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This question is a follow-up to the Founding Fathers and the Civil War question.

Although the Constitution dictates how a state may join the Union, there is no written provision for secession. Did the Founding Fathers, or even some, ever discuss whether states had the right to secede if they wanted? Did they ever discuss whether the national government or the other states had the duty or power to prevent states from seceding?

If the Founding Fathers did not discuss this, when do we first see political debate in the United States on these questions?

  • 2
    possible duplicate of Was the secession of the Confederate states illegal? – Mark C. Wallace Jul 31 '14 at 16:17
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    @MarkC.Wallace I really like the discussion you say is duplicate, but I think that they are complementary as even the Supreme Court, in the Texas case, did not even cite the views of the Founding Fathers as the decision was not decided by our own Justice Scalia. There may be nothing in the written works of the Founding Fathers that adds to the discussion, but if there is, then it would be most interesting (and of relevance should the issue ever come to Justice Scalia). – Bruce James Jul 31 '14 at 16:36
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    Easily answered on the relevant Wikipedia page: en.wikipedia.org/wiki/Secession_in_the_United_States – Comintern Jul 31 '14 at 22:53
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    Depends on your definition of "duplicate". My answer to this question would certainly be an exact duplicate of my answer to the other one. – T.E.D. Aug 1 '14 at 7:04
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    Depends on which founding father. – BAR Sep 23 '15 at 6:05
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tl; dr

As far as I can tell, there is insufficient information to answer this. We have quotes & indications that point in both directions. It is clear that the Supremacy clause means that any legal action that contradicted Federal law was illegal; so secession was illegal. It is also clear that they never considered that reasoning.

Details

I was taking notes on this subject while reading Klarman yesterday. Unfortunately, I can't figure out how to download notes from a kindle.

While they did pass a resolution against military force, Mr. Durden's summary is misleading. They first passed a resolution supporting military force, and then subsequently reversed themselves because they decided that the Federal Government could penalize citizens, which made military force against the state less attractive; in fact, they feared that it would alienate the states, which lends some credence to the supremacy position.

They repeatedly discussed various states not joining the union, but I don't recall them discussing departure. They repeatedly discussed the fragility of republican government, and feared that if the Articles of Confederation continued, republican government would perish. Although the Articles of Confederation were clearly irreversible, they anticipated that states would (illegally) leave. Everyone expected Rhode Island to do so, and they discussed how to divide Rhode Island's territory when it failed.

Some people (including myself) believe that Virginia was waiting for the Articles to dissolve so that Virginia could take over the colonies as a monarchy (All Virginians knew that Virginia is the center of the universe and that nothing worthwhile is accomplished unless a Virginian is at the helm. Two hundred years later, they have not changed their opinion much.) Patrick Henry is most frequently mentioned as the King of Virginia, and eventually America.

They conclusively decided that it was legitimate for the Federal government to use troops to suppress a rebellion in a state - even without the state's request.

In order for a state to secede either:

  1. The state would need to pass a law seceding from the Union; which would be illegal under the Supremacy clause. Federal law could penalize & punish anyone proposing such a law, or;
  2. Some portion of the state would have to acquire extra-legal power, which would be a rebellion and justify military intervention.

They never explicitly considered secession, but the structure they set up prohibits secession.

Klarman is very good for this, as is Maier.

3

Question:
Did the Founding Fathers believe that states had the right to secede?

Contrary to popular belief the founding fathers didn't really agree on everything. While ratifying the U.S. Constitution when items of contention came up, sometimes new wording would be chosen which was arbitrary. Such that each party could claim victory, rather than find common ground. Sometimes unity was found through vagueness. Sometimes unity was found by ignoring the issue altogether.

The five most contentious issues facing the founding fathers at the Constitutional Convention:

  • Slavery - left for the next generation to solve
  • Representation - solved with bicameral legislature
  • State vs. Federal Powers - including succession, left largely vague, although some other rights were reserved for Federal Government.
  • Executive Power - vague, left for Washington to define
  • Commerce - Federal Gov did get the right to regulate interstate commerce.

Really only two of the five issues were somewhat resolved; representation and commerce by the founding fathers. Slavery wasn't solved until the 1860's and the Civil War. State vs Federal Powers are still being debated today, as is Executive Power and the extent of the Federal Government to regulate the Economy/ Commerce.

Question:
Did the Founding Fathers, or even some, ever discuss whether states had the right to secede if they wanted? Did they ever discuss whether the national government or the other states had the duty or power to prevent states from seceding?

Yes they did, quite extensively and exhaustively, they just didn't agree. It was discussed in the Federalist Papers as a primary threat to the welfare of the individual states which made up the union. On one side of the Argument you have primarily Thomas Jefferson and his allies including George Mason, Patrick Henry, and Madison. On the Other Side you have primarily George Washington, supported by all three of the authors of the Federalist Papers: John Jay, Alexander Hamilton and again Madison.

(*) Madison was heavily influenced by his two fellow Virginians Jefferson and Washington at different times during his life. Initially he sided more with Washington but later found agreement with the ideals of Jefferson.

In Favor of a State's right to Secede.
Thomas Jefferson opposed the ratification of the U.S. Constitution and believed it was every state's right to leave the Union which it had freely joined. The reason why Jefferson's opposition to the ratification of the Constitution is relevant to the question is because the Constitution represented a stronger Union. A strong Federal Government with rights reserved specifically for the national collective. Jefferson and his anti-constitutionalists supported the "Articles of Confederation" which called for a less formal association between the states, with the federal government unable to act without the unanimous consensus of the states.

Specifically on secession, Jefferson opposed the decision to bring General Washington out of retirement and send him to New England to put down Shay's rebellion. Jefferson, who was serving as America's representative in Paris at the time, thought it was reasonable, even healthy, for the citizens of New England to rebel.

In 1787, Thomas Jefferson wrote two letters, one to Madison and the other to his friend William Smith, concerning Shay's rebellion (August 31, 1786 – June 1787) and his (Jefferson's) disagreement with Congress's decision to bring General George Washington out of retirement and send him to New England to put down the rebellion.

Jefferson Letter to Madison Jan 30, 1787
I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.

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Jefferson to William Smith Nov 13, 1787
The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it's natural manure.

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Thomas Jefferson(March 4, 1801) in his First Inaugural Address said
“If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it.”

...

I trust not. I believe this, on the contrary, the strongest Government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern. Sometimes it is said that man can not be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.

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Madison rocked back and forth between Jefferson and Washington. Madison was aligned with Washington against Jefferson the ratification of the Constitution, and legality of secession. Madison favored sending Washington to put down Shay's rebellion. Madison would later side with Jefferson against Washington.

Madison Letter to Jefferson Oct 24th, 1887
You will herewith receive the result of the Convention, which continued its session till the 17th of September. I take the liberty of making some observations on the subject which will help to make up a letter, if they should answer no other purpose.
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It appeared to be the sincere and unanimous wish of the Convention to cherish and preserve the Union of the States. No proposition was made, no suggestion was thrown out in favor of a partition of the Empire into two or more Confederacies.
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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. A voluntary observance of the federal law by all the members could never be hoped for. A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent and the guilty, the necessity of a military force both obnoxious and dangerous, and in general, a scene resembling much more a civil war, than the administration of a regular Government.
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Hence was embraced the alternative of a government which instead of operating, on the States, should operate without their intervention on the individuals composing them: and hence the change in the principle and proportion of representation.

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James Madison (1788) At the Constitutional Convention, a proposal was made and rejected to allow the Federal Government to suppress a seceding state

“A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.”

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Standing against a State's right to Secede.
You have George Washington

George Washington discusses Shays’ Rebellion
If government shrinks, or is unable to enforce its laws; fresh maneuvers will be displayed by the insurgents – anarchy & confusion must prevail – and every thing will be turned topsy turvey in that State; where it is not probable the mischiefs will terminate.

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George Washington 1783
It is indispensable 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…republic, without which the Union cannot be of long duration. That there must be a faithful and pointed compliance on the part of every state, with the…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….[W]ithout an entire conformity to the spirit of the Union, we cannot exist as an independent power.

The Core Secessionist Augment:
In the Constitution succession is not disallowed, and thus by the tenth Amendment, “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”. Secessionists have a rational argument.

Case to Preserve the Union:
From a historical perspective however, warnings come down to us in the federalists papers that dissolution of the Union is among the worst things the founding fathers could envision. Hamilton (NY), Madison(VA) and Jay(NY- latter first Supreme Court Chief Justice) all agree that if the Union dissolved it would condemn the resulting parties to fight 1000 years of wars along competing religious, economic, and social values; just as European history demonstrated in the preceding centuries.

FEDERALIST No. 8. - Hamilton
But if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe—our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other.

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FEDERALIST No. 5 - Jay
Nay, it is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. Considering our distance from Europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many conquests did the Romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect.

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Federalist No. 10 - Madison
AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations.
.....
In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.

.

Thus succession for unionists transcends hypothetical discussions and the logic of hidden default arguments found in the Constitution. Dissolution is a transformational action which threatens the welfare of all the member states of the republic. Thus every succession attempt, whether:

  • Daniel Shay in 1786,
  • The whiskey rebellion of 1791,
  • South Carolina in 1832,
  • The entire South in 1861

Has been meet not by legal petitions or counter arguments but by force of arms.


For a great look inside how the U.S. Constitution was written read Plain, Honest Men: The Making of the American Constitution by Richard Zeeman

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It's a fascinating convention by convention, blow by blow description of how the US Constitution was written and ratified. How George Washington theorized the need for a new association in 1787, organized and encouraged the process, but remained entirely anonymous except to Madison and Hamilton. Washington who swooped in at the final moment agreeing to chair the final ratification convention in 1791, as a presumed neutral party, only he organized and helped theorize the entire document.

From Rhode Island who was so opposed to taxes that it refused to pay the expenses of their constitutional representatives, and thus went without representation for much of the 3 years it took for the Constitution's creation.

To James Madison staring as the cat herder who for three years, wrote letters to all the representatives to ensure their participation before each constitutional session, then would show up early studying the political small talk to cojole each delegate. The delegates often showed up late, and often didn't show up at all. Madison was left exasperated when a quorum would fail to appear, as often would not; and then he would start the whole process over again.

Even at the final ratification convention chaired by George Washington. New Hampshire's delegation showed up 2 months late, at which time two of the three New York Delegation had left. So New York didn't have a quorum. Washington quipped, the Constitution was signed by “11 states and Colonel Hamilton.”

It's a great read and makes you truly believe in a higher power, because the direct intervention of a higher power is the only way that process produced anything much less a document which has stood for 200 years.


Sources:

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In the secret debates of the Federal Convention of 1787 it was argued that only the consensus of all the states should dissolve the union and that no minority of states should be able to dissolve it. This was significant because at the time several states were opposing the idea of a union, particularly in preference to the Virginia plan, but those states did indeed ultimately sign the Constitution.

The Supreme Court ruled in 1845 that all states were bound by the terms of the Constitution and this implied their subjection to Congress.

Article V of the Constitution allows any convention of states to ammend the Constitution in any way with a majority of 3/4ths. This means that 3/4ths of the states constitute a quorum to dissolve the Union (or alter it in any way they choose) by right and by law.

The most important of the founding fathers, John Adams, was a unionist who believed in the paramount power of the federal entity. He appointed John Marshall as Supreme Court justice. Marshall held the same views and set the tone in the court that the federal power was paramount. This was in contradiction to the Virginia faction, led by Thomas Jefferson who believed the individual states should have the decisive power, and the Union should be at the convenience of the several states.

James Madison, also of the Virginia faction, was the most outspoken of the founding fathers. He, after the fact, published abstracts of the constitutional debates which had originally been secret. He opposed Adams, and in particular fought the Alien and Sedition Acts of Adams as a challenge to state sovereignty.

Nevertheless, Madison considered that actual nullification required the expressed will of the nation. The idea that a single state could nullify a federal law was denied by Madison: "For this preposterous and anarchical pretension there is not a shadow of countenance in the Constitution."

This written statement by Madison perhaps sums up in nutshell the consensus of the founding fathers as a whole. The 3/4ths requirement of the Constitution itself probably reflects what majority Madison and others considered to be the "will of the nation".

  • 2
    I'd say a state leaving the union does not constitute the dissolution of the union... – jwenting Aug 1 '14 at 14:33
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    @jwenting: Yet the Common Law of Partnerships, well established by the time of the Continental Congress, is very clear that the removal or addition of any single partner requires the re-establishment of the entire Partnership. – Pieter Geerkens Aug 22 '17 at 0:23
  • In para 1 you mean plurality, not minority. – Samuel Russell Sep 16 '18 at 0:57
1

A clause to the Constitution granting the use of military force by the Federal govt. against a state was specifically rejected and tabled, as it would have defeated the main purpose of forming a voluntary Union, and as per Madison would be coercion. The clause was never revived, and the use of force was not a granted power to the Federal govt., hence both Buchanan's and Lincoln's attempted blockade of Charleston Port were illegal under the Constitution; they had no such legal power to do so or coerce any state to remain in the Union. Secession was such a constant threat from states and regions throughout U.S. history it is impossible to make a solid case for it ever being considered illegal. The states most frequently threatening to secede were the New England states, not the southern states, until around 1829 or so, iirc.

Texas vs White actually avoids the issue of legality of secession if you read it; Chase was playing some semantic games in his Opinion on the case, and considering how corrupt the Court and the Federal govt. was, and its being stacked with cronies with financial ties to northern interests, it shouldn't be taken seriously, despite 'tradition'; many of the Chase Court's rulings really should be thrown out and re-heard for the sake of propriety and credibility.

  • For anyone who wants to verify -- Findlaw on Texas vs White, And opinion of CHASE, C.J. – J Asia Aug 21 '17 at 20:15
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    you might want to put in your citation to substantiate your position. Which part was semantic games? – J Asia Aug 21 '17 at 20:17
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    My bad, Findlaw on Texas vs White again. – J Asia Aug 21 '17 at 20:29
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I think the constitution probably allows secession. The declaration clearly says when it becomes necessary - 'break bands and they should declare the causes which impel them to the separation.'

Once you have that out of the way, 'it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.....'

I can't see why the fellas who came up with this stuff would feel so differently about secession. Unless they really thought their batter was better than everyone else's, ever.

  • 1
    'I can't see why' isn't evidence. Can you back this up with any sources? – Lars Bosteen Jul 3 '18 at 5:38
  • The declaration of Independence is not the Constitution. The Constitution is the document that established the legal framework in accordance with the (eventual, and negotiated) thoughts that the founding fathers agreed to, including the articulated mechanisms for adding to and subtracting from (or not) the Union. – mickeyf_supports_Monica Jul 3 '18 at 12:40
  • @LarsBosteen While I disagree with scott1, it's clear that he intended his quotation from the Declaration of Independence to be a sufficient source for his argument. – Spencer Jul 3 '18 at 13:34
  • yes, that is clear. – scott t Jul 8 '18 at 6:09
  • the founding people i think had a good idea bout human nature and a tendency towards various tyranical modes of leadership. as far as a will of a nation neede to seccede that like saying a will of the crown to not rebel , or the will of the whole dictatorship. paramount power already existed with a crown and that wasnt sufficient to not 'break bands' and alter or abolish existing and/or perceived oppression...from edict or policy. – scott t Jul 8 '18 at 6:16
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Art I § 8 lays out the "limited, specifically enumerated powers" of the fed congress: no power to use force against states nor limiting secession by same is enumerated. Thus no such power exists. The supremacy clause does not apply unless a valid law has been passed. Since no such power to make a law existed the supremacy clause is immaterial.

Same as to powers of the executive in Art II which require lawmaking by congress first, then faithful execution--one can not faithfully execute a law that does not exist. The Declaration of Independence, still in force, makes secession, which the colonies did from England, an inalienable right of Americans. A recent poll shows a plurality of Americans today support the California secession movement.

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