There is no section of the U.S. Constitution that would preclude states from putting referendums for secession on the ballot, and if duly approved, for such states then to depart legally from the Union.
The U.S. Constitution is the world’s oldest existing governing body of laws. It was then that our founding fathers met in their effort to form a union more perfect than the one under which the thirteen sovereign states had been operating since 1781, the original Articles of Confederation. While the new document was written and ratified in a far different age by men who certainly could not have foreseen what their new nation would become more than two-and-a-quarter centuries in the future, their extraordinary prescience has allowed the basic document to withstand the tests of time and travail. As proof of this, aside from the first ten amendments to the Constitution (eleven, if one counts the latest Congressional salary amendment in 1992 which was ratified over 202 years after its initial submission with the Bill of Rights in 1789), out of the more than 11,500 changes that have been proposed by Congress over the years, our nation has seen fit to actually amend the original document a mere sixteen additional times.
Even though the new Constitution injected the hope of insuring domestic tranquility, the following seven decades of the nation’s history were anything but tranquil. Only a little more than twenty years after America had its new charter, the country was not only again at war with England, but the New England states were convening in Hartford, Connecticut, threatening to secede from the new union and make a separate peace with Great Britain. Their justification for such action, like that of the Southern states forty-five years later, was an array of grievances related to the increasing power of the federal government at the expense of state sovereignty. It should be noted, however, that New England’s talk of secession in 1815, unlike the South’s actual action taken in 1860, was not met with any threat of retaliation on the part of the federal government. The simple reason for this, of course, was the fact that there was, and still is, nothing in the Constitution to forbid a state from legally leaving the new union, and neither of the two Amendments prior to 1860 had provided any such prohibition. In fact, the Eleventh Amendment of 1794 further reinforced state sovereignty by protecting states from legal actions brought against them by persons from outside the state, or those in foreign nations.
On the question of state’s rights, people often cite the latent force of the Tenth Amendment, which stipulates that powers not specifically given to the federal government nor prohibited to the states under the Constitution are to remain the province of either the respective states or the people. It is a fact, however, that the Amendment has only been the basis of a score of cases before the Supreme Court—and none of these involved any fundamental question of state versus federal powers. Even the three Tenth Amendment cases prior to the War Between the States dealt not with such tumultuous matters as slavery, unfair federal taxation, or basic state’s rights, but rather with such mundane affairs as a Connecticut probate case, a land dispute in Virginia, and Hudson River navigation rights in New York.
However, once the supposed illegality of secession had been firmly fixed in America’s mind and body politic following the defeat of the South by the force of Union arms in 1865, the states were faced with the problem of how to remedy situations in which federal laws were deemed to be either unconstitutional or to contravene the basic rights of a state. Two obvious answers, of course, were to either challenge such laws in the federal courts or to void them via a constitutional amendment. There is also a third path that had been attempted in the past, and is once again being advocated today—the concept of merely invalidating such federal laws by nullification via an action taken by a state legislature.
The first such attempts at nullification occurred in 1798 when Thomas Jefferson and James Madison introduced resolutions in Kentucky and Virginia to invalidate four federal laws that had been enacted that year, laws commonly known as the Alien and Sedition Acts, that were considered by those states to be unconstitutional. The first was the Naturalization Act which made it far more difficult for immigrants to attain American citizenship, with the second and third being the Alien Friends and Alien Enemies Acts which gave the president the power through executive action to incarcerate and deport any alien who was considered to pose a threat to the nation, or those who were citizens of a nation hostile to the United States; and fourth, the Sedition Act, which made it a federal crime to make what the authorities deemed to be false statements that were critical of the federal government. All of these laws somehow invoking an uneasy feeling of déjà vu today. Unlike later nullification attempts, the Kentucky and Virginia Resolutions did not seek to bar the enforcement of such federal laws, only to declare them to be unconstitutional and calling upon all the other states to join with them in repealing the laws…but none did. Many of the other states cited that questions pertaining to the constitutionality of federal laws should be settled in the federal courts, and Vermont went so far as to state that it considered the Resolutions themselves to be unconstitutional and dangerous in nature.
A number of additional nullification efforts were made during the first half of the Nineteenth Century, with most of them being settled by Supreme Court action. With sectional strife growing stronger in the nation, the next real nullification test began in 1828 with John C. Calhoun’s South Carolina Exposition and Protest which opposed a new federal tariff on constitutional grounds. In it, Calhoun charged that the tariff was enacted to aid Northern manufacturers and damage Southern agricultural interests. The tariff matter was then taken to the floor of the U.S. Senate two years later in the heated debates between Senators Robert Hayne of South Carolina and Daniel Webster of Massachusetts in which Webster cited first that under Article III only the Supreme Court had the authority to decide constitutional questions, and next that Article VI gave federal law supremacy over state laws.
When further federal tariffs were enacted in 1832, South Carolina then said it would nullify both tariff acts and ban the collection of such taxes within the state. President Andrew Jackson immediately issued a proclamation condemning South Carolina’s action and threatened to enforce the laws. No other state supported the nullification move, and a year later a compromise tariff measure was crafted by Senators John Calhoun of South Carolina and Henry Clay of Kentucky that would, by 1842, gradually reduce the federal tariffs to their 1816 levels of twenty percent. This, at least, brought a temporary end to the five-year long nullification crisis, but in 1842 Congress ultimately imposed federal tariffs of forty percent, adding yet more fuel to the burgeoning sectional conflagration.
Later in the Nineteenth Century, the curtain was raised on a new series of nullification dramas pertaining to actions in certain Northern states to nullify and bar the enforcement of the Fugitive Slave Acts of 1793 and 1850 through the passage of state personal liberty laws. The first such case appeared in 1842 when an 1826 Pennsylvania law forbidding the removal of a black person from the state and being either returned to his or her owner or sold into slavery, was challenged and taken before the Supreme Court. The Court ruled that the state law was unconstitutional under the provisions of Article IV which authorized the recovery of fugitive slaves. The Court further ruled though that while the federal laws could not be nullified, the state could enact laws the would allow state officials to refrain from aiding federal officers in the recovery of fugitive slaves. The issue arose again in 1859 when the Wisconsin courts said that the Fugitive Slave Act of 1850 was unconstitutional, that the state had the right to release a slave held under that Act and that the Supreme Court lacked the authority to overturn the state’s legal action. In rendering the Supreme Court’s unanimous opinion, Chief Justice Roger B. Taney leaned heavily on the “Supremacy Clause” in Article VI of the Constitution which states clearly that any federal law or treaty that is deemed to be constitutional must be considered as superior to any state constitution or law which might attempt to contravene such federal actions.
With the state nullification process generally being accepted as being effectively blocked by Articles III and VI of the Constitution, it might seem that the only viable method of rendering null and void a federal law considered to be unconstitutional is by amending the Constitution itself, with Article V stipulating that this can be initiated either by an act of Congress or directly by the states themselves. To date, however, only the first method has ever been carried out and, as stated previously, only twenty-seven amendments out of the thousands that have been proposed by Congress have ever been ratified over the past 228 years. The alternate method is even more daunting, requiring two-thirds of the states to petition Congress to call what is rather ambiguously termed “a convention for proposing amendments.” To date, only about 400 such petitions have been initiated by various state legislatures on a wide range of matters, but the process has never led to a successful conclusion. Furthermore, since the Constitution offers absolutely no guidelines as to the actual nature or makeup of such a “convention,” the doors would seem to be wide open to anything from simply proposing a single amendment to a complete rewriting of the entire Constitution; in other words, it could open up a procedure that would make Pandora’s Box seem like a chest of children’s toys.
What then might be the solution to stabilizing the multitude of mounting cultural, ideological, political, and racial tensions that seem to be constantly straining the very seams of America’s fabric and future? Since the quadrennial changes in the nation’s political administrations, or the elections to alter the makeup of its national Congress appear to have little effect in finding a better path out of the country’s current morass, or even try to alter the status quo, perhaps we should turn the clock back a century and a half and rethink the course taken by the South in 1860.
The original roadmap to regional independence and possible salvation is still valid. Contrary to what might be thought of as conventional wisdom today, as stated at the outset, there never was, and there still is, no actual section of the U.S. Constitution that would preclude states from putting referendums for or against secession on the ballot, and if duly approved, for such states then to attempt to depart legally from the Union, or to form a new regional grouping. That being said, it is certain that today’s federal government would not allow such moves to proceed unchallenged, and would, at least, lay the matter before the Supreme Court—as should have been the case in 1860. On the other hand, it is also entirely possible that the government would eschew any legal action and if its orders to the states to cease and desist were ignored, would once again set itself immediately upon Lincoln’s tragic road to fratricidal war. In either instance, however, given the gravity of today’s ever-growing national dilemma, referendums on secession might be worth a try. For, as Donald Trump said during his campaign, what do you have to lose?
Republished with gracious permission from The Abbeville Review (October 2016).
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