This post was submitted to the U.S. Freedom Army by enlistee Jim Delaney of Rochester, NY. Jim is a former U.S. Army Captain and a Vietnam veteran with two Bronze Stars and he is the author of the book “A Patriot’s Call to Action: Resisting Progressive Tyranny & Restoring Constitutional Order.”
Revisiting Secession: A Constitutional Check to Federal Tyranny
Regarding the nature of this hallowed union of States, Americans must never, ever forget how the Founders viewed this union and the States which comprise it.
We must get past the adolescent, uninformed, politically correct and self-destructive notion that this union is inviolably indissoluble. This union is not indivisible and never has been. To believe otherwise defies logic, commonsense and flies in the face of our founders’ understanding. Despite the relentless brainwashing over the years, a little honest research—without the blinders—is all that is required for readers to clearly understand the unassailability of a State’s right to secede.
From its inception, the United States of America has been a voluntary association of sovereign States. In truth, no States were coerced to become members of that association. The union is a contractual association, a compact of independent sovereign States, any of which may secede from that association should the other party to that contract, that being the federal government, fails to uphold its contractual obligations.
To illustrate this point, as a condition of their ratifying the US Constitution, Virginia, New York and Rhode Island explicitly reserved their right to secede, and no objections from the Founders were raised. And, in accordance with the 10th Amendment, because the Constitution does not prohibit secession that power, like all other powers not specifically delegated to the federal government or specifically denied to the States, is indisputably reserved to the States.
No amount of revisionist history, nationalism, lawyerly contrivances, political obfuscation, or otherwise misguided case law can nullify that fundamental truth. No branch of the federal government is sovereign and supreme. The States and their citizens, the creators of the federal government, are sovereign and supreme, and that is the way our founders intended it to be.
Further, without the approval of a duly-elected State legislature or, should it be impossible to timely convene the legislature, an invitation of the Governor, may force of arms be applied by either the federal government or sister States to quell rebellion within a particular State or to otherwise impose the union’s will on any member of that compact. Because a misapplication of military force against a State or States may have been perpetrated in the past can in no way render that action lawful or constitutional today or in the future.
To be specific, Article IV, Sec 4 of the U.S. Constitution provides that “The US shall guarantee to every State in this Union a republican form of government.” As such, it provides that the federal government shall protect each of the States of the union “against invasion, and on application of the legislature, or of the governor (when the legislature cannot be timely convened) against domestic violence.”
Extremely important to note is the admonition of James Madison respecting this federal guarantee: in Federalist 43, he stated that the authority of the federal union “extends no further than to a guaranty of a republican form of government”…and that “whenever the States may choose to substitute other republican forms, they have a right to do so.”
Conveniently overlooked by “nationalists”, proponents of a supreme central government, is the fact that during the Constitutional Convention in 1787, James Madison, father of the Constitution, expressed his revulsion with the notion of the federal government’s committing armed force against any State for any reason outside that limited purpose clearly provided for in Art IV, Sec 4, asserting that “a Union of States containing such an ingredient seemed to provide for its own destruction,” saying that “the use of force against a State would look more like a declaration of war” and, to the party being assailed, “would probably be considered as a dissolution of all previous compacts by which it was bound [to the union}.”
Thus, again, the only instance when the States or the federal authority may use force of
arms against a State is if that State violates Art IV Sec 4 of the Constitution, a provision which mandates that all State governments be republican in design. And only if a foreign entity has seized control of that State’s republican apparatus, thus rendering the legislature something other than duly-elected and/or the governor something other than duly-authorized, may the States and/or the federal government apply military force to bring that State back into compliance with the Constitution.
That said, with the acquiescence of Congress, it is manifestly obvious that Pres. Lincoln, for whatever reason, political or otherwise, grossly exceeded his constitutional authority by committing armed forces against the seceding Confederate States of America in 1861, plunging this nation into one of the bloodiest and costliest wars in its history. And only by force of arms and a gun to their heads did the victorious North illegally compel the vanquished southern States to officially repudiate their inherent constitutional right to secede–which begs the question that if the States did not have the residual and inherent authority to secede then why would they be required to renounce that authority?
Asserting that the union was somehow indivisible, a concocted notion entirely foreign to the Founders, Mr. Lincoln, with much patriotic fervor, political fanfare, lofty rhetoric, and faulty argumentation, brazenly flouted the constitution with impunity by violating the sacred right of those 11 sovereign States to legally secede from this voluntary union. In truth, the Founders well-understood that this union of States was never intended to be any more perpetual, aka eternal, than the confederation of States which preceded it, and that the union’s survival was solely dependent upon the parties to the compact fully upholding their obligations under that contract.
It should be remembered that when any suggestion of calling forth military force against a State was brought up in the Constitutional or State Ratifying Conventions, the notion of indivisibility was unanimously rejected by both framers and ratifiers alike. Irresistible and unavoidable conclusion: by plunging the union into war with the Confederate States of America, our childhood hero, Abraham Lincoln, was in clear violation of the original meaning, intent and spirit of the Constitution. In short, Mr. Lincoln was dead wrong and our history teachers and textbooks have routinely and ignorantly foisted the myth of indivisibility upon generations of gullible children.
In all of my research over the years, there has been no evidence that the myopic notion of union at any price was ever conceived of or in any way embraced by the Founders. In fact, there’s considerable evidence that the Founders viewed the very concept of indivisibility as dangerous. The States’ inherent rights to secede, to interpose, and to resist an overreaching central government remain as unmistakable, unambiguous and unalienable today as they were in 1787.
For future reference, let that truth sink in. To safeguard individual liberty, constitutional governance, and the sovereignty of the States, the immediate fiduciary agents of We the People, if our resistance to tyranny must necessarily entail secession, then that rightful form of resistance must be fully embraced and fearlessly acted upon.
If the clear choice is liberty or union, can there be any doubt as to a free people’s choice? Of course not. And the Founders knew that very well.
Some Advice to “Secession Petitioners”
Historically, short of revolution or rebellion, secession is the ultimate practical check on centralization.
No branch of the federal government is empowered to decide upon the merits of a State’s inherent right to secede. By its very nature, secession is an anti-federal act not requiring federal sanction.
Petitioning the federal government for permission to secede is self-contradictory and has no basis in English common law or American constitutional history. Secession, aka rescission, withdrawal, is a unilateral action and is not dependent upon mutual agreement between the parties to that contract.
Bottom line: when one enters into a contract and the other party violates that contract, does one request permission of the offending party to withdraw from that contract already violated? Of course not. All compacts are subject to the equitable remedy of rescission in the event of a breach of contract. It’s really common sense and basic contract law. It’s that straightforward.
At its inception, the US of A was a voluntary compact (contract) of sovereign States, each retaining the inherent authority to rescind its contractual relationship with the federal government, the other party to that contract, should the latter violate the terms of that contract/compact. That contractual relationship hasn’t changed, though the misnamed “civil war” may have led us to believe otherwise. (By the way, “civil war” means that two or more factions are militarily struggling over control of the central government; however, in America’s so-called “civil war”, the South was defending its sovereign territory, not entertaining the capture and control of the central government in DC or of the northern territories.)
Force of arms alone by a revisionist, self-contradictory, union-at-any-price nationalist, that being our heretofore venerated Abe Lincoln, cannot–and did not–invalidate a State’s inherent right to secede, or to otherwise rescind its ratification of this constitutional contract, no more than the federal government can legally or constitutionally annul the People’s right to rebel in the face of tyranny. Note: if secession were treasonous, which some maintained it was, why then were not southern leaders dragged into court following the North’s successful invasion of the Confederate States of America? Easy. Because the North didn’t want to lose in court what they thought they had won on the battlefield.
Fact: Perpetual union at any price was never contemplated or embraced by the Founders. Rebellion, secession, nullification, civil disobedience have remained essential elements of America’s republican fabric, and the threat or application of force on the part of the federal government cannot eradicate those foundational, inherent and unalienable rights of a free people.
When ratifying the Constitution, and only to the extent that it delegated certain of its sovereign powers to the federal government, not once did any State surrender its sovereignty. All powers voluntarily granted by the States to the federal government were very limited and very specific. All other powers, specifically enumerated or not, not delegated remained with the States. The 10th Amendment enshrined that principle in the Constitution and, in so doing, reasserted the foundational principle that the federal government cannot unilaterally redefine the limits of its powers. To join the union, the States were not compelled to surrender anything, much less their sovereignty. Those few and specific State powers delegated to the federal government were granted freely and willingly on the understanding that both parties are obliged to fully comply with the covenant.
And remember, we not only seceded from England, but also, one by one, from the Articles of Confederation (which was said to be “perpetual”) in order to form a “more perfect union” of States, a union which was initially comprised of but 9 States, the remaining 3 sovereign States freely opting to remain outside the association until well after the Constitution’s adoption.
This “more perfect union”–MORE perfect, not PERFECT–was not intended nor expected to exist in perpetuity, but, like the Articles of Confederation, only until such time that the compact outlived its usefulness or if the parties to that contract violated its terms.
Our Founders, studious historians, were not stupid men and well understood the corruptibility of men and all that man may devise. While they hoped the union would be strong, free and productive, they did not view secession and dissolution as ill-conceived, treasonous or unanticipated. We’ve just been brainwashed into believing that secession and dissolution are vile, wrong, corrupt and treasonous. Not so at all. If that were true, then our Founders were charlatans and short-sighted fools. They weren’t.
All that said, as a first step I recommend that States opt for nullification, the “rightful remedy” as Jefferson described it, to resist unconstitutional acts by the Supreme Court, the Congress, the Chief Executive and their myriad bureaucracies which now comprise the unofficial fourth branch of government. And to render nullification more efficacious, States should enact punitive laws to prohibit the enforcement of those federal acts nullified by the State. This is called “interposition”, or a State’s insinuating itself between intrusive federal authority and the citizens of the State. Interposition would actually require the arrest, trial and imprisonment of any State OR federal agent who attempts to enforce a nullified federal act. Of course, implicit in nullification is the threat of secession should the invasive federal government fail to retreat within contractual parameters. But, again, secession is not by its nature treasonous or unavoidably violent. Not at all.
Finally, while I sincerely appreciate the wave of secessionist sentiment sweeping the country, secession, a serious constitutional matter, requires a majority of a State’s residents to support the act. Anything less than a majority constitutes a protest and nothing more. And even with a majority expressing its support for secession, the people’s State representatives must be won over as well, this if the label of “insurrection” and the invocation of Art I Sec 8 Para 15 are to be avoided.
Note: per Art IV Sec 4 of the Constitution, “on application of the Legislature, or of the Executive (when the Legislature cannot be convened)”, the feds can be asked to intervene, whether that intervention is morally repugnant or not. Secession is a political act, not merely a feel-good act. Thus, on the subject of secession, both the people of a State and their duly elected State representatives must be of one mind on the issue of secession.
The million or so citizens who recently petitioned the White House to grant them permission to secede was great PR—maybe—but without any basis in commonsense or constitutional law.
(“The source of Lincoln’s power was his willingness to exercise power not grounded in the original Constitution but in his creative abilities to undermine the Constitution while rhetorically defending it.” Donald Livingston, “Rethinking the American Union…”)
(“The secession of a state from the Union depends on the will of the people of such state. The people alone, as we have already seen, hold the power to alter their constitution.” William Rawles, 1825)