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A recent temper tantrum made its way onto the editorial pages of the NY Times by Louis Michael Seidman, a man claiming to be a professor of Constitutional Law at Georgetown University titled “Let’s Give Up on the Constitution“.

In this dystopian view of the founding of our current union turned mobocracy, Seidman points to Americans’ alleged devotion to the “archaic” relic known as the Constitution and in the process adds to the case FOR modern, American secession. “As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.”

Nice and that is just the paragraph de prius. In a make believe Congressional ante chamber in 2012 he envisions:

“…men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action.”

I can only deduce by “evil” Seidman is citing slavery and assume by “illegal” he means to say the States whom ratified the Articles of Confederation in 1781 never bothered to secede from them so they could accede to the new Constitution in 1787, 88, 90, 91. Much of the “Tea Party” has their Amy Kremer sized panties tied up in wads over this “outrage” but give Seidman his due, he is stating “Compact theory” on the Constitution. This basically means, as nearly everyone alive in North America from 1788-1832 knew, that the States were voluntary parties to, what Jefferson called “a compact whose style is The Constitution of the United States“. (see the Kentucky Resolutions of 1798)

Now, lest the reader believe that your faithful correspondent is about to serve up another American defender of secession, that is not my direct aim but this fama clamosa will be accomplished indirectly. In his epic work Political Philosophy, the English Lord Brougham included a chapter on the American Constitution (as he compared it to the English). To the question of whether the Constitution established an “indivisible union” of the Socialist Bellamy, channeling Lincoln, regurgitating Webster or a voluntary compact of Sovereign States who chose the Constitution as their preferred government of union, Brougham, an ocean away, sans the slaves concluded:

“We have now seen that this Constitution professes to lay down certain fundamental laws, which are binding not merely on the subject but upon the Congress itself, and upon all the State Legislatures. Hence arises this anomaly, that the supreme power is fettered: there is not, properly speaking, a supreme power; Congress is tied up : that is done by the American Constitution, which in ours is held impossible; the hands of the Legislature are hound; a law has been made which is binding on all future Parliaments.”

“When we at first contemplate this state of things, it appears to be sufficiently anomalous; and yet a little reflection will show us that it is, at least to a certain extent, the necessary consequence of the Proper or Perfect Federal Union. There is not, as with us, a government only and its subjects to be regarded; but a number of Governments, of States having each a separate and substantive, and even independent existence, originally thirteen, now six-and-twenty, and each having a legislature of its own, with laws differing from those of the other States. It is plainly impossible to consider the Constitution which professes to govern this whole Union, this Federacy of States, as anything other than a Treaty, of which the conditions are to be executed for them all; and hence there must be certain things laid down, certain rights conferred, certain provisions made, which cannot be altered without universal consent, or a consent so general as to be deemed equivalent for all practical purposes to the consent of the whole.”

“It is not at all a refinement, as we have already remarked, that a Federal Union should be formed; this is the natural result of men’s joint operations in a very rude state of society. But the regulation of such a Union upon pre-established principles—the formation of a system of government and legislation in which the different subjects shall be not individuals but States—the application of legislative principles to such a body of States—and the devising means for keeping it’s integrity as a Federacy, while the rights and powers of the individual States are maintained entire—is the very greatest refinement in social policy to which any state of circumstances has ever given rise, or to which any age has ever given birth.”

It should be observed that the “rights” of a State, “maintained entire” must include the fundamental right to self government. You can only have self-government if the right of choosing the forms of that government are guarded and sacred. This would naturally include the right of secession FROM what was acceded TO-The Union under the Constitution.

Michael Louis Seidman’s plea for a national democracy, loosely cobbled together by some ever-changing written-in-pencil instrument (calling it a Constitution is oxymoronic), is an important contribution to our ongoing discussion about the reorganization of the American Union because it helps establish both the utter futility of the current system and unwittingly provides energy to [r]epublican efforts to re-found or in the words of the Framers assists in contemporary attempts at “more perfect unions”.

Books related to this topic of this essay may be found in The Imaginative Conservative BookstoreThis is a revised transcript from The Mike Church Show

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22 replies to this post
  1. (sigh)
    When are we going to put an end to this "States Rights" nonsense? It is theoretical hydrophobia, engendered whenever a petty local tyranny objects to a power greater than itself stoping it from injuring others. My G-g-g-grandpa died helping to stop the last serious attempt to overturn the Union. That issue has been settled ever since April, 1865!
    And, for an American to look for the maunderings of a Brit philosopher to justify an American politic? Please, at least be honest enough to refer to your real inspiration — Fitzhugh, and his ilk.

  2. There was not a right to secede. The Articles of Confederation formed a "perpetual union". The Constitution says absolutely nothing about making that union other than perpetual, though in the preamble it does declare the goal of making a "more perfect union". It is hard to imagine that making a union which was perpetual dissoluble made it more perfect. In any event, I agree with David Naas that the outcome of the Civil War resolved the question. Justice Scalia made the same observation a few years ago when questioned on the subject.

    If there was any doubt, the Supreme Court addressed the issue shortly after the war. See Texas v. White, 74 U.S. 700 (1869), available at,14

    Gregory K. Laughlin

  3. There are of course many levels of problems here, Mr. Laughlin. According to established convention, there was "inalienable" "right" to life, liberty, and property. It turned out that there were no such rights for people who chose to secede, doing so, whatever Mr. Naas' snide little remark about Fitzhugh being the inspiration for anyone who disagrees with him, in the conviction that they understood the Constitution as well as unionists did. It also turns out, in the present day, that the weakest members of our society (the unborn, and increasingly the elderly) have no right to life either. Perhaps a better way to approach the broader problem (as conservatives) is first to agree that complicated moral issues cannot be solved by either guns or courts, and then try to build from there. Mr. Church's point, as I take it, is not that we need to revisit the old debate over secession, but to try to understand the proper basis to "reorganize" the current broken system.

  4. Dear Mr. Naas & Anon.,
    These "united states" were supposed to be a voluntary union. New York, Virginia & other states explicitly wrote they reserved the right of secession when agreeing to Constitution. The individual colonies (and later, states) pre-existed any "federal" union of the states. Read Jeff Davis & Alex Stephens multi-volume works on the subject. See Calhoun also. Scalia is a fine man, but wrong on this point. All court precedents prior to War Between States acknowledged right of states were pre-eminent. Force of arms does not decide soundness of legal argument. Does "might make right"? Too many so-called "conservatives" are not conservative by the definition prior to "late unpleasantness". Go back and read the "Federalist' & "Anti-Federalist" papers. Even those called Federalists at the time would be appalled at modern American conservatives & their wilful misreading of the Founders. What the US has today is a "consolidated" central government, not a truly "federal" one. So much more to say, but folks need to read more of Forrest McDonald, M.E. Bradford, Richard Weaver, Andrew Lytle, Patrick Henry, etc. . Sen. John East (NC) also wrote a good book on conservatism in the1980s that I recommend. Keep up the good work Mr. Winston Elliot III.

  5. When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    Sound Familiar? We have nearly come full circle.

  6. No serious person wishing to discuss this issue should be allowed to cite the AOC and the "perpetual union" clause as a bulwark against future secession lest they suffer the fate of the imbecile who states there is only one word in English that begins with the phonetic "shuh" and that is "sure" only to witness his wife ask him to pass the "sugar".

    If the states were in a "perpetual union" under AOC then please produce their articles of dissolution which would have made it legal to then enter into the "more perfect union" of the Constitution. Carried further, those who lust for indivisible unions brought about by the death of 630,000 or ore of their "countrymen" should be consistent and produce the accusations of treason that Rhode Island and North Carolina, in their most notorious acts of sovereignty, must have produced against MA & VA et al upon those traitorous rogues upon adoption of the Constitution. Was not the Old Dominon in open rebellion against the Perpetual Union of the Confederation!?

    There is NOTHING in the historical record from 1787 until Daniel Webster's speech of 1832 against SC's nullification that utters a syllable about the Constitution and its confederation as anything other than a compact between consenting parties.

    Mr Wilson is correct that refighting Bull Run or the forced ratification of the 14th Amendment serves little, useful purpose today other than illustrating the educational imperative of The Constitution (and Constitutions in general) as a Compact and the Sovereignty of the People in their solemn acts that make and can unmake those compacts.

  7. Here is the language from the Virginia resolution: "…make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression…."

    This is not a right to secession, but to rebellion, if those are to mean anything different. And it demands that they prove that the powers had been "perverted to their injury or oppression", as the Declaration of Independence abundantly argued regarding King George and Parliament.

  8. Andrew Seeley, if you read the proceedings of the Richmond ratifying convention, your interpretation becomes untenable. It is indeed a right of secession they are discussing.

    Anonymous is wrong about the "perpetual union" because he doesn't know what "perpetual" meant in the diplomatic language of the 18th century. It didn't mean "lasting forever." It meant the document had no built-in sunset provision. Lots of long-forgotten 18th-century treaties were called "perpetual"; Anonymous probably thinks those are still in force.

    In general, opponents of secession tend to be quite uninformed, I find. The comment about states' rights coming from Fitzhugh is about the most ignorant thing I have read all year.

  9. Tom, what is the difference? Do they have to prove that they have suffered injury and oppression in order to invoke the right? Why put that language into the actual resolution?

  10. Does a wife have to prove injury to get a divorce? Do you have to prove injury to quit a job?

    If you do not have the right to freedom of association then you may not enter into association or contract. If you do then you also must necessarily have the right to rescind or replace any such association.

    Further, If you do not have the right to force me to remain in an association, you may not delegate that power to the government. The moral authority of the government is no more and no less than the moral authority you and I grant it. If you and I 'vote' that we may force Mr Woods to work in chains in our field, or give us 30% of his income on pain of being caged or killed, that doesn't create any moral authority to do so. If we write on a piece of paper that we have that power, still no moral authority is magically created thereby.

    To repeat, you may not grant to the government any power or right that you do not have. 10 people or 10 million saying the government may do something in their name that they may not do individually does not make it so.

    So if you believe that states may neither nullify nor secede then you should explain whence the right to such denial originates.

    If you say from a gun, then we may cease any pretense that we're talking about a political philosophy qualitatively distinct from that of Che Guevara.

    Rebellion vs Secession. Generally it's called rebellion by the coercive party and secession by the party attempting to leave, but I suggest a more meaningful distinction.

    Secession or nullification is when one party, in whole or in part, rescinds association.
    Rebellion is when one party attempts to seize control of the state apparatus over a region.
    In the marriage analogy, a divorce is a secession. A rebellion would be when the wife gets a gun and chains her husband and forces him to work for her. A rebellion is just a change of masters. A secession is a repudiation of masters.

  11. Mr. Seely, you are reading things into the Virginian's transcribed words that distort their obvious intent. To imply the Virginians would place "demands" on their own "instrument of ratification" which would then hinder the exercise of an power that is expressed is ridiculous. The difference between "rebellion" and "secession" is profound as the former is an Act of defiance against a government a party still claims loyalty to while the latter is an Act that separates the legal and political "bands which have connected them with another". Secession is drawn from the Latin "secedere" meaning "to withdraw", which practically speaking is a passive act.

    Secondly, the record of the VA convention clearly shows EXACTLY what was meant by "resume those powers perverted". On 24 June, 1788, Madison's lead henchman, George Nicholas addressed the convention following Patrick Henry's demand that amendments should be obtained before ratification saying:

    "Mr. NICHOLAS contended that the language of the proposed ratification would secure every thing which gentlemen desired, as it declared that all powers vested in the Constitution were derived from the people, and might be resumed by them whensoever they should be perverted to their injury and oppression; and that every power not granted thereby remained at their will. No danger whatever could arise; for, says he, these expressions will become a part of the contract. The Constitution cannot be binding on Virginia, but with these conditions. If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification, and intent, to be, (what the words of the contract plainly and obviously denote,) that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it whensoever any such imposition shall be attempted, — I ask whether, in this case, these conditions, on which he has assented to it, would not be binding on the other twelve. In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them."

    What else could this statement possibly mean!? If we take a look at the Resolution of the VA Convention of 1861, we will find the precise meaning if it be in doubt.

    "The people of Virginia in their ratification of the Constitution of the United States of America, adopted by them in convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, having declared that the powers granted under said Constitition were derived from the people of the United States and might be resumed whensoever the same should be perverted to their injury and oppression, and the Federal Government having perverted said powers not only to the injury of the people of Virginia, but to the oppression of the Southern slave-holding States:

    Now, therefore, we, the people of Virginia, do declare and ordain, That the ordinance adopted by the people of this State in convention on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and eighty-eight, whereby the Constitution of the United States of America was ratified, and all acts of the General Assembly of this State ratifying and adopting amendments to said Constitution, are hereby repealed and abrogated; that the union between the State of Virginia and the other States under the Constitution aforesaid is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong and appertain to a free and independent State.

    And they do further declare, That said Constitution of the United States of America is no longer binding on any of the citizens of this State."

  12. Mr. Church, I don't think we are substantially in disagreement in reading the Virginia resolution, but we are in substantial disagreement with Faithkills. Virginia apparently understood in 1787 and in 1861 that they ought not withdraw from the Union without just cause. As the colonies had to prove that George III had become a tyrant in order to justify rebellion against him and separation from Great Britain, so Virgnia, in order for their secession to be just, had to prove that the Federal government had become tyrannical (perverting powers so that they caused injury and oppression).

    You and I disagree about whether I can place demands upon myself when I make a commitment. When I marry, I can say (and it is always implied) that I retain the right to sue for divorce. But in marrying I make such a commitment that to justify divorce, I will have to prove that my partner has broken the agreement through infidelity or some such. When individuals or states unite to form a government, they make such a commitment that withdrawal can only justly occur if, in the language of the Declaration, the "Form of Government becomes destructive of these ends".

    Faithkills view of marriage and government seems the very epitome of license and anarchy.

  13. I intend "right to divorce" in the same sense as Locke and the Declaration argue for a natural right to rebellion. Hobbes held that the societal compact is irrevocable, no matter what the sovereign does. Locke and Americans believed that those forming a government do not renounce the right to rebel. When an institution(government or marriage) becomes destructive of the good of the individuals who form it, then the contract ceases to have its binding force.

    If there were no right to divorce, then courts would not consider divorce petitions.

    Is this clearer? Does it still sound Jesuitical?

  14. Thanks, Andrew. Yes, the clarification is great. Two responses. 1) I'm not suggesting that divorce shouldn't be permitted. I'm only suggesting it's not a right in any proper sense of that august term. 2) I think it's very dangerous to compare the formation of a nation state to a marriage. Marriage existed long before the world of politics, and a covenant (marriage) is a long way from a compact. It's worth remembering that the Pilgrims never called the agreement they signed on the Mayflower a compact. They called it the "Plymouth Combination." Only a century and a half later–in a much more secular period–did historians rename it a "compact." And, of course, the Pilgrims created a community, not a nation.

  15. When individuals or states unite to form a government, they make such a commitment that withdrawal can only justly occur if, in the language of the Declaration, the "Form of Government becomes destructive of these ends".

    Even if we stipulate this is valid, this would have to be express. Yet the reality is that 9A and 10A express just the opposite. In you contract with me to provide internet service and no early cfncellation clause is expressly agreed to, I am not somehow magically given authority to shoot you if you decide to cancel. Yet this is what you assert.

    You cannot enter an agreement over anything if you do not have the authority to make that disposition. I cannot enter into a marriage for you and someone else. I cannot enter into a service agreement for you and some customer. I cannot enter into a contract to sell your property.

    You thus cannot have a meaningful agreement regardling association if you do not have the right to choose how to associate in the first place. I can't lease that which I do not own. Now if you believe that right is transferrable, then how can you reject indentrued servitude? Even if you do, that right would have to be explicitly transferred. It's logically preposterous and incoherent to assume that any contract regarding association immplicitly is a rights transfer, ie every contract is essentially enforceable as involuntary servitude.

    Further, logically insisting on a 'right' to rebel as distinct from secession is creating only immoral options. I do have the right to secede from any arrangment I enter into, but I shouldn't have to kill you to assert this right. I shouldn't have to kill the cable guy to get out of my cable contract. It also doesn't follow that it is just for me to kill the cable guy only to become the cable guy holding other customers to their contracts at gunpoint. This is what rebellions most often are, merely a change in masters.

    If we assume the States had right to dispose themselves collectively, which is itself arguable, but stipulating they had that right in the first place, they still have the right, and even if that right were transferrable, no where have they done so.

    If you really do think you have the moral authority to take up arms against those that merely want to cease association with you, whence comes that authority?

    If you don't have that authority individually, against your wife or cable provider for example, then how can you delegate that authority to a government whose powers are merely what you have to grant and have chosen to do so?

  16. FaithKills: In order to claim the power to "accede" to something, contained in that assertion must be the equal power to "secede" from that something. This is why the Fathers specified that the Constitution was to be ratified by CONVENTIONS held by the people of the states and not the state legislatures/ Only The People could possess the awesome power of acceding to the Constitution. Why? Because a legislature in a sovereign society is a functionary of the People it is not sovereign from its own existence.

  17. Brad, re: 1), do you have the same reservation about speaking of a "right" to rebellion? I suspect that some of the insistence on the word "secession" is because people think that "rebellion" is always wrong. "It is their right, it is their duty, to throw off such government…."

    I wonder if you would say more about 2. The Plymouth Combination uses "covenant" in the text — "solemnly and mutually, in the presence of God, and one another, covenant and combine ourselves together into a civil body politic." Are you suggesting that this was closer to a marriage than the formation of the United States? Yet the Declaration formed a People, which People enacted the Constitution. Perhaps you would explain the distinction between community and nation.

    On the topic, do you know Donald Lutz's "The Origins of American Constitutionalism"?

  18. Dear Andrew, I'm not sure if I'm the best person to answer this, but, yes, I think it's a duty and a justice for a true man to rebel against evil, always and everywhere. Feel free to call it whatever you want. Disunion, secession, nullification, shooting back, punching. . . . As to Plymouth–I consider the Plymouth Combination one of the most important moments in western civilization. It's preLockean, and there's no sense the Separating Pilgrim had any concept of a "right" to secession. In fact, they make it clear they are still under James. But, they covenant with one another to form a community. The pledge is to themselves, to each other, and to God. Marriage is still higher, as it's pre political and a sacrament. But, such a formation of a community is close, I think.

  19. I've enjoyed the commentary here, esp from Mr. Seeley and Mr. Birzer, most informative. However I have an objection to the originally cited text by Brougham. Where he states that while the Federal government has its prerogatives restrained, he then argues that the individual states "retain their rights entire."

    What then would he then reply to the objection that there were a number of particulars in which the states ceded those rights, particularly in the realm of foreign relations. For instance the Congress makes treaties, declares wars, approves foreign emissaries, etc. Not to mention the minting of coins exclusive to the Federal government.

    It seems to me that the states then take a sort of "compact" by ceding certain prerogatives to the Federal Government, some pragmatic, but mostly in the realms of the idea of sovereignty. By ceding these to the Federal union, though one must admit they had them in the first place in order to give them up!

    Great discussion by all.

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