View Full Version : A Constitutional View of State Sovereignity and Secession

Sunday, January 2nd, 2005, 12:12 AM

by By Rick H. Veal, Commander, B/G Samuel McGowan Camp #40, Sons of Confederate Veterans
Laurens, South Carolina - November 1994

The topic of state sovereignty has been argued by many different persons, in various distinct ways, and for numerous divergent purposes. The question has been alive since the founding fathers affixed their names and fortunes to the Declaration of Independence in 1776. However, if one had taken the time intimately to examine the past and in particular the Constitution of 1789, the entire argument would be a moot point because legally each of the several states which make up the union known as the United States of America is in fact sovereign and independent. This position was held by many statesmen and noted constitutional authorities, both north and south, as irrefutable until 1865 when the sovereignty and independence of eleven of those states was unconstitutionally usurped by the Federal Government.

It is submitted and recognized that to have a legal standing, one must first establish a founding precedent. The precedent which establishes the right of sovereignty dates to 1776 when representatives of the thirteen American colonies, by signing the Declaration of Independence, acknowledged each of the colonies to be separate. Jefferson's draft of the Declaration proclaims the sovereignty of the new States thus: ...finally we do assert and declare these colonies to be free and independent states, and that as free and independent states they shall hereafter have the power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do1. It should also be noted that the plural form of the word state is used throughout, which indicates the idea of more than one state or nation. The idea that the founding fathers considered each of the states to be a sovereign power is also evident when the thirteen States combined in a mutual Union under the Articles of Confederation of 1781. Section 2 of The Articles states: "Each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States." This simply meant that the states were inclined to join and delegate certain powers to a central government, for the good of each other and for representation in world affairs. However, they carefully retained all other powers, known as States' Rights, for themselves. Once again it should be noted that the idea of separate, independent sovereignties is expressed by the authors of the compact.

The issue of sovereignty was further strengthened in 1783 with the Treaty of Paris, which ended the Revolutionary War. The treaty between the United States and England began thus: "His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign, and independent States." The King of England, which until this time had been the only power that denied the independence of the colonies, admitted in the Treaty of Paris that indeed the thirteen former colonies had taken their place in the world as thirteen sovereign and independent nations, denoted by the fact that he recognized each by name.

The terms State and Sovereign have been used extensively up to this point, therefore, the definition of the terms as used should be determined to prevent confusion. When the three foregoing articles were penned, the writers used the definitions that were accepted during the eighteenth century. These definitions were set forth by the authority of many of the leading statesmen, scholars, and historians of the early period of the Union. Lord Bacon who died in 1626 stated that "men are servants of the Sovereign or State." Boyar's Royal Dictionary, published in 1727, gives the definition of state as "A country living under the same government, and also as the government of a people living under the dominion of a Prince or in a commonwealth.2" The term State was a general term which could be applied to either people or their government with the terms kingdom, empire, and republic, being more specific terms of political power.

The term sovereign comes from the Latin supremus which in English is translated highest. By the eighteenth century this term had evolved to the point where it was accepted to be the man with the highest authority in the state. When the colonies declared their independence it raised the question of sovereignty; to whom, or what, did the citizens of each of the new states owe their allegiance? This was answered by each of the states after war had begun between each colony and the Crown when allegiance to the state was demanded of each of the inhabitants, and this often as much as a year before the Declaration of Independence. Sovereignty of each of the states was recognized as the end result of freedom from the Crown as was so noted in all of the early state constitutions, Declaration of Independence, and the Articles of Confederation.

The states never surrendered, renounced, or delegated their sovereignty, although they did delegate some powers of that sovereignty. However, just as the powers which are given to a tenant by a property owner do not make that tenant a landlord, neither do the powers given to the Congress of the States make it a sovereign being. That is exactly the relationship that was understood by the several states when they entered into the Articles of Confederation and then into the Constitution of 1789. Each of these agreements was merely a compact which formed a confederation and not a nation. The federal government was seen only as an agent for the sovereign states and was bound to represent all of them equally when using the powers delegated to it. "The compact provided no forum to adjudicate the constitutionality of the laws of the United States and of the States when they were in conflict, because the Supreme Court, as part of the subordinate government, could not bind the sovereign states. State courts could ignore federal court decisions that tried to bind them.3"

The framers of both the Articles of Confederation and the Constitution were so concerned with protecting the sovereignty of the States that it was expressly written into each document. It took the form of Article 2 of the Articles of Confederation which stated "Each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States." In the Constitution of 1789, the protection of the sovereignty of the states was included in the forms of the ninth and tenth amendments which stated "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people;" and "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."

Under the Articles of Confederation, the Congress was the representative of each of the sovereign states and as such had legislative, executive, and in some cases judicial powers granted it. However, these powers were expressly limited and restricted in the ninth and tenth amendments of the Constitution. Therefore, the Congress of the Confederation could, as in the case of a state legislature, act on anything that had not been prohibited, but under the Constitution of 1789 the Congress could act only on those items which had been expressly enumerated.4 It is submitted then, that the Constitution of 1789 further tightened and secured the sovereignty of the States more than did any of the foregoing documents.

It is almost certain that without the inclusion of the tenth amendment the Constitution of 1789 would never have received the support and ratification of states such as New York, New Hampshire, Massachusetts, North Carolina, and others. New Hampshire and Massachusetts each recommended several amendments to quiet the fears of the people and to guard against an undue administration of the Federal Government, the leading one being "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."5 New York expressed her sovereignty in the following manner: "That the powers of government may be reassumed by the people whenever it shall become necessary to their happiness." She also included that all powers not clearly delegated to the Congress by the Constitution remains to the people of the several states, or to their respective state governments, to whom they may have granted the same."6 The ratification process continued state by state with each showing some concern for the issue of their sovereignty and independence, with the strongest wording being in the Ratification Ordinance of Rhode Island which stated "That Congress shall guarantee to each state its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Constitution expressly delegated to the United States.7

The constitution also provided for the protection of the sovereignty of the states in the form of the seventh article regarding ratification. Article seven states: "The ratification of the Conventions of nine States shall be sufficient for the establishment of this constitution BETWEEN the states so ratifying the same." This article further illustrates the framers acknowledgment of the States as sovereignties.

There appeared in short order after the ratification of the constitution two schools of thought as to the interpretation of the form of government under that compact. The leader of what would become the State Rights school of thought was Thomas Jefferson, a man opposed to a powerful central government. The leader of the other persuasion, Consolidation, was Alexander Hamilton, who favored a strong, all powerful central government.

The State Rights position used as its text of authority the Kentucky and Virginia Resolutions of 1798. The Resolutions, written by James Madison and Thomas Jefferson were taken from the carefully worded clauses of the constitution that were designed to exclude the idea that the separate and independent sovereignty of each state was merged into one common government and nation.8 It must be asked who better could understand the meaning of the constitution than two of its authors?

In the first Kentucky Resolution, Jefferson stated the following: "That the several States comprising the United States of America, are not united on the principle of unlimited submission to their general government, but that by compact under the style and title of a constitution for the United States, and of amendments thereto, they constituted a general government, for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded, as a State, and is an integral party; that this government created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since this would have made its discretion and not the Constitution the measure of its powers; but that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."9 Jefferson clearly demonstrates with his words that the states are indeed sovereign beings, by using such terms as a compact when referring to the constitution, and that each State acceded to the compact. The wording of accession also implies the right of secession if the general government fails to carry out its part of the agreement, or usurps powers not delegated to it.

The greatest conflict between these two schools of thought came in the tariff controversy of 1831-32 in which John C. Calhoun of South Carolina and Daniel Webster of Massachusetts debated and left on record the most complete commentary on the American political system. Calhoun saw that the Kentucky and Virginia Resolutions involved the right of secession, but was not willing at that time to insist upon its usage for a resolution of the tariff question. It is also interesting to note that Webster even changed his view toward the right of secession later in his life. In a speech made at Capon Springs, Virginia, 28 June 1851, he distinctly held that the Union was a Union of States, that the Union was founded upon compact, and that a compact broken on one side could not continue to bind the other.10

President Buchanan, in his annual speech to congress on 3 December 1860, in the very midst of the secession movement, referred to the states as sovereign States when addressing slavery and the settlement of the question. "...All that is necessary to accomplish the object, and all for which the slave States have ever contended, is to be let alone and permitted to manage their domestic institutions in their own way. As sovereign States, they and they alone, are responsible to God and the world for the slavery existing among them. For this the people of the North are not more responsible and have no right to interfere than with similar institutions in Russia or in Brazil." He perfectly illustrated with his words and the constitutional position of his office, that even as late as December 1860, the States were still considered to be sovereign beings.

Therefore, having established the sovereignty of the states from a constitutional viewpoint, it is necessary to examine the question of whether or not those same states had the right to secede from a compact to which they had freely acceded. The right of the people to alter or abolish their government whenever it ceases to meet the desired ends for which it was established was the justification used by the colonists in the Declaration of Independence in 1776. The people of the Southern States in 1861 had not only this established precedent but also an additional constitutional sanction enabling them to do likewise. In support of this right of secession, the South used the literature and terms as applied during the period of the framing and adoption of the constitution. There can be no doubt that the South had overwhelmingly the best of the argument, and Northern writers have gradually abandoned any contest on this point to fall back on the argument of the necessity to "preserve the union" at all costs. This plea by Northern writers, even though small, is a confession that the war against the South in 1861 was a war of invasion and subjugation.11

The idea of secession was nothing new in 1860 for it had emerged many times since the founding of the union. The Constitution, as has been shown, was considered by many to be a mere compact between the States and as such, the States, each being separate and sovereign, had the right to abandon that compact. This was a consistent thought throughout the history of the early union as shown by the Ratification Ordinances of Virginia and Rhode Island which reserved the right of secession; such was the belief of many statesmen in all parts of the union, both north and south, at different times. Some of the instances when secession was mentioned were when Virginia and North Carolina considered secession in 1797. Josiah Quincy of Massachusetts urged the dissolution of the Union over the admission of Louisiana in 1803 and New England threatened secession in 1814 when her economy was in danger of collapse during the second war with England. William Lloyd Garrison proposed that Massachusetts should lead a secession movement during the war with Mexico in 1847 and John Quincy Adams supported New England secession over the admission of Texas.12 It is evident, therefore, that the people of the South, in the crisis which confronted them in 1860, had no lack either of precept or precedent for their instruction and guidance in the teaching and the example of the North and East. The only practical difference was that the North threatened and the South acted.13

When South Carolina led the other southern states out of the Union in December 1860, she did so legally and properly. Her legislature met and passed an Ordinance of Secession which in effect was nothing more than a rescinding of her Ordinance of Ratification of the Constitution of 1789. This action on the part of South Carolina was not something that had come about overnight or in a hasty tantrum. She was followed in short order by six other deep south states: Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas. The primary reason for their departure from the union was that they felt that with the election of a sectional president the South no longer had any security or protection of its interests in the union. It should be noted that for sixty of the seventy years of the union, power had been in the hands of the South, during which time she patronized the northern political party, compromising many times in the face of threats of northern secession in an effort to maintain the union. The election of a sectional president did more than represent the shift of power from the South to the North. It represented the establishment of a despotism in Washington which threatened all that was held dear by the people of the southern states. The South decided to withdraw from the union because such total empowerment of the North and its radical political ideas would mean ruination for the lifestyle it had maintained prior to the establishment of the union.14

Many of the northern newspapers, journals, and statesmen of the day even supported the South in its efforts to establish a new southern nation. Horace Greely of the New York Tribune, an abolitionist and supporter of the doctrine of free soil and probably one of the most popular and best informed of the northern journalists, wrote extensively and very outspokenly in upholding the right of secession. His writings show that the feeling of the North was to let the South go in peace. Some examples of his editorials are submitted for the record to validate his position and by acceptance, that of the northern states, toward the southern states. Except for the limitations of space, the excerpts could continue ad infinitum, ad nauseam.15

He stated in the New York Tribune, November 9, 1860, - "If the cotton states shall become satisfied that they can do better out of the union than in it, we insist on letting them go in peace. The right to secede may be a revolutionary one, but it exists nevertheless. ... we shall resist all coercive measures designed to keep it {the seceding states}in. We hope never to live in a republic whereof one section is pinned to the residue by bayonets. ... those who rushed upon carnage to defy and defeat it {the right of secession}would place themselves clearly in the wrong."

New York Tribune, November 16, 1860, - "Still we say ... we earnestly favor such separation. If the {southern} states shall say to the rest 'We prefer to be henceforth separated from you' we shall insist they be permitted to go in peace."

New York Tribune, November 19,1860, - "Now we believe and maintain that the union is to be preserved only so long as it is beneficial and satisfactory to all parties concerned. ... But we insist that this union shall not be held together by force whenever it shall have ceased to cohere by the mutual attraction of its parts."

New York Tribune, December 8, 1860, - "We again avow our deliberate conviction that whenever six or eight states shall have formally seceded ... it will not be found practicable to coerce them into subjection. One or two states may be coerced, but not an entire section, or quarter of the union. If you do not believe this, wait and see."

New York Tribune, December 17, 1860, - "If it {Declaration of Independence} justifies the secession from the British empire of 3,000,000 of colonists in 1776, we do not see why it would not justify the secession of 5,000,000 of Southrons from the Federal Union in 1861. If we are mistaken on this point, why does not some one attempt to show wherein and why?"

And finally, after the official secession of South Carolina on December 20, Greely wrote in the New York Tribune edition of December 24, - "Most certainly we believe that governments are made for the peoples and not peoples for the governments; that the latter derive their power from the consent of the governed; and whenever a portion of the union large enough to form an independent, self-subsisting nation, shall show that and say authentically to the residue, 'We want to get away from you,' I shall say, and we trust self respect, if not regard for the principles of self government, will constrain the residue of the American people to say 'Go.'

The object of this thesis has been to illustrate from contemporary historical sources of the period 1860-1865 that the Southern States had the right to withdraw from a union which they had freely entered; that the rejection of that right by the Federal government was a blatant violation of both the letter and spirit of the compact between the States; and the subsequent invasion and subjugation of the seceding States was a disregard of the limitations of the Constitution, and destructive of the principles of the Declaration of Independence.

Human history contains a record of the difficulty of maintaining the relationship between constitution, government, and the people throughout time. It is essential that for a government to protect and exercise proper care for the people there must be a homogeneity of the constituents. Because of this, the human race is divided into separate nations. One of the best examples of this was when the founders of this union broke away from Great Britain, establishing thirteen free and independent states, carefully asserting and preserving the sovereignty and jurisdiction of each.

If the researcher of today will carefully and candidly search out the political history of the Union, it will be found that whether under the Articles of Confederation or the Compact of Union the distinct assertion of sovereignty appears throughout and nowhere does there appear the hint of any purpose of the States to consolidate into one body. In fact, had that proposition been broached in the years after the War of Independence and preceding the ratification of the Constitution of 1789 there would have been no chance of adoption of that document by the States. Because of that assertion of sovereignty, and the free accession of the States to the Compact of Union, the right of secession also goes hand in hand.

Although the question of secession appears to have been settled on the battlefields of this Union, it nevertheless does not release the government of the 1860's from the violations of the law and the spirit with which the States came together to form a Union. The victors of that conflict have proven only that they were the stronger of the two nations which resulted from the differences of the States of the Union. The words of Senator James H. Hammond of South Carolina in response to William H. Seward's boast on the Senate floor that the North was about to take control of the country ring down through the years: "Do not forget - it can never be forgotten - it is written on the brightest page of human history - that we, the slave holders of the South, took our country in her infancy, and, after ruling her for sixty out of seventy years of her existence, we shall surrender her to you without a stain upon her honor, boundless in prosperity, incalculable in her strength, the wonder and the admiration of the world. Time will show what you will make of her, but no time can ever diminish our glory or your responsibility."16 Time has indeed shown what the Northern power did with its responsibility. The results have had far reaching effects, not only to the conquered States of the Confederacy, but also to the policies of the Union from 1865 until the present in its dealings with other sovereignties worldwide. Finally, as commonly quoted at the reunions of the Southern veterans in the years following the War for Southern Independence "Force may crush truth to the ground, but crushed or not, truth is still truth. Deo Vindice."
End Notes

1. Benjamin F.Grady, The Case of the South Against the North., Raleigh, N.C.: Edwards and Broughton, Publishers., 1899. p. 325.

2. Ibid.

3. Michael L.Benedict, Sovereign Nation or Sovereign States?. Constitution 200: A Bicentennial Collection of Essays., Athens: University of Georgia, Publishers.,1988. p. 7.

4. Jefferson Davis, The Rise and Fall of the Confederate Government., Vol. 1, New York: D. Appleton & Company., 1881. p. 26.

5. Ibid. pp.146-148

6. Ibid.

7. Ibid.

8. Edward A.Pollard, , The Lost Cause: A New Southern History of the War of the Confederates. New York: E. B. Threat & Company., 1866., p. 41.

9. Ibid. p. 42.

10. Alexander H. Stevens, A Constitutional View of the Late War Between the States., Vol. 1, Atlanta, Georgia: National Publishing Company., 1868., p. 404.

11. Lyon G.Tyler, The South in the Building of the Nation. Vol.4, Richmond, Virginia: Southern Historical Publication Society.,1909., p. 500.

12. Ibid. p. 467.

13. Davis, Vol.1, pp.70-76.

14. Pollard, p. 81.

15. Joseph Wheeler, Lt. General, C.S.A., Confederate Military History. Vol. 7, Atlanta Georgia: Confederate Publishing Company., 1899., pp. 26-33.

16. Pollard, p. 81.

* Benedict, Michael L., Sovereign Nation or Sovereign States?. Constitution 200: A Bicentennial Collection of Essays., Athens: University of Georgia, Publishers.,1988.
* Curry, J.L.M., Civil History of the Confederate States., Atlanta, Georgia: Confederate Publishing Company., 1900.
* Davis, Jefferson., The Rise and Fall of the Confederate Government. 2 Vols., New York: D.Appleton & Company., 1881.
* Grady, Benjamin F., The Case of the South Against the North., Raleigh, N.C.: Edwards and Broughton, Publishers, 1899.
* Lee, Robert E. Jr. Captain, CSA., Recollections and Letters of General Robert E. Lee., New York: E. B. Threat & Company., Publishers, 1904.
* Long, A.L. Brigadier General, CSA., Memoirs of Robert E. Lee., New York: J. M. Stoddart & Company, Publishers, 1887.
* Longstreet, James, Lieutenant General, CSA., From Manassas to Appomattox., New York: D. Appleton & Company., 1895.
* Pollard, Edward, A., The Lost Cause: A New Southern History of the War of the Confederates., New York: E. B. Threat & Company., 1866.
* Pollard, Edward, A., The Second Year of the War., New York: Charles B. Richardson., 1864.
* Stevens, Alexander H., A Constitutional View of the Late War Between the States., 2 Vols., Atlanta, Georgia: National Publishing Company., 1868.
* Stephens, Alexander H., Pictorial History of the United States., Atlanta, Georgia: National Publishing Company., 1882.
* Stephens, Alexander H. Recollections of Alexander H. Stephens: His Diary., New York: Doubleday, Page & Company., 1910.
* Tyler, Lyon G., The South in the Building of the Nation., 12 Vols., Richmond, Virginia: Southern Historical Publication Society.,1909.
* Wheeler, Joseph, Lieutenant General, CSA., Confederate Military History. 12 Vols., Atlanta Georgia: Confederate Publishing Company., 1899.


Sunday, January 2nd, 2005, 01:16 AM
The government cares nothing about the States' rights.