[derosa8]

Professor McClanahan defends the constitutionality of secession in one of the lectures in this course. In so doing, he answers an argument from the contracts clause in Article I Section 10, which explicitly prohibits states from entering into treaties or compacts without congressional approval.

Essentially, his argument is that since the States had already seceded from the union, this prohibition no longer applies to them. In other words, Article I Section 10 outlines restrictions on States that are still part of the union, so by definition the contracts clause does not make secession unconstitutional. Rather, the act of secession makes the article void and of no force for the States that have left the union.

This seems like a strong argument, especially because it follows from the compact theory of the union. However, nationalists are likely to view it as an absurd case of question begging. I’m curious how Professor McClanahan or others would respond to the following counter-argument that could be made by a nationalist:

Your argument is basically that, constitutionally speaking, the States can secede because they can secede. If the constitution does not apply to States that choose to secede, then it would not matter, on your view, if Article I Section 10 read “No State shall ever secede from this union.” We’d simply have to throw up our hands and say, “Well, they have seceded so I guess this provision does not apply and their action is constitutional.” I am not challenging the moral right of secession. Rather, I am challenging the constitutional right. Your argument that states can secede, despite what Article I Section 10 says, is circular at best. To prove this point, I will ask you a simple question: Is there any language or provision that could have been added to the constitution that would have made secession unconstitutional?

**These are not my personal criticisms of Mr. McClanahan’s argument, but rather what I imagine certain nationalists arguing. I am curious how he or others would respond.

*One way to strengthen the argument considerably would be to provide a original interpretation of the contracts clause and show that secession & a forced permanent union were never in view. However, it seems that it would require a lot more homework to dig up the original intent of the clause.

[jeremy.l.neufeld]

While states have historically entered into confederations, alliances, compacts, treaties, and other agreements after seceding, this is not the secession itself nor is it a requisite part of secession. Therefore, the provision does not prohibit secession but only prohibits such actions while the state is a member of the Union. Since none of the aforementioned actions which are prohibited is a requisite of secession, they don’t make secession any more unconstitutional than, say, the prohibition of the states to grant titles of nobility.

[Brion McClanahan]

The States (and the people thereof) can secede because they acceded to the Union.
For a nice discussion of this point at length, see Albert Taylor Bledsoe’s defense of secession in “Is Davis a Traitor?” And, it just so happens that Mike Church and I are putting together an edited version of that book. I don’t have a release date, but it will be soon.

[derosa8]

Thanks for the replies!

[gutzmank]

Besides Prof. McClanahan’s logical assertion, one might also contend that states retain the right to secede because they retained all powers they had not either delegated to the Federal Government or been denied by the Constitution. Numerous Federalists said during the ratification campaign that this was to be the test for state power under the Constitution.

Alternatively, and I think more significantly, one could argue that states retained the right to secede because Federalists said they would during the ratification campaign. I call your attention specifically to George Nicholas’s explanation of the significance of ratification in the Virginia Ratification Convention, which I describe in detail in JAMES MADISON AND THE MAKING OF AMERICA, as well as in VIRGINIA’S AMERICAN REVOLUTION.

[derosa8]

Yes, Dr. Gutzman, that makes sense. If Virginia was given assurance they could leave if things got out of hand, then obviously Article I, Section 10 could not mean that no State can leave. That is, unless the Federalists talking to Virginia were out to lunch when they made such promises.

I have actually encountered this “out to lunch” argument when discussing constitutionality with the law school type. They will argue that the Federalists were either (deliberately or incidentally) misconstruing the Constitution at all the State ratifying conventions. Therefore, we cannot look to those conventions to help us understand the original intent. They say the Philadelphia convention is fair game but nothing else.

How ought we answer that?

[gutzmank]

The reason “law school types” make that argument is that law school curricula feature only lots of case law and, occasionally, a few excerpts from THE FEDERALIST. Since that’s all “law school types” know, they have a vested interest in saying that’s all that matters.

On the other hand, their assertion is nonsense: the Philadelphia Convention merely wrote a proposal. As Article VII says, it had no effect until ratified by 9 states, and then only in the states that had ratified. As Madison said in THE FEDERALIST and Jefferson said elsewhere, it was to the ratification conventions that one must look for the Constitution’s meaning. Why? Because it was the explanation(s) the Federalists gave during the ratifcation conventions that the people ratified.

Popular government — government by the consent of the governed — is the government to which the people consented, not some gnostic secret cult’s private reading. The latter sounds very Straussian.

Ask your “law school type” friends this question: what if the Philadelphia Convention had secretly agreed that members of the Philadelphia Convention would be our king and lords, or that they had envisioned a military dictatorship, along with abolition of press freedom and trial by jury, would that then be what the Constitution required? Please.

[Author]

Posts