Questions of Secession (part three)

James Madison, c. 1821

part three of five

I’ve been chatting about secession lately with historian Nathan Hall of Richmond National Battlefield Park. Nathan has been studying the topic deeply for many years and recently spoke on it at the Richmond Civil War Roundtable. I think you’ll enjoy his thoughts, too.

Doug: Did the founders fail to anticipate the possibility of secession? Or, did they leave it intentionally vague?

Nathan: The United States Constitution presents something of a paradox when it comes to the concept of secession, or of how to address some part of the union of states voluntarily separating from the whole. Or course, the word “secession” does not appear in the U.S. Constitution or its amendments, causing one to wonder if the people who negotiated the text of the document somehow failed to foresee the potential for future conflict.

On one hand, if the authors had intended for the union to be dissolvable by some method, why not declare it explicitly in the text and enumerate the procedures that should be followed to complete the separation (as they did with the procedures for conducting elections, regulating commerce, etc., in detail)? On the other hand, if the authors intended that no state should be permitted to leave the union under any circumstances, why not explicitly state as much in plain language, as the previous constitution document—the Articles of Confederation—had done. The full title of the previous document was, in fact, “The Articles of Confederation and Perpetual Union,” and included the unambiguous passage: “the Union shall be perpetual.” When those articles were replaced by the U.S. Constitution, the new document contained no such explicit statement.

This does not mean, however, that the representatives who assembled to draft and debate the constitution failed to anticipate the potential for disunion in the future. Instead, the absence of explicit statutes regarding secession clearly indicates how divided they were upon the subject. Arguing fervently against the adoption of the constitution, the profoundly respected statesman Patrick Henry presciently identified precisely which ambiguities might one day be the basis for the fracturing of the union.

“The fate… of America may depend on this,” Henry said, “have they made a proposal of a compact between the states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing—the expression, We, the people, instead of the states, of America.” This distinction between whether the authority of the federal government originated with formal state governments or with the populace, considered as a whole, was exactly the crux of the eventual secession crisis.

Opponents of the constitution in New York in fact attempted to remedy any potential confusion by proposing that their ratification should be contingent on adding the proviso that “there should be reserved to the state of New York a right to withdraw herself from the union after a certain number of years.” In response, pro-constitution delegate Alexander Hamilton read aloud a letter from Virginian James Madison, who declared, “the Constitution requires an adoption in toto, and for ever.” (emphasis in original) Madison went on the note that, “The idea of reserving a right to withdraw was started at Richmond, and considered as a conditional ratification which was itself abandoned as worse than a rejection.” Hamilton and fellow delegate John Jay, in addition, told the convention that “a right to withdraw [was] inconsistent with the Constitution, and was no ratification.” When the debates had concluded, the New York convention ratified the constitution without the withdrawal provisions proposed by the anti-federalists.

Ultimately unable to fashion a compromise between two poles of an all-or-nothing proposition, the constitution’s creators allowed it to remain ambiguous. Thus, the secession paradox in the constitution is by design, not by mistake.

To be continued….

Questions of Secession (part three)