Do States Have a Right to Secede?
We’ll leave to another time the suspicion-inducing question of why so much attention is focused on the most extreme remedy for federal overreaching when the Framers’ own perfectly constitutional remedy remains neglected (the state application and convention process of Article V). In this post, let’s address only whether the Constitution—as understood by the people who adopted it—actually authorizes secession. More information on this topic appears in my book, The Original Constitution.
The text of the document does not address the issue directly. But from all appearances it seems to contemplate a perpetual union. The drafters’ views on the subject were well captured by John Dickinson, writing during the federal convention: “We are not forming plans for a day month year or age, but for eternity.”
Moreover, the Constitution is not written in the form of an interstate compact. Its structure is based on the standard form of a royal charter by which the sovereign granted power to others. In the case of the Constitution, the sovereign is “We the People,” recited in the same place that the king’s name would have been located before Independence. Recall that the Declaration of Independence already had defined Americans as “one people.”
Opponents of the Constitution fully understood the significance of this structure, and it was one reason for their opposition. For example, at the Virginia ratifying convention anti-federalist Patrick Henry reacted in anger: “Who authorized [the Framers] to speak the language of, We, the people, instead of, We, the states?”
What were the views of other Founders? A popular book on the Constitution by an academic author claims that the advocates of the Constitution insisted during the ratification debates that the states were individual parties to a federal compact. The book also claims that three states—Virginia, Maryland, and Rhode Island—reserved in their actions of ratification their right to secede from the union.
But those assertions are simply false. Here’s why:
* During the lead-up to ratification, the Federalists (the Constitution’s advocates) generally spoke or wrote of the document as a power grant directly from the people. Thus, James Madison asserted in Federalist No. 46: “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes.” In other words, the federal government is the agent of the people, not of the states.
* Opponents of the Constitution acknowledged this. William Grayson, a leading anti-federalist speaking at the Virginia ratifying convention, summarized the pro-Constitution position as holding that the Constitution “was a compact between the people themselves”—not among the states.
* The claim that Virginia, Maryland, or Rhode Island reserved in their ratification instruments a right of secession is also false. Maryland said nothing on the subject. And although states’ rights feeling was particularly strong in Virginia and Rhode Island, neither of those states asserted a right of secession either.
* On the contrary, the Virginia ratification instrument acknowledged expressly that “the powers granted under the Constitution” were “derived from the people of the United States.” And the Rhode Island instrument stated that “That all power is naturally vested in, and consequently derived from, the people.”
* Both Virginia and Rhode Island acknowledged the general right of revolution against an oppressive government, but both asserted that right for the people, not for the states. A proposed statement of the general right of revolution was rejected by the Maryland convention. You can read the ratification acts of Maryland, Virginia, and Rhode Island yourself by clicking on the state names in this sentence.
Why is there such confusion on the issue? One reason is that some in the Founding Generation did speak of the proposed Constitution as if it were an interstate compact. But this is best understood as a slip of the tongue or of the pen, since the Founders were used to thinking of the central government in terms of the Articles of Confederation, which was such a compact. (Note, however, that even the Articles were by their terms “perpetual;” there was no reserved right of secession.)
Additional confusion arises because many the Founders used the word “compact” to describe the Constitution. However, during the Founding Era, the term “compact” in this context usually referred to a general social compact among the people themselves. (On the use of the word, see Donald S. Lutz, The Origins of American Constitutionalism, pp. 16-22). When the Founders referred to the Constitution as a compact, they generally meant the word in this sense. An example is the William Grayson quote above.
Finally, as I have pointed out before, many common myths about the Founding actually were invented or gained force decades after the Constitution was adopted, and were promulgated by those who stood to gain from them. The supposed right of secession is one example.
None of this excuses the outrageous disregard of constitutional limits shown in recent years by the federal government. Nor should it discourage people from opposing federal overreaching.
But the first step to enforcing the Constitution is to understand what it does—and does not—mean.