Those who claim it is legal for a state to unilaterally secede are either ill-informed, monumentally stupid, or completely dishonest. Take your pick. Those who are ill-informed can be educated. Unfortunately, we can’t fix stupid, and dishonest won’t be fixed.
I’ve discussed aspects of secession’s illegality before, but I thought I’d make this page so it’s easy to find instead of searching the archives.
First of all, let’s look at the case law prior to the Civil War that oppose the ideas on which secession is based, namely that states are sovereign over the United States.
While secession never came up in Court cases prior to the war, there were cases that dealt with the relations of states with each other and with the Federal government. If secession was a legal thing to do, it would be inconsistent with this body of case law.
In Chisholm v. Georgia, Justice James Wilson wrote, “As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the ‘People of the United States,’ did not surrender the Supreme or Sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign State. If the Judicial decision of this case forms one of those purposes; the allegation, that Georgia is a sovereign State, is unsupported by the fact.” [2 US 419, 457] He further wrote, “The articles of confederation, it is well known, did not operate upon individual citizens; but operated only upon states, This defect was remedied by the national Constitution, which, as all allow, has an operation on individual citizens. But if an opinion, which some seem to entertain, be just; the defect remedied, on one side, was balanced by a defect introduced on the other: For they seem to think, that the present Constitution operates only on individual citizens, and not on States. This opinion, however, appears to be altogether unfounded. When certain laws of the States are declared to be ‘subject to the revision and controul of the Congress;’ it cannot, surely, be contended that the Legislative power of the national Government was meant to have no operation on the several States. The fact, uncontrovertibly established in one instance, proves the principle in all other instances, to which the facts will be found to apply. We may then infer, that the people of the United States intended to bind the several States, by the Legislative power of the national Government. In order to make the discovery, at which we ultimately aim, a second previous enquiry will naturally be Did the people of the United States intend to bind the several States by the Executive power of the national Government? The affirmative answer to the former question directs, unavoidably, an affirmative answer to this.” [2 US 419, 464] He concludes, “Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied, that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for such purposes, a national Government, complete in all its parts, with powers Legislative, Executive and Judiciary; and, in all those powers, extending over the whole nation. Is it congruous, that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national Government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? When so many trains of deduction, coming from different quarters, converge and unite, at last, in the same point; we may safely conclude, as the legitimate result of this Constitution, that the State of Georgia is amenable to the jurisdiction of this Court.” [2 US 419, 465-466] According to Justice William Cushing, “Whatever power is deposited with the Union by the people for their own necessary security, is so far a curtailing of the power and prerogatives of States. This is, as it were, a self-evident proposition; at least it cannot be contested. Thus the power of declaring war, making peace, raising and supporting armies for public defence, levying duties, excises and taxes, if necessary, with many other powers, are lodged in Congress; and are a most essential abridgement of State sovereignty. Again; the restrictions upon States; ‘No State shall enter into any treaty, alliance, or confederation, coin money, emit bills of credit, make any thing but gold and silver a tender in payment of debts, pass any law impairing the obligation of contracts;’ these, with a number of others, are important restrictions of the power of States, and were thought necessary to maintain the Union; and to establish some fundamental uniform principles of public justice, throughout the whole Union. So that, I think, no argument of force can be taken from the sovereignty of States.” [2 US 419, 468] Finally, Chief Justice John Jay wrote, “The people, in their collective and national capacity, established the present Constitution. It is remarkable that in establishing it, the people exercised their own rights, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, ‘We the people of the United States, do ordain and establish this Constitution.’ Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner. By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, etc. etc.” [2 US 419, 470-471]The Supreme Court of the United States, in this first great decision it made, clearly declared a state was not sovereign. “In Chisholm, the Justices of the Supreme Court rejected Georgia’s claim to be sovereign. They concluded instead that, to the extent the term ‘sovereignty’ is even appropriately applied to the newly adopted Constitution, sovereignty rests with the people, rather than with state governments.” [Randy E. Barnett, “The People or the State? Chisholm v. Georgia and Popular Sovereignty,” Virginia Law Review, Vol. 93 (2007), p. 1730]
In Fletcher v. Peck, the U.S. Supreme Court ruled, “But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution. She is a part of a large empire; she is a member of the American union; and that union has a constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several states, which none claim a right to pass.” [10 U.S. 87, 136]
In McCullough v. Maryland, Chief Justice John Marshall wrote: “In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the Constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the General Government, it has been said, are delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion.It would be difficult to sustain this proposition. The convention which framed the Constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might ‘be submitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification.’ This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject — by assembling in convention. It is true, they assembled in their several States — and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is ‘ordained and established’ in the name of the people, and is declared to be ordained, ‘in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.’ The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.” [17 US 316, 402-404]
Chief Justice Marshall further ruled in this case, “It has been said that the people had already surrendered all their powers to the State sovereignties, and had nothing more to give. But surely the question whether they may resume and modify the powers granted to Government does not remain to be settled in this country. Much more might the legitimacy of the General Government be doubted had it been created by the States. The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the formation of a league such as was the Confederation, the State sovereignties were certainly competent. But when, “in order to form a more perfect union,” it was deemed necessary to change this alliance into an effective Government, possessing great and sovereign powers and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The Government of the Union then (whatever may be the influence of this fact on the case) is, emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist. In discussing these questions, the conflicting powers of the General and State Governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled. If any one proposition could command the universal assent of mankind, we might expect it would be this — that the Government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the Government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason; the people have, in express terms, decided it by saying, ‘this Constitution, and the laws of the United States, which shall be made in pursuance thereof,’ ‘shall be the supreme law of the land,’ and by requiring that the members of the State legislatures and the officers of the executive and judicial departments of the States shall take the oath of fidelity to it. The Government of the United States, then, though limited in its powers, is supreme, and its laws, when made in pursuance of the Constitution, form the supreme law of the land, ‘anything in the Constitution or laws of any State to the contrary notwithstanding.’ ” [17 US 316, 404-406]
In Gibbons v. Ogden, the Court ruled, “When these allied sovereigns converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns, the whole character in which the States appear, underwent a change.” [22 U.S. 1, 187]
And in Cohens v. Virginia the Court ruled, “That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. . .. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared, that in the exercise of all the powers given for these objects, it is supreme. . . . The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States. They are members of one great empire.” [19 U.S. 264, 413-414]
In that same ruling, the Court said “The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.” [19 US 264, 389]
In Martin v. Hunter’s Lessee, the Court ruled, “The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.’ There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact, to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own Constitutions, and the people of every State had the right to modify and restrain them according to their own views of the policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the State governments by their respective Constitutions remained unaltered and unimpaired except so far as they were granted to the Government of the United States.” [14 US 304, 324-325]
“It [the Constitution] is crowded with provisions which restrain or annul the sovereignty of the States in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed upon the States. Surely, when such essential portions of State sovereignty are taken away or prohibited to be exercised, it cannot be correctly asserted that the Constitution does not act upon the States. The language of the Constitution is also imperative upon the States as to the performance of many duties. It is imperative upon the State legislatures to make laws prescribing the time, places, and manner of holding elections for senators and representatives, and for electors of President and Vice-President. And in these as well as some other cases, Congress have a right to revise, amend, or supersede the laws which may be passed by State legislatures.” [Ibid., p. 343]
In the 1855 case of Dodge v. Woolsey, the Court said, “Further, the constitution is not only supreme in the sense we have said it was, for the people in the ratification of it have chosen to add that ‘this constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.’ And, in that connection, to make its supremacy more complete, impressive, and practical, that there should be no escape from its operation, and that is binding force upon the States and the members of congress should be unmistakable, it is declared that ‘the senators and representatives, before mentioned, and the members of the state legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by an oath or affirmation to support this constitution.” [59 U.S. 331, 348-349]
Note the Court says there should be “no escape” from the operation of the Constitution and it is a “binding force upon the States”.
“The States, or rather the people forming it, though sovereign as to the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are not independent of each other, in respect to the powers ceded in the constitution.
“Their union, by the constitution, was made by each of them conceding portions of their equal sovereignties for all of them, and it acts upon the States conjunctively and separately, and in the same manner upon their citizens, aggregately in some things, and in others individually, in many of their relations of business, and also upon their civil conduct, so far as their obedience to the laws of congress is concerned.
“In such a union, the States are bound by all of those principles of justice which bind individuals to their contracts. They are bound by their mutual acquiescence in the powers of the constitution, that neither of them should be the judge, or should be allowed to be the final judge of the powers of the constitution, or of the interpretation of the laws of congress. This is not so, because their sovereignty is impaired; but the exercise of it is diminished in quantity, because they have, in certain respects, put restraints upon that exercise, in virtue of voluntary engagements. (Vattel, Ch. 1, section 10.)” [59 U.S. 331, 350-351]
Since “the States are bound by all of those principles of justice which bind individuals to their contracts”, then just as an individual cannot release themself from their obligations to a contract, so a state cannot release itself from its obligations to the Constitution.
Now let’s look at case law during the Civil War:
The prime example here is The Prize Cases:
“Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its accidents — the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason. The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars. ‘A civil war,’ says Vattel, ‘breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.’ This being the case, it is very evident that the common laws of war — those maxims of humanity, moderation, and honor — ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c., & c.; the war will become cruel, horrible, and every day more destructive to the nation. As a civil war is never publicly proclaimed, eo nomine, against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know. The true test of its existence, as found in the writings of the sages of the common law, may be thus summarily stated: When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.” [67 US 635, 666-668]
“This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. It is not the less a civil war, with belligerent parties in hostile array, because it may be called an ‘insurrection’ by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties.” [67 US 635, 668-669]
In upholding Lincoln’s actions against the rebels, calling the war a “civil war,” calling the rebellion an “insurrection,” and labeling the rebels as “rebels or traitors,” the Supreme Court was implicitly denying the legality of secession.
Next let’s take a look at case law after the Civil War, in which in each and every situation the idea of unilateral secession was universally condemned as an illegal action:
The first chance the Supreme Court got to speak directly on the question of secession was Texas v. White.
“The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States. Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.” [74 U.S. 700, 725-726]
Texas v. White was the first time the Court ruled specifically on secession but it wasn’t the last time.
In White v. Hart the Court also ruled secession was unconstitutional. “The national Constitution was, as its preamble recites, ordained and established by the people of the United States. It created not a confederacy of states, but a government of individuals. It assumed that the government and the Union which it created, and the states which were incorporated into the Union, would be indestructible and perpetual, and as far as human means could accomplish such a work, it intended to make them so. The government of the nation and the government of the states are each alike absolute and independent of each other in their respective spheres of action, but the former is as much a part of the government of the people of each state, and as much entitled to their allegiance and obedience as their own local state governments — ‘the Constitution of the United States and the laws made in pursuance thereof,’ being in all cases where they apply, the supreme law of the land. For all the purposes of the national government, the people of the United States are an integral, and not a composite mass, and their unity and identity, in this view of the subject, are not affected by their segregation by state lines for the purposes of state government and local administration. Considered in this connection, the states are organisms for the performance of their appropriate functions in the vital system of the larger polity, of which, in this aspect of the subject, they form a part, and which would perish if they were all stricken from existence or ceased to perform their allotted work. The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence. The late rebellion was without any element of right or sanction of law. The duration and magnitude of the war did not change its character. In some respects it was not unlike the insurrection of a county or other municipal subdivision of territory against the state to which it belongs. In such cases, the state has inherently the right to use all the means necessary to put down the resistance to its authority and restore peace, order and obedience to law. If need be, it has the right also to call on the government of the Union for the requisite aid to that end. Whatever precautionary or penal measures the state may take when the insurrection is suppressed, the proposition would be a strange one to maintain that while it lasted, the county was not a part of the state, and hence was absolved from the duties, liabilities, and restrictions which would have been incumbent upon it if it had remained in its normal condition and relations. The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress. That body made the laws, and the President executed them. The granted power carried with it not only the right to use the requisite means, but it reached further and carried with it also authority to guard against the renewal of the conflict and to remedy the evils arising from it insofar as that could be effected by appropriate legislation. At no time were the rebellious states out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected, and remained the same. A citizen is still a citizen, though guilty of crime and visited with punishment. His political rights may be put in abeyance or forfeited. The result depends upon the rule, as defined in the law, of the sovereign against whom he has offended. If he lose his rights, he escapes none of his disabilities and liabilities which before subsisted. Certainly he can have no new rights or immunities arising from his crime. These analogies of the county and the citizen are not inapplicable, by way of illustration, to the condition of the rebel states during their rebellion. The legislation of Congress shows that these were the views entertained by that department of the government. In the several acts admitting new states, the same formula substantially is used in all cases. It is that the state named ‘shall be and is hereby declared to be one of the United States of America, and is hereby admitted into the Union, upon an equal footing with the original states, in all respects whatsoever.’ ” [80 US 646, 650-652]
In Thorington v. Smith the Court said, “It cannot be questioned that the Confederate notes were issued in furtherance of an unlawful attempt to overthrow the government of the United States, by insurrectionary force.” [75 US 1, 7]
In Williams v. Bruffy, the Court ruled that the confederacy had no legal existence. It said, “The pleas aver that a confederation was formed by Virginia and other States, called the Confederate States of America, and that under a law of this confederation, enforced in Virginia, the debt due to the plaintiffs was sequestrated. Now, the Constitution of the United States prohibits any treaty, alliance, or confederation by one State with another. The organization whose enactment is pleaded cannot, therefore, be regarded in this court as having any legal existence.” [96 US 176, 182]
In Lamar v. Micou, the Court ruled, “The so-called Confederate government was in no sense a lawful government, but was a mere government of force, having its origin and foundation in rebellion against the United States.” [112 US 452. 476]
In Hanauer v. Doane, the Supreme Court said, “We have already decided in the case of Texas v. White that a contract made in aid of the late rebellion or in furtherance and support thereof is void. The same doctrine has been laid down in most of the circuits and in many of the state courts, and must be regarded as the settled law of the land. Any contract tinctured with the vice of giving aid and support to the rebellion can receive no countenance or sanction from the courts of the country.” [79 US 342, 345]
In Hickman v. Jones, the Court said, “The rebellion out of which the war grew was without any legal sanction. In the eye of the law, it had the same properties as if it had been the insurrection of a county or smaller municipal territory against the state to which it belonged. The proportions and duration of the struggle did not affect its character. Nor was there a rebel government de facto in such a sense as to give any legal efficacy to its acts. It was not recognized by the national nor by any foreign government. It was not at any time in possession of the capital of the nation. It did not for a moment displace the rightful government. That government was always in existence, always in the regular discharge of its functions, and constantly exercising all its military power to put down the resistance to its authority in the insurrectionary states. The union of the states, for all the purposes of the Constitution, is as perfect and indissoluble as the union of the integral parts of the states themselves, and nothing but revolutionary violence can in either case destroy the ties which hold the parts together. For the sake of humanity, certain belligerent rights were conceded to the insurgents in arms. But the recognition did not extend to the pretended government of the Confederacy. The intercourse was confined to its military authorities. In no instance was there intercourse otherwise than of this character. The rebellion was simply an armed resistance to the rightful authority of the sovereign.” [76 US 197, 200]
In the case of Keppel v. Petersburg Railroad Company, a case in the Federal Court for the District of Virginia, the Federal District Court ruling was that the confederacy was unlawful. [14 Fed Cas. 357, 371]
In United States v. Stark, et al, another Federal case, Federal Judge William B. Woods said, “The Confederate States were not a sovereignty; its inhabitants did not owe it allegiance, were not bound by its laws. On the contrary, the authority of the United States extended over them at all times. Their duty of allegiance and obedience to its laws was continuous and unbroken. All the laws of the United States, the act levying duties on imports included, were in force at all times and in all places within the territory of the United States, as much in Savannah as in New York; and all the citizens of the United States, whether within or without the insurrectionary districts, owed them obedience. If, as held by Mr. Chief Justice Chase, the laws of the United States against treason were in force over the inhabitants of the insurgent states, clearly the revenue laws were also in force.” [27 Fed. Cas. 1293, 1295]
In Shortridge, et al. v. Macon, a Federal case, Chief Justice Salmon P. Chase said there is no doubt North Carolina claimed its connection to the United States was severed, and there is no doubt they claimed to have joined another country and joined a war against the United States, and he said there isn’t any doubt the practical relations with the United States were suspended. But, according to Chase, “these acts did not effect, even for a moment, the separation of North Carolina from the Union, any more than the acts of an individual who commits grave offenses against the state by resisting its officers and defying its authority, separate him from the state. Such acts may subject the offender even to outlawry, but can discharge him from no duty and can relieve him from no responsibility.” [22 Fed. Cas. 20, 21]Chase next says in no uncertain terms that the confederates were traitors. “The national constitution declares that ‘treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.’ The word ‘only’ was used to exclude from the criminal jurisprudence of the new republic the odious doctrines of constructive treason. Its use, however, while limiting the definition to plain overt acts, brings these acts into conspicuous relief as being always and in essence treasonable. War, therefore, levied against the United States by citizens of the republic, under the pretended authority of the new state government of North Carolina, or of the so-called Confederate government which assumed the title of the ‘Confederate States,’ was treason against the United States.” [22 Fed. Cas. 20, 21]
Chase says those who claim that the act of secession made it impossible for the confederates to have committed treason against the United States are dead wrong. “It has been supposed, and by some strenuously maintained, that the North Carolina ordinance of 1861, which purported to repeal the North Carolina ordinance of 1789, by which the constitution of the United States was ratified, and to repeal also all subsequent acts by which the assent of North Carolina was given to amendments of the constitution,—did in fact repeal that ordinance and those acts, and thereby absolved the people of the state from all obligations as citizens of the United States, and, made it impossible to commit treason by levying war against the national government. No elaborate discussion of the theoretical question thus presented seems now to be necessary. The question as a practical one is at rest, and is not likely to be revived. It is enough to say here that, in our judgment, the answer which it has received from events is that which the soundest construction of the constitution warrants and requires.” [22 Fed. Cas. 20, 21]
Chase next takes on those who wrongly claim that the size of the conflict relieved confederates of being traitors to the United States. “Nor can we agree with some persons, distinguished by abilities and virtues, who insist that when rebellion attains the proportions and assumes the character of civil war, it is purged of its treasonable character, and can only be punished by the defeat of its armies, the disappointment of its hopes, and the calamities incident to unsuccessful war. Courts have no policy and can exercise no political powers. They can only declare the law. On what sound principle, then, can we say judicially that the levying of war ceases to be treason when the war becomes formidable? that war, levied by ten men or ten hundred, is certainly treason, but is no longer such when levied by ten thousand or ten hundred thousand? that the armed attempts of a few, attended by no serious danger to the Union, and suppressed by slight exertions of the public force, come, unquestionably, within the constitutional definition, but attempts by a vast combination, controlling several states, putting great armies in the field, menacing with imminent peril the life of the republic, and demanding immense efforts and immense expenditures of treasure and blood for their defeat and suppression, swell beyond the boundaries of the definition and become innocent in proportion to their enormity. But it is said that this is the doctrine of the supreme court. We think otherwise.” [22 Fed. Cas. 20, 21-22]
Next, the Chief Justice addresses those who are confused and believe conferring belligerent rights on rebels means they aren’t traitors. “In modern times it is the usual practice of civilized governments attacked by organized and formidable rebellion, to exercise and to concede belligerent rights. Under such circumstances, instead of punishing rebels when made prisoners in war as criminals, they agree in cartels for exchange, and make other mutually beneficial arrangements; and, instead of insisting upon offensive terms and designations, in intercourse with the civil or military chiefs, treat them, as far as possible without surrender of essential principles, like foreign foes engaged in regular warfare. But these are concessions made by the legislative and executive departments of government in the exercise of political discretion and in the interest of humanity, to mitigate vindictive passions inflamed by civil conflicts, and prevent the frightful evils of mutual reprisals and retaliations. They established no rights except during war.” [22 Fed. Cas. 20, 22]
Chase also addresses those who wrongly think lack of convictions for treason means no one committed treason. “It is also true, that when war ceased, and the authority of the regular government is fully re-established, the penalties of violated law are seldom inflicted upon many. Wise governments never forget that the criminality of individuals is not always or often equal that of the acts committed by the organization with which they are connected. Many are carried into rebellion by sincere though mistaken convictions; or hurried along by excitements due to social and state sympathies, and even by the compulsion of a public opinion not their own. When the strife of arms is over, and such governments, therefore, exercising still their political discretion, address themselves mainly to the work of conciliation and restoration, and exert the prerogative of mercy, rather than that of justice, complete remission is usually extended to large classes by amnesty or other exercise of legislative or executive authority, and individuals not included in these classes, with some exceptions of the greatest offenders, are absolved by pardon either absolutely or upon conditions prescribed by the government. These principles, common to all civilized nations, are those which regulated the action of the government of the United States during the war of the rebellion, and have regulated its actions since rebellion laid down its arms. In some respects the forbearance and liberality of the nation exceed all example. While hostilities were yet flagrant, one act of congress practically abolished the death penalty for treason subsequently committed, and another provided a mode in which citizens of rebel states, maintaining a loyal adhesion to the Union, could recover after war the value of their captured or abandoned property. The national government has steadily sought to facilitate restoration with adequate guaranties of union, order, and equal rights. On no occasion, however, and by no act, have the United States ever renounced their constitutional jurisdiction over the whole territory or over all the citizens of the republic, or conceded to citizens in arms against their country the character of alien enemies, or admitted the existence of any government de facto, hostile to itself within the boundaries of the Union. In the Prize Cases the supreme court simply assented the right of the United States to treat the insurgents as belligerents, and to claim from foreign nations the performance of neutral duties under the penalties known to international law. These decisions recognized, also, the fact of the exercise and concession of belligerent rights, and affirmed, as a necessary consequence, the proposition that during the war all the inhabitants of the country controlled by the rebellion, and all the inhabitants of the country loyal to the Union, were enemies reciprocally each of the other. But there is nothing in that opinion which gives countenance to the doctrine which counsel endeavor to deduce from it, that the insurgent states, by the act of rebellion, and by levying war against the nation, became foreign states, and their inhabitants alien enemies. This proposition being denied, it must result that in compelling debtors to pay to receivers, for the support of the rebellion, debts due to any citizen of the United States, the insurgent authorities committed an illegal violence, by which no obligation of debtors to creditors could be cancelled or in any respect affected.” [22 Fed. Cas. 20, 22]
In the Federal case of United States v. Morrison, Chase wrote, “No relief could arise under any authority of the Confederate government. That government was founded in an attempt to throw off the authority of the United States and establish an independent government. If that attempt had succeeded, all transactions authorized by the Confederate government must doubtless have been recognized as lawful. But in the absence of success, that government was itself unlawful. Its whole existence was a continued rebellion against the lawful government of the United States. No one could be protected in any action by the sanction of its authority.” [26 Fed. Cas. 1349, 1350]
In his charge to the jury in the Federal case of United States v. Huger, et al., Judge George S. Bryan said, “I am asked to rule thirdly that said Confederate States or government of which John A. Reagan was an officer or agent, was an unlawful combination of divers persons, citizens of the United States, engaged in unlawful insurrection and rebellion against the government of the same, and within the territory thereof, unlawfully usurping the powers of government, and as such it continued to be unrecognized as having any lawful existence till suppressed by the military power of the United States, hence neither said Confederate government nor its officers or agents could originate any legal action or issue any order which the defendant, Alfred Huger, was bound to obey. I instruct you that, in so far as that said Confederate States was an unlawful combination of divers persons, citizens of the United States, engaged in an unlawful insurrection and rebellion against the government of the same, and within the territory thereof unlawfully usurping the powers of government, and as such, it continued to be unrecognized as having any lawful existence, till suppressed by the military power of the United States, etc., I give the instruction but do not give the conclusion, that is, that the officers or agents of the Confederate government could not issue any order which the defendant, Alfred Huger, was bound to respect. I instruct you, the United States having conceded to the Confederate States (so-called) the authority of a belligerent, the power incident to the authority of a belligerent, the power incident to the authority of a belligerent was conceded to the Confederate States, and they had such right to give an order, which it was not possible for the postmaster or assistant postmaster here to dispute. They had the authority of a belligerent, and it was not within the competency of the postmaster to dispute the regular exercise of that authority.” [26 Fed. Cas. 412, 413]
There is not a single case in which the doctrine of secession was upheld.
There are those who may ask what provision of the Constitution prohibits secession. Chief Justice Chase wrote that all the provisions of the Constitution do that, but the most salient part is Article VI, Clause 2, the Supremacy Clause, which states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
The Constitution and US Laws, then, remain supreme law, “any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” An ordinance of secession, passed unilaterally by a state, is a Thing in the Constitution or Laws of a state that is contrary to the Constitution and US Law being supreme over that state. It is therefore an unconstitutional act and is legally null.
But, some may argue, that only applies if a state is in the Union, not a state that seceded. It’s absurd to think a state could secede on its own. The Supremacy Clause prevents a state from declaring any part of the Constitution, any law of the United States passed in accordance with the Constitution, or any treaty made in accordance with the Constitution doesn’t apply to it. By extension, then, a state cannot declare the entire Constitution, all the US Laws, and all the US treaties don’t apply to it, which is what a state is doing when it claims to secede.
As Gov. Samuel Johnston said in the North Carolina Ratification Debates, concerning the Supremacy Clause: “The Constitution must be the supreme law of the land; otherwise, it would be in the power of any one state to counteract the other states, and withdraw itself from the Union. The laws made in pursuance thereof by Congress ought to be the supreme law of the land; otherwise, anyone state might repeal the laws of the Union at large. Without this clause, the whole Constitution would be a piece of blank paper.” [Elliot’s Debates, Vol IV, pp. 187-188]
Here’s what John Lothrop Motley, US Minister to Austria, wrote at the beginning of the Civil War: “The constitution is perpetual, not provisional or temporary. It is made for all time–‘for ourselves and our posterity.’ It is absolute within its sphere. ‘This constitution shall be the supreme law of the land, anything in the constitution or laws of a state to the contrary notwithstanding.’ Of what value, then, is a law of a state declaring its connection with the Union dissolved? The constitution remains supreme, and is bound to assert its supremacy till overpowered by force. … It would have been puerile for the constitution to say formally to each state, ‘Thou shalt not secede.’ The constitution, being the supreme law, being perpetual, and having expressly forbidden to the states those acts without which secession is an impossibility, would have been wanting in dignity had it used such superfuous phraseology. This constitution is supreme, whatever laws a state may enact, says the organic law. Was it necessary to add, ‘and no state shall enact a law of secession.’ To add to a great statute, in which the sovereign authority of the land declares its will, a phrase such as ‘and be it further enacted that the said law shall not be violated,’ would scarcely seem to strengthen the statute. It was accordingly enacted that new states might be admitted; but no permission was given for a state to secede. Provisions were made for the amendment of the constitution from time to time, and it was intended that those provisions should be stringent. A two-thirds vote in both Houses of Congress, and a ratification in three quarters of the whole number of states, are conditions only to be complied with in grave emergencies. But the constitution made no provision for its own dissolution; and if it had done so, it would have been a proceeding quite without example in history. A constitution can only be subverted by revolution, or by foreign conquest of the land. … The reserved and unnamed powers are many and important, but the state is closely circumscribed.
“Thus, a state is forbidden to alter its form of government. ‘Thou shalt forever remain a republic,’ says the United States constitution to each individual state. A state is forbidden, above all, to pass any law conflicting with the United States constitution or laws. Moreover, every member of Congress, every member of a state legislature, every executive or judicial officer in the service of the Union or of a separate state, is bound by solemn oath to maintain the United States constitution. This alone would seem to settle the question of secession ordinances. So long as the constitution endures, such an ordinance is merely the act of conspiring and combining individuals, with whom the general government may deal. When it falls in the struggle, and becomes powerless to cope with them, the constitution has been destroyed by violence.” [John Lothrop Motley, “The Causes of the American Civil War: To the Editor of the London Times, May 23-24, 1861]
The Antifederalists argued during the ratification debates that the Constitution should not be ratified because it was insufficient to guarantee the rights of the people and that if it were ratified there would be no way out. They obviously didn’t think there was any right to unilateral secession. The Federalists countered by arguing the Constitution protected the rights of the people. In no case whatsoever did anyone say, “Don’t worry about it, because if if should prove that the Constitution isn’t sufficient to guarantee our rights all we need to do is secede.” It doesn’t seem as though they thought there was any way for a state to withdraw on its own either.
If we look at The Federalist Papers we can see that the first 22 papers discuss the Union, why Union is important, and why the confederation is insufficient to preserve the Union. The Federalist #23 discusses why a government based on the Constitution is strong and energetic enough to preserve the Union: “This, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the Union of so large an empire.” [Alexander Hamilton, The Federalist #23]
The whole reason for replacing the AoC with the Constitution was the inability of the AoC to continue to preserve the Union and the strength of the Constitution in preserving the Union. To the Framers, preserving the Union was the best method of preserving the liberties of the people and they wanted to make it as difficult as possible to break up the Union.
In The Federalist #33, Hamilton wrote, “But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed. Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution.”
So because of the Supremacy Clause, the laws of the United States cannot legally be opposed by states. In other words, they cannot claim the law does not apply to them. Therefore, they cannot unilaterally secede from the United States.
In addition, a number of states were admitted to the United States by Federal Law. For example, Louisiana: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the said state shall be one, and is hereby declared to be one of the United States of America and admitted into the Union on an equal footing with the original states, in all respects whatever, by the name and title of the state of Louisiana.” [2 SAL 703] By the Supremacy Clause, Louisiana, and the other states who were admitted by Federal Law, have no power to nullify those laws.
Additionally, Article V argues against unilateral secession, and indeed against a single state being sovereign. If 3/4 of the states ratify a constitutional amendment, it becomes binding on the 1/4 of the states who were opposed to it. If those states were sovereign, outsiders could not impose laws on them. But since the Constitution allows 3/4 of the states to do so, we can’t rightfully say any of the states who opposed those changes are truly sovereign. For example, Kentucky refused to ratify the 13th Amendment abolishing slavery. But the amendment was ratified and slavery in Kentucky was abolished against her will. If states were sovereign, Kentucky would still have slavery.
Here’s Professor Akhil Reed Amar of Yale University:
“The prominence of the Preamble also made it a perfect place to renounce the basic structure of the Articles. Although states would enter the Constitution as true sovereigns, they would not remain so after ratification. The formation of a ‘more perfect Union’ would itself end each state’s sovereign status and would prohibit future unilateral secession, in plain contrast to the decidedly less-than-perfect union under the Articles. True, the Preamble did not expressly proclaim that its new, more perfect union would be ‘perpetual’–and for good reason: Why borrow a word from the Articles of Confederation that did not quite mean what it said in that document, a word that was being thrust aside by the very act of constitution itself? Thus, the Constitution signaled its decisive break with the Articles’ regime of state sovereignty and false federal perpetuity in other ways.” [Akhil Reed Amar, America’s Constitution: A Biography, p. 33]
“Article VI specified how ‘this Constitution,’ once ratified, would stack up against current and future state constitutions. For example, what should happen if the people of South Carolina, having adopted ‘this Constitution’ in 1788, reconvened at some later time to amend their state constitution, and in that convention adopted an amendment purporting to repudiate the federal Constitution in whole or in part? In a subsequent lawsuit, which law would a state judge be obliged to follow? If the people of South Carolina were sovereign, the answer would plainly be the state constitution as amended. the sovereign people’s right to alter or abolish their government at any time would remain a core attribute of their sovereignty, and their judicial agents–state judges–would be bound to enforce their will and judgment even if their amendment might be alleged by other sovereigns to violate an earlier treaty under international law. Yet the Article VI supremacy clause explicitly compelled even state judges to disregard the attempted amendment–a rule plainly inconsistent with the post-ratification sovereignty of the people of each state: ‘This Constitution … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’
“Surrounding Article VI and reinforcing its plain meaning, Articles VII and V conspicuously contrasted the rules for constitutional ratification with the rules for subsequent constitutional amendment–a contrast that made it plain that the new Constitution spelled the end of state sovereignty for all states that might choose to join. As of mid-July 1788, ten states had ratified the Constitution, thereby guaranteeing that the document would go into effect in those states under Article VII. New Yorkers had yet to ratify, and Article VII made it clear that the people of that state were a distinct sovereign entity free to vote down the new Constitution and ignore it. Yet Article V put New Yorkers on clear notice: If they chose to ratify the Constitution in convention, they would lose their freedom to disregard subsequent constitutional proposals agreed to by conventions of three-fourths of the states, whose ratifications would suffice to make future amendments ‘valid to all Intents and Purposes, as Part of this Constitution’ even in nonratifying states. Nowhere was the Constitution’s break with the Articles of Confederation and all other purely confederate regimes more dramatic. Simply put, Article VII recognized the sovereign right (or at least the sovereign power) of different states in a flawed confederacy to go their separate ways; but Articles V and VI extinguished the right and power of unilateral secession for each state populace that joined the Constitution’s new, more perfect union, thereby merging itself into the continental sovereignty of the American people.” [Ibid., pp. 34-35]
Professor Amar continues, “Anti-Federalists across the continent got the message and sounded the alarm. In Massachusetts, Samuel Nasson pointed to the Preamble as proof that the Constitution would effect a ‘perfect consolidation of the whole Union’ that would ‘destroy’ the Bay State’s status as ‘a sovereign and independent’ entity. The influential Federal Farmer warned that when a state populace ‘shall adopt the proposed constitution, it will be their last and supreme act’ qua sovereign. New York’s Brutus complained that the Constitution would not be ‘a compact’ among states but rather would create a ‘union of the people of the United States considered’ as ‘one great body politic.’ Pennsylvania Anti-Federalists put forth a similar reading of the Preamble. Meanwhile, Maryland’s Luther Martin advised his audience of the strongly nationalist logic of the Constitution’s treason clause, which made allegiance to the United States paramount over allegiance to a single state in the event of armed conflict between the two. Patrick Henry, true to form, was the bluntest of all as he led the charge against the Constitution in Virginia. ‘The fate … of America may depend on this. … 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.’ If ‘the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.’ This difference, Henry warned, would profoundly limit the rights of future Virginians to act on their own. ‘Suppose the people of Virginia should wish to alter their government; can a majority of them do it? No, because they are connected with other men, or, in other words, consolidated with other states. … This government is not a Virginian, but an American government.’ … In response, the Federalists refined their critics’ terminology while confirming that the new union would indeed be indivisible. … But on the fateful question of whether states would continue to be truly sovereign, with rights of unilateral exit, the Federalists agreed that the Anti-Federalists had not exaggerated. The difference of opinion on this question was not over what the document meant, but over whether the impermissibility of future secession was reason to commend or condemn the proposed ‘more perfect Union.’ Madison at Philadelphia stressed that one of the essential differences between a ‘league‘ and a ‘Constitution‘ was that the latter would prevent subunits from unilaterally bolting whenever they became dissatisfied.” [Ibid., pp. 35-36]
He also writes, “Even more striking than what the Constitution’s friends said is what they did not say. No leading Federalist ever publicly sought to win over states’ rightists by conceding that a state could unilaterally nullify or secede in the event it later became dissatisfied. The Federalists’ silence here was deafening, given how reassuring to states’ rightists such a response would have been in all the places where Philadelphia proposal hung precariously in the balance. Responding to the fears voiced by Anti-Federalist ‘men of little faith,’ Federalists stressed many specific protections, including bicameralism, separation of powers, enumerated powers, refinements in representation, the amendment process, and the states’ status as building blocks in the national government. But never did Federalists float the right of an individual state to secede or nullify. Never did they say, ‘Give the new plan a try, and if you don’t like it, your state may always leave.’
“Alongside what various people said and did not say in constitutional debates, we must attend to what the American people themselves did and did not do in the act of constitution itself. No state conventions, in its ratification instrument, purported to reserve the right of its state populace to unilateral secession. Notably, Virginia’s convention spoke of the right the people of the United States, not the people of Virginia, to reassume power through future acts of popular sovereignty. Nor did any state convention impose any condition on its act of ratification.
“The secession question arose most dramatically in the New York ratification convention, where Anti-Federalists held a strong majority when discussion began. At one point, Federalist Alexander Hamilton despairingly described ‘our chance of success here’ as ‘infinitely slender.’ After extensive debate, and upon receiving word that New Hampshire and Virginia had recently ratified the Constitution as the decisive ninth and tenth states–thus ensuring that the Constitution would go into effect in these ten states–Anti-Federalist leaders proposed a compromise under which the convention would ratify the Constitution ‘upon condition’ that the new Congress make way for certain constitutional amendments. With the ultimate prospects for New York ratification still in grave doubt, the offer tantalized Hamilton and his allies, but in the end the refused to take the bait. Instead, the Federalists insisted on replacing the words ‘upon condition’ with language expressing the convention’s ‘full confidence’ that Congress would take up the suggested amendments–a factual expectation rather that a binding legal condition. The convention then beat back a proposal from Anti-Federalist John Lansing 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, unless the amendments proposed’ were taken up. In this sharply focused debate, no one supposed that the Constitution already contained a general right of state secession. Had such a right been thought to exist, Lansing’s proposal would have limited it (to ‘a certain number of years’ and a small set of triggers) and thus states’ rightists should have opposed Lansing, while continentalists should have favored him.
“In actual fact, the exact opposite occurred. At the risk of alienating swing voters and losing on the ultimate ratification vote, New York’s Federalists rose up to oppose the Lansing compromise. In doing so, they made clear to all observers–both in New York itself and in the many other places across the continent where men were following the New York contest with interest–that the Constitution did not permit unilateral state secession. In a letter to Hamilton, Madison had emphasized that ‘the Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States’ (including Madison’s own Virginia). Hamilton read the letter aloud to the Convention and then added his own words. The ‘terms of the constitution import a perpetual compact between the different states…The [Article VI] oath to be taken stands in the way’ of any subsequent right of unilateral secession. According to the contemporaneous account published in New York’s Daily Advertiser, both Hamilton and his fellow delegate John Jay insisted that ‘a reservation of a right to withdraw…was inconsistent with the Constitution, and was no ratification.’ ” [Ibid., pp. 37-38]
Article I gives the power of determining the makeup of the Union to the Federal Government, not to the states. Therefore, a state lacks the power to declare it is no longer part of the Union. Thus Article I also prohibits a state from unilaterally seceding from the United States.
Some claim the Tenth Amendment in the Bill of Rights allows for secession. That’s utter nonsense. The Tenth Amendment says, “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 in Articles I, V, and VI prohibit secession as a power to the states, unilateral secession is a power excepted from the Tenth Amendment reserved powers.
Here is how Joseph Story, Associate Justice of the US Supreme Court and Dane Professor of Law at Harvard University described the 10th Amendment:
“This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty.” [Joseph Story, Commentaries on the Constitution of the United States, Book III, p. 752]
Plainly, then, since the People are the ultimate sovereigns, not the states, they retain any and all powers they have not delegated to either the United States or to their particular state. So for the Tenth Amendment argument for a state to have the power to secede to begin to have any validity, we first have to ignore the Supremacy Clause and second there has to be a provision in the Constitution of that state where the People delegate the power to secede to that state. Absent such a provision, if there is a right to secede it does not belong to any state.
Those who claim the Tenth Amendment allows secession make that claim because the word “secession” is not used anywhere in the Constitution. In my opinion, this is a fatally flawed argument, because there are several features of the Constitution that prohibit the effect of secession without having to specify the word. Not least among these is the Supremacy Clause, Article VI, Clause 2. As noted, I’ve recently discovered support for Article V being an antisecession measure. To illustrate, let me use an analogy. If there is a law that says you cannot jump from higher than 3 feet, I don’t need to specify that you cannot jump off the 10-foot wall in your backyard. The effect of jumping off the 10-foot wall is that you will necessarily have to jump from higher than 3 feet. Likewise, the Supremacy Clause tells us the US Constitution and US Laws remain supreme law any thing in the constitution or laws of any state to the contrary notwithstanding. As an ordinance of secession would be a thing in the constitution or laws of a state that is contrary to the US Constitution and US Law being supreme in that state, it is prohibited from taking effect. Therefore, the effect of secession, which is claiming the Constitution and US Law are no longer supreme in that state, is prohibited by the Constitution, and is thus excepted from the reserved powers, assuming secession was actually one of those reserved powers.
As to the theory behind secession, James Madison, the Father of the Constitution, countered it:
“Applying a like view of the subject to the case of the U. S. it results, that the compact being among individuals as imbodied into States, no State can at pleasure release itself therefrom, and set up for itself. The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect. It will hardly be contended that there is anything in the terms or nature of the compact, authorizing a party to dissolve it at pleasure.” [James Madison to Nicholas Trist, 15 Feb 1830]
“The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater right to break off from the bargain, than the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of -98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a SINGLE [emphasis in original] party, with the PARTIES [emphasis in original] to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created. In the Virginia Resolutions and Report the PLURAL [emphasis in original] number, STATES [emphasis in original], is in EVERY [emphasis in original] instance used where reference is made to the authority which presided over the Government. As I am now known to have drawn those documents, I may say as I do with a distinct recollection, that the distinction was intentional. It was in fact required by the course of reasoning employed on the occasion. The Kentucky resolutions being less guarded have been more easily perverted. The pretext for the liberty taken with those of Virginia is the word RESPECTIVE [emphasis in original], prefixed to the ‘rights’ &c to be secured within the States. Could the abuse of the expression have been foreseen or suspected, the form of it would doubtless have been varied. But what can be more consistent with common sense, than that all having the same rights &c, should united in contending for the security of them to each.
“It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, Vol. 2, with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject.” [James Madison to Nicholas Trist, 23 Dec 1832]
If the states were sovereign states under the Constitution, they would be bound by no law passed outside their borders. Instead, “A political system which does not contain an effective provision for a peaceable decision of all controversies arising within itself, would be a Govt. in name only. Such a provision is obviously essential; and it is equally obvious that it cannot be either peaceable or effective by making every part an authoritative umpire. The final appeal in such cases must be to the authority of the whole, not to that of the parts separately and independently. This was the view taken of the subject, whilst the Constitution was under the consideration of the people. It was this view of it which dictated the clause declaring that the Constitution & laws of the U. S. should be the supreme law of the Land, anything in the constn or laws of any of the States to the contrary notwithstanding.” [James Madison, Notes on Nullification] This refers to Article VI, Clause 2, the Supremacy Clause, which says that the Constitution, the Laws of the United States passed in accordance with the Constitution, and the Treaties of the United States negotiated and ratified in accordance with the Constitution are the supreme law of the land, binds the states, and any state law opposed to those is null and void.
Here’s what Madison believed at the Constitutional Convention:
“Mr. Madison thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.” [J. Madison, “Speech in the Federal Convention on Ratification,” 23 Jul 1787]He wanted a solid union that couldn’t be broken.
In describing the deliberations on the Constitution to Thomas Jefferson, who was in Paris at the time, Madison wrote, “It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of Sovereign States.” [James Madison to Thomas Jefferson, 24 Oct 1787]
Here’s what he believed during the ratification debates [alluded to by Professor Amar above]:
My Dear Sir
Yours of yesterday is this instant come to hand & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the New Congress by virtue of the power to admit new States, may be able & disposed to do in such case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more than my fervent wishes for your success & happiness.
This idea of reserving a right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection.
[James Madison to Alexander Hamilton, 20 July 1788]
Here’s what George Washington believed:
“A survey of this correspondence and of his official career indicates that the dominant note in the political thinking of Washington, both before and after 1789, was his unwavering belief that only a strong central government, able to determine and enforce national policies, would enable the United States to assume its appropriate position among the nations of the world.” [Harold W. Bradley, “The Political Thinking of George Washington,” Journal of Southern History, Vol XI, No. 4, Nov, 1945, p. 472]
“As commander of the army, Washington felt a natural sympathy for the plight of his unpaid men, and while counseling them against rash measures he urged Congress and the states to recognize the services of the army by making provision for the payment of the money due the soldiers. It was the states, he believed, which were delinquent in this matter rather than Congress, and he felt for the states the same distrust that he felt for private debtors who refused to honor their obligations.” [Ibid.]
Washington wrote to Alexander Hamilton, “No man in the United States is, or can be more deeply impressed with the necessity of reform in our present Confederation than myself. No man perhaps has felt the bad effects of it more sensibly; for to the defects thereof, & want of Powers in Congress may justly be ascribed the prolongation of the War & consequently the Expences occasioned by it. More than half the perplexities I have experienced in the course of my command, and almost the whole of the difficulties & distress of the Army, have their origin here.” [Washington to Alexander Hamilton, 31 Mar 1783]
So he clearly saw the necessity of a strong, central federal government. Three months later he repeated this theme in his “Circular to State Governments,” in which he wrote, “There are four things, which I humbly conceive, are essential to the well being, I may even venture to say, to the existence of the United States as an Independent Power:
“1st. An indissoluble Union of the States under one Federal Head.
“2ndly. A Sacred regard to Public Justice.
“3dly. The adoption of a proper Peace Establishment, and
“4thly. The prevalence of the pacific and friendly Disposition, among the People of the United States, which will induce them to forget their local prejudices and policies, to make those mutual concessions which are requisite to the general prosperity, and in some instances, to sacrifice their individual advantages to the interest of the Community.”
“Yet it will be a part of my duty, and that of every true Patriot, to assert without reserve, and to insist upon the following propositions, That unless the States will suffer Congress to exercise those prerogatives, they are undoubtedly invested with by the Constitution, every thing must very rapidly tend to Anarchy and confusion, That it is indispensible to the happiness of the individual States, that there should be lodged somewhere, a Supreme Power to regulate and govern the general concerns of the Confederated Republic, without which the Union cannot be of long duration. That there must be a faithfull [sic] and pointed compliance on the part of every State, with the late proposals and demands of Congress, or the most fatal consequences will ensue, That whatever measures have a tendency to dissolve the Union, or contribute to violate or lessen the Sovereign Authority, ought to be considered as hostile to the Liberty and Independency of America, and the Authors of them treated accordingly.”
“I could demonstrate to every mind open to conviction, that in less time and with much less expence [sic] than has been incurred, the War might have been brought to the same happy conclusion, if the resources of the Continent could have been properly drawn forth, that the distresses and disappointments which have very often occurred, have in too many instances, resulted more from a want of energy, in the Continental Government, than a deficiency of means in the particular States. That the inefficiency of measures, arising from the want of an adequate authority in the Supreme Power, from a partial compliance with the Requisitions of Congress in some of the States, and from a failure of punctuality in others, while it tended to damp the zeal of those which were more willing to exert themselves; served also to accumulate the expences [sic] of the War, and to frustrate the best concerted Plans.” [George Washington, “Circular to State Governments,” 8 June 1783]
Washington was president of the Constitutional Convention, and in his letter transmitting the newly written Constitution to Congress, Washington wrote, “It is obviously impracticable in the foederal [sic] government of these States; to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all–Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was encreased [sic] by a difference among the several States as to their situation, extent, habits, and particular interests.” [George Washington to President of Congress, 17 Sep 1787]
“To the efficacy and permanency of your Union, a government for the whole is indispensable. No alliance, however strict, between the parts can be an adequate substitute; they must inevitably experience the infractions and interruptions which all alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay, by the adoption of a constitution of government better calculated than your former for an intimate union, and for the efficacious management of your common concerns. This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution, which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. ” [George Washington, “Farewell Address,” 1796]
Thomas Jefferson wrote, “But if on a temporary superiority of the one party, the other is to resort to a scission of the Union, no federal government can ever exist. If to rid ourselves of the present rule of Massachusets & Connecticut we break the Union, will the evil stop there? Suppose the N. England States alone cut off, will our natures be changed? are we not men still to the south of that, & with all the passions of men? Immediately we shall see a Pennsylvania & a Virginia party arise in the residuary confederacy, and the public mind will be distracted with the same party spirit. What a game, too, will the one party have in their hands by eternally threatening the other that unless they do so & so, they will join their Northern neighbors. If we reduce our Union to Virginia & N. Carolina, immediately the conflict will be established between the representatives of these two States, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry, seeing that we must have somebody to quarrel with, I had rather keep our New England associates for that purpose than to see our bickerings transferred to others.” [Thomas Jefferson to John Taylor, 4 Jun 1798]
Some claim Jefferson accepted the idea that a state could unilaterally secede from the United States and quote a letter from Jefferson to Madison on 23 Aug 1799. The letter can be seen in its entirety here: https://founders.archives.gov/documents/Jefferson/01-31-02-0145
The full story is that Madison went to see Jefferson after receiving this letter. We know this because Madison later wrote to Nicholas Trist, including a copy of this letter with the penciled inscription, “The visit invited took the place of an answer to the letter.” [Adrienne Koch, Jefferson & Madison: The Great Collaboration, p. 198] What we know from this is that Jefferson clearly said his words were written in haste and he wanted to develop his ideas with Madison. Jefferson and Madison developed those ideas, and in a later letter to Wilson Cary Nicholas, which can be seen here https://memory.loc.gov/service/mss/mtj//mtj1/021/021_1004_1005.pdf , he said most of the same things without the idea of severing the Union but “making firm protestation against the precedent & principle, & reserving the right to make this palpable violation of the federal compact the ground of doing in future whatever we might now rightfully do, should repetitions of these and other violations of the compact render it expedient.” In that letter, Jefferson says, “This was only meant to give a general idea of the complexion & topics of such an instrument. Mr. M. who came, as had been proposed, does not concur in the reservation proposed above; and from this I recede readily, not only in deference to his judgment, but because as we should never think of separation but for repeated and enormous violations, so these, when they occur, will be cause enough of themselves.” Dr. Koch concludes, “The fact that Madison was able to convince Jefferson that he should eliminate this dangerous sentence from his sketch of ideas to Nicholas, less than two weeks after Jefferson had written it into his letter to Madison, is dramatic proof that he alone sobered the excited exaggerations of his friend. Had Madison failed to argue as sensibly as he did, there would have been substantial truth in the contention that the Virginia and Kentucky Resolutions contained in embryo the later doctrines of nullification and secession.” [Adrienne Koch, Jefferson & Madison: The Great Collaboration, p. 200]
The unconstitutionality of secession may not have been settled law in 1860, but it is settled law today, and as Cass R. Sunstein, Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago School of Law, wrote, “In any case, no serious scholar or politician now argues that a right to secede exists under American constitutional law. It is generally agreed that such a right would undermine the Madisonian spirit of the original document, one that encourages the development of constitutional provisions that prevent the defeat of the basic enterprise.” [Cass R. Sunstein, “Constitutionalism and Secession,” University of Chicago Law Review, Vol 58, No. 2, Spring, 1991, p. 633]