Is Secession 'Anti-American'? by Larry Beane II

My response to Representative Jim Dunnam of Texas:

Concerning your anti-American comment regarding the subject of Secession.

Space and time being limited, I will refrain from delving deeply into the subject, trusting your own abilities to research the subject yourself. However, I will start with the Articles of Confederation, which by all accounts created a perpetual union and yet that very union was dissolved when the States ratified the Constitution, except that is, for North Carolina and Rhode Island, both of which remained in their former state outside the Constitutional compact of voluntary union for almost two years. Thus, even in the initial compact there was no nationalized or consolidated nation state, but one of voluntary agreement between the States which created the federal government to act as an agent of the States in both foreign affairs and in dealing with issues arising between the various States when necessary.

In the Articles of Confederation, the following wording is extremely clear:
“Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, IN Congress assembled.”

Of course it would have been impossible and would defy all logic to assume that the States were made sovereign, retained their freedom and independence if they had not had those attributes in the first place. The Articles of Confederation did not bestow those attributes on the States no more than the later Constitution, but they were qualities that were already in existence prior to both the Articles of Confederation and the ratification of the Constitution. To emphasis this point, the Treaty of Paris of 1783 specifically named each of the States individually and recognized them individually as Independent and Sovereign States. There was no recognition of the United States as a nation or of any national government.

Essentially, the fact of these attributes of both Independence and Sovereignty can be found even in the name of this country: The United States, which is more descriptive than that of an identifier. The Articles continue by stating that: “the said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatsoever.”

Did the ratification of the Constitution transform the original attributes of the States into something other than they were? I not only purpose that it did not, but there is ample evidence to the contrary, even by some of the most unlikely sources.

Of course, judging from your argument I can only naturally assume that you would quickly relegate John C. Calhoun to one of those Southern intellectuals who “fabricated” the idea of Secession nevertheless, I will quote Mr. Calhoun on that subject:

“Resolved, That the people of the several States, comprising these United States are united as parties to a constitutional compact, to which the people of each State acceded as separate sovereign community, each binding itself by its own particular ratification; and that the union, of which the said compact is the bond, is a union between the States ratifying the same; and

Resolved, That the People of the Several States, thus united by the Constitutional Compact, in forming that instrument, and in creating a general government to carry into effect the objects for which they were formed, delegated to that government, for that purpose, certain definite powers, to be exercised jointly, reserving, at the same time, each State to itself, the residuary mass of powers to be exercised by its own separate government; and that, whenever the general government is not made final judge of the powers delegated to it, since that would make its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among Sovereign parties, without any common judge, each has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress.”

Calhoun’s words were exquisite, and properly expounded the principles of Constitutional Law as seen in the words of the Founders themselves. Actually, Mr. Calhoun was simply reiterating the very words found within the writings of the Founders. While there have been many, I assume you to be one, who deny that there was a accession of the States to the union, the Founders are very clear that is exactly what happened when the States voluntarily join the union by Constitutional compact. If therefore the right of voluntary accession existed then likewise it would be impossible, and I might add logically absurd, for the right of secession not to exist.

It is very obvious that the Founders were well aware of the right of accession, yet I have to wonder why it is difficult for you to believe that they equally were aware of the right of secession? Indeed, it appears rather obvious that the Founders readily interchanged the words ratify and accede in their writings, in fact they were the same thing.

Let us continue, since you state that there is no evidence to support the right of secession within the writings of the Founders, then perhaps the following may cause you some discomfort in your position. If the Founders not only recognized the right of accession, but clearly espoused it as a method, the only method of joining the union, then it may come as a surprise that they also clearly espoused the reversal of that method, if absolutely necessary. Indeed, the very Declaration of Independence contains within its wording the act of secession and even the future possibility of secession, in the same manner as the colonies seceded from Great Britain, when Jefferson clearly and expressly states:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”

Now, an interesting fact can be found within the writings of James Madison when commenting on the decision of both North Carolina and Rhode Island not to ratify the Constitution and remain outside the union created by that compact between the Sovereign and Independent States. Madison said:

“I allude in particular manner to those two States who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible.”

Very interesting words Mr. Madison used in describing the situation: re-union. Why on earth would he use such wording? First, if the Articles of Confederation created a perpetual union how could that union be dissolved and how indeed could the States which ratified the Constitution leave that perpetual union that they had all agreed to remain? How too could two States remain outside the union if it were a mandatory consolidation of the States into one national union? The answer should be clear.

The perpetual union of States created by the Articles was dissolved the act of each of the States seceding from that compact and joining the new compact under the Constitution and yet, the States were free to join or accede or free to remain outside of that union, as did North Carolina and Rhode Island. Now, it is important to understand that the Articles created a perpetual union, not of States, but between States; equally as clear is that the Constitution was a compact between States, each voluntarily acceded a portion of their sovereignty for the exercise of certain limited and delegated powers by the newly formed federal government to act as an agency of their will by consent of the People. As we see in the following words: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution BETWEEN the States so ratifying the same.”

Evidently, the Founders in Convention were well aware that they were not creating a nation or a national consolidated federal government. Even the definition of a Federation is clear and we are a Federation of States operating with the agency of a federal government. In fact, in the original Preamble of the Constitution, the first draft prior to being sent to the Committee on Style, whose job it was to give the document a more eloquent form, approved the following wording:

“We the People of the States of…” listing each of the Thirteen States, was very clear as to the principle of Free and Independent States entering into a reflective union. That version of the Preamble was adopted, without dissent, on August 7, 1787. On September 12, 1787, the Committee of Style presented the less cumbersome wording: We the People of these United States” replacing the enumeration of the individual States by name.

Indeed, the Founders were very particular about the wording they used and refused to use; this can be expressly found regarding the use of the word “national”, which was, on more than one occasion, deliberately rejected and expunged from the Constitution as is recorded in Elliot’s Debates.

William Patterson clearly stated the nature of this newly formed federal government and the union it was to represent as an agent:

“The commissions under which we acted were not only the measure of our power, they denoted also the sentiments of the States on the subject of our deliberation. THE IDEA OF A NATIONAL GOVERNMENT, AS C0NTRADISTINGUISHED FROM A FEDERAL ONE, NEVER ENTERED INTO THE MIND OF ANY OF THEM; and to the mind of the public we must accommodate ourselves. WE HAVE NO POWER TO GO BEYOND THE FEDERAL SCHEME, and if we had the people are not ripe for any other. We must follow the people; the people will not follow us. — The proposition could not be maintained whether considered in reference to us as a nation, or as a confederacy. A confederacy supposes sovereignty in the members composing it & sovereignty supposes equality. If we are to be considered as a nation, all State distinctions must be abolished, the whole must be thrown into hotchpot, and when an equal division is made, then there may be fairly an equality of representation.”

Richard Henry Lee stated, in words similar to those used by Madision:

“If this were a Consolidated Government, ought it not be ratified by a majority of the people as individuals, and not the States? Suppose Virginia, Connecticut, Massachusetts and Pennsylvania had ratified it; these four States being a majority of the people of America, would, by their adoption, have made it binding on all the States, had this been a Consolidated Government. But it is only the Government of the seven States who have adopted it. “

This is repeated in the Federalist Paper n. 39 and Madison is clear about the nature and attributes of the States ratifying the Constitution, that they are indeed and remain Free, Sovereign and Independent even after the ratification process. “It appears on one hand that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but on the other hand that this assent and ratification is to be given by the people, not as individuals comprising one entire nation; but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the Several States derived from the supreme authority in each State, the authority of the people themselves. The act therefore establishing the Constitution, will not be a national but a federal act…Were the people regarded in this transaction as forming, one nation, the will of the majority of the whole people of the United States, would bind the minority; in the same manner as the majority in each State must bind the minority…Each States in ratifying the Constitution, is considered as a Sovereign Body Independent of all others, and only to be bound by its own voluntary act. In this relation then the new Constitution will, if established, be a federal and not a national Constitution.”

Clear enough, and important in the discussion of the right of both accession and likewise secession since both depend on the attributes of the members of the compact, being voluntary in nature and reflecting the Sovereign status of each of the ratifying members.

Madison goes much further in the proper description and utility of the union:

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

Obviously, in the eyes of the Founders, those who attended the Convention, were well aware of the FACT that the States retained all the Rights of Sovereignty that they had before ratifying the Constitution. That is an extremely potent legal distinction between the very limited and narrowly delegated powers bestowed on the federal government by the States when they formed the federal or general government and those of the States themselves, as Madison also properly describes in The Federalist 45:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

Again, both Jefferson and Madison understood and explained the union as a compact of parties, each party [the Several States] being a part of the union on a totally voluntary basis and that the ratification of the Constitution did not, in any way, obligate the States to relinquish either their Sovereignty, Independence or Freedom to the federal government.

Kentucky Resolution: "The several States composing the United States of America, are not united on the principle of unlimited submission to their General Government but that, by a compact under the style and title of a Constitution for the United States. . . that to this compact each State acceded as a State. . . that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself. . ."

Virginia Resolution: "RESOLVED. . . That this Assembly most solemnly declares a warm attachment to the Union of the States. . . That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact , and as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the Right, and are in Duty Bound, to interpose for arresting the progress of the evil, and maintaining within the respective limits the authorities, rights and liberties appertaining to them."

Now, there are two words that describe our union, one being a Federation, the other, also used by the Founders to describe our union even after the ratification of the Constitution, was a Confederacy. The definitions of each word is very clear and perfectly describe this union, particularly in relationship between the States and the federal government which the action of their ratification created.

The plurality of this union is very evident within the Constitution itself, Article Three, Section Three clearly denotes this fact when it declares that : “Treason against the United States, shall consist only in levying War against THEM, or in adhering to THEIR enemies.” That is not a description of a consolidated union, but one of numerous independent parties joined together under a representational union for their mutual benefit and protection.

There are also some very strong language found in many of the early court cases, such as Vanhorne’s Lessee v. Dorrance [U.S. Cir. Ct. Pa. 1795], in this case Justice William Patterson gave very explicit instructions to the jury:

“What is the Constitution? It is the form of government delineated by the mighty hand of the People, in which certain first principles of fundamental law are established. The Constitution is CERTAIN and FIXED: it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the will of the legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are legislatures? Creatures of the Constitution; they owe their existence to the Constitution; they derive their powers from the Constitution. It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work of the people themselves, in their original, sovereign, and unlimited capacity. Law is the work of the legislature in their derivative and subordinate capacity. The one is the work of the creator, and the other of the creature. In short, gentlemen, the Constitution is the sum of the political system, around which all legislative, executive, and judicial bodies must revolve.”

To take this principle even further, Justice Samuel Chase in Ware v. Hylton [U.S. 1798] clearly states:

“In June 1776, the Convention of Virginia formally declared that Virginia was a Free, Sovereign, and Independent State, and on the 4th of July, 1776, following, the United States in Congress assembled declared the thirteen united colonies Free and Independent States; and that as such they had full power to levy war, conclude peace, etc. I consider this as a declaration, not that the United States jointly in a collective capacity were Independent States, etc., but that each of them was a Sovereign and Independent State, that is, that each of them had a right to government itself by its own authority and its own law, without any control from any other power on earth.”

In keeping with those principles Madison states:

“If we consider the federal union as analogous, not to the social compacts among individuals, but to the conventions among individual States, what is the doctrine resulting from these conventions? CLEARLY, according to the expositors of the Law of Nations, that breach any one article, by any one party, leaves all other parties at liberty to consider the whole convention dissolved, unless they choose rather to compel the delinquent party to repair the breach.”

The President of the Virginia Convention, Judge Edmund Pendleton stated:

“We the People, possession all power, form a government, such as we think will serve our happiness. And suppose, in adopting this plan, we should be mistaken in the end. Where is the cause of alarm in that quarter? In the same plan we point out an easy and peaceable method of reforming what may be found amiss. No but, say gentlemen, we have put the introduction of that system in the interest. What then? We will resist, did my friend say, conveying the idea of force? Who shall dare resist the People. NO, WE WILL ASSEMBLE IN CONVENTION, WHOLLY RECALL OUR DELEGATED POWERS, OR REFORM THEM TO PREVENT SUCH ABUSE, AND PUNISH THOSE SERVANTS WHO HAVE PERVERTED POWERS and designed for our happiness to their own emolument.”

Even John Marshall stated in the Convention that:

“We are threatened with the loss of our liberties by possible abuse of power, notwithstanding the maxim that those who give power may take it away. It is the People who give power, and can take it back.”

Justice Marshall also stated, concerning the Sovereignty of the States:
“I hope that no gentleman will think that a State will be called at the bar of the federal court…IT IS NOT RATIONAL TO SUPPOSE THAT THE SOVEREIGN POWER [of the States] SHOULD BE DRAGGED BEFORE A COURT.”

Additionally, Madison clearly stated the same principle when he said:
“If we be dissatisfied with the national government, IF WE CHOOSE TO RENOUCE IT, THIS IS AN ADDITIONAL SAFEGUARD TO OUR DEFENSE.”

Indeed, in the Ordinance of Ratification, the Virginia Convention of 1788 gave the most strong assurances to the People of the Sovereign, Free and Independent State of Virginia with these most clarifying words:

“We the delegates of the People of Virginia, duly elected in pursuance of a recommendation of the General Assembly and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon, do in the Name and in Behalf of the People of Virginia declare and make known that the Powers Granted under the Constitution, BEING DERIVED FROM THE PEOPLE OF THE UNITED STATES, MAY BE RESUMED BY THEM WHENSOEVER THE SAME SHALL BE PERVERTED TO THEIR INJURY AND OPPRESSION, AND THAT EVERY POWER NOT GRANTED THEREBY REMAINS WITH THEM AND AT THEIR WILL. That therefore no right of any denomination can be cancelled, abridged, restrained or modified by the Congress, by the Senate or House of Representatives, acting in any capacity by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that among other Essential Rights, the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained or modified by any authority of the United States.”

Was the word secession used? No, but the wording of these documents are extremely clear in both context and meaning, that is, unless we choose to ignore them. Evident in the writings of the Founders, the debates both in the State Conventions and the federal Convention, along with numerous period sources, the fact is that at the ratification of the Constitution the States surrendered, nor relinquished any of their Rights, Sovereignty or Independence; they only delegated certain limited powers and authority to the general government.

It also becomes obvious that secession as considered during the early 1800s, particularly by the States of New England in the Hartford Convention of 1815 when it drew upon what was both accepted and pronounced secession as a Constitutional remedy:

“If the union be destined to dissolution, by reason of multiplied abuses of bad administrations, it should, if possible, be the work of peaceable times, and deliberate consent. Some new form of confederacy should be substituted among those States which shall intend to maintain a federal relation to each other. Events may prove that the causes of our calamities are deep and permanent. They may be found to proceed, not merely from the blindness of prejudice, pride of opinion, violence of party spirit, or the confusion of the times; but, they may be traced to implacable combinations of individuals, or of States, to monopolize power and office, and to trample without remorse upon the rights and interests of the commercial sections of the union. Whenever it shall appear that these causes are radical and permanent, a separation, by equitable arrangement, will be preferable to an alliance of constraint, among nominal friends, but real enemies, inflamed by mutual hatred and jealousy, and inviting by intestine divisions contempt and aggression.”

As President, James Madison stated that:

“That acts of Congress in violation of the Constitution are absolutely void is an undeniable position. It does not, however, consist with respect and forbearance due from a confederate State towards the general government to fly in open resistance upon any infraction of the Constitution. The mode and energy of the opposition should always conform to the nature of the violation, the intention of its authors, the extent of the injury inflicted, the determination to persist in it, and the danger of delay. But in cases of deliberate, dangerous, and palpable infractions of the Constitution, affecting the Sovereignty of a State, and the Liberties of the People, it is not only the Right but the Duty of such a State to interposer its authority for their protection, in a manner best calculated to secure that end. When emergencies occur which are either beyond the reach of judicial tribunals, or too pressing to admit of delay incident to their forms, States which have no common umpire, must be their own judges, and execute their own decisions. It will thus be proper for the Several States to await the ultimate disposal of the obnoxious measures recommended by the secretary of war, or pending before Congress, and so to use Their Power according to the character these measures shall finally assume, as effectually to PROTECT THEIR OWN SOVEREIGNTY AND THE RIGHTS AND LIBERTIES OF THEIR CITIZENS.”

In one of the widely used and approved text books of the early 1800s, through the mid-1800s was that of William Rawle entitled Views of the Constitution. It was the primary book used to teach Constitutional principles in West Point and in that volume we find these words concerning State Sovereignty:

“It depends on the State itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the union. To deny this Right would be inconsistent with the principle of which all our political systems are founded, which is, that the People have in all cases, a Right to Determine how they will be governed. This Right must be considered as an ingredient in the original composition of the general government, which through not expressed, was mutually understood…The Secession of a State from the union depends on the Will of the People of such State. The People alone as we have already seen, hold the Power to alter their Constitution. But in a manner by which a secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal. To withdraw from the union is a solemn , serious act. Whenever it may appear expedient to the People of a State, it must be manifested in a direct and unequivocal manner.”

Perhaps the most surprising quote is that of Lincoln himself regarding the revolutionary right of the People through the instrument of their respective States to secede from this union:

"This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it.”

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“There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.”-Adams

We need more and more ordinary citizens pondering Texas secession, pro or con. I hope the liberal wienies launch a scorched-earth attack against Perry on secession, and they never back off.

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