederated states confer on their common government only such power as they themselves In their hands, the power of interposition is attended with no danger. It may be safely lodged where there is no interest to abuse it.

25:48During the Philadelphia Convention of 1787, Gouverneur Morris of Pennsylvania outlined the distinction between a federal and national government, Government, the former being a mere compact resting on the good faith of the parties, the latter having a complete and compulsive operation. If the Constitution, he said, established a Federal Government, and it did, then the Constitution did not have a compulsive operation. In essence, the people of the states and convention could either interpose their sovereignty to arrest the acts of the General Government or withdraw from the Union. Morris, a nationalist, recognized that the states still held sway when he suggested The Constitution, as ratified in 1787 and 1788, is a mere compact resting on the good faith of the parties, that compact can be unilaterally broken at any point by the same people of the states which ratified it.

26:41Now, that said, so obviously secession, if you just look at the case, is legal. And I concluded this particular essay with a discussion which I made in some ways a little more palatable to the readers of American Conservative. And of course that didn't work well because they still call me rabid secessionists and I have horns growing out my head and a tail. But What I wanted to say is, of course, there are ways we can look at secession outside of political bodies. One thing you can do, and of course Ron Paul has hit on this very recently with his new books coming out, is homeschooling. That is an act of secession. You are seceding from the state.

27:27You are taking your children out of their control. And so the more we can do that, the better off we're going to be. The more independent we can become as a people, the less control that general government is is going to have over over our lives. And so I actually think that secession even in terms of a state model is still too large. You know, Hume talked about his ideal republic, which decentralized even further than a state. You know, if you look at the population of the state of Alabama, there was many people in Alabama today as there were in the entire United States in 1790. Well, even that is too large to be a republic. Republics have to be small. And so if we're going to talk about secession, we need to get people interested in small. And by pulling your kids out of school, by doing I think things on the local level, that's actually what you're promoting. Small is good, and even the lefties can be brought on board with that, the greens and other people, because they love, you know, local, homegrown products and local shops.

28:20So if you start pushing that agenda and that message, I think secession becomes palatable to a wide, wide range of people, and I think it becomes something that's highly possible and, of course, legal. So I thank you for your time. Hopefully this is some ammunition moving forward to say that secession is definitely legal when you're in your arguments with your friends.