The Right To Secede

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30, 1999

can the federal government be prevented from usurping powers that
the Constitution doesn’t grant to it? It’s an alarming
fact that few Americans ask this question anymore.

Our ultimate
defense against the federal government is the right of secession.
Yes, most people assume that the Civil War settled that. But superior
force proves nothing. If there was a right of secession before that
war, it should be just as valid now. It wasn’t negated because
Northern munitions factories were more efficient than Southern ones.

Among the Founding
Fathers there was no doubt. The United States had just seceded from
the British Empire, exercising the right of the people to “alter
or abolish” — by force, if necessary — a despotic
government. The Declaration of Independence is the most famous act
of secession in our history, though modern rhetoric makes “secession”
sound somehow different from, and more sinister than, claiming independence.

The original
13 states formed a “Confederation,” under which each state
retained its “sovereignty, freedom, and independence.”
The Constitution didn’t change this; each sovereign state was
free to reject the Constitution. The new powers of the federal government
were “granted” and “delegated” by the states,
which implies that the states were prior and superior to the federal

Even in The
Federalist, the brilliant propaganda papers for ratification of
the Constitution (largely written by Alexander Hamilton and James
Madison), the United States are constantly referred to as “the
Confederacy” and “a confederate republic,” as opposed
to a single “consolidated” or monolithic state. Members
of a “confederacy” are by definition free to withdraw
from it.

Hamilton and
Madison hoped secession would never happen, but they never denied
that it was a right and a practical possibility. They envisioned
the people taking arms against the federal government if it exceeded
its delegated powers or invaded their rights, and they admitted
that this would be justified. Secession, including the resort to
arms, was the final remedy against tyranny. (This is the real point
of the Second Amendment.)

Strictly speaking,
the states would not be “rebelling,” since they were sovereign;
in the Framers’ view, a tyrannical government would be rebelling
against the states and the people, who by defending themselves would
merely exercise the paramount political “principle of self-preservation.”

The Constitution
itself is silent on the subject, but since secession was an established
right, it didn’t have to be reaffirmed. More telling still,
even the bitterest opponents of the Constitution never accused it
of denying the right of secession. Three states ratified the Constitution
with the provision that they could later secede if they chose; the
other ten states accepted this condition as valid.

Early in the
nineteenth century, some Northerners favored secession to spare
their states the ignominy of union with the slave states. Later,
others who wanted to remain in the Union recognized the right of
the South to secede; Abraham Lincoln had many of them arrested as
“traitors.” According to his ideology, an entire state
could be guilty of “treason” and “rebellion.”
The Constitution recognizes no such possibility.

Long before
he ran for president, Lincoln himself had twice affirmed the right
of secession and even armed revolution. His scruples changed when
he came to power. Only a few weeks after taking office, he wrote
an order for the arrest of Chief Justice Roger Taney, who had attacked
his unconstitutional suspension of habeas corpus. His most recent
biographer has said that during Lincoln’s administration there
were “greater infringements on individual liberties than in
any other period in American history.”

As a practical
matter, the Civil War established the supremacy of the federal government
over the formerly sovereign states. The states lost any power of
resisting the federal government’s usurpations, and the long
decline toward a totally consolidated central government began.

By 1973, the
federal government was so powerful that the U.S. Supreme Court could
insult the Constitution by striking down the abortion laws of all
50 states; and there was nothing the states, long since robbed of
the right to secede, could do about it. That outrage was made possible
by Lincoln’s triumphant war against the states, which was really
his dark victory over the Constitution he was sworn to preserve.

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