The Constitutionality of Secession

The past few weeks my time has been consumed by schoolwork, particularly this research paper on the constitutionality of secession. With a fringe group in the country still believing in the concept especially after the election, I figure why not post my efforts to lend to the conversation.

One hundred and sixty-two years after the death of John C. Calhoun, his ideas on state’s rights and nullification have strong support among libertarians and elements of the Republican Party. While a moderate in his early career, his late career became dominated by a staunch opposition to American federalism. He gave an intellectual spine to southern slave holders by providing the logistical ground for secession as well as the morality of slavery. His framework helped lead to the eventual secession of southern states from the union, which began the civil war that claimed seven hundred and fifty thousand Americans. Calhoun cited human nature, numerous cases in history, the declaration of independence, and the pure ineffectiveness of American federalism as sources of legitimacy to the claims for secession that today are still debated regarding the confederacy’s right to secede as well as the ongoing fight over the ability to nullify federal legislation.

Calhoun did extensive readings into the works of Hobbs and Aristotle. Both explored the very depths of human nature, and with this research, Calhoun concluded that man, being imperfect and selfish, was constantly striving to better himself individually, and the only way to do that was to live in a society governed by established law. But this necessity is what also drives governments to be corrupt, self-serving, and oppressive (Tabbarok & Cowen, 1991, p. 660). The concept of secession and nullification was not a spur of the moment invention in response to the election of Lincoln. Indeed, the hostile political climate between northern and southern states had existed for decades. The first time secession and veto power became fiercely debated issues was after passage of the four bills that comprised the Alien and Sedition Acts of 1798 which included provisions limiting freedom of press and speech. The Kentucky and Virginia legislatures passed resolutions declaring the federal government had no authority to exercise the expanded powers in the legislation on the states, and demanding immediate action on repealing the acts. Crafted with the help of Thomas Jefferson and John Adams, the resolutions originally had stronger language mentioning nullification and even secession, but the final versions of the resolutions focused more on the states challenging the constitutionality of laws they saw as unconstitutional. While many states did not agree with the resolutions, New England state governments in Rhode Island, Massachusetts, and Connecticut adopted a similar position during The Embargo Act of 1807, holding protest over a loss of trade as a regional group of states rather than single states. These states even resisted federal orders to send militias to defend the coasts during the war of 1812. These fairly frequent events put serious doubt into the stability of the union, further influenced ideas for state veto and secession privileges in states like South Carolina, and set the framework for politicians like Calhoun to advocate such positions.

In 1828, a new Tariff was passed in an attempt to protect American industry from cheaper goods produced in Europe. The tax undoubtedly benefited Northern industry and hurt the Southern U.S. economy because the South now had to pay more for goods it did not produce, and its sales of cotton to Europe were cut back. Labeled “The Tariff of Abominations” by the South, Calhoun drafted a document known as the South Carolina Exposition and Protest to demand repeal of the tariff, though he did not formally state his authorship of it until later. In the Exposition, along with demands for the congressional repeal of the tariff, Calhoun threatened the secession of South Carolina from the union if it were not, as well as the elaboration of the state right to nullify federal legislation. In 1832, the South Carolina legislature declared the tariff unconstitutional and therefore void. In response, congress authorized military enforcement of federal laws in the state. Calhoun resigned the office of vice president under Andrew Jackson over the 1828 tariff, becoming the first vice president to do so. Labeled the Nullification crisis, the deep political divide over the issue brought Calhoun back to the Senate where he further developed his philosophy on secession, and remained a powerful politician advocating for the South until his death.

In Calhoun’s eyes, there were some fundamental problems with the current federalist system that failed to protect the south against what was referred to by the founders as majority tyranny. Calhoun saw the effects of Jacksonian era in the 1820’s with events like the nullification crisis. Jacksonian democracy was a way of getting the population more mobilized in political activity, which in included the spoils system. The spoils system rewarded the people who did extensive work in your campaign with political appointments. This meant the government began functioning as an extended arm of the partisan parties. Calhoun saw this as corruptive, inefficient, and disproportionately against southern interests as time went on. Calhoun calls this “little better than an absolute government.” (Herzberg, 1992, pp 54, 55, 58). A majority in the federal government could impose its will on the political minorities that were supposed to be protected by the constitution. Calhoun did not intend for the idea of nullification to be as drastic as the responses to it implied. Calhoun wanted to preserve the union, and nullification was a way to expand the effectiveness of checks and balances that were being eroded by corruption, rather than an ultimatum preceding secession. (Tabbarok & Cowen, 1991, p. 657)

In Calhoun’s Disquisition on Government, he lays out what he considers are the fundamentals for a more perfect federal organization of political power. It focuses on the concept of concurrent majorities. A concurrent majority is not a numerical group, but one that encompasses all major interests and political factions.  To prevent majority tyranny, all major interests involved in government need a veto privilege, which is the ability to nullify federal legislation within respective states. Newly elected majorities could then not suddenly impose laws harmful to minority factions, and majorities would be prevented from dominating legislative decisions, forcing all parties involved in the decision-making process to come to a compromise, producing more stable outcomes than events like the 1828 tariff.

For examples proving such a system would work in a Republic, Calhoun looked to the history of the ancient Roman Republic. According to Calhoun, the ruling Patricians were oppressive of the Plebeians, until the Patricians granted the Plebeians equal representation in government, and eventually the Plebeians were able to establish a veto power over all government actions. For a present application of concurrent majorities, Calhoun had to look no further than his home of South Carolina. In 1808, the South Carolina legislature devised an apportioned representation that guaranteed the Southern part of the state, a population of forty-five thousand and mostly slave holders and plantation owners, control of the state senate, while the northern part of the state, consisting of two hundred thousand mostly in cities, would have guaranteed control of the House of Representatives. The deal represented a harmonizing balance in the state government, giving the major interests in the state basically a veto over each other. To Calhoun, this veto power was how a concurrent majority should function at the national level as well. (Ford,1988, p.154)

The first national constitution to be drafted was the Articles of Confederation. After fighting a war against an over bearing central power, there was great hesitation among the continental congress to create a strong central power. The Articles of Confederation became an agreement between the colonies that the United States was to be a group of sovereign and independent states. There was to be no executive leader and any legislation in the national congress could be ignored. Any revenue drawn from the states was optional, and amendments to the Articles had to be a unanimous thirteen votes. This approach would have been the ideal government for men like Calhoun, though he is less concerned with the problems of ineffectiveness produced by inaction, which is what led to the drafting of the current constitution.

The Declaration of Independence is seen as a framework for the Constitution, but there is a debate as to what that framework means. Although Calhoun viewed the Declaration of Independence as a false document in the sense that he denied its assertion that all men are created equal, Calhoun would view one part of the constitution as very important to his arguments for secession. As quoted from the Declaration, “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.” To Calhoun and many in the south, these words read like gold as they argued for nullification and secession. Further in the Declaration, “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness.” The slaveholding south felt that the abolitionist sentiment in the north was creating a political environment similar to what the colonies rebelled against Britain for, and the gridlock and divide was producing a dysfunctional and hostile union, making it a righteous action to dissolve the union.

The political philosopher Montesquieu of France had a large influence on both the founders of the constitution and on Calhoun. Montesquieu theorized that republics could not succeed unless they were very small and homogenous, as ideological conflict in larger republics would inevitably lead to a collapse within workable legislative interests. Calhoun agreed with this logic, citing the intense political hostility during his time, and thought the best way then to have a functioning republic was to have a system giving more power to states, which were more like the homogenous republic Montesquieu described as more likely for success. States would be less polarized and more united on common issues that would affect those making the decisions more profoundly than say a regional group of northern states imposing a tariff that did not affect them as much. The purpose of a central body in a large republic, argued Calhoun, was the absolute minimum, and much like the setup of the Articles of Confederation. (Ford,1988, p.150) Calhoun agrees that a democracy is the best way to prevent corruption and tyranny, but thinks it is dangerous to assume that majoritarian rule is how to actually preserve liberty. He argues the false notion lies within thinking of the numerical majority of the nation as one unit, as opposed to his theory on concurrent majorities. For small and less wealthy nations, majoritarian democracy might work. With a lack of wealth, there is little motive to exploit. But as the size of a nation increases as well as its prosperity, the very existence of government naturally creates a grab for control of government to create a sort of aristocracy among those of similar partisan thought. This favoritism for distributing resources is what Calhoun saw in the party spoils system. For Calhoun, a strict and limited view of the constitution was needed to prevent liberal interpretations from overruling the checks already in place, as well as state authority with the tenth amendment. Secession was the conclusion to an overbearing federal authority that violated that compact of the union (Tabbarok and Cowen, 1991, pp. 660, 662).

One of the champions arguing for a republican form of government in the newly freed colonies was James Madison. Madison, being one of the three authors of the Federalist papers, wrote federalist paper number ten, which is the most frequently cited of the federalist papers in constitutional discussion. Federalist ten addresses the question of how to guard against factions with interests contrary to the rights of minorities or of the greater community. Madison argued that a larger republic would be more successful than a smaller one in preventing that. One might think that Madison, who wrote the Virginia resolution that quite nearly threatened secession or nullification in response to the alien and Sedition acts, might be sympathetic to Calhoun’s dissatisfaction with federalism.

Madison rejects many of the ideas of Montesquieu that Calhoun held as well. Madison argues throughout federalist ten that never in world history has a republic so small existed that a complete consensus was able to be reached. To assume that a confederated group of states cannot exist because conflicts of interests will arise is foolish. It is entirely implausible to expect consensus on even the simplest issues in public affairs. On the contrary, these divisions are completely natural. Madison sees government as the representative essence of human nature, and in a more positive light than Calhoun does. The unique largeness and isolation of the republic would ensure its survival. Madison said that a large republic in land and population would inevitably lead to numerous factions that together would act as natural checks on each other, preventing a potential tyrannical majority. The way Madison saw things, you can either eliminate faction, meaning impose restrictions on speech or political activity, or you can or control its effects. Factions, while undesired, are the natural byproduct of a republic, and trying to be rid of factions would as Madison said be like trying to deprive fire of air. Factions, while natural, would be unlikely to spread beyond state boundaries due to differing interests.  And even if similar factions persisted throughout a large region in the republic, it is less likely that they would be able to form a coalition or unified majority in a way that would suddenly mark an encroachment on minority factions. This idea did not rely so much on a check and balance harmony between the factions of the republic as much as it did vast geographic space and diversity. Madison would likely find Calhoun’s theory on concurrent majorities too vague in defining “all major interests”, not including the natural problems that would arise in trying to create that definition. The federal body itself is a composition of the states will, rather than being foreign entities. The decisions brought by federal action should be developed with a thoughtful consideration for each state by the representatives of each state, who rather than being enlightened statesman, will push for compromise and result in pursuit of prestige and accomplishment. The prospect of secession limits the very idea of compromise, being a fall back option to unsatisfied demands, which would weaken the constitutional bind of the union. (Ford,1988, pp. 150, 151, 152; Howard, 1985, pp. 86, 87)

And of course Calhoun knew of Madison’s theory of safeguards against faction. But after the tariff of abominations, it became evident to Calhoun that forty years after the federalist papers, politics and the political party machines were able to form clear majorities on policies like protective tariffs or slavery in such a way that didn’t require any southern votes from the House of Representatives or Senate, and eventually in election of the president. This also meant that court appointments were more likely to be out of party favors, which would lead to nearly all branches of government under partisan control. The political divides that were starting to divide the country geographically began to form exactly what the founders thought could not be imagined—two political factions that were fighting fiercely to enact more favorable legislation to their own needs. Madison’s claim that geographic space and distance would create numerous factions did not hold up to Calhoun’s findings of his time. Calhoun theorized that with the dramatic improvements in technology and travel with railroads and the telegraph, the once fractioned regions of the country could now align each other’s interests and form larger factions to achieve more likely success on their broad interests, while also working to prevent other coalitions from becoming dominant enough to pass the policies they oppose (Ford, 1988, p. 152).

Madison might have been more sympathetic to the Calhoun’s ideas for veto power or secession if he had seen something as potentially devastating to liberty as the Alien and Sedition Acts. In the Virginia resolution, he had nearly made the call for nullification by almost describing the acts as void and with no effect, as the acts were so clearly unconstitutional, violating the first amendment in the pursuit of politically motivated efforts. But in the end, Madison deleted the phrase to make it clear that no state could simply ignore federal law, but rather it was the rightful duty of states to challenge laws they thought unconstitutional by bringing challenges to the courts and amending the laws through legislation. The Virginia and Kentucky resolutions did declare the acts unconstitutional, but in a document written by Madison in response to protest of the resolutions, the purpose of them was to mobilize public opinion and to elicit cooperation from other states rather than providing legal means of nullification or state independence. (Jefferson,1994, pp 690, 691)

In Calhoun’s South Carolina exposition of 1828, he argued that the sovereign states of the south had a right to declare the tariff of abominations unconstitutional, and the people of South Carolina needed to give congress time to rectify its mistakes. Madison would have agreed with that fully. Madison and Calhoun actually agree on certain elements to federal limitations on constitutional power, but their defining difference is that Calhoun accepts secession as a constitutionally acceptable last resort to the failure of the democratic process, while Madison rejects that thinking outright. Madison had faith that in the long-term the checks and balances would prevail against unfavorable laws as consideration for the best interests of the entire nation took precedence.

As for my opinion, I am much more inclined to agree with Madison’s understanding of secession within the context of the constitution, being that there is no room within the constitution for secession or nullification. The entire basis for Calhoun’s political thought stems from what during his time was dysfunctional democracy and unfair government. But that is what democracy is, especially in its infancy, and when it is the only infant of its kind. Democracy is not a clean process, and the end result is never perfection or anything close. But there are two alternatives to more democratic republican forms of government. The first is the unilateral control of everything through a central government in the form of a monarchy or ruling aristocracy. The decisions in this form of government have the possibility of being more decisive, since power is delegated to very few people who have little to no accountability. But in return these decisions have less input from the population and will be less effective. They might be stalled by a corrupt bureaucracy that leeches funds. These governments cultivate societies that do not have free speech or press, a well-educated populace, or social and economic stability. It is this type of government which had dominated civilization until the formation of the United States. It was truly a miracle that there was a group of educated people in the colonies that tried to institute a republican form of government in the face of so much land and potential wealth.

This brings us to the other form of society, which John Calhoun advocates for. It is still centered on republicanism, but it strives to be like the Articles of Confederation. In fear of central power, Calhoun’s writings indicate that the first constitutional setup was more appropriate in asserting that the states should have total authority of which federal laws they should obey, and be connected like a group of small countries, with separate currencies and commerce regulation, only uniting in military urgency. This thinking, as Lincoln and Madison know, is the gradual application of anarchy. For had Calhoun’s application of veto privilege been exercised during his life, what was to stop factions within individual states from demanding the same privilege in their state legislatures? Had the confederacy won the civil war, what would stop the western confederacy from separating from the eastern confederacy? Progress would be removed in any form, and a stalemate would produce an individualistic, every man for himself form of society.

The democratic process is give and take. The complaints of one state are heard by the rest, which they must take into consideration as they are bound by the constitution. Indeed, the tariff of abominations was reduced in 1833 through compromise. The right course of action to take is to constantly voice your concerns until the entire world knows a policy is truly to your disadvantage, and then legislate and compromise until a satisfactory deal arrives for both parties. Take the Affordable Health Care Act of 2010. There has been a complete fervor from most of the Republican Party over the bill, demanding its repeal ever since its passage. Despite my disagreeing with their protest, it is the completely right course of action to take. Rather than threaten nullification or secession (although many in the fringe elements of the party have), there has been a steady drumbeat for legislative repeal. This is the approach that Madison advocated with the Alien and Sedition Acts. It is each states sacred obligation to comply with federal law, but just as much so to express dissatisfaction with unfair or unconstitutional laws, and to place faith in the courts and congress to rectify the wrongs. If there was the threat of nullification or secession from every bill that would did not completely satisfy every state in the union, there would be little progress in our national body. To allow the states to create and abide by their own unique rules and laws would create a chaotic and divided nation, and certainly not revered by the world. The Articles of Confederation was replaced with our current constitution because of the need to create a document that made more effective policy as a confederated nation and forge a stronger bond between the states. The constitution does not include any “opt out” of this compact, and to do so would make it a much weaker document, a point Madison, who helped craft it every step of the way, would know. Without the common bond of our strong constitution, which would have been non-existent if Calhoun’s advocacy been succeeded, it is doubtful the United States would stand whole as it does today. As a country, we could not have grown to our current standing in the world had our government been a divided group of miniature nation states. To borrow from one of Lincoln’s famous speeches; a house divided cannot not stand.

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