QUESTION: Was – Is – Secession Legal?

SECESSION - Map of North America after Confederacy was formed

by Diane Rufino, but based in large part on Leonard “Mike” Scruggs book THE UN-CIVIL WAR, January 19. 2018

On July 4, 1776, thirteen British colonies announced their secession from Great Britain and declared to the world their just reasons: “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the Earth the separate and equal station to which the Laws of Nature and Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to separate.” (paragraph 1 of the Declaration of Independence)

The Declaration of Independence (second paragraph) goes on to say: “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 of 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….”

The Declaration then goes o to list numerous grievances against the British Crown and Parliament. Most of these have to do with the British Crown and Parliament usurping the powers of the colonial legislatures, but mention is made of the King keeping troops among the colonists in times of peace, quartering British troops, cutting off colonial trade with the rest of the world, taxing the colonists without their consent (representation), depriving colonists the benefits of trial by jury, arbitrarily dissolving colonial charters, inciting insurrection against the colonies (including among the unfriendly Indian tribes), and more. (Ironically, the one thing not mentioned among the list of 27 grievances was the disarming of the colonists and confiscation of their arms and ammunition – the one thing that inspired Patrick Henry to submit resolutions he’d written to the Virginia colonial legislature to build and train a militia from each county; “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?….. The war is inevitable–and let it come! I repeat it, sir, let it come. The war has actually begun. The next gale that sweeps from the north will bring to our ears the clash of resounding arms. Our brethren are already in the field. Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?  I know not what course others may take; but as for me, give me liberty or give me death!”)  After the listing of the specific grievances, the Declaration emphasized that neither the King nor Parliament would listen to their complaints and pleas for relief. “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

In the closing paragraph, the signers declare that the colonies are “Free and Independent States.” This paragraph also contains the words “appealing to the Supreme Judge of the World” and “with firm Reliance on the Protection of divine Providence.”  Note that the United States of America were not formed into a single national state, but a confederation of independent and sovereign states.

Previous to the Declaration of Independence, both North Carolina (May 20, 1775) and Virginia (early 1776) had already declared their independence from Great Britain. North Carolina took the lead in calling for independence from Great Britain, and her state flag reflects the two historic dates on which she did so – May 20, 1775 and April 12, 1776. On May 20, 1775, a Charlotte government committee drafted the Mecklenburg Resolves which declared the residents of Mecklenburg County, NC independent of Great Britain:

Resolved, That we the citizens of Mecklenburg county, do hereby dissolve the political bands which have connected us to the Mother Country, and hereby absolve ourselves from all allegiance to the British Crown, and abjure all political connection, contract, or association, with that nation, who have wantonly trampled on our rights and liberties — and inhumanly shed the innocent blood of American patriots at Lexington.

Resolved, That we do hereby declare ourselves a free and independent people, are, and of right ought to be, a sovereign and self–governing Association, under the control of no power other than that of our God and the General Government of the Congress; to the maintenance of which independence, we solemnly pledge to each other, our mutual co-operation, our lives, our fortunes, and our most sacred honor.

Resolved, That as we now acknowledge the existence and control of no law or legal officer, civil or military, within this country, we do hereby ordain and adopt, as a rule of life, all, each and every of our former laws, wherein, nevertheless, the Crown of Great Britain never can be considered as holding rights, privileges, immunities, or authority therein.

On May 31, the Committee put the document in final form and adopted it. The updated document announced that all the colonies were independent of Great Britain:  “Whereas by an Address presented to his Majesty by both Houses of Parliament in February last, the American Colonies are declared to be in a State of actual Rebellion, we conceive that all Laws and Commissions confirmed by, or derived from the Authority of the King or Parliament, are annulled and vacated, and the former civil Constitution of these Colonies for the present wholly suspended. To provide in some Degree for the Exigencies of the County in the present alarming Period, we deem it proper and necessary to pass the following Resolves:  (1) That all Commissions, civil and military, heretofore granted by the Crown, to be exercised in these Colonies, are null and void, and the Constitution of each particular Colony wholly suspended……….”

The Resolves were delivered to the North Carolina delegation meeting at the Continental Congress with the hope that the entire Congress would vote and adopt it. The Congress felt the time was not right and did not take the matter up.

On April 12, 1776, the Fourth Provincial Congress, meeting in Halifax County, adopted the “Halifax Resolves,” which gave North Carolina’s delegates to the Continental Congress the authority to vote for independence. It was the first state to give such authority to its delegates.

On May 4, 1776, the colony of Rhode Island declared herself independent of Great Britain, and in late May – June, the Fifth Virginia Convention passed a series of resolutions rejecting all aspects of British authority and establishing a new form of independent government for the Commonwealth of Virginia. Richard Henry Lee, of Virginia, then urged the Continental Congress to follow Virginia’s (and North Carolina’s) lead.

On June 7, 1776, Lee introduced a resolution (the Lee Resolution) to the Second Continental Congress in Philadelphia declaring independence, and John Adams seconded the motion.

Lee’s resolution declared “That these United Colonies are, and of right out to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved; that measures should be immediately taken for procuring the assistance of foreign powers, and a Confederation be formed to bind the colonies more closely together.”

The Continental Congress adopted the resolution, finally declaring independence for the 13 colonies, on July 2, but this day has been largely forgotten in favor of July 4, when the “formal” Declaration of Independence, written by Thomas Jefferson, was adopted.

Clearly, the idea that a people could separate from a government that did not serve them, or in the worst case, had become tyrannical and abusive, was something the colonists believed was a natural right.

The right of self-determination for people seeking independence is firmly established in international law. With US backing, Panama seceded from Columbia in 1903. Norway seceded from Sweden in 1905. In the United States, the right of self-determination and therefore secession is supported by the precedence of the Declaration of Independence which declared our own secession from Great Britain.

While the Declaration of Independence is of immense importance as a founding document, it is the Constitution of 1787 and the Bill of Rights ratified in 1791 that are the official founding documents. The Constitution was made official by the approval of the people of each state acting independently in convention, not by the people of the United States in general. Nor did these states surrender their sovereignty to the United States. Only limited government powers were delegated to the Federal Government and every state reserved the right to withdraw these powers. In fact, three states – Rhode Island, Virginia, and New York – specifically stated in their ratifications that they reserved the right to withdraw. Other states had less strongly-worded reservations, but no state would have ratified the Constitution if they believed that in doing so they would be surrendering their newly-won independence.

When New York delegates met on July 26, 1788, their ratification document read, “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

On May 29, 1790, the Rhode Island delegates made a similar claim in their ratification document. “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

On June 26, 1788, Virginia’s elected delegates met to ratify the Constitution. In their ratification document, they said, “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 or oppression and that every power not granted thereby remains with them and at their will.”

As demonstrated by the ratification documents of New York, Rhode Island and Virginia, they made it explicit that if the federal government perverted the delegated rights, they had the right to resume those rights. In fact, when the Union was being formed, where the states created the federal government, every state thought they had a right to secede, otherwise there would not have been a Union.

It was to guarantee the sovereignty of the states that the Ninth and Tenth Amendments were added to the Bill of Rights. The Tenth Amendment is a particularly straightforward restatement of the federal nature of the government established by the Constitution: “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.”

Since the Constitution was ratified by sovereign states who desired to retain their sovereignty, the document is classified as a social compact. In essence, it is a contract and thereby its legality is guided by contract law, one of the oldest areas of law. The Constitution is a compact – a contract – between the individual sovereign states, which are the parties, to create the federal government (the creature, or if likening the compact to agency law, the government would be the agent) in order to carry out certain common functions for the states in order that the Union itself could be successful. In the case of Chisholm v. State of Georgia (1793), the Supreme Court expressly declared that the US Constitution is a compact. The right of withdrawal or secession is inherent in the basic document (ie, the right of secession “supersedes” the Constitution) and the Ninth and Tenth Amendments further establish it as a right retained or reserved to each state. It is the option of each state, not the federal government (merely the creature or agent), as to whether it shall remain in the Union or whether it will withdraw. The right of secession was almost universally accepted until Lincoln came up with a new theory of the Constitution – based on a treatise on the Constitution, Commentaries on the Constitution of the United States, written in 1833 by then Supreme Court associate Justice Joseph Story. [It should be noted that Story’s treatise was highly criticized by leading constitutional experts of the day – including Henry St. George Tucker, Sr., John Randolph Tucker, Abel Parker Upshur, James Kent, and John C. Calhoun. Calhoun was revered as an expert on the Constitution and perhaps even more “Jeffersonian” than Jefferson himself.]

New Hampshire’s constitution of 1792 contains very strong words reserving its sovereign powers as a state. In 1798, Thomas Jefferson and James Madison circulated the Kentucky and Virginia Resolutions among the states. These resolutions strongly supported the Doctrine of States Rights and thus also the right of secession. Together these resolutions became known as the “Principles of ’98.”

The Kentucky Resolution, the work of Thomas Jefferson, asserted States’ Rights in very strong terms: “If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy….”  (Kentucky Resolutions or Kentucky Resolves of 1799)

The Virginia Resolution, the work of James Madison, asserted States Rights also in very strong terms; perhaps stronger: “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 the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a 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 for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”  (Virginia Resolutions or Virginia Resolves of 1798)

The doctrines of Nullification, Interposition, and Secession are all rights reserved to the states under Natural Law (the Law of Nature and God’s Law) and by the US Constitution (both implicitly by the limited nature of the delegations of power to the federal government, and expressly by the Tenth Amendment). Furthermore, they are remedies available under contract theory (compact law).

None of the states disagreed with the “Principles of ‘98” (which, by the way, were articulated to resist the unconstitutional Alien & Sedition Acts, signed into law by President John Adams, which were gross violations of several of the Bill of Rights, but most notably the First Amendment).

The New England states threatened secession on five occasions: (1) In 1803 because they feared the Louisiana Purchase would dilute their political power; (2) In 1807 because the Embargo Act was unfavorable to their commerce; (3) In 1812, over the admission of Louisiana as a state; (4) In 1814 (the Hartford Convention) because of the War of 1812; and (5) In 1814, over the annexation of Texas (which had seceded from Mexico). Additionally, many New England abolitionists favored secession because the Constitution allowed slavery.  From 1803 to 1845, anytime that New England felt that their political power or commercial power might suffer, they threatened secession. Yet when the Southern states did the same, a war was initiated to force them to remain in the Union against their wishes.

As early as 1825, the right of secession was taught at West Point. William Rawle’s View of the Constitution, which was used as a text at West Point in 1825 and 1826 (and thereafter as a reference), specifically taught that secession was a right of each state. Rawle was a friend of both George Washington and Benjamin Franklin and his 1825 text was highly respected and used at many colleges. A subsequent text by James Kent maintained the same position and was used at West Point until the end of the war in 1865. Several Union and Confederate generals were at West Point during the time Rawle’s text was used. Rawle even spelled out the procedure for a state to secede, explaining: “The secession of a state from the Union depends on the will of the people of each state. The people alone… hold the power to alter their Constitution.”

The right of secession was very well-stated by none other than Congressman Abraham Lincoln himself in 1848: “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. This is a most valuable and most sacred right, a right which we hope and believe is to liberate the world.”

That same year, Lincoln further stated: “Any people that can may revolutionized and make their own of so much territory as they inhabit.”

But in 1861, Lincoln adopted a view of secession more expedient to holding the Southern states in the Union against their will. He discovered the theory that Supreme Court associate Justice Joseph Story concocted in his 1833 Commentaries on the Constitution of the United States, asserting that there was an American nation in the minds of the people before the States were formed. This humbuggery had been strengthened by Daniel Webster’s eloquent but disingenuous and speeches to Congress, claiming that the Constitution was not a compact.

So, Lincoln characterized the orderly, democratic Secession Conventions of South Carolina and the Gulf States, conducted in accordance with Rawle’s treatise on the Constitution, and carried out step-by-step in the same manner as the states when they declared their independence from Great Britain and formed the United States of America, as a rebellion perpetrated by a small minority and proceeded on a path that every member of his Cabinet meant war.

As to the question of whether Secession is legal today, the answer is yes. Again, the right is an inherent and natural right, seared into our history by example (secession from Great Britain), implied by the very limited nature of the general government created by the Constitution and the limited powers delegated to it under that document, and expressly reserved to the states by the Tenth Amendment.  Lincoln’s government may have waged a war to somehow reclassify the nature of the conduct of the Southern states in 1860-61 (“rebellion” rather than secession) in order to force those states back into the Union, but its actions cannot change the fact that those states exercised a natural and inherent sovereign right. The Constitution was never amended to prohibit that right to a State and despite attempts to judicially remove it, as well requiring the Southern states to include such a prohibition in their amended state constitutions (in order for them to be “re-admitted” to the Union that Lincoln said they never left), such actions are merely exercises in futility; they are extra-constitutional actions that lack authority or power of enforcement. The right of a people of self-determination, as it applies to government, can never be legislated, decreed, or written away. It is an inalienable right, having its place among the other Laws of Nature and among God’s Law.

***  For an in-depth discussion on the topic of Social Compact, why the US Constitution is, in fact, a social compact, and the remedies naturally available to the parties of a compact (which in our case are the individual states), including the remedy of secession, please read by article “The Social Compact and Our Constitutional Republic,” which is the article preceding this one.

BOOK - The Un-Civil War (Mike Scruggs)

— This article is based, in good part, on Leonard “Mike” Scrugg’s book: THE UN-CIVIL WAR: SHATTERING THE HISTORICAL MYTHS (Chapter 6, Constitutional Issues and the Un-Civil War). The purpose of this article and the reason for relying so heavily on Mr. Scruggs’ book is to get the reader interested not only in the topic at hand but also to be motivated to purchase and read his most excellent book in its entirety and then to share the information with others!

References:

Leonard “Mike” Scrugg’s, THE UN-CIVIL WAR: SHATTERING THE HISTORICAL MYTHS (Chapter 6, Constitutional Issues and the Un-Civil War), 2011, Universal Media (Asheville, NC).

Walter Williams, “States Have a Historical Right to Secede,” Columbia Tribune, April 25, 2009. Referenced at: http://www.columbiatribune.com/02023ee6-5191-5fd7-85a8-b533bfab9c2e.html [The section on the Rhode Island, Virginia, and New York Resumption Clauses – included at the time that these states adopted the US Constitution – is taken entirely from Mr. Williams’ article]

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About forloveofgodandcountry

I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney
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