How can the federal government be prevented from usurping powers that the Constitution doesn’t grant to it? It’s an alarming fact that few Americans ask this question anymore.

Our ultimate defense against the federal government is the right of secession. Yes, most people assume that the Civil War settled that. But superior force proves nothing. If there was a right of secession before that war, it should be just as valid now. It wasn’t negated because Northern munitions factories were more efficient than Southern ones.

Among the Founding Fathers there was no doubt. The United States had just seceded from the British Empire, exercising the right of the people to “alter or abolish” — by force, if necessary — a despotic government. The Declaration of Independence is the most famous act of secession in our history, though modern rhetoric makes “secession” sound somehow different from, and more sinister than, claiming independence.

The original 13 states formed a “Confederation,” under which each state retained its “sovereignty, freedom, and independence.” The Constitution didn’t change this; each sovereign state was free to reject the Constitution. The new powers of the federal government were “granted” and “delegated” by the states, which implies that the states were prior and superior to the federal government.

Even in The Federalist, the brilliant propaganda papers for ratification of the Constitution (largely written by Alexander Hamilton and James Madison), the United States are constantly referred to as “the Confederacy” and “a confederate republic,” as opposed to a single “consolidated” or monolithic state. Members of a “confederacy” are by definition free to withdraw from it.

Hamilton and Madison hoped secession would never happen, but they never denied that it was a right and a practical possibility. They envisioned the people taking arms against the federal government if it exceeded its delegated powers or invaded their rights, and they admitted that this would be justified. Secession, including the resort to arms, was the final remedy against tyranny. (This is the real point of the Second Amendment.)

Strictly speaking, the states would not be “rebelling,” since they were sovereign; in the Framers’ view, a tyrannical government would be rebelling against the states and the people, who by defending themselves would merely exercise the paramount political “principle of self-preservation.”

The Constitution itself is silent on the subject, but since secession was an established right, it didn’t have to be reaffirmed. More telling still, even the bitterest opponents of the Constitution never accused it of denying the right of secession. Three states ratified the Constitution with the provision that they could later secede if they chose; the other ten states accepted this condition as valid.

Early in the nineteenth century, some Northerners favored secession to spare their states the ignominy of union with the slave states. Later, others who wanted to remain in the Union recognized the right of the South to secede; Abraham Lincoln had many of them arrested as “traitors.” According to his ideology, an entire state could be guilty of “treason” and “rebellion.” The Constitution recognizes no such possibility.

Long before he ran for president, Lincoln himself had twice affirmed the right of secession and even armed revolution. His scruples changed when he came to power. Only a few weeks after taking office, he wrote an order for the arrest of Chief Justice Roger Taney, who had attacked his unconstitutional suspension of habeas corpus. His most recent biographer has said that during Lincoln’s administration there were “greater infringements on individual liberties than in any other period in American history.”

As a practical matter, the Civil War established the supremacy of the federal government over the formerly sovereign states. The states lost any power of resisting the federal government’s usurpations, and the long decline toward a totally consolidated central government began.

By 1973, the federal government was so powerful that the U.S. Supreme Court could insult the Constitution by striking down the abortion laws of all 50 states; and there was nothing the states, long since robbed of the right to secede, could do about it. That outrage was made possible by Lincoln’s triumphant war against the states, which was really his dark victory over the Constitution he was sworn to preserve.

Books mentioned in this essay may be found in the Imaginative Conservative BookstoreCopyright (c) Fitzgerald Griffin Foundation, Reprinted with permission.

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27 replies to this post
  1. Joe was so right that it took Bill Buckley's considerable talent to send him to outer darkness in the company of Ayn Rand and the Birchers. Except in Joe's case, Buckley did it himself, trying also to put Pat Buchanan in the same place. Joe, God bless him, did not have the inner resources to recover from the attack; Pat did. We must , however, as imaginative conservatives, recognize Joe's deep sense of honor, and his conviction, right up to the end, to try to tell the truth.

  2. Mr. Sobron was a brilliant American who understood our history and political order:

    "As a practical matter, the Civil War established the supremacy of the federal government over the formerly sovereign states. The states lost any power of resisting the federal government’s usurpations, and the long decline toward a totally consolidated central government began."

    Mr. Sobron's oeuvre teaches us the necessity of attempting to recapture that which is lost or we shall perish as freemen.

  3. There is always a right to secede under any form of government – it's called revolution. The question is do you have the power to pullit off.

  4. We're forgetting a few things, here:
    1. The South (the original six states) seceded before Lincoln was even inaugurated into office, and this after he reluctantly promised to not touch the slavery issue.
    2. It wasn't the "people" that wanted to secede: it was the large plantation owners, the economic elite of the South, that feared for their money and, in their greed, convinced a large number of Southerners to secede with them so they could continue oppressing Negroes.
    3. The South had largely had their way, through the Democratic Party, in Congress since the late 1820s through Jackson, Calhoun, and Hayne. After one election where the decision didn't go their way, they decided to secede. That's not secession under legal definition: it's insurrection. As a conservative and as a republican (small-r), I believe that if laws are to have any binding authority, they must be enforced. The South betrayed the spirit of the Constitution by giving into greed and fear of any change, which as we imaginative conservatives know that, as Burke stated, "Any nation without some vehicle of change (of the prudent variety) is without the means to its preservation. The South was willing to rip apart the country to save its means of economic prosperity (by the inhuman and un-Christian institution of slavery). How anyone can claim that the South was vindicated in its actions is beyond me. And this from a Southerner! I, for one, believe that Lincoln did what was necessary to save the country. I don't agree with some of the actions or decisions he made, but I believe that it was for the best.
    I don't necessarily disagree with your observation that the Civil War destroyed any way for the states to stand in the way of the national government: recent times have shown that to be true. But it was a long time in coming, and not just a result of the Civil War. But then again, we as a society have lost any real understanding of limits and proper form of government; we have no concept of equilibrium. But that is a cultural, moral problem, not a political one (at least not at first.)

    • Even then, had the Slave States (Not yet fully formed into the CSA) been patient enough in the age of surface mail and some telegraph communication, to sort out what was what, with the capitol containing men claiming to be senators and representatives from the Slave States, with confusion as to what exactly was going on with secession and who spoke for whom, let alone arranging disposal of formerly common-held facilities such as Ft. Sumter, Lincoln would have let the CSA be. But one officer with visions of grandeur had to start a war, and instead of being punished by his superiors, was supported and committed to by the governments of most of the other Slave States. They then attacked America -again-, sealing the state of war, which they ultimately lost.

      The initial cause of secession appears to be States Rights – but not the way you might think – Free States were going about nullifying the Dred Scott decision and the Fugitive Slave Act, and the slave owners were afraid that Lincoln would let them do that.

  5. Dear Cowboy (I really hope you can ride a horse),
    You are correct about #1; about #2 there is no way in heaven or on earth you could prove this statement; and about #3 it is a rant that probably would get you shot in some venues. To the idea that the motive of southern leaders was to keep "oppressing negroes," come on. A good southern friend of mine once told me that the motive of the north in prosecuting the war was to keep blacks out of the north. I replied, yeah, the Willson brothers who signed up and fought for over three years said to each other, "Let's go volunteer to get our asses shot off so we can keep the negroes out of Buffalo." The moral question was unsolvable by political means, and war is, as we know, an extension of politics. What Lincoln did was "necessary to save the country"? I think it was necessary to save his unbelievably wrong notion of what the "country" was, but one does not, ever, save a culture by political means.

    • We are indeed “forgetting a few things here!” 1. There was never any Constitutional argument made to address the question of a States right to separate from a Union which it had freely joined. (There is no way in hell that the Founders would have ratified a SUICIDE PACT!) #2. How can you possibly claim that the South was the aggressor when ALL the initial conflict and the bulk of all battles throughout the war were fought on Southern soil? #3. Over 90% of Federal revenue came from tariffs on goods, almost 80% of those revenues were generated at Southern ports, that’s the reason Lincoln couldn’t allow the South to leave! #4. Almost three quarters of a million Americans were slaughtered in that war, that is 2.5% of the entire population! A similar casualty rate today would result in over 9 MILLION dead! Thousand of Southern women and girls were raped and left homeless, an estimated 2-300,000 children under the age of ten died of starvation in 1864-65 due to the policy carried out by Sherman’s Army of burning any food crops and killing any livestock that could not be consumed or carried off by his soldiers. #5. Abraham Lincoln was a megalomaniac and a madman who was intent on forcing the South into servitude to the North and he did just that. John Wilkes Booth was 5 years too late to save America. #6. The far more pertinent question for 2013 is; how can a nation that has supported the separation of over 140 other nations around the world since WWII (and promises the same to Scotland and Catalonia when the vote on Independence in 2014) think it morally defensible to deny that right to it’s own people? And how do Americans think it morally defensible to hold people against their will if those people desire to be Independent?

      • “And how do Americans think it morally defensible to hold people against their will if those people desire to be Independent?”

        Did you just use this argument in defense of the slave-holding South? This is one of the reasons why this perspective of the Civil War era is so intolerable. Those who claim to support freedom, independence and self-determination defend those who denied it to others by the force of law and government. The blatant hypocrisy is sickening. You have cut out from under you any moral grounds on which you might have stood.

    • Read the states Declarations of Secession! Al of their beefs revolved around the fact that the North was supposedly going to violate their right to own “negro slaves.” You can whine about the notion of whether the South had their way or not, but you can’t deny that it’s true! The South controlled the economy (they produced the raw materials: read cotton, that were used by Northern industries) and they dominated politics. I’m from the South, and if telling the truth would “get me shot in some venues” then it sound like I’m not the one with the problem doesn’t it?!? Get over it, the Confederates weren’t noble rebels fighting to save the Constitution. They were slave owners who wanted to keep owning slaves who started a war when an election didn’t go their way. They made that very clear with their Declarations no their Constitution. Get over it…

  6. Cowboy, dude, I love ya, man but you're suffering from what Voegelin referred to as a "psychopathological derailment.'
    You will find Jeffery Hummel's rather objective analysis helpful. It's titled: "Freeing the Slaves and Enslaving Freemen."
    Read it…then, we'll talk. Right now you're just confused.

  7. If the states' sovereignty was superior to the federal sovereignty, would a state need to prove tyranny in order to exercise its right? If not, then the Declaration seems to be speaking of something else when it indicates that tyranny occasions the right of the People to abolish the government.

    "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…."

    If the right to secede only exists under tyrannical government, then the difference between secession and rebellion seems just a matter of names. Unless secession is part of the people rebelling, not the whole.

  8. I will look into Hummel's book, thanks for that. But I will point out that the statement I made was not that they wanted to continue "oppressing Negroes" just for the sake of doing it. It was the engine of the large majority of their economy was what I was saying. And I will ask: what WAS his vision of the country, and why was it so unbelievably wrong, or more appropriately, why was it inferior to the Southern vision? It's a fact that for the majority of the time between Andrew Jackson and Abraham Lincoln the Democrats more often than not not only controlled the House and sometimes the Senate but also the Presidency (this being broken up by the Whigs from time to time). They stood against the Free Soil Party and tried to force slavery on Kansas. I'm sorry, but I don't see how you're defending the South, here. They fired the first shots. I see traditionalism in the South but during the war it was superseded by militant nationalism and hubris. I love place and limits as much as the next conservative, but the South went too far.
    And yes, I can ride a horse, but the name's more for the fact that I'm a student at Oklahoma State University (Cowboys).

    • If the existence of slavery makes the South wrong, then the Americans were also the wrong party during the American “Revolution” (it was a secession actually).

  9. I'm not trying to start a fight, but I want some answers here. I greatly respect your opinion, Mr. Willson. I loved your piece on the theology of football. Part of me doesn't want that picture of Old Abe I've cherished all my life destroyed but at the same time I want to hear the opposition and find the truth for myself.

  10. Dear Cowboy, anybody who goes to Barry Sanders's school is a friend of mine! On Father Abraham, as I have said so many times, I am ambivalent. A grad school friend of mine had an interview with the CIA in about 1965, and after his evaluation by their staff psychologist was turned down because they decided he was "ambivalent" about the USSR. I guess I would not make it at any Straussian U, or any Confederate U for that matter, for my ambivalence. Russell Kirk, in the Roots of American Order, pp. 449-456, describes Lincoln as a man of "Roman virtue," and states that he was "a man of order, not a man of theoretic dogma in politics." I think a good case can be made for this interpretation. One of my favorite Lincoln quotations is, "The dogmas of the quiet past are inadequate to the stormy present," which was also a favorite of the very conservative Senator Everett Dirksen of Lincoln's home state. I do plan to review the new movie–I don't review movies very often, but I am afraid in this case that the enormous talent of Daniel Day-Lewis will confuse us further on Lincoln's very real feet of clay. The ambivalence that I feel has mostly to do with the Gettysburg Address, by which Lincoln is measured by almost everyone who takes him seriously. It is a preposterous interpretation of America History. Thank you for your kind comment about my theology. I'm also, at times, even ambivalent about the greatest of all games.

  11. First of all, the States are countries. The Untied States is a union of countries. The citizens of each State have the right to separate theselves from a union that is trying to steal their rights. The industrial revolution was here and machines would take over for the slaves. Some southerners have given up their slaves before the war and still fought for their Constitutional liberty. During the war of 1812 the north wanted to separate from the south. When Jefferson here the news he said they had the right to leave the union at anything. If Lincoln had done the right thing and did not try to force the southern states to stay in the union , he could have saved 600,000 lives. What a shame.

  12. No one will ever understand Lincoln until the realize that he believed in the governing philosophy of Thomas Hobbes – of Leviathan state fame – and not of Aristotle and Locke, the creed of Jefferson and the republicans (small "r"). Jefferson summed that creed up succinctly: "the government governs best that governs least." Hobbes (and Lincoln) believed that man required the force of the State to maintain civilization and that without that force, all would be reduced to anarchy and chaos. No wonder Lincoln feared secession and was willing to do whatever was necessary to maintain the power of the central government! No wonder he did not believe that the Constitution was sufficiently powerful for the purposes of "governing." It wasn't for HIS concept of government!

  13. So why did the Father of the Constitution, James Madison, write this?

    “I partake of the wonder that the men you name should view secession in the light mentioned. The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater right to break off from the bargain, than the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of — 98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a single party, with the parties to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created. In the Virginia Resolutions and Report the plural number, States, is in every instance used where reference is made to the authority which presided over the Government. As I am now known to have drawn those documents, I may say as I do with a distinct recollection, that the distinction was intentional. It was in fact required by the course of reasoning employed on the occasion. The Kentucky resolutions being less guarded have been more easily perverted. The pretext for the liberty taken with those of Virginia is the word respective, prefixed to the “rights” &c to be secured within the States. Could the abuse of the expression have been foreseen or suspected, the form of it would doubtless have been varied. But what can be more consistent with common sense, than that all having the same rights &c. should unite in contending for the security of them to each.”

  14. The Northern apologists on here make a huge mistake. If the “morality” of the seceding party is to be judged and defined by the other party, then there really is never any right to secession at all. Anyway, were there not “immoral: acts going on in the North at the time, such as indentured servitude, “sweat shops”, suspension of habeas corpus, closure of newspapers, jailing of dissidents, etc.? The North won, yes, but at a great cost. The cost was the liberty of EVERYONE, and the beginning of the Leviathan state. Industrialization would have settled the slavery question peacefully if it had been allowed to.. As a matter of fact, the slavery question was settled all over the work pretty much peacefully. What was different in the US? Not greedy plantation owners, but greedy Northern industrialists. They were envious of the South’s wealth and hell-bent on the South continuing to pay the entirety of the Federal Government’s expense. There was no “insurrection or revolution” as the South never intended to, nor tried to, take over the Federal government. They were just trying to be left alone.

    • The question of the morality of the South and its secession arguments is not a question of which side gets to judge–especially not at this point–but of their rightness or wrongness in fact. And the statement of Alexander Stephens that the “cornerstone” of the CSA was a rejection of natural rights seems rather clarifying, at least to me. (This is also, I believe, intertwined with the reasons why the South spoke of secession rather than revolution or independence. They needed a legal, rather than moral, rationale, perhaps for both consistency’s sake and their own personal safety.)

  15. Yes, of course, secession is legal…er, at least moral. After all it’s the ground of the founding. Mr. Lincoln was wrong and one of our interlocutors mentioned the tariff and I concur…and it would have only gotten worse. Mr.Lincoln was as connected to the plutocracy of ’60 as Professor Sorento is to the one we have today. The wheel of justice does, indeed, turn. For his efforts to capture or murder Mr. Davis and his cabinet during the Dahlgren Raid, Mr. Lincoln paid the ultimate price at Ford’s Theatre (see, “Comes Retribution”). This is a lovely thread!

  16. I wish people would stop trying to clean the Confederate flag. The stain of evil is set too fast in it to wash out. My paternal grandmother (1882-1975) was the daughter of a Confederate veteran and the daughter-in-law of a Union veteran. Her grandfather and several of his sons died in the defense of Atlanta against Sherman. We talked about the Civil War many times, and not once did she dispute that the War’s cause was the South’s determination to perpetuate chattel slavery. An even better witness to this is Nathaniel Bedford Forrest, one of the best Confederate generals, whose statement that he only fought because he wanted to keep his “n—–s” can be conveniently found in Russell Kirk’s The Conservative Mind.

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