Does a State have the right to secede?

[Thomas Thorne]

(08-24-2013 07:21 PM)wsanto Wrote:  

(08-22-2013 04:59 AM)RJNorton Wrote:  I do not feel adequate to enter this discussion, but I do have a question in case anyone would like to respond. Are "nullification" and "secession" two separate concepts, or are they essentially the same overall concept? The reason I ask is that courts look for precedents when they make decisions, and Lincoln was a lawyer. Nullification was an issue in 1832, and Andrew Jackson issued a proclamation regarding nullification. Just one paragraph of it reads:

The Constitution of the United States, then, forms a government, not a league, and whether it be formed by compact between the States, or in any other manner, its character is the same. It is a government in which all the people are represented, which operates directly on the people individually, not upon the States; they retained all the power they did not grant. But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union. To say that any State may at pleasure secede from the Union, is to say that the United States are not a nation.

Does anyone know if Lincoln looked at this as a precedent? Did this help him decide his own position on secession?

Thank you for any possible responses.

Roger,

I found this excerpt from a letter written by Madison, the Father of the Constitution. He was alive during the Nullification Crisis and further clarified his opinion on nullification and secession.

Montpellier, Decr 23, 1832.

Dr. Sir I have received yours of the 19th, inclosing some of the South Carolina papers. There are in one of them some interesting views of the doctrine of secession; one that had occurred to me, and which for the first time I have seen in print; namely that if one State can at will withdraw from the others, the others can at will withdraw from her, and turn her, nolentem, volentem, out of the union. Until of late, there is not a State that would have abhorred such a doctrine more than South Carolina, or more dreaded an application of it to herself. The same may be said of the doctrine of nullification, which she now preaches as the only faith by which the Union can be saved.

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 fight 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.

It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, vol. 2,1 with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject.
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My view is along Madison's argument that no state had the right to secede from the compact they joined in creating the Union. And there was no "intolerable abuse of the power" that justified the South's natural rights to rebellion and revolution.

Madison's views on secession are fascinating given that he and his political tag team partner,Thomas Jefferson ,were respectively the secret authors of the Virginia and Kentucky Resolutions of 1798 which introduced "Interposition" and "Nullification" into the political world, words which laid the foundation for secession.

While Madison believed that application of these doctrines, refusal of states to obey a Federal law because of its perceived unconstitutionality in their eyes, could not be done by an individual state, many devotees of the Virginia and Kentucky resolutions believed an individual state could do so. George Washington feared for the safety of the Union if one or more states nullified a federal law. A famous biographer of Thomas Jefferson feared that Jefferson would have been charged with treason if his authorship of the Kentucky Resolutions had been known..

A majority of states c. 1800 rejected these doctrines and suggested the US Supreme Court be the arbiter of the constitutionality of Federal laws, a function Chief Justice Marshall happily assumed in Marbury vs Madison in 1803.

Many people think that antebellum extreme doctrines of States Rights was an exclusive Southern monopoly. They are wrong.

When Jefferson had the Embargo passed in 1808 against European trade to the ruination of New England's commerce, Yankee elites cited the Virginia and Kentucky resolutions as proof they could ignore the law. Generations of American children were taught the fiery nationalistic speeches of Massachusetts statesman Daniel Webster and were never taught about Webster's early belief that the State of Massachusetts could prevent its troops from being called into Federal service during the War of 1812.

In the 1850's a few Northern states with strong abolitionist support cited the Virginia and Kentucky resolutions in their fight against the 1850 Fugitive Slave Act and wrote Personal Liberty laws, which not only prohibited state and local officials from participating in enforcement of the Fugitive Slave Act but sought to prevent Federal enforcement of that odious law. The US Supreme struck down such laws in 1859 in Abelman V Booth.

Tom
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