Secession: A Natural and Constitutional Right

“I pledge allegiance to the flag of the United States of America and to the republic for which is stands one nation, under God, indivisible with liberty and justice for all.”

These words, the Pledge of Allegiance, are often accorded a place of honor in American scripture, alongside the Declaration of Independence and the Constitution. This is ironic, since its message stands in opposition to the decentralist sentiments of those foundational documents. Where the Pledge talks about the indivisibility of the states, the Declaration speaks of the right of people to separate from their government. Where the Pledge speaks of “one nation,” the Constitution outlines the expansive rights of the states.

Since its composition in 1892, the Pledge’s primary effect has been to convince generations of Americans to reject the political principles that their forefathers held dear, none more than the truly American idea of secession.

When modern Americans think of secession, they think of it almost exclusively within the context of the Civil War. Because of this, secession carries with it all the baggage associated with that period. But secession is a much too significant a concept to be confined to a five-year span in the middle of the nineteenth century. Rather, it is an important weapon in the arsenal of liberty, one that has a long tradition in American politics.

To understand secession is to understand American history.

Secession in Early America

Secession can be found in the beginnings of what would become the United States, long before the Civil War or even the American Revolution. The Puritans who left England to pursue religious freedom in the New World practiced a form of personal secession. While the colonies they founded would continue to be a part of the British Empire for almost two centuries, they removed themselves from their home country in order to escape political and religious oppression and form their own societies. They, in essence, seceded.

America’s founding document, the celebrated Declaration of Independence, is principally a secessionist document. The Declaration speaks of the necessity “for one people to dissolve the political bands which have connected them with another” and proclaims that “whenever any form of government becomes destructive of these ends (securing the rights of the people), it is the right of the people to alter or to abolish it, and to institute (a) new government.”

In order to leave no doubt of its signers’ intentions, the Declaration’s closing paragraph unequivocally declared the secession of the colonies from Great Britain, stating, “That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is…totally dissolved…”

It was out of this act of secession that the United States of America would eventually rise.

Secession and the Constitution

Some people will admit the secessionist origins of America, but will then say that the secession of individual states was outlawed by the Constitution. Abraham Lincoln took this position when he assumed the presidency in 1861. But the southern states that seceded in 1860 and 1861 had significantly more legal right to do so than the American colonists, who appealed primarily to natural rights philosophy, had in 1776.

A primary argument against the constitutionality of secession is that secession isn’t explicitly permitted in the Constitution. That is, there is no “out” clause for the states. But this mentality places the burden of proof on the wrong party. The Constitution created the federal government, but it was a dead letter without action by the states. If the states had not individually ratified the Constitution, the federal government would have never come into existence.

Since, in ratifying the Constitution, the states were delegating some of their authority to the federal government, it was natural for them to clarify exactly what powers they were delegating to the new government and what recourse they would have if it attempted to claim more power than the states were willing to give up. Several states made these clarifications explicit in their ratification conventions.

Massachusetts, for instance, recommended that an amendment be added to say “That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.” New Hampshire, New York, North Carolina, Rhode Island, South Carolina and Virginia all expressed a similar desire for such an amendment.

So important was this clarification of the federal government’s powers that the Constitution would not have been ratified in several states without it. In order to achieve ratification, the Constitution’s proponents had to promise to amend the Constitution with a bill of rights, and the cornerstone of those amendments would be the Tenth Amendment. That amendment states, “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.”

What this means for secession is that if, as the critics rightly point out, the power to secede is not specifically mentioned in the Constitution – either as a denial of that power to the states or the delegation of it to the federal government – it remains a right to be exercised by the states at their discretion.

But there is even more support for secession in the state ratification documents because three states explicitly claimed the right to leave the Union, even as they ratified the Constitution. These states included two of the most important states of the time, New York and Virginia, and a notoriously independent small state, Rhode Island.

Virginia was the first to make such a statement, declaring that “the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.” New York and Rhode Island used similar language, each resolving “That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness.”

When these states talked about the powers being reassumed by the people of the states, they were talking about secession.

Secession: A Mainstream Idea

Between the ratification of the Constitution and the Civil War, secession was a widely accepted fact of American political life. When Kentucky sought to nullify the Alien & Sedition Acts in 1798, it pronounced its devotion to the Union and said that it would “be among the last to seek its dissolution” – not that dissolution was impossible.

Thomas Jefferson, penman of the both the Declaration of Independence and the Kentucky Resolutions of 1798, expressed multiple times his expectation that, as American territory grew and new states were created, groups of states would secede and create multiple American republics across the continent. Jefferson viewed this prospect not as illegal and disloyal, but as an important protection for freedom.

Secession also appealed to Northerners in the antebellum period.  In The Real Lincoln, Tom DiLorenzo observes that during the first two decades of the nineteenth century, New England Federalists continuously “debated the wisdom of secession” in response to the South’s dominance of the federal government. But while the wisdom of secession was debated, DiLorenzo notes that “never was the inherent right of secession questioned.”

Enraged by the impending annexation of Texas in the early 1840s, former president John Quincy Adams declared that annexation “would be a violation of (the Constitution)” which would “not only inevitably…result in a dissolution of the Union, but…fully justify it.”

Northern abolitionists, led by William Lloyd Garrison, advocated Northern secession from the South, believing it would destabilize slavery and preserve the North’s moral high ground. This reason, among others, led many northern newspapers to lend their support to the southern states, if not for their reasons for seceding then at least for their right to do so.

Secession as a Natural Right

But just as it is important to not get caught up in one particular point in history when we discuss secession, it is likewise important to not get bogged down in discussions of whether or not secession was – or is – technically legal. The American founders had it right: secession is an important natural right. To deny that is to say that people can never morally leave a government no matter how oppressive it becomes.

Or as another abolitionist, Lysander Spooner, wrote after the Civil War, to deny the right of secession is to say “That men may rightfully be compelled to submit to, and support, a government that they do not want; and that resistance, on their part, makes them traitors and criminals.”

Secession’s association with the unsavory aspects of the southern states during the Civil War doesn’t change its nature as an important safeguard against tyranny. Denying the right of secession ultimately means blindly embracing centralized power no matter what evils it performs.

While this idea dovetails nicely with the Pledge of Allegiance, it is entirely antithetical to the principles of the American Revolution and the spirit of the Constitution.

Note: This article is part of a series on the Civil War. Click here to see all the articles in the series.