How can the federal government be prevented from usurping powers that the Constitution doesn’t grant to it? It’s an alarming fact that few Americans ask this question anymore.
Our ultimate defense against the federal government is the right of secession. Yes, most people assume that the Civil War settled that. But superior force proves nothing. If there was a right of secession before that war, it should be just as valid now. It wasn’t negated because Northern munitions factories were more efficient than Southern ones.
Among the Founding Fathers there was no doubt. The United States had just seceded from the British Empire, exercising the right of the people to “alter or abolish” — by force, if necessary — a despotic government. The Declaration of Independence is the most famous act of secession in our history, though modern rhetoric makes “secession” sound somehow different from, and more sinister than, claiming independence.
The original 13 states formed a “Confederation,” under which each state retained its “sovereignty, freedom, and independence.” The Constitution didn’t change this; each sovereign state was free to reject the Constitution. The new powers of the federal government were “granted” and “delegated” by the states, which implies that the states were prior and superior to the federal government.
Even in The Federalist, the brilliant propaganda papers for ratification of the Constitution (largely written by Alexander Hamilton and James Madison), the United States are constantly referred to as “the Confederacy” and “a confederate republic,” as opposed to a single “consolidated” or monolithic state. Members of a “confederacy” are by definition free to withdraw from it.
Hamilton and Madison hoped secession would never happen, but they never denied that it was a right and a practical possibility. They envisioned the people taking arms against the federal government if it exceeded its delegated powers or invaded their rights, and they admitted that this would be justified. Secession, including the resort to arms, was the final remedy against tyranny. (This is the real point of the Second Amendment.)
Strictly speaking, the states would not be “rebelling,” since they were sovereign; in the Framers’ view, a tyrannical government would be rebelling against the states and the people, who by defending themselves would merely exercise the paramount political “principle of self-preservation.”
The Constitution itself is silent on the subject, but since secession was an established right, it didn’t have to be reaffirmed. More telling still, even the bitterest opponents of the Constitution never accused it of denying the right of secession. Three states ratified the Constitution with the provision that they could later secede if they chose; the other ten states accepted this condition as valid.
Early in the nineteenth century, some Northerners favored secession to spare their states the ignominy of union with the slave states. Later, others who wanted to remain in the Union recognized the right of the South to secede; Abraham Lincoln had many of them arrested as “traitors.” According to his ideology, an entire state could be guilty of “treason” and “rebellion.” The Constitution recognizes no such possibility.
Long before he ran for president, Lincoln himself had twice affirmed the right of secession and even armed revolution. His scruples changed when he came to power. Only a few weeks after taking office, he wrote an order for the arrest of Chief Justice Roger Taney, who had attacked his unconstitutional suspension of habeas corpus. His most recent biographer has said that during Lincoln’s administration there were “greater infringements on individual liberties than in any other period in American history.”
As a practical matter, the Civil War established the supremacy of the federal government over the formerly sovereign states. The states lost any power of resisting the federal government’s usurpations, and the long decline toward a totally consolidated central government began.
By 1973, the federal government was so powerful that the U.S. Supreme Court could insult the Constitution by striking down the abortion laws of all 50 states; and there was nothing the states, long since robbed of the right to secede, could do about it. That outrage was made possible by Lincoln’s triumphant war against the states, which was really his dark victory over the Constitution he was sworn to preserve.