I was asked a question the other day that I thought would make a good article. Did the southern states have a right to secede from the union? And what does that mean for those talking about the state of Texas seceding today?
Secession and the Constitution
There is no language in the Constitution about secession, no standards for when a state may secede, and no process for one to do so. Yet states are sovereign entities. Since they joined the union voluntarily, should they not be able to exit the union as well?
Finding nothing in the Constitution, I went to my next go-to reference, the Federalist and Anti-Federalist Papers. The Anti-Federalist did not mention secession at all. However, James Madison in Federalist #58, thought that having too many members in the House of Representatives would foster the “baneful practice of secessions“.
Next, I went to the constitutional debates and searched for discussions on secession. Early in the debates about the changes needed to the Articles of Confederation, a concern was raised by the fact that the commissions for the delegates from Delaware prevented them from agreeing to any change to the rules of suffrage for the states. Gouvenor Morris noted:
that the valuable assistance of those members could not be lost without real concern, and that so early a proof of discord in the convention as a secession of a State, would add much to the regret;
The Records of the Federal Convention of 1787 [Farrand’s Records, Volume 1, p. 37]
The idea that early in the process a state would leave the convention, much less the union, would be a real problem. It would show so much discord in the convention as to make it unworkable. During a rather raucous debate about a comment about the powers larger states may wield over smaller ones, Elbridge Gerry said:
If no compromise should take place what will be the consequence. A secession he foresaw would take place; for some gentlemen seem decided on it; two different plans will be proposed, and the result no man could foresee. If we do not come to some agreement among ourselves some foreign sword will probably do the work for us.
The Records of the Federal Convention of 1787 [Farrand’s Records, Volume 1, p. 532]
Rather than concern over their reputation and effectiveness, John Francis Mercer was concerned that secession of a state from the convention could be used at a critical moment to endanger the government itself.
Later, while debating how many of the members of the House of Representatives would constitute a quorum, Mr. Mercer stated:
So great a number will put it in the power of a few by seceding at a critical moment to introduce convulsions, and endanger the Governmt.
The Records of the Federal Convention of 1787 [Farrand’s Records, Volume 2, p. 252]
The idea of a state seceding from the union was considered a bad one. It could be used for political machinations, and states willing to do so would possess undue influence on the union.
Why No Secession
So why did the Founding Fathers not provide a way for a state to leave the union? I believe the answer comes from Mr. Mercer’s quote above. If a state were given a method of seceding, it would be human nature for that power to be used, in effect, to blackmail the rest of the states. As Gouvernor Morris noted:
Besides other mischiefs, if a few can break up a quorum, they may sieze a moment when a particular [part] of the Continent may be in need of immediate aid, to extort, by threatening a secession, some unjust & selfish measure.
The Records of the Federal Convention of 1787 [Farrand’s Records, Volume 2, p. 252]
The power to secede would give a single state the ability to coerce the other states. It would allow the tyranny of the minority over the majority. Think of how the U.S. Senate works today: A minority of Senators can thwart the will of the majority for whatever reason they wish, or for no reason at all. Imagine if states had this power?
This was tried in 1860 when 11 states claimed the authority to secede from the union. Although the states were sovereign, they’d agreed to the compact that is the Constitution, which did not give them a method for for exiting. At the very least, since states can only be added to the union by Congress (Article VI, Section 3), an argument can be made that they can only be released from their obligations by Congress, something that did not happen in 1860.
There has often been talk about Texas seceding. It is noted that since Texas was a republic, i.e., its own nation, before it joined the union, it is uniquely positioned to leave it. However, each of the original 13 states were also their own nations before joining the union. Regardless of the state of land prior to joining the union, they agreed to be bound by the Constitution and give it supremacy over their own laws and constitutions (Article VI, Clause 2).
Conclusion
In 1860, states which were unhappy with the new President, Abraham Lincoln, started talking about secession. Labeled an act of war by some, and predicting armies coming to steal their property (Dred Scott v. Sandford, 1857), several states unhappy with the current political environment in Washington, D.C., illegally broke away from the union rather than continue with the political process, and by this action started a war. Now look at the political discourse in Washington, D.C. today. We have states that are unhappy with our current President, Donald Trump. We have claims about corruption and the illegal use of federal power. And we have threats of impeachment, with as yet no evidence presented of the claims against the President. Now imagine if states had the authority to secede, what do you think would happen? If those in political power will use impeachment as a tool to overturn an election for political reasons, is it not conceivable they would use the threat of secession as well? Imagine if states like New York and California could threaten to secede from the union if the Representatives from other states did not vote for impeachment and Senators vote for conviction. Do you think Washington, D.C. would be more or less dysfunctional under those circumstances?
Contrary to what some have said, there is no legal way for states to secede from the union. I, for one, am very thankful for that fact. It pressures states unhappy with the current circumstances to continue to work through the process rather than just take the ball and go home.
