Secession University

Simply put, our Constitution is nothing more than an agreement between the States establishing a federal system of government; a government delegated with the authority to perform a few very specific duties as the agent for these sovereign States. Some prefer to use of the term “Compact” when referring to our Constitution since it conveys a more precise definition for an agreement between nations and states. The Compact Theory, as used in this article, provides an examination of the terms and conditions of our Constitution—making the case that the parties to this agreement (i.e. the States) can withdraw at their pleasure.

In 1781, five years after their Declaration of Independence, these thirteen free, independent, and sovereign States joined in pursuing shared governing functions through a constitution known as the Articles of Confederation. This first constitution of these United States was a compact between thirteen specifically named States, required unanimous consent to change, as well as language proclaiming, “The Union shall be perpetual.” With terms like these, the idea of any State freely withdrawing from this compact was highly unlikely.

These annoying details did not seem to bother our Founders since they eventually came to the realization that the Articles of Confederation was weak and ineffective. Before long, in 1787, our Founding Fathers drafted a “more perfect” constitution, in which they stipulated this new Union would come into being once just nine of the thirteen States agreed to leave their current “perpetual” union and join the proposed “more perfect Union.”

One by one, States began to abandon the old Confederation without so much as an apology for breaking their perpetual compact, and doing so without the required unanimous consent of all thirteen States. In June of 1788, New Hampshire became the ninth State to ratify the new agreement, and at that point, according to Article VII, our current Constitution was officially established. Over the next two years, the remaining four States—their status then being independent self-governing nation-states—eventually straggled into this new Union.

This marked the second time in just twelve years when the people of those thirteen States exercised their right to withdraw from a government they considered not in their best interest and form a new one more to their liking. It would be more than seventy years later when eleven Southern States would again attempt to exercise this option, but rather than respect their right to do so, Lincoln reacted as King George III and ordered his Royal troops into these newly free and independent States—forcing their return at the point of a bayonet.

It is important to note at least one major difference between the secessionist movements of 1776, 1788, and the 1860s. While each enjoyed a natural God-given right to a government of their choosing, the secessionists of 1860-61 also had a contractual right to such an undertaking—a legal right derived from their Compact between the States.

The intent of the Constitution and delegated authority

When debating the right of States to withdraw from the Union, the focus usually centers on constitutional arguments and the intent of the Constitution’s wording and delegation of authority.

The concluding Article VII of the Constitution refers to the document as being “between the States,” and therefore clearly establishes this Constitution as a Compact between those States acceding to its terms and conditions. Those States not in agreement were free to form another union of their choosing or remain as independent nation-states.

It is also indisputable that the federal government was not a party to the Compact since the States, through the explicit language of the Constitution, created the federal government and likewise these States had the power to abolish what they had created.

Of even more significance, the Constitution, by design, delegated limited and specific authority to the federal government, leaving all other unspecified authority with the States and their people. The federal government was therefore not empowered to intervene in areas not specifically designated as being under federal authority, and since there were an unlimited number of powers not delegated to the federal government, including the right of the States to withdraw from this Compact, the States, and the States alone, had the sole and exclusive authority to decide those matters.

It is also important to note that this new Constitution abstained from using the term, “The Union shall be perpetual,” as declared in the old Articles of Confederation. This just might be one of the many reasons why this Constitution was “more perfect” by acknowledging the obvious, as the Framers knew from experience with the Articles of Confederation; no government can be preordained as “perpetual.”

The ratification provisions

The States of Virginia, New York, and Rhode Island were apparently uncomfortable with the Constitution’s lack of more precise language regarding the delegation of powers and authority between the States and the federal government. Specifically, the right of States to withdraw powers previously delegated and the right of the States to independently exercise all authority not so delegated. When these three States submitted their ratifications of the Constitution, they included nearly identical provisions clearly stating that, if conditions warranted, they would have the right to withdraw powers previously delegated, and all non-delegated powers would remain with the States and at their will.

As for the right to withdraw powers previously delegated, the following excerpt from Rhode Island’s ratification was similar to both Virginia and New York’s stipulation:

That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness.

Many proponents of secession claim this wording established a constitutional right for leaving the Union should the federal government abuse its power, but these words do not address the specific issue of withdrawing from the Union. Instead, these words simply guarantee the right of the States to withdraw powers previously delegated, and since the federal government was never delegated any secession related authority, these statements did not speak directly to the issue of secession.

The other issue of importance to these three States was the notion of reserving all powers, not specifically delegated to the federal government, to the States and their people. The following excerpt from New York’s ratification was similar to both Virginia and Rhode Island’s stipulation:

[T]hat every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same;

Note the words “clearly delegated” in the above referenced provision. One cannot overstate importance of these ratification documents. These States realized the importance of protecting their superiority to the federal government and accordingly, their right to withdraw previously delegated powers as well as reserving all authority not delegated to the federal government. With the acceptance, without objection, of these conditional ratification provisions, they applied to all States equally since no party to the Compact could have rights that were denied to others.

The Tenth Amendment

When it comes to defining the division of authority between the States and the federal government, the Tenth Amendment to the Constitution is the most significant of all provisions. These twenty-eight words clearly define the almost unlimited powers reserved by the Constitution for the States and their people:

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.

Since the Constitution neither delegated the question of secession to the federal government nor prohibited a State from withdrawing from the Compact, the States were therefore free to decide this question for themselves—without interference from any other party. It is also noteworthy that this language is similar in both words and meaning to the ratification provisions submitted by Virginia, New York, and Rhode Island.

Termination without cause

The Compact between the States, by design, created a federal government with very limited and specifically defined authority. The ratification provisions and the Tenth Amendment made clear that all other authority, including the right of secession, belonged to the States. Therefore, since the question of the right of the States to withdraw is settled, the only question remaining is under what conditions a State can exercise this right and opt out of the Compact.

Multiparty agreements typically have a termination clause defining the conditions one party can cite to void its participation, the assessment of any penalties that might be applied, and the survivability of the agreement between the remaining parties. The Constitution contains no such language dealing with the procedure or consequences of any State choosing to withdraw from the Compact.

The absence of any stated restrictions, penalties, or consequences, along with the provisions of the Tenth Amendment assigning all unstated powers (including termination) to the States, logically leads to the conclusion that there is no barrier to a State choosing to end its participation in the Compact. In short, the lack of a termination clause does not mean termination is prohibited, it only means there are no terms and conditions to consider should a State withdraw from the Compact.

It is also reasonable to assume a State can withdraw from the Compact “without cause,” since the question of secession is not mentioned in the Compact. In other words, the Compact does not have to be breached by another party to permit a party to withdraw. This turns out to be a mute point in today’s environment since there are literally thousands of examples of abuses of the federal government’s authority in assuming powers never delegated (e.g. the regulation of the type of toilet you may have, government investment in and ownership of private companies, and the regulation of interstate commerce extended into all forms of intrastate commerce). There would be no difficulty at all, with such an overbearing intrusive federal government, for a State to demonstrate that the Compact has been breached, and breached repeatedly, before withdrawing from the Union.

Even if States were required to “show cause” for their termination, the Constitution would have therefore had to have language specifying the seriousness of the complaint justifying such an action, as well as some mechanism or third party for adjudicating said complaint. The Constitution contains neither of these procedures, and therefore “cause” is not an issue.

Conclusion

The clear and precise language and structure of the Constitution, along with the ratification provisions of several States, and most importantly, the Tenth Amendment, leave no doubt whatsoever that the States have an unfettered constitutional right to withdraw from the Union without cause or interference.

© 2010, Secession University. Permission to reprint this article in whole or in part is granted, provided full credit is given.