Home Page Forums U.S. Constitutional History Unconstitutionality of Unilateral Secession?

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  • #13690

    John Winters
    Participant

    Professors,

    Can you rebut the answer to this claim that Buchanan was right about secession?

    Assertion about Buchanan Hitting the Nail on the Head about Unilateral Secession’s Legitimacy

    This was President Buchanan`s Fourth and final Annual Message of his Presidency given on December 3, 1860, just 3 Months before Abraham Lincoln was sworn into office as the 16th President of the United States.

    https://millercenter.org/the-presidency/presidential-speeches/december-3-1860-fourth-annual-message

    Below are the most pertinent parts of the speech which reveal how he felt about secession:

    “The Southern States, standing on the basis of the Constitution, have right to demand this act of justice from the States of the North. Should it be refused, then the Constitution, to which all the States are parties, will have been willfully violated by one portion of them in a provision essential to the domestic security and happiness of the remainder. In that event the injured States, after having first used all peaceful and constitutional means to obtain redress, would be justified in revolutionary resistance to the Government of the Union.

    I have purposely confined my remarks to revolutionary resistance, because it has been claimed within the last few years that any State, whenever this shall be its sovereign will and pleasure, may secede from the Union in accordance with the Constitution and without any violation of the constitutional rights of the other members of the Confederacy; that as each became parties to the Union by the vote of its own people assembled in convention, so any one of them may retire from the Union in a similar manner by the vote of such a convention.

    In order to justify secession as a constitutional remedy, it must be on the principle that the Federal Government is a mere voluntary association of States, to be dissolved at pleasure by any one of the contracting parties. If this be so, the Confederacy is a rope of sand, to be penetrated and dissolved by the first adverse wave of public opinion in any of the States. In this manner our thirty-three States may resolve themselves into as many petty, jarring, and hostile republics, each one retiring from the Union without responsibility whenever any sudden excitement might impel them to such a course. By this process a Union might be entirely broken into fragments in a few weeks which cost our forefathers many years of toil, privation, and blood to establish.

    Such a principle is wholly inconsistent with the history as well as the character of the Federal Constitution. After it was framed with the greatest deliberation and care it was submitted to conventions of the people of the several States for ratification. Its provisions were discussed at length in these bodies, composed of the first men of the country. Its opponents contended that it conferred powers upon the Federal Government dangerous to the rights of the States, whilst its advocates maintained that under a fair construction of the instrument there was no foundation for such apprehensions. In that mighty struggle between the first intellects of this or any other country it never occurred to any individual, either among its opponents or advocates, to assert or even to intimate that their efforts were all vain labor, because the moment that any State felt herself aggrieved she might secede from the Union. What a crushing argument would this have proved against those who dreaded that the rights of the States would be endangered by the Constitution! The truth is that it was not until many years after the origin of the Federal Government that such a proposition was first advanced. It was then met and refuted by the conclusive arguments of General Jackson, who in his message of the 16th of January, 1833, transmitting the nullifying ordinance of South Carolina to Congress, employs the following language:

    The right of the people of a single State to absolve themselves at will and without the consent of the other States from their most solemn obligations, and hazard the liberties and happiness of the millions composing this Union, can not be acknowledged. Such authority is believed to be utterly repugnant both to the principles upon which the General Government is constituted and to the objects which it is expressly formed to attain.

    It is not pretended that any clause in the Constitution gives countenance to such a theory. It is altogether rounded upon inference; not from any language contained in the instrument itself, but from the sovereign character of the several States by which it was ratified. But is it beyond the power of a State, like an individual, to yield a portion of its sovereign rights to secure the remainder? In the language of Mr. Madison, who has been called the father of the Constitution–

    It was formed by the States; that is, by the people in each of the States acting in their highest sovereign capacity, and formed, consequently, by the same authority which formed the State constitutions. Nor is the Government of the United States, created by the Constitution, less a government, in the strict sense of the term, within the sphere of its powers than the governments created by the constitutions of the States are within their several spheres. It is, like them, organized into legislative, executive, and judiciary departments. It operates, like them directly on persons and things, and, like them, it has at command a physical force for executing the powers committed to it.”

    He continues:

    “But that the Union was designed to be perpetual appears conclusively from the nature and extent of the powers conferred by the Constitution on the Federal Government. These powers embrace the very highest attributes of national sovereignty. They place both the sword and the purse under its control. Congress has power to make war and to make peace, to raise and support armies and navies, and to conclude treaties with foreign governments. It is invested with the power to coin money and to regulate the value thereof, and to regulate commerce with foreign nations and among the several States. It is not necessary to enumerate the other high powers which have been conferred upon the Federal Government. In order to carry the enumerated powers into effect, Congress possesses the exclusive right to lay and collect duties on imports, and, in common with the States, to lay and collect all other taxes.

    But the Constitution has not only conferred these high powers upon Congress, but it has adopted effectual means to restrain the States from interfering with their exercise. For that purpose it has in strong prohibitory language expressly declared that–
    No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.

    Moreover– No State shall without the consent of the Congress lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws. And if they exceed this amount the excess shall belong, to the United States. And– No State shall without the consent of Congress lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay.

    In order still further to secure the uninterrupted exercise of these high powers against State interposition, it is provided that–
    This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”

    He continues by stating:

    “It may be asked, then, Are the people of the States without redress against the tyranny and oppression of the Federal Government? By no means. The right of resistance on the part of the governed against the oppression of their governments can not be denied. It exists independently of all constitutions, and has been exercised at all periods of the world’s history. Under it old governments have been destroyed and new ones have taken their place. It is embodied in strong and express language in our own Declaration of Independence. But the distinction must ever be observed that this is revolution against an established government, and not a voluntary secession from it by virtue of an inherent constitutional right. In short, let us look the danger fairly in the face. Secession is neither more nor less than revolution. It may or it may not be a justifiable revolution, but still it is revolution.”

    He further states:

    “The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not “necessary and proper for carrying into execution” any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution.

    It appears from the proceedings of that body that on the 31st May, 1787, the clause “authorizing an exertion of the force of the whole against a delinquent State” came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed:

    The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.

    Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: “Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress,” evidently meaning the then existing Congress of the old Confederation.

    Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit and intent of the Constitution. Suppose such a war should result in the conquest of a State; how are we to govern it afterwards? Shall we hold it as a province and govern it by despotic power? In the nature of things, we could not by physical force control the will of the people and compel them to elect Senators and Representatives to Congress and to perform all the other duties depending upon their own volition and required from the free citizens of a free State as a constituent member of the Confederacy.

    But if we possessed this power, would it be wise to exercise it under existing circumstances? The object would doubtless be to preserve the Union. War would not only present the most effectual means of destroying it, but would vanish all hope of its peaceable reconstruction. Besides, in the fraternal conflict a vast amount of blood and treasure would be expended, rendering future reconciliation between the States impossible. In the meantime, who can foretell what would be the sufferings and privations of the people during its existence?

    The fact is that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force.

    But may I be permitted solemnly to invoke my countrymen to pause and deliberate before they determine to destroy this the grandest temple which has ever been dedicated to human freedom since the world began? It has been consecrated by the blood of our fathers, by the glories of the past, and by the hopes of the future. The Union has already made us the most prosperous, and ere long will, if preserved, render us the most powerful, nation on the face of the earth. In every foreign region of the globe the title of American citizen is held in the highest respect, and when pronounced in a foreign land it causes the hearts of our countrymen to swell with honest pride. Surely when we reach the brink of the yawning abyss we shall recoil with horror from the last fatal plunge.

    By such a dread catastrophe the hopes of the friends of freedom throughout the world would be destroyed, and a long night of leaden despotism would enshroud the nations. Our example for more than eighty years would not only be lost, but it would be quoted as a conclusive proof that man is unfit for self-government.

    It is not every wrong–nay, it is not every grievous wrong–which can justify a resort to such a fearful alternative. This ought to be the last desperate remedy of a despairing people, after every other constitutional means of conciliation had been exhausted. We should reflect that under this free Government there is an incessant ebb and flow in public opinion. The slavery question, like everything human, will have its day. I firmly believe that it has reached and passed the culminating point. But if in the midst of the existing excitement the Union shall perish, the evil may then become irreparable.”

    ****Response: Here’s the response I’m wondering if you can deconstruct)

    That’s very interesting. Thanks for sharing. My thoughts:

    A. The ability to execute the laws necessitates being able to suppress insurrections. Force seems to me to be an obvious and “necessary” (thus in compliance with the Elastic Clause)feature of a branch whose constitutional obligation is to enforce the law. How can you enforce the law without force? That’s like telling a cop to stop a bank robber without a gun.
    B. The use of Madison’s quotes in that way seems to contradict what he said elsewhere. For example”:

    -in calling for the Constitution, he mentions in Vice 7 of Vices of the Political System of the United States “want of sanction to the laws, and of coercion in the Government of the Confederacy.” Of this deficiency, which he thought needed to be remedied with a new Constitution, he said that,

    “A sanction is essential to the idea of law, as coercion is to that of Government. The federal system being destitute of both, wants the great vital principles of a Political Constitution.6 Under the form of such a Constitution, it is in fact nothing more than a treaty of amity of commerce and of alliance, between so many independent and Sovereign States. From what cause could so fatal an omission have happened in the articles of Confederation? from a mistaken confidence that the justice, the good faith, the honor, the sound policy, of the several legislative assemblies would render superfluous any appeal to the ordinary motives by which the laws secure the obedience of individuals: a confidence which does honor to the enthusiastic virtue of the compilers, as much as the inexperience of the crisis apologizes for their errors. The time which has since elapsed has had the double effect, of increasing the light and tempering the warmth, with which the arduous work may be revised. It is no longer doubted that a unanimous and punctual obedience of 13 independent bodies, to the acts of the federal Government, ought not be calculated on. Even during the war, when external danger supplied in some degree the defect of legal & coercive sanctions, how imperfectly did the States fulfil their obligations to the Union? In time of peace, we see already what is to be expected. How indeed could it be otherwise? In the first place, Every general act of the Union must necessarily bear unequally hard on some particular member or members of it. Secondly the partiality of the members to their own interests and rights, a partiality which will be fostered by the Courtiers of popularity, will naturally exaggerate the inequality where it exists, and even suspect it where it has no existence. Thirdly a distrust of the voluntary compliance of each other may prevent the compliance of any, although it should be the latent disposition of all. Here are causes & pretexts which will never fail to render federal measures abortive. If the laws of the States, were merely recommendatory to their citizens, or if they were to be rejudged by County authorities, what security, what probability would exist, that they would be carried into execution? Is the security or probability greater in favor of the acts of Congs. which depending for their execution on the will of the state legislatures, wch. are tho’ nominally authoritative, in fact recommendatory only. ”

    -Vice Number 8 was “Want of ratification by the people of the articles of Confederation.” He wrote that “In some of the States the Confederation is recognized by, and forms a part of the constitution. In others however it has received no other sanction than that of the Legislative authority. (…) As far as the Union of the States is to be regarded as a league of sovereign powers, and not as a political Constitution by virtue of which they are become one sovereign power, so far it seems to follow from the doctrine of compacts, that a breach of any of the articles of the confederation by any of the parties to it, absolves the other parties from their respective obligations, and gives them a right if they chuse to exert it, of dissolving the Union altogether.”

    The subject of whether the Constitution was to be a league or a treaty was discussed in Philadelphia on July 23, 1787. Oliver Ellsworth wanted to refer the product of the Philadelphia convention to the state legislatures for ratification. Madison insisted that it go directly to the people of the states for ratification, as he said in Vice 8. Importantly, he said that “The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation.”

    Now if it was intended to leave a right to withdraw from the Union, this would be the time to talk about it if you were in that fateful room. Instead, we have no record of any such discussion, and the Convention voted “aye” to Madison’s idea. The constitution was to be a political constitution, not a league, treaty, etc.

    -When the South Carolinians were talking about seceding 30 years before the War of the Rebellion over the Tariff of Abominations, Madison wrote to Daniel Webster about Webster’s famous speech in the Senate during the debate with Haynes over the nature of the Union. He wrote,

    “I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes “nullification” and must hasten the abandonment of “Secession.” But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged.”

    -Elsewhere, Madison wrote to Edward Everett, who would later speak before Lincoln at Gettysburg that, “(the Constitution) being a compact among the States in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it cannot be altered or annulled at the will of the states individually.”

    -He again set to rest any debate about his view on the subject in a letter to William Rives during the secession crisis of the 1830’s,

    ” I have recd your very kind letter of the 6th. from Washington; and by the same mail, a copy of your late speech in the Senate for which I tender my thanks. I have found as I expected, that it takes a very able and enlightening view of its subject. I wish it may have the effect of reclaiming to the doctrine & language held by all from the birth of the Constitution, & till very lately by themselves, those who now Contend that the States have never parted with an Atom of their Sovereignty; and consequently that the Constitutional band which holds them together, is a mere league or partnership, without any of the characteristics of sovereignty or nationality.

    It seems strange that it should be necessary to disprove this novel and nullifying doctrine; and stranger still that those who deny it should be denounced as Innovators, Heretics & Apostates. ”

    He continued,

    “What can be more preposterous than to say that the States as united, are in no respect or degree, a nation, which implies sovereignty; altho’ acknowledged to be such by all other nations & sovereigns, and maintaining with them, all the international relations, of war & peace, treaties, commerce &c: and on the other hand and at the same time, to say that the States separately are compleatly nations & sovereigns”

    and (here’s where he addressed Buchanan’s view that the Constitution imparted no power to prevent an unconstitutional separation)

    “The words of the Constitution are explicit, that the Constitution & laws of the U. S. shall be supreme over the Constitutions & laws of the Several States; supreme in their exposition and execution as well as in their authority. Without a supremacy in those respects, it would be like a scabbard in the hand of a soldier without a sword in it. ”

    He continued to say of secession that, “The conduct of S. Carolina, has called forth not only the question of nullification; but the more formidable one of secession. It is asked whether a State by resuming the sovereign form in which it entered the Union, may not of right withdraw from it at will. As this is a simple question whether a State, more than an individual, has a right to violate its engagement, it would seem that it might be safely left to answer itself.”

    So Buchanan’s interpretation contradicts Madison’s consistent statements on these matters over the course of his life.

    C. Buchanan said, “The question fairly stated is, Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State.”

    Actually, yes, it does, and not just in mandating the execution and supremacy of the Constitution and the government it created and perpetuates.

    Article 1, Section 8, Clause 14 gives Congress the power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”

    The men of the founding also acknowledged this power beyond the Constitution. The Militia Act of 1792 authorized the president to call forth the militia into federal service “whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act”

    Of the members of Congress who were present when it was signed, 9 were in Philadelphia, including Madison, and of course, Washington, who as President signed the bill.

    Does anyone know if those 9 members dissented? Perhaps someone can look into that.

    Washington of course called the militia to put down the Whiskey Rebellion two years later.

    Then comes the Insurrection Act of 1807, which provides that,

    “The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
    (1)
    so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
    (2)
    opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”

    Guess who signed that into law? The man who the rebels tried to claim as theirs and the originator of their fallacious interpretation of the Constitution, Thomas Jefferson.

    Even he, perhaps the biggest strict constructionist president of them all, acknowledged the power of the federal government to use force to put down insurrections. Guess who was his Secretary of State, as well as best friend and closest political ally? That’s right, Madison.

    Don’t you think Madison would have implored him not to sign that law if it were unconstitutional in his eyes?

    When NY had their ratification convention, Hamilton(the leading NY federalist) wrote to Madison saying that they had included a right to withdraw from the Union if certain amendments were not subsequently ratified. Madison, being a student of the law replied that, “ a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved.” He was referring to the basic contract law principle called the mirror image rule, which states that acceptances must be identical. . In addition, there must be mutual assent and the meeting of the minds. The other states didn’t agree to a conditional ratification. This applies to NY, as well as Virginia and whatever other states which people claim had reserved the right to withdraw, although in the case of Virginia I think that language is again referring to the natural, extralegal right of revolution, not to constitutionally sanctioned unilateral secession.

    Here’s two more famous Virginians talking about secession below.

    This slave owner, a very prominent man in the antebellum south, strongly denounced the idea of secession in has last speech as our first president. Washington said,

    “The unity of government which constitutes you one people is also now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.”

    Finally, let’s look at the man most idolized by neoconfedrates. The leader of the military of the rebellion himself. Lee wrote to his son before Virginia claimed to have seceded that “I can anticipate no greater calamity for the country than a dissolution of the Union. It would be an accumulation of all the evils we complain of, and I am willing to sacrifice everything but honor for its preservation. Ihope, therefore, that all constitutional means will be exhausted before there is a resort to force. Secession is nothing but revolution. The framers of our Constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution or the consent of all the people in convention assembled. It is idle talk of secession.” There he says that secession is illegal in his mind. He continues to say exactly what Lincoln said in his inaugural that

    “Anarchy would have been established, and not a government,by Washington, Hamilton, Jefferson, Madison, and the other patriots of the Revolution.”

    Shortly thereafter he told his close friend that “If Virginia stands by the old Union, so will I. But if she secedes (though I do not believe in secession as a constitutional right, nor that there is sufficient cause for revolution), then I will follow my native State with my sword, and, if need be, with my life.”

    He said this before his twisted sense of honor led him to lead a treasonous rebellion against the Constitution for an oligarchical order based on owning human beings under the auspices of preserving self government in the face of imagined tyranny despite no state having lost its constitution.

    But the point is that he unequivocally denounced the idea of unilateral secession as a legal option.

    The idea of a rebellion to preserve self government is enchanting, especially to us as Americans who cherish our liberal heritage. But the fact is that this was not a legal rebellion, nor was it a revolution against insufferable tyranny like the men of ‘76 resisted. The rebellious states still enjoyed their own state constitutions and the protection of the federal constitution.

    On the other side, Lincoln, as Chief Executive had a constitutional obligation and a sacred oath to “execute the laws”. He mentioned in his inaugural address that secession was possible with the consent of the other states and that the union could be dissolved otherwise only by revolution, but that the constitution gave the president no authority to set terms for the separation of the states. Enforcing the laws required “suppressing insurrection”, as is mentioned in the Constitution. You cannot execute the laws if half the country claims to be outside the jurisdiction of the laws.

    Moreover it’s hard to see what’s wrong with what he said in Congress on the 4th of July 1861 to explain the necessity of the war.

    “this issue embraces more than the fate of these United States. It presents to the whole family of man the question whether a constitutional republic, or democracy–a government of the people by the same people–can or can not maintain its territorial integrity against its own domestic foes. It presents the question whether discontented individuals, too few in numbers to control administration according to organic law in any case, can always, upon the pretenses made in this case, or on any other pretenses, or arbitrarily without any pretense, break up their government, and thus practically put an end to free government upon the earth. It forces us to ask, Is there in all republics this inherent and fatal weakness? Must a government of necessity be too strong for the liberties of its own people, or too weak to maintain its own existence?”

    #13711

    KevinGutzman
    Participant

    As I explain in the context of the Virginia Ratification Convention, this was not the understanding on which the states ratified the Constitution. Federalists told the convention that secession would remain an option. George Nicholas laid this out in detail.

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