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Is Secession Constitutional?


It seems to me that many of the arguments supporting the Southern states’ secession from the Union in 1861 hinge upon whether secession is constitutional. The U.S. Constitution provides no explicit mechanism for secession. However, one could argue that the Tenth Amendment reserves the power of secession to the states because the Constitution doesn’t explicitly prohibit secession. Also, while the Constitution says it takes ratification by nine states to put the Constitution in force, it doesn’t say anything about what it takes for a state to ratify the Constitution. So the fact that there’s no mechanism for secession doesn’t rule out the states’ having power to secede.
Still, it does seem a bit counterintuitive that a document created with the explicit intent “to form a more perfect union” would have created a lesser bond between the states than even the Articles of Confederation, which the Constitution replaced, established. James Madison, the “Father of the Constitution”, argued in Federalist #43 about this particular deficiency in the Articles:

It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void.

In short, the Articles of Confederation enjoyed little more than treaty status among several sovereign nations, and any one of these little nations could shatter the treaty unilaterally. The Constitution, then, was intended to be something more binding and more lasting.

Patrick Henry, who opposed the adoption of the Constitution, also noted the sea change in the nature of the states’ relationship in his objections: “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.”
So one of the Constitution’s leading opponents clearly understood the different character of government that the Constitution would impose upon the American people. But it would take a controversy at the New York convention debating ratification of the Constitution to brightly illumine what was the Founding Fathers’ original intent for the new nation. Akhil Reed Amar, professor of law at Yale, wrote in the New York Times:

“Did a state that said yes in the 1780’s retain the right to unilaterally say no later on, and thereby secede?…it was in New York that the answer emerged most emphatically….anti-Federalists proposed a compromise: they would vote to ratify, but if the new federal government failed to embrace various reforms that they favored, ‘there should be reserved to the state of New York a right to withdraw herself from the union after a certain number of years.’ At the risk of alienating swing voters and losing on the ultimate ratification vote, Federalists emphatically opposed the compromise. In doing so, they made clear to everyone — in New York and in the twelve other states where people were following the New York contest with interest — that the Constitution did not permit unilateral state secession. Alexander Hamilton read aloud a letter at the Poughkeepsie convention that he had received from James Madison stating that ‘the Constitution requires an adoption in toto, and for ever.’ Hamilton and John Jay then added their own words, which the New York press promptly reprinted: ‘a reservation of a right to withdraw’ was ‘inconsistent with the Constitution, and was no ratification.’ Thus, it was New York where the document became an irresistible reality and where its central meaning — one nation, democratic and indivisible — emerged with crystal clarity.”

Indeed, the words of the Founding Fathers make it clear that the Constitution of the United States was intended to form not only “a more perfect union”, but a permanent one.

Of course, one might still argue that this intent only holds true of the original Constitution — that once the Tenth Amendment was ratified, the states gained the power of secession in light of there being no explicit constitutional prohibition of that power. In which case the secession of the Southern states might actually mark the first time, though it certainly wouldn’t be the last time, that an Amendment was construed to establish a power or right that the writers of that Amendment had no conception of — *COUGH* Obergefell *COUGH* — mm, sorry, had to clear my throat there.

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  1. “Constitutional Convention” courtesy of

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Mike, Who Speaketh His Mind

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