The election of 2016 and its aftermath have ushered in problems that are unprecedented in our recent history. Actions from the new administration and charges against its members both alleged and undeniable—things that many of us never in our wildest dreams expected we would live to see—have prompted serious thinking about who we are as Americans and about the very institutions by which we govern ourselves.
Perhaps the most extreme expression of alienation has come from Californians who say they want their state to secede from the United States and become an independent nation, a concept being called Calexit, after Brexit. Volunteers have started gathering signatures for a petition to place a constitutional amendment on the state ballot next year, an amendment calling for a referendum on California independence in 2019. Calexit is mostly a left-of-center movement, but a comparable right-of-center effort started in Louisiana and Texas after Barack Obama’s reelection in 2012.
The idea of secession is easy to deride. The Civil War seemingly settled that issue, and in 1869 the Supreme Court ruled in Texas v. White that secession is unconstitutional. But the prospect of a nation’s breaking apart is not far-fetched. As recently as the 1990s, a referendum on secession in Quebec was settled (negatively) by a razor-thin margin. Secessionist activity continues there, and ongoing secession movements exist in Newfoundland and Labrador, and in the western Canadian states. In 2014, a plebiscite on Scottish secession from Great Britain led to a narrowly negative result, and since the Brexit vote, which most Scottish voters opposed, a movement has called for a second referendum. None of these cases have yet resulted in secession, but the movements were and are taken seriously.
Still, the United States is different, isn’t it? Maybe not.
The practical terms of separation would be considerable, given the centrality of federal services to so many aspects of our lives: national security, trade, environmental protection, interstate transportation, insurance entitlements, the monetary system, the national parks, and so much more. But the practicalities of continued association between a seceded state and a shrunken United States could be addressed through intelligent treaty negotiations, providing for joint agreements on continental defense and medical insurance, to name two examples. Existing law already provides for the continuation of Social Security payments to Americans who live abroad.
The larger question is the constitutional issue, which appears at first sight to be watertight. Is the breaking up of the American Union even conceivable on legal grounds? It turns out that it is, although the prevailing assumption is clearly in favor of the view that the Union cannot be dissolved and is perpetual.
Anyone who wishes to make the case for that view will have no trouble finding supporting, even overwhelming, evidence for it. Many of the Founding Fathers stated both publicly and privately that the Union under the federal Constitution was (or should be) perpetual. Once the possibility of secession was raised as a serious issue by southern defenders of slavery, such imposing figures as Daniel Webster and later Abraham Lincoln responded by making the case for perpetual unionism. Their arguments were so compelling that hundreds of thousands of people were induced to lay down their lives in the Civil War to defeat the idea of secession, which was viewed as equivalent to treason.
The Confederate attempt at secession was grounded in the endeavor to preserve American slavery, a historical truth that cannot be denied by anyone who reads the messages sent to the people of the slave states by members of their secession conventions. The chief intellectual architect of southern secession, the South Carolinian and former vice president John C. Calhoun, often proclaimed that his paramount object in promoting secession was the establishment of a foolproof strategy to thwart the antislavery movement.
Since the foremost attempt to break up the Union was perpetrated by people whose motive cannot survive moral scrutiny, any attempt to revive the principle of secession as an option for the United States today is crippled at the outset by historical associations that are extremely and understandably distasteful. But if we can put aside these associations for a moment, we can first consider the argument for perpetual union and then the evidence that can be used to question it.
The gist of the case for perpetuity can be distilled from Lincoln’s First Inaugural Address. In this speech, he laid out an argument for perpetual union that he would reiterate and amplify in a message to Congress sent on July 4, 1861. First, Lincoln pointed out that America’s original constitution, the Articles of Confederation and Perpetual Union, made perpetuity quite explicit (the term “perpetual union” was, after all, part of the document’s title). Second, he argued that the permanence of the union proclaimed in the Articles must have carried over into the federal Constitution since, in his view, it made no sense to declare, as the Constitution does, that it was ordained and established to “form a more perfect union” if, in the process of ordaining and establishing the new constitution, the existing union should lose its perpetuity. How, Lincoln asked, can a union be deemed “more perfect” if its perpetuity is taken away?
Therefore, he concluded, the Founders must have regarded the continued existence of the union as self-evident, even though the federal Constitution contains no statement at all regarding the matter. Furthermore, Lincoln asserted in the July 4 message that the union was older than the Constitution, since the Declaration of Independence had proclaimed the states to be united—whatever that meant. This was nimble reasoning, worthy of Lincoln the trial lawyer, and it convinced hundreds of thousands of people, many of whom probably did not really need to be convinced, since their unionism was a matter of deeply felt conviction.
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On the other side of the question, we might consider that the members of the Constitutional Convention exceeded the authority that was granted to them by the Confederation Congress in 1787. The convention had been summoned to draft amendments to the Articles of Confederation, not to draft an entirely new constitution. But the members decided right away, unbeknownst to the public—the proceedings of the Constitutional Convention were held behind closed doors and the records of the convention would not be released for 50 years—that the Articles of Confederation were hopeless and would have to be scrapped.
The most important reason for this conclusion was that amendments to the Articles could be adopted only if all 13 states ratified them, and the members of the Constitutional Convention did not propose to spend a hot, sweaty summer in Philadelphia, away from their families and businesses, writing constitutional amendments that would be worthless if the voters of one single state should prove stubborn enough to oppose them. So, after deciding to drop the Articles and start over again, the Founding Fathers determined that a new constitution could go into effect without being ratified by every single existing state. The voters and leaders of each state would be given the choice whether to ratify or not. As soon as nine states had ratified, the new constitution would be binding among the nine. The others would be … on their own.
What this meant in conceptual and practical terms was that if the old constitution were to be discarded, and a new constitution could take its place in nine of the 13 states, then it stood to reason not only that the old constitution was being destroyed but also that the perpetual union it created was being destroyed, since nine of the states could continue united—in a union—with the others left out. And that is exactly what happened to the so-called wayward sisters, North Carolina and Rhode Island. After the Constitution had been ratified by nine states in 1788, the controversy continued in other states. By the end of the year, all of them had ratified except those two. The first Electoral College was summoned, and elections were held for the first federal Congress. North Carolina and Rhode Island did not participate in these elections.
North Carolina ratified the Constitution in 1789 and Rhode Island in 1790. Thus the supposedly perpetual union would appear to have been broken for a while by the loss of two states—which then rejoined. And the union they rejoined was not the old one, but a distinctly new one that had replaced it.
In short, the Union has already been successfully broken up, and the Founding Fathers made it happen.
If this reasoning possesses any cogency, one of Lincoln’s points must be reassessed. Lincoln had said that it made no sense to make an existing union “more perfect” by eliminating its perpetuity. This logic is persuasive if “the Union” in question is taken to mean an existing and continuing union. It is not persuasive, however, if one concludes that the original union was destroyed and a brand-new one—a “more perfect Union”—took its place.
Some (but not all) of the delegates at the Constitutional Convention were willing to confront the implication that the destruction of the Articles of Confederation would destroy the union it created, or at least destroy the “compact” established in that union. Several delegates strove to place the blame for this situation elsewhere, arguing that the Confederation’s union had failed because of the delinquency of the states, and thus the Confederation’s compact (or contract) should be regarded as dissolved already through the noncompliance of its members.
James Madison argued that the states had perpetrated “numerous and notorious” violations of the Articles of Confederation, and that a “breach of any one article, by any one party, leaves all the other parties at liberty to consider the whole convention as dissolved.” Charles Cotesworth Pinckney of South Carolina observed in a similar vein that the old compact “had been repeatedly broken by every state in the Union; and … when the parties to a treaty violate it, it is no longer binding. This was the case with the old Confederation; it was virtually dissolved.”
Though the Federalists (supporters of the new Constitution) certainly wanted the new union to be permanent, they talked on both sides of the issue during the debates about ratification. The Federalist Papers contain a number of references to the possibility of disunion if some of the 13 states failed to ratify the Constitution. In The Federalist No. 5, John Jay discusses the dangers that would loom if “the people of America divide themselves into three or four nations.” In The Federalist No. 8, Alexander Hamilton writes that “the several states, in case of disunion, or such combinations of them as might happen to be formed out of the wreck of the general Confederacy,” would “have fallen to the lot of all neighboring nations not united under one government.”
But perhaps the most forthright discussion of these issues is presented by Madison in The Federalist No. 43. Madison addresses the issue of the Constitution’s ratification procedure allowing that only nine of the 13 states could put the new federal system into operation. How could such a thing be consistent with the terms of the original union? “Two questions of a very delicate nature present themselves on this occasion,” Madison admits. “1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?”
In his answer to the first proposition, Madison was realistic and candid, rather than legalistic and formal; he argued that something akin to the right of revolution must override legal quibbling in times of crisis. “The first question is answered at once,” he writes, “by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”
Sacrificed.
As to the second question, he admits that the states that failed to ratify the Constitution would be left out of the overall polity, though they might still be able to restore relations of some sort with the other nine states. “The second question is not less delicate,” he writes; “and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself.” In other words, Madison was hoping that such a situation would never occur, and that the ratification of all 13 states would render the whole proposition moot. Nonetheless, he goes on to admit, “no political relation can subsist between the assenting and dissenting States.” But perhaps, he continues, the “obstacles to reunion” might be overcome in due time.
Here again, the case can be made that the Union had already been broken up, though it was swiftly put back together in a different way.
The doctrine of secession was invoked intermittently before Calhoun and his fellow defenders of slavery used it. In 1798 and 1799, as the Federalist Party aimed the repressive Alien and Sedition Acts at its opponents, Jefferson and Madison invoked the principle of nullification at the state level to thwart incipient tyranny. They developed this doctrine in their “Virginia and Kentucky Resolutions,” the former written by Madison and the latter by Jefferson. In the course of this battle, Jefferson privately expressed the belief that if no other remedy proved effective in protecting free speech, then secession might have to be considered. At first, he rejected secession when it was suggested to him in 1798, but then he changed his mind. On August 23, 1799, he expressed to Madison his hope that all would be well. “Before it shall be too late,” he mused, it seemed likely to him that the “good sense of the American people” would “rally with us round the true principles of our federal compact.” But, he continued, “were we to be disappointed in this,” then he and Madison and like-minded people should stand “determined … to sever ourselves from the union we so much value, rather than give up the rights of self-government.”
The next appearance of secessionism occurred in 1814, when New England Federalists, disgusted by the Madison administration’s performance during the War of 1812, summoned a convention at Hartford to consider secession. But the war ended before the movers and shakers at the Hartford convention could get very far with their efforts.
At last, the secession principle was put to work by defenders of slavery, and the Civil War resulted. As previously noted, Lincoln took an insistent position on the issue of perpetual union when he was sworn into office and he maintained that position until the end of his life—almost. All through the war, Lincoln carefully refrained from any utterance that might imply the legitimacy of secession. He never referred to “Confederates” as such: he most often referred to them as “rebels,” and he sometimes referred to them as “Confederates so-called.” He insisted that no secession had taken place, that no secession could take place, and that the war effort should be understood as a campaign to restore legitimate federal authority within a bloc of southern states that had always remained within the Union and had never left it.
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But in 1862, some Radical Republicans, led by Sen. Charles Sumner of Massachusetts, started tinkering with the idea of “state suicide”—the theory that the rebel states forfeited their statehood when secessionists took control of them, and that Congress therefore should have the power to treat them as “unorganized territories” that would have to be granted readmission to the Union under terms that, after a Union victory, Congress would specify via reconstruction policy. Legislation along these lines, drafted in that year, didn’t get far in Congress, never mind reach Lincoln’s desk.
Well before Appomattox, however, Lincoln entered into negotiations with the Radical Republicans. Republican politics had changed completely after Lincoln had won reelection in the 1864 landslide and his party had taken control of both houses of Congress by supermajorities. So Lincoln started working with the Radical Republican leader James Mitchell Ashley, a congressman from Ohio, to explore much tougher reconstruction policies in anticipation of the newly elected Congress, which would convene in the autumn of 1865.
This context is helpful as we consider a startling and little-known fact about Lincoln’s maneuverings in the week before John Wilkes Booth shot him dead. On the misty evening of April 11, 1865, Lincoln gave a speech on Reconstruction from a window on the north side of a brightly illuminated White House to “an immense throng” assembled on the grounds and stretching from 15th to 17th streets. In the course of this speech, he made a claim that was—and is—impossible to believe: he asserted that he had never really taken a position on the metaphysics of secession and perpetual union.
Does this seem absurd? If so, just listen to the heart of Lincoln’s remarkable statement, delivered, no doubt, with a very sly grin:
I have been shown a letter on this subject, supposed to be an able one, in which the writer expresses regret that my mind has not seemed to be definitely fixed on the question whether the seceding States, so called, are in the Union or out of it. It would, perhaps, add astonishment to his regret were he to learn that, since I have found professed Union men endeavoring to make that question, I have purposely forborne any public expression upon it. It appears to me that question has not been, nor yet is, a practically material one, and that any discussion of it, while it thus remains practically immaterial, could have no effect other than the mischievous one of dividing our friends. As yet, whatever it may hereafter become, that question is bad, as the basis of a controversy, and good for nothing at all—a merely pernicious abstraction. We all agree that the seceded States, so called, are out of their proper practical relation with the Union, and that the sole object of the Government, civil and military, in regard to those States, is to again get them into that proper practical relation. I believe it is not only possible, but in fact easier to do this without deciding or even considering whether these States have ever been out of the Union, than with it. Finding themselves safely at home, it would be utterly immaterial whether they had ever been abroad. Let us all join in doing the acts necessary to restoring the proper practical relations between these States and the Union, and each forever after innocently indulge his own opinion whether, in doing the acts, he brought the States from without into the Union, or only gave them proper assistance, they never having been out of it.
What on earth was Lincoln up to? Had he forgotten the case for perpetual union that he had made in the course of his First Inaugural Address and then reiterated all through the war? Or was he putting his deft sense of humor to work as he positioned himself to show the Radical Republicans how willing he was to do business with them when the newly elected Congress came to town?
We will never know. But whatever else one makes of this passage in Lincoln’s last speech, it shows that even the paramount champion of perpetual union in American history was flexible enough to discard that doctrine—or at least to back away from it—in the face of historical and political realities.
Indeed, Lincoln’s unionism had always been a qualified doctrine—qualified by his insistence that America’s divided house should be united in favor of freedom rather than slavery. He meant to save the Union, but he meant to save it his way, and he would never cooperate with antiwar Democrats who recommended reunion through negotiations that would satisfy the slaveholding South.
In a response on February 20, 1861, to New York mayor Fernando Wood, who had suggested the possibility that his city might secede—one of a series of speeches Lincoln gave on his way from Springfield, Illinois, to Washington, D.C., to be inaugurated—he expressed what the Union meant to him. “There is nothing that can ever bring me willingly to consent to the destruction of this Union,” he said, “unless it were to be that thing for which the Union itself was made.” Two days later, at Independence Hall in Philadelphia, he explained what he meant. He had “never had a feeling politically,” he said, “that did not spring from the sentiments embodied in the Declaration of Independence,” a document whose purpose “was not the mere matter of separation of the colonies from the motherland.” Its purpose was also to give liberty, “not alone to the people of this country, but, I hope, to the world, for all future time.” And, he proclaimed, “if this country cannot be saved without giving up that principle … I would rather be assassinated on this spot than to surrender it.”
With that in mind, we return to his statement in the New York speech that he would never consent to the destruction of the Union unless its moral content should vanish. He used a nautical metaphor to make his point crystal clear: “I understand a ship to be made for the carrying and preservation of the cargo, and so long as the ship can be saved, with the cargo, it should never be abandoned. This Union should likewise never be abandoned unless it fails and the probability of its preservation shall cease to exist without throwing the passengers and cargo overboard.”
The political and military outcome of the Civil War settled the issue of southern secession. But the question of whether the Union under the federal Constitution is perpetual or not can never be settled definitively on its merits.
Where does that leave the proponents (and opponents) of secession in 2017 and beyond? If secessionist Californians get a referendum on California nationhood, and if the referendum gives the secessionists the results they are looking for, what happens then? Given the antipathy of a segment of Trump voters to all things Hollywood and by extension all things California, the political calculations in the White House are hard to predict. Other elected leaders and candidates for office, in California and throughout the nation, would certainly ponder the matter. If anyone were to cite Texas v. White, secessionists could counter with a simple question: If the current union, which created the Supreme Court, is now scrapped the way its predecessor union was, how can this court decision be binding? The state attorney general might well be asked to examine legal aspects of that and other questions, including the time-honored right of revolution that Jefferson proclaimed in the Declaration of Independence.
Others might formulate a plan for continued association between California and the United States. Bilateral agreements might well be proposed that would let the U.S. departments of Defense and Homeland Security go on using their existing California bases and facilities via lease. Other agreements might permit the continued collaboration of other federal entities and their California equivalents. An agreement to transfer the assets and liabilities of the existing Federal Reserve Bank of San Francisco to a new Bank of California might be feasible since that bank, like all the other banks within the Federal Reserve System, is owned by the member banks in its district—owned via stock shares.
Who can say what would happen after that? It’s unthinkable that the attempt at separation could be supported by threats of force, but then we are now thinking about so many other things that would have seemed unthinkable only months ago. Would the shock value of the possibility of secession revolutionize our two-party system and lead, perhaps, to a consensus on a package of proposed constitutional amendments that might ease the crisis and pull the nation back from the brink? If a California secession referendum should succeed in 2019, the immediate effects on the presidential and congressional elections of 2020 are stunning to envision, if only as a lurid conjecture. But such a conjecture might just become reality.
Our 1860s Civil War was precipitated by events that forced an all-or-nothing choice on the United States. Two radically antithetical cultures had emerged, and Americans were torn between ways of life that had not only become completely incompatible but were actually hostile toward each other.
For Lincoln and his supporters, the passage of the Kansas-Nebraska Act in 1854 and the handing down of the Dred Scott decision in 1857 were alarming and unmistakable signs that their vision for America was living on borrowed time. When Lincoln was elected in 1860, the defenders of slavery concluded that their time had run out.
In the 1980s, Ronald Reagan and his supporters exulted in their vision of “morning in America.” In 2017, we might very well be moving toward the stroke of midnight.
