abstract: This article takes the position that the founding documents of this country do not permit the unilateral secession of one or more states from the Union, antebellum or postbellum and, thus, even before the passage of the so-called 'Civil War Amendments' (the 13th, 14th, and 15th).

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by John Fielding

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. The slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully.

- Abraham Lincoln, Second Inaugural address

My experience of men has neither disposed me to think worse of them, nor indisposed me to serve them; nor, in spite of failures, which I lament, of errors, which I now see and acknowledge, or, of the present state of affairs, do I despair of the future. The march of Providence is so slow, and our desires so impatient, the work of progress is so immense, and our means of aiding it so feeble, the life of humanity is so long, and that of the individual so brief, that we often see only the ebb of the advancing wave, and are thus discouraged. It is history that teaches us to hope.

- Robert E. Lee¹

Introduction

In a certain sense, this article should be seen as a continuation to my article in a previous Statesman that attempted to introduce the reader to the background of the federalism of the United States found in the biblical and historical covenantalism.² That paper concluded with the United States Constitution being construed as a "compact" by secular sources and as a "covenant" by religious sources. James Madison, the "Father of the Constitution," construed it as a compact, as did Thomas Jefferson.³

In recent years we have been treated to a spate of articles revisiting the secession controversy immediately preceding the Civil War. Due to the encroachment of the national government upon state jurisdiction and individual rights, the writing of histories such as Otto Scott's The Secret Six showing leaders of the abolitionist cause to be Arminian and Unitarian, and the recent claims for the Christian tenor of antebellum Southern society, many in the reconstructionist movement in the North, broadly considered, seem to be reevaluating the position of the South in the War between the States (or the War of the Rebellion or the War of Northern Aggression, as you like).⁴ Because of the increasing interference of the national government with the perceived prerogatives of the States, many think to reassert those prerogatives by insisting upon the Tenth Amendment and even endorsing secession.

This article takes the position that the founding documents of this country do not permit the unilateral secession of one or more states from the Union, antebellum or postbellum and, thus, even before the passage of the so-called "Civil War Amendments" (the 13th, 14th, and 15th). This is a limited objective. Therefore, conversely, this article is not about the following: it does not define a biblical covenant; it does not set forth biblical support for or against secession from a broken biblical covenant; it does not enter the debate about whether the Constitution is a "Christian" or "biblical" document; it does not argue against secession from a non-biblical covenant or contract in general; it does not support every position taken by the North in the War Between the States; it does not take a position on the use of force to preserve the Union; it does not support every position taken by President Lincoln in the prosecution of the War; it does not side with the North or the South as a general proposition (both had good and bad points); and it does not support every conceptual position taken in the founding documents. This article is about whether the text of the Constitution, viewed as a contract and viewed in historical context with other founding historical documents, permits the kind of secession proposed by the Southern states. The answer of this article is no.⁵

Three Historical Positions

The theories undergirding the secession crisis originally came to the fore in the "nullification" crisis, a crisis brought on by South Carolina's attempt to nullify a federal tariff law. During this time, and, later, during the secession crisis, three theories were commonly proposed. All three had had their generation during the time of the ratification of the Constitution: the "Weak Compact" position, held by Calhoun and South Carolina; the "Nationalist" position, held by the Federalists,⁶ Daniel Webster, and Andrew Jackson during the nullification crisis; and the "Strong Compact" position held by James Madison and, I believe, Abraham Lincoln.

The "Weak Compact" Position

What I have denoted the "weak compact" position was the position of South Carolina and John C. Calhoun. The position represents that the Union is merely a compact among sovereign states, which had created it by writing and ratifying the Constitution. Thus, the nation was created by the ratification of the Constitution. Each state might nullify an act of the national legislature by following a formula patterned on the mode of ratification. Indeed, each state might withdraw unilaterally from the Union by following a prescribed plan. Thus, the South Carolinians made an attempt to reduce the national to the federal:

We hold...that, on their separation from the Crown of Britain, the several colonies became free and independent States, each enjoying the separate and independent right of self-government; and that no authority can be exercised over them, or within their limits, but by their consent, respectively given as States.⁷

John C. Calhoun did not believe that a state of nature consisting of sovereign individuals preceded society or community: thus, society cannot exist without government, sovereignty belongs to the state and is "sui generis, not derived from any antecedent principle or right."⁸

Thus, to Calhoun, the Declaration of Independence put forward a false statement of the state of reality. All men were not created equal, because all were not created. Only two individuals were created and the rest born into societal relations which were unequal.⁹ The natural rights position of the Declaration led to the conclusion that all were endowed with rights antecedent to society and government. On the contrary, Calhoun felt that science had demonstrated that individuals did not exist apart from society, and that society and government were combined into one organism that was possessed of sovereignty. Since there were no individual rights in the people prior to their existence in the states, the states became the sole grantors or specifiers of the rights of the people. Furthermore, sovereignty once achieved by the states, could not be ceded to the national government through ratification. Note that the Articles of Confederation affirmed that,

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.¹⁰

Thus, the position adopted by the "Weak Compact" advocates is that, save in the number and composition of the powers delegated, the relationship of the states to the Constitution was the same as the relationship of the states to the Articles of Confederation. Therefore, the advocates of this position would claim that the right to secede is not found in the Constitution because that right is a concomitant of sovereignty, which the states had never ceded to the national government.¹¹

Thus, the national government is a compact between the states, defined as follows:

It is equally true, that the Constitution of the United States is a compact formed between the several States, acting as sovereign communities; that the government created by it is a joint agency of the States, appointed to execute the powers enumerated and granted by that instrument; that all its acts not intentionally authorized are of themselves essentially null and void, and that the States have the right, in the same sovereign capacity in which they adopted the Federal Constitution, to pronounce, in the last resort, authoritative judgment on the usurpations of the Federal Government, and to adopt such measures as they may deem necessary and expedient to arrest the operation of the unconstitutional acts of that Government, within their respective limits.¹²

Thus, the "Weak Compact" position resolves the debate over sovereignty in favor of "federalism" or a confederacy.

The "Nationalist" Position

The "nationalist" position was held by Andrew Jackson, Daniel Webster, and John Marshall. This position represents that the origin of the nation was in the Constitution, but that the "people" as a whole created the nation at the ratification of the Constitution, rather than the states. Therefore, the Constitution derives its whole authority, not from the states, but from the people. The Constitution is a compact, but it is a compact to form a government, not a league and it

operates directly on the people individually, not upon the States; they retained all the power they did not grant. But each State, having expressly parted with so many powers as to constitute, jointly with the other States, a single nation, can not, from that period, possess any right to secede, because such secession does not break a league, but destroys the unity of a nation; and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.... Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right is confounding the meaning of terms, and can only be done through gross error or to deceive those who are willing to assert a right, but would pause before they made a revolution or incur the penalties consequent on a failure.... Disunion by armed force is treason.¹³ (Emphasis in the original)

Replying to Robert Y. Hayne, Senator from South Carolina, on the subject of a state's right to nullify unconstitutional laws, Daniel Webster stated as follows:

So, Sir, I understood the gentleman, and am happy to find that I did not misunderstand him. What he contends for is, that it is constitutional to interrupt the administration of the Constitution itself, in the hands of those who are chosen and sworn to administer it, by the direct interference, in form of law, of the States, in virtue of their sovereign capacity. The inherent right in the people to reform their government I do not deny; and they have another right, and that is, to resist unconstitutional laws, without overturning the government. It is no doctrine of mine that unconstitutional laws bind the people. The great question is, Whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws? On that the debate hinges. The proposition that, in case of a supposed violation of the Constitution by Congress, the States have a constitutional right to interfere, and annul the law of Congress, is the proposition of the gentleman. I do not admit it. If the gentleman had intended no more than to assert the right of revolution for justifiable cause, he would have said only what all agree to. But I cannot conceive that there can be a middle course, between submission to the laws, when pronounced constitutional, on the one hand, and open resistance, which is revolution or rebellion, on the other. I say, the right of a State to annul a law of Congress, cannot be maintained but on the ground of the unalienable right of man to resist oppression; that is to say, upon the ground of revolution. I admit that there is an ultimate violent remedy, above the Constitution and in defiance of the Constitution, which may be resorted to when a revolution is to be justified. But I do not admit, that, under the Constitution and in conformity with it, there is any mode in which a State government, as a member of the Union, can interfere and stop the progress of the general government, by force of her own laws, under any circumstances whatever.... It is, Sir, the people's Constitution, the people's government, made for the people, made by the people and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law. But the State legislatures, as political bodies, however sovereign, are not yet sovereign over the people. So far as the people have given power to the general government, so far as the grant is unquestionably good, and the government held of the people, and not of the State governments. We are all agents of the same supreme power, the people. The general government and the State governments derive their authority from the same source.... If there be no power to settle such questions [constitutionality of a federal tariff], independent of either of the States, is not the whole Union a rope of sand? Are we not thrown back again, precisely, upon the old Confederation? It is too plain to be argued. Four-and Twenty interpreters of constitutional law, each with a power to decide for itself, and none with authority to bind any body else, and this constitutional law the only bond of their union!... Some authority must, therefore, necessarily exist, having the ultimate jurisdiction to fix and ascertain the interpretation of these grant, restrictions and prohibitions [with respect to the enumerated powers]. The Constitution has itself pointed out, ordained, and established that authority. How has it accomplished this great and essential end? By declaring, Sir, that "the Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding."

This, Sir, was the first great step. By this the supremacy of the Constitution and laws of the United States is declared. The people so will it....But who shall decide this question of interference? To whom lies the last appeal? This, Sir, the Constitution itself decides also, by declaring "that the judicial power shall extend to all cases arising under the constitution and laws of the United States." These two provisions, Sir, cover the whole ground. They are, in truth, the key-stone of the arch! With these, it is a Constitution; without them, it is a confederation.¹⁴ (Emphasis in the original)

Of course, the "Nationalist" theory had earlier been espoused by the Federalists. In the Supreme Court case of M'Culloch v. Maryland, the Federalist Chief Justice John Marshall stated as follows:

The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution--powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single state. They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of a single state cannot confer a sovereignty which will extend over them.¹⁵

To the holders of the "Nationalist" position, therefore, the origin of the United States is not to be found in the Declaration of Independence, but in the American people contracting to form a national government in the constitutional convention and in the subsequent state ratifying conventions. Thus, the origin of the United States is found in "we, the people" giving sovereign powers to a national government whose law is to be supreme over the states.

The "Strong Compact" Position

This writer would contend that this position was held by James Madison and Abraham Lincoln. Both would contend that the nation was formed by compact, but that the nation was formed prior to the Constitution. While the "practical payoff" of this position would appear to be the same as the "nationalist" position, it is conceptually different.¹⁶

James Madison was a subscriber to a "compact" theory as is seen from his authorship of the Virginia Resolutions, and his membership in the Democratic Republicans (which was populated by Anti-Federalists, among others) and not the Federalists. However, in keeping with his historical denotation as the "Father of the Constitution," Madison sided with those later associated with the Federalist party in endorsing the ratification of the Constitution in the Federalist Papers. For Madison, the function of government balances the carrying into effect the will of the majority while protecting the minority against the tyranny of the majority, the smallest minority, of course, being the individual.¹⁷ The reason for this is that government in all its forms is an agent of the will of the people as sovereign individuals as they join together in the state of nature to form civil society:

Resuming the subject of the last paper, I proceed to enquire whether the Foederal Government or the State Governments will have the advantage with regard to the predilection and support of the people.... The Foederal and State Governments are in fact but different agents and trustees of the people, constituted with different powers, and designated for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrouled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone....¹⁸ (Emphasis supplied)

Commenting upon the fundamental right of contract, Madison discovers this right in "the first principles of the social compact" which is prior even to the states since this right is protected "by the declarations prefixed to some of the State Constitutions."¹⁹

Thus, as is iterated in the Massachusetts Constitution of 1780, the sovereignty of the individual in the exercise of his own natural rights is voluntarily transferred, via the social compact, to civil society. For Madison, equality of rights is then antecedent to the formation of the larger social unit. When Madison states that the Constitution itself is a compact, he is drawing an analogy between the compact formed by the various states to form the Union and the original social compact that, in the Lockean context, was prior to and preceding all government, which was instituted to protect the natural rights of all men and which constituted "written grants of power by the people to their governments."²⁰

Because of this, the natural equality of the Declaration is necessary to the formation of the original social compact so that the majority might, in turn, be granted the ability to rule, subject to the limitation of the natural rights of the minority. Madison states:

On what principle does the voice of the majority bind the minority? It does not result I conceive from the law of nature, but from compact founded on conveniency. A greater proportion might be required by the fundamental constitution of a Society if it were judged eligible. Prior then to the establishment of this principle, unanimity was necessary; and strict Theory at all times presupposes the assent of every member to the establishment of the rule itself.²¹ (Emphasis in original)

Madison continues:

To go to the bottom of the subject, let us consult the Theory which contemplates a certain number of individuals as meeting and agreeing to form one political society, in order that the rights, the safety & the interest of each may be under the safeguard of the whole.

The first supposition is, that each individual being previously independent of the others, the compact which is to make them one society must result from the free consent of every individual.

But as the objects in view could not be attained, if every measure conducive to them required the consent of every member of the society, the theory further supposes, either that it was a part of the original compact, that the will of the majority was to be deemed the will of the whole, or that this was a law of nature, resulting from the nature of political society itself, the offspring of the natural wants of man.

Whatever be the hypothesis of the origin of the lex majoris partis, it is evident that it operates as a plenary substitute of the will of the majority of the society for the will of the whole society; and that the sovereignty of the society as vested in & exercisable by the majority, may do anything that could rightfully done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, wherever vested or however viewed.²² (Emphasis in the original)

As may be seen from the foregoing, the only empowerment that the majority has to conduct business is that which is granted by the antecedent unanimity in the social contract. Therefore, slavery is not permitted in the subsequent civil society because the majority is never empowered to do anything to which the individuals forming the social compact would not have agreed (assuming that the minority who were slaves would not have voluntarily agreed to give up the equality of their natural right to the fruit of their own labor). The sovereignty thus granted is not absolute; it is based upon a grant of power by the rights of all which are, as are everyone's natural rights must be, antecedent to the social compact. Thus, the majority may only do anything that could rightfully be done by all individuals acting unanimously.

Equality in natural rights was antecedent to any grant of power. Thus, no majority can deprive a minority of its natural rights because such rights are not a function of governmental grant but have a reality antecedent to government. Therefore, the Tenth Amendment states that the rights not granted to the government are reserved to the states "or to the people." As a result, the Constitution may not be used to deprive the minority of individual natural rights²³ because the Declaration, not the Constitution, was the fundamental act of Union of the states.²⁴

Therefore, unlike the "Nationalists" who saw the nation as coming into being through the will of the people as a whole ratifying the Constitution through state conventions and the Southerners ("Weak Compact") who saw the nation as coming into being through the will of the sovereign states forming a league or compact by ratifying the Constitution, the "Strong Compact" advocates saw the nation coming into being by virtue of a common adherence to the principles contained in the Declaration of Independence, principles that were to be enforced over time by a Constitution gradually brought into line with those principles. While the Constitution was ratified by the people acting through state conventions, the new nation could not simply be interpreted in terms of the old categories of "national" or "federal," but was partly both and, therefore, a new, third category.²⁵

The weakness in the Southerners' view was that the South Carolinians had admitted that the states had formed a government. Even if the government was a mere agent of the states, it was an agent of all of them. Thus, in an analogy to the formation of civil society in the state of nature, all must consent to its formation, but once consent is given, agency passes to the majority (once again, bound by the word "rightfully," defined as those actions that could, according to natural rights, be taken by all acting in concert). In the Constitution, that agency was three-fourths of the states acting for all in either convention or amendment. If sovereignty was indivisible and could not be ceded to the national government, it could not be given up to three-fourths of the states. If it had, on the other hand, it had been given up to the whole people of the United States, acting through the three-fourths.

If Madison had been on the side of the interpretation put forward by the South Carolinians, he would have agreed with them on nullification. Indeed, as long as the states retain a separate existence, a certain amount of sovereignty necessarily is retained by them (as stated in the Tenth Amendment). However, Madison was horrified by the suggestion that that sovereignty implied the powers of nullification, interposition, or secession:

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 that an individual, has a right to violate its engagements, it would seem that it might be safely left to answer itself. But the countenance given to the claim shows that it cannot be so lightly dismissed. The natural feelings which laudably attach the people composing a State, to its authority and importance, are at present too much excited by the unnatural feelings, with which they have been inspired against their brethren of other States, not to expose them, to the danger of being misled into erroneous views of the nature of the Union and the interest they have in it. One thing at least seems to be too clear to be questioned; that whilst a State remains within the Union it cannot withdraw its citizens from the operation of the Constitution ∧ laws of the Union. In the event of an actual secession without the Consent of the Co-States, the course to be pursued by these involves questions painful in the discussion of them. God grant that the menacing appearances, which obtruded it may not be followed by positive occurrences requiring the more painful task of deciding them!²⁶ (Emphasis in original).

Madison also states:

An inference from the doctrine that a single State has the right to secede at will from the rest is that the rest would have an equal right to secede from it; in other words, to turn it, against its will, out of its union with them. Such a doctrine would not, till of late been palatable anywhere, and nowhere less so than where it is now most contended for.²⁷

As mentioned above, Calhoun did not believe that individual sovereign natural rights were antecedent to the to the sovereignty of the states. To Calhoun, sovereignty was not a characteristic of individuals, but of a collective body, such as a state. Calhoun's theory along these lines comes into full revelation when one considers that most of Calhoun's vehemence was directed to defending the Southern sectional minority rights, even to the point of proposing the theory of "concurrent majorities."²⁸

Lincoln, on the other hand, believed that the equality of inalienable natural rights laid out in the Declaration provided the principle and backdrop against which the compromises inherent in the Constitution must be seen. Thus, slavery was a violation of the inalienable right to the property of a person in their own labor:

He [Stephen Douglas - JAF] finds the Republicans insisting that the Declaration of Independence includes ALL men, black as well as white; and forthwith he boldly denies that it includes negroes at all, and proceeds to argue gravely that all who contend it does, do so only because they want to vote, and eat, and sleep, and marry with negroes! He will have it that they cannot be consistent else. Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone. In some respects she is certainly not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.²⁹ (Emphasis added)

Therefore, the Declaration represented the ideal toward which the nation should be moving, but toward which, by reason of prudence, the Founding Fathers felt could not be attained at the time of the writing of the Constitution. Thus, far from being a document that froze slavery in place, Lincoln felt that the Constitution provided a means for the enforcement of the equality of natural rights put forth in the Declaration and, at the same time, provided for the gradual withering away of the institution of slavery. Lincoln states concerning the Declaration of Independence:

I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal--equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they stated, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, not yet, that they were about to confer such a boon. They meant simply to declare the right, so that theenforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that "all men were created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism.³⁰

Even Lincoln believed that the Constitution did not provide for the abolition of slavery in the slave-holding states and agreed with the platform of the Republican Party of 1860 to the same effect in his First Inaugural Address:

Apprehension seems to exist among the people of the Southern States, that by the accession of a Republican Administration, their property, and their peace, and personal security, are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed, and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that "I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so." Those who nominated and elected me did so with full knowledge that I had made this, and many similar declaration, and had never recanted them. And more than this, they placed in the platform, for my acceptance, and as a law to themselves, and to me, the clear and emphatic resolution which I now read:

"Resolved, That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend; and we denounce the lawless invasion by armed force of the soil or any State or Territory, no matter under what pretext, as among the gravest of crimes."³¹

Nevertheless, Lincoln thought that no person who believed the statements of the Declaration of Independence could agree with slavery in principle and still less, could a state secede to protect it. The same universal law that granted all men the right to benefit from their own labor also formed the basis of the social compact out of which the states grew:

I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our national Constitution, and the Union will endure forever--it being impossible to destroy it, except by some action not provided for in the instrument itself.

Again, if the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade, by less than all the parties who made it? One party to a contract may violate it--break it, so to speak; but does it not require all to lawfully rescind it? [echoes of Madison-JAF]

Descending from these general principles, we find the proposition that, in legal contemplation, the Union is perpetual, confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, 1787, one of the declared objects for ordaining and establishing the Constitution, was "to form a more perfect Union."

But if [the] destruction of the Union, by one, or by a part only, of the States, be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

It follows from these views that no State, upon its own mere motion, can lawfully get out of the Union,--that resolves and ordinances to that effect are legally void, and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.³²

Lincoln continues:

If all the States, save one, should assert the power to drive that one out of the Union, it is presumed the whole class of seceder politicians would at once deny the power, and denounce the act as the greatest outrage upon State rights. But suppose that precisely the same act, instead of being called "driving the one out," should be called "the seceding of the others from that one:" it would be exactly what the seceders claim to do; unless, indeed, they make the point that the one, because it is a minority, may rightfully do what the others, because they are a majority, may not rightfully do. These politicians are subtle and profound on the rights of minorities. They are not partial to that power which made the Constitution, and speaks from the preamble, calling itself "We, the People."³³

In these statements by Lincoln and Madison, we see the true divide: neither the "Nationalists" or the "Weak Compact" proponents see any place for individual rights apart from those that individuals possess by being participants in a state or in the national governments. On the other hand, both Madison and Lincoln saw individual rights as being guaranteed in the social compact since the majority in the social compact could only perform actions that were not in derogation of the minority's inalienable rights, i.e. actions that would have had unanimous approbation in the state of nature. If the position of the "Nationalists" is granted, the citizens of the states have no protection from the predations of the national government. If the position of "Weak Compact" adherents is granted, the citizens of the United States have no protection from the predations of the individual states.

The "Strong Compact" view held by Madison and Lincoln, in principle, provided the necessary balance to ensure that neither the states nor the national government would have the power to deprive individuals of their inalienable rights³⁴ because their view of the Union saw the rights and sovereignty of Americans possessed by them individually and apart from participation in a governmental body. Since this was true, the rights and powers continued in the face of governmental refusal to do so and provided a basis for just claim against the offending government body. Finally, neither Madison nor Lincoln countenanced the idea of secession as a constitutional remedy. Both allowed that it might be a natural right, existing in a people before the act of Union. Once the act of Union took place, however, the solution for redress of grievances was to be found in the document establishing the government to which all had subordinated themselves "in order to form a more perfect union."

Conclusion

In a sense, the "Nationalist" and the "Weak Compact" views are the easiest to hold. The "Nationalist" view sees the nation coming into being with "the people" ratifying the Constitution. In the process of that act, the people give their sovereignty to the national government. The "Weak Compact" view sees the nation as existing in states which grant powers, but not sovereignty to a national federation. Thus, the "Nationalists" cannot agree with secession because it is an act of sovereignty no longer existing in the states, but given to the national government. The "Weak Compact" adherents cannot but support secession in principle because it remains a concomitant of sovereignty that the states have retained.

However, it is apparent that James Madison, the "Father of the Constitution," supported a third approach, which he denominated "in strictness neither a national nor a federal constitution; but a composition of both."³⁵ Thus, the states, national government, and the people retain a measure of sovereignty. However, since the states had unanimously granted three-fourths of the states the ability, through the Constitution, to amend the document governing the wielding of power and sovereignty at a national level, it was obvious that individual states could not secede and claim a constitutional prerogative for doing so any more than a majority of the states could vote to withdraw from another. Still less could they do so in the name of claiming a prerogative to systematically violate the private property rights of a significant majority within their borders.

While the biblical warrant, if any, for any of the above analysis will have to wait for another discussion on another day, the topic of constitutional secession is one, I am tempted to say, that we will have to fight about.

John Fielding holds the M.Div. degree from Reformed Episcopal Seminary, and the M.A. and J.D. degrees from Temple University. He is a member of the National Reform Association Board of Directors, and is currently practicing law in Berks County, Pennsylvania.

Endnotes:

1. Richard M. Weaver, The Southern Tradition at Bay: A History of Postbellum Thought (George Core and M.E. Bradford, ed.; Washington, D.C.: Regnery Gateway, 1989), 193-94 (quoting Southern Historical Society Papers, XVII [1889], 245).

2. "Federalism and Covenant: The Historical Contribution of Covenantal Thinking to American Federalism," The Christian Statesman, vol. 140, no. 2, March-April 1997: 4-12.

3. For Madison, see Alexander H. Stephens, "Mr. Madison's Report on the Virginia Resolutions" (2 vols., The War Between the States, Reprint; Harrisonburg, VA: Sprinkle, 1994), 1:578-620; see also Adrienne Koch, ed., The American Enlightenment: The Shaping of the American Experiment and a Free Society (New York: George Braziller, 1965), 461-62; for Jefferson (as the anonymous author of the "Kentucky Resolutions"), see "The Kentucky Resolutions, November 16, 1798," Liberty and Justice: A Historical Record of American Constitutional Development, James Morton Smith and Paul L.Murphy, eds., (New York: Alfred A. Knopf, 1958), 100-104.

4. As our sage, wise, and terse leader, Robert Dole, has said, "Whatever."

5. Speaking as a board member of the National Reform Association, I have reservations about holding the Constitution to a biblical standard for secession, whatever such a standard would entail, since the position of NRA members with respect to the biblical status of the Constitution is, shall we say, mixed. Furthermore, it would seem to me that the notion of biblical contract needs to be clarified. For example, is it possible to make a biblical contract with another that requires one party to fulfill the terms of the contract despite breaching conduct by the other party? If so, it would seem to be possible to have a biblical contract where secession is not an option.

6. As characterized by one of the Anti-Federalists: If it be further considered, that this constitution, if it is ratified, will not be a compact entered into by states, in their corporate capacities, but an agreement of the people of the United States, as one great body politic, no doubt can remain, but that the great end of the constitution, if it is to be collected from the preamble, in which its end is declared, is to constitute a government which is to extend to every case for which any government is instituted, whether external or internal.... The first great object declared to be in view is "To form a perfect union." It is to be observed, it is not an union of states or bodies corporate; had this been the case the existence of the state governments, might have been secured. But it is a union of the people of the United States considered as one body, who are to ratify this constitution, if it is adopted. "Brutus' XII, February 7 and 14, 1788," The Debate on the Constitution, 2 vols., Bernard Bailyn, ed. (New York: Literary Classics of the United States, Inc., 1993), 2:173-74.

7. "Address to the People of the United States," (Liberty and Justice), 168.8 Harry V. Jaffa, Original Intent and the Framers of the Constitution (Washington, D.C.: Regnery Gateway, 1994), 24. See also John C. Calhoun, "A Disquisition on Government" Union and Liberty: The Political Philosophy of John C. Calhoun, Ross. M. Lence, ed. (Indianapolis: Liberty, 1992), 5-6, 44-45.

8. Harry V. Jaffa, Original Intent and the Framers of the Constitution (Washington, D.C.: Regnery Gateway, 1994), 24. See also John C. Calhoun, A Disquisition on Government Union and Liberty: The Political Philosophy of John C. Calhoun, Ross. M. Lence, ed.; Indianapolis: Liberty, 1992), 5-6, 44-45.

9. Calhoun, "Disquisition," 44-45; John C. Calhoun, "Speech on the Oregon Bill," Union and Liberty, 565-70.

10. "The Articles of Confederation," The Debate on the Constitution, 1:954.

11. The States retained this concomitant of sovereignty, along with those of nullification and interposition: "But clear and undoubted as we regard the right, and sacred as we regard the duty of the States to interpose their sovereign power for the purpose of protected their citizens from the unconstitutional and oppressive acts of the Federal Government, yet we are as clearly of the opinion, that nothing short of that high moral and political necessity, which results from acts of usurpation, subversive of the rights and liberties of the people, should induce a member of this confederacy to resort to this interposition." ("Address to the People of the United States," Liberty and Justice, 168-69).

12. Ibid., 168.

13. Andrew Jackson, "Proclamation to the People of South Carolina," Liberty and Justice: A Historical Record of American Constitutional Development, James Morton Smith and Paul L. Murphy, eds. (New York: Alfred A. Knopf, 1958), 171.

14. Daniel Webster, "Reply to Hayne," Daniel Webster: Representative Speeches; Little Masterpieces, Bliss Perry, ed. (New York: Doubleday and McClure, 1901), 146-48, 152, 170-71.

15. M'Culloch v. Maryland, 17 U.S. 316, 4 L.Ed 579, 607 (1819).

16. Furthermore, both the quotes of Madison and Lincoln and the proponents of the nationalist position would appear to indicate that those that claim that somehow Lincoln was the originator of the seeds of the centralizing nationalism that we see today are simply mistaken. Such a centralizing tendency had been around since the Federalists. Furthermore, the Fourteenth Amendment, interpreted properly, contributes no more to "centralization" than anything else. Like the old saying, "If one wants to beat a dog, any old stick will do," the courts do not need the Fourteenth Amendment to centralize. All they need is John Marshall!

17. "The Federalist LI," Debate, 2:166; see also Koch, 464-65 and Felix Morley, Freedom and Federalism (Chicago: Henry Regnery, 1959), 24, 27 (citing Records of the Federal Convention of 1787 [Max Ferrand, ed.; New Haven: Yale, 1937], 1:57, 134-35).

18. "The Federalist XLVI," Debate, 2:109.

19. "The Federalist XLIV," Debate, 2:95

20. Koch, 479. For example, the Constitution of New Hampshire (1784) reads as follows:

I. All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.

II. All men have certain natural, essential, and inherent rights; among which are--the enjoying and defending life and liberty--acquiring, possessing and protecting property--and in a word, of seeking and obtaining happiness.

III. When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others; and, without such an equivalent, the surrender is void.

The Constitution of Virginia (1776) states:

SECTION 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, pursuing and obtaining happiness and safety.

The Constitution of Massachusetts (1780) says:

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.

21. Koch, 448.

22. Koch, 529-30.

23. Of course, in the antebellum United States, the Tenth Amendment served only to limit the national or general government in its relationship to the States or the people generally. As a result of the addition of the postbellum Fourteenth Amendment, the States are not permitted to deprive individuals of those rights as well.

24. Jaffa, Original Intent, 26 (quoting The Writings of James Madison [Gaillard Hunt, ed.; Putnam, 1910]), 9:221; The Complete Jefferson, , (Saul Padover, ed., New York: Tudor Publishing Company, 1943), 1112.

25. "The Federalist XXXIX," Debate, 2:32.

26. Koch, 483.

27. Harry V. Jaffa, The Conditions of Freedom (Baltimore: Johns Hopkins University, 1975), 179 (quoting Gaillard Hunt, ed., The Writings of James Madison [New York: Putnam, 1910], 9:497).

28. A theory that proposed that sectional minorities have veto or nullifying power over actions by the majority that threatened the minority's rights. This doctrine has been revived in recent years by Lani Guinier who proposed that African-Americans have veto power over legislation seen as threatening their civil rights. Calhoun, in his day, seems to have missed the irony of contending for rights that trump national power when his theory militates against the notion of minority rights. If rights have no antecedent existence to the sovereign, on what basis may the sovereign be opposed?

29. Abraham Lincoln, Speeches and Writings 1832-1858 (The Library of America, Don E. Fehrenbacher. ed.; New York: Literary Classics of the United States, 1989), 397-98.

30. Ibid., 398-99.

31. Roy P. Basler, ed., Abraham Lincoln: His Speeches and Writings (New York: De Capo, 1946), 580.

32. Ibid., 582-83.

33. Ibid., 605-606.

34. The rights and powers of the people apart from their participation from in either state or national government were implicitly recognized in the wording of the Ninth and Tenth Amendments:

NINTH. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People.

TENTH. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Note that the phrases are "by the People" and "to the people," not "by the People of the States" or "to the people of the States."

This apparently was not explicit enough because the Fourteenth Amendment was thought to be necessary to restrain the States from depriving the people of reserved rights and powers even as the National government had been restrained. The reason for this is simple: the Founding Fathers feared the power of the new national government they were establishing and thought the states would be more likely to vindicate the rights of the people (with the requisite ambivalence regarding the status of the slaves as seen in the compromise provisions of the Constitution). The events leading up to the Civil War demonstrate that the states are not necessarily the best protectors, either. Local tyranny is no improvement over national tyranny. Nevertheless, as demonstrated above, Lincoln had not taken office with the intention of abolishing slavery in the Southern States. There is some indication, however, that the postbellum Constitutional amendments were on the drawing board during his administration. Finally, the fact that the Fourteenth Amendment is used as a pretext to protect new rights not envisioned in the Declaration does not alter the fact that "the people" need vindication against any governmental authority that acts in derogation of reserved rights and powers.

Interestingly, Raoul Berger sees the Ninth Amendment as simply giving the people permission to protect additional rights through amendment, a power already conferred by Article V. Considering that the first ten amendments were added to protect the people against concerns that the national government was given too much power, this seems a curious redundancy. It also places the people in the position of not retaining rights automatically but having to engage in a positive step to define them. (Raoul Berger, "The Ninth Amendment," The Rights Retained by the People, Randy E. Barnett [Fairfax, VA: George Mason University, 1989], 205). Robert Bork believes that the Ninth is redundant of the Tenth and interprets the Tenth to say that the unenumerated rights of individuals consist only of those "specified already in the state constitutions." (Robert H. Bork, The Tempting of America: The Political Seduction of the Law [New York: Free Press, 1990], 185).

As can be seen, in neither case do rights exist beyond their specification in a government document, whether state or national.

35. "Publius, The Federalist XXXIX," Debate, 2:32.

For no scrutable reason, there is a link to this article from Christian Oregon Single and lots more..., so now there is a link back.

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