Right to Secession

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    I have a friend who has a Harvard Law degree and he said that if I think the Virginia ratifying convention was binding in terms of states being allowed to secede then I don’t understand contract law (He implied that while they were duped and that might irk some they had no legal claim to leave and it was an implicit declaration of war). Can you clarify what gave them a right to break from the Union with this in mind?


    I would ask your friend the following:

    1) Was the Articles of Confederation a binding contract, and if so, how then did the States alter the contract without following the proper legal procedures?

    2) Did the colonies have a “legal claim” to leave the British Empire in 1776?

    All contracts are by nature supposed to be “perpetual” and binding, but none are. Madison described the Constitution not as a social contract among individuals, as your esteemed friend probably believes it is, but as a contract among individual states. “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 a right to bind the rest, and even to form a new constitution for the whole….” There you have it. The people of the States, in convention, had the final say, and could breach the contract if they so chose. Read more about this in my “Founding Fathers Guide to the Constitution,” Chapter 5, p. 163 ff “The Union.”


    “I have a friend who has a Harvard Law Degree…” – I think Dr. Woods started this website so we could answer objections that started like that! Great to see liberty in action.

    Regarding Brion’s response, with (2) I would be careful because your friend will simply retort, “No they did not have a legal claim and neither did the south. Thus, such an action was an implicit declaration of war.”

    Also, I don’t see how Virginia did not have a legal right to secede if they ratified the Constitution (i.e. agreed to the contract that bound the Union of states) ONLY while explicitly retaining the right to leave the Union. I don’t see how Harvard Law degrees could change any of that. Perhaps your friend is reading strict modern contract law back into the 18th and 19th centuries?

    Here’s another question you could ask (in addition to Brion’s list) that might get to the root of his bias:

    (3) What would the history have to look like for you to recognize that Virginia [or any other state] did indeed have a legal right to secede?


    Thank you Brion and John. I think John hit it on the head with my friend when he said “Perhaps your friend is reading strict modern contract law back into the 18th and 19th centuries?”. Brion, your Madison quote really settles it for me. In fact, it now seems rather silly that he would say “Virginia basically got duped” and there was nothing they could do about it without being the bad guys themselves and the instigators of war.


    The statement “they had no legal claim to leave and it was an implicit declaration of war” is nonsensical. That statement would justify the East German policy of shooting their citizens (slaves) for trying to escape. Even southern slave owners would not shoot their slaves for trying to escape. Mises007’s friend implicitly believes that if your ancestors decided to join a federation because the “they were duped” you are a slave to that fraudulent contract. I think Mises007’s friend is disingenuous, as well as, a poor lawyer. The usual legal remedy for a beach of contract is to sue for beach of contract and monetary damages to set things right. It is not a criminal offense to break contract. Of course fraud in establishing a contract would void the contract.


    I think this Harvard Lawyer would deny that the Union was established as a compact among the several states. I have yet to read Abel P. Upsher’s response to Joseph story, but I bet it would really help us to understand the Compact Theory of the Union as the correct one.

    Mr. McClanahan links to it in one lecture: http://www.constitution.org/ups/upshur.htm


    In fact, as I show in both VIRGINIA’S AMERICAN REVOLUTION and JAMES MADISON AND THE MAKING OF AMERICA, George Nicholas (one of the three Federalist leaders in the Virginia Ratification Convention) sold the Constitution as a contract. He explained this at length, adding that in case Virginia’s stated understanding of the Constitution were not adhered to by the other signatories, Virginia would have the right to reclaim the powers it was granting the Federal Government (that is, secede).

    He then went to Kentucky and became that state’s first attorney general.


    We should also not forget that Northern states grumbled about secession several times, at the Hartford Convention during the War of 1812 most notably. Several abolitionists also advocated Northern Secession (William Lloyd Garrison, among others) so that the North could more effectively counter slavery and avoid enforcing the Fugitive Slave laws. States debating secession is not unique to the south, nor to the 1860’s.

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