Recently an acquaintance of mine remarked that the Confederate statue in her hometown should be removed from its present place of honour and relocated to the Confederate cemetery which is presently (and sadly) in a state of neglect. The statue should be moved, she said, because while the boys who fought and died during the Late Unpleasantness deserve to be remembered, “literal traitors to America” should not be glorified. Were the Confederates traitors to America? Let’s do a little digging and find out, shall we?
1: At the direction of the State governments, the Continental Congress declared independence in July of 1776, stating:
“We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
Note the lowercase “u” in “united States of America.” Jefferson is not referring to the United States government. How could he be? It hadn’t been created yet. Rather, he is simply referring to the States united, the separate, sovereign, “Free and Independent States,” joined together in common cause to declare their independence from the British empire. Each State was an independent entity, acting on its own behalf, in its own interest, on the basis of its own sovereignty. Virginia had already declared her independence on 15 May.[1] Indeed, the news of Virginia’s independence reached Britain and was discussed in the British press before news of Jefferson’s Declaration reached the island’s shores.[2] When the war finally ended with the Treaty of Paris of 1783, the British government recognized the thirteen States as “free sovereign and independent states,” and listed them each by name.[3] Based on the evidence above, it is clear that the States are free, independent, and sovereign.
2: The States seceded from Great Britain and eventually formed the compact created by the Articles of Confederation (ratified 1781). They then seceded from the government created by the Articles in order to form a new Union governed by the Constitution of the United States (ratified 1787-1790; came into effect 21 June 1788, when New Hampshire became the ninth State to ratify in accordance with the requirements laid out in Article VII). Many of the Founding Fathers, the so-called Anti-Federalists, opposed the adoption of the U.S. Constitution because they believed it created a central government so powerful that the States would be consolidated and destroyed.[4]
The proponents of the document, the so-called Federalists, promised the Constitution would protect the rights and powers of the States.[5] It is telling that, throughout all of the heated debates over ratification, no one brought up treason. There were rumblings about the delegates at the Philadelphia Convention exceeding their authority – after all, they had been sent there to amend the Articles, not create a new document – but no one, absolutely no one, questioned the right of the States to alter, abolish, or leave the compact formed under the Articles of Confederation, despite the fact that their full name was the “Articles of Confederation and Perpetual Union.”[6]
Indeed, the basis for questioning the actions of the delegates at Philadelphia rested on the fact that the States had not granted them the authority to draft a new governing document. If secession from the Articles of Confederation was treason, why did the Anti-Federalists not call the Federalists out for advocating it? Obviously, it was because the States are free, independent, and sovereign. Joining, editing, or leaving a compact/alliance/federation is not treason. It is one of those things which “Independent States may of right do.” This fact was so obvious at the time that no one felt the need to reiterate it. If any of the Anti-Federalists had advanced such an argument, he would have been laughed at and dismissed for the idea’s absurdity.
3: The Constitution was sold to the State ratifying conventions as a form of union which would preserve the pre-existent authority and sovereignty of the States while simultaneously correcting the defects of the Articles. This is why the Constitution refers to the States in the plural throughout the text. This is why the Constitution only applies to the States “so ratifying the same.”[7]
If a State did not ratify the Constitution (as Rhode Island refused to do until 1790), the Constitution had no authority in or over that State. That being the case, if a State rescinds its ratification, if it no longer consents to be governed by the Constitution, then that document no longer holds any authority in or over the seceded State. The States acceded to the compact of their own free will. The States alone have the authority to amend the compact.[8] Why may they not leave if they so choose?
“The state governments represent the wishes, and feelings, and local interests, of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and they will be the natural avengers of our violated rights.” –Fisher Ames of Massachusetts
4: Prior to ratifying the Constitution, the States had the right to secede from Great Britain, and to secede from the Articles of Confederation. Ratification of the Constitution did not deprive the States of that right. If secession were treason according to the Constitution, surely someone would have objected when three States reserved their right to secede from the Union as a condition for their ratification of the Constitution. No one did.
Virginia reserved the right of secession to herself when she included the following in her ratification on 26 June 1788: “…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 and that every power not granted thereby remains with them and at their will…” New York reserved the right of secession to herself when she included the following in her ratification on 26 July 1788: “…the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness…” Rhode Island reserved the right of secession to herself when she included the following in her ratification on 29 May 1790: “…every other power, jurisdiction, and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State governments to whom they may have granted the same…”
The States are on equal footing with one another. If Virginia, New York, and Rhode Island have the right to secede, so do all the rest.
5: If secession was treason, surely the Constitution would say so. It does not. If secession was treason, surely the United States government would have been delegated the authority to prevent States from leaving. No such authority was or has been delegated. As James Madison wrote in Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined.”[9] This is reflected by the Constitution itself – the powers of the federal government are positively delegated and specifically enumerated. It has no powers other than those granted by the Constitution. It is an agent of the States, an employee, and has been delegated specific powers in order to carry out specific functions; it has no pre-existing authority or powers; all of the authority it possesses, indeed, its very existence, comes from the Constitution, which was written on behalf of and ratified by the States. The Tenth Amendment to the U.S. Constitution says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Founding Fathers were unequivocally clear upon this point. If the Constitution does not delegate authority on a given subject, the Federal government has no authority on that subject.
“The powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.” – James Madison
“It [Federal authority] only extends to the general purposes of the Union. It does not intermeddle with the local, particular affairs of the states.” – Edmund Pendleton
“Acts of congress to be binding, must be made pursuant to the constitution; otherwise they are not laws, but a mere nullity.” –St. George Tucker
“If Congress should make a law beyond the powers and the spirit of the Constitution, should we not say to Congress, ‘You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amenable to us for your conduct. This act is unconstitutional. We will disregard it, and punish you for the attempt.” –George Nicholas
“A parallel has been drawn between the British Parliament and Congress. The powers of Congress are all circumscribed, defined, and clearly laid down. So far they may go, but no farther. But, sir, what are the powers of the British Parliament? They have no written constitution in Britain…The power of Parliament is…unbounded.” – Samuel Johnston
“When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed: Is it enumerated in the Constitution? If it be, it is legal and just. It is otherwise arbitrary and unconstitutional.” – Henry Lee
“If [Congress] go beyond their powers, if they make a law which the Constitution does not authorize, it is void.” – Oliver Ellsworth
“Should they attempt it without constitutional authority, the act would be a nullity.” –Theophilus Parsons
“All delegated power is a trust, and all assumed power is usurpation.” –Thomas Paine
“All powers which are not granted are retained by the States.” –George Mason
“The laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.” – Alexander Hamilton
“Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” – Thomas Jefferson
I could include several more quotes, but I think the point sufficiently demonstrated. The Constitution nowhere grants the Federal government the power to prevent the States from seceding. Therefore, the Federal government possesses no such power, and any attempt to coerce the States to remain in the Union is a violation of the Constitution.
6: As James Madison wrote in Federalist No. 45: “Those [powers] which are to remain in the State governments are numerous and indefinite.”[10] The powers of the States pre-exist the Constitution, and this reality is reflected in the document itself. Article One, Section Ten provides a list of things the States may not do, an explicit, limited prohibition on pre-existing authority and power.[11]
This section is a negative restriction. If an action is not prohibited by Article One, Section Ten (or by later amendment), the States may do as they please.[12]
7: Article III, Section 3 of the United States Constitution says: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.”[13]
You no doubt have noticed that “secession” is not listed as a treasonous activity in the section quoted, nor is treason defined in any other article or section of the Constitution.
8: Secession (and talk of secession) has a long history within the Constitutional Union. In 1794, Senators Rufus King of Massachusetts and Oliver Ellsworth of Connecticut approached Senator John Taylor of Virginia to propose a dissolution of the Union.[14] Taylor wrote an account of what occurred and gave it to James Madison. Madison’s notes can be seen on the manuscript, and while he and Taylor evidently feared an attempt by the New England States to secede and enter an alliance with Great Britain, neither of them made any mention of treason. Taylor also wrote about the event in a letter to a friend. This friend showed the letter to Thomas Jefferson, who wrote a letter on the subject to Taylor in 1798.[15] Jefferson had much to say about the then current state of affairs and his hopes for the future. He thought the federal government had become monarchical in its actions thanks to the “irresistable [sic] influence & popularity of Genl. Washington played off by the cunning of Hamilton,” but Jefferson believed this would soon be corrected by the voting public. He did not view secession as a solution to the problems they faced. If New England left the Union, the remaining States would begin squabbling with each other until everyone fell into petty partisan division. Jefferson wanted New England to stay in the Union as the uniting opposition, the crazy people everyone else could resist and unite against:
“I had rather keep our New-England associates for that purpose, than to see our bickerings [sic] transferred to others. They are circumscribed within such narrow limits, & their population so full, that their numbers will ever be the minority, and they are marked with such a peculiarity of character, as to constitute from that circumstance the natural division of our parties. A little patience and we shall see the reign of witches pass over, their spells dissolve, and the people recovering their true sight, restore their government to its true principles.”[16]
John Taylor responded to this letter from Jefferson with one of his own on 25 June 1798.[17] Taylor didn’t share Jefferson’s happy outlook and insisted that procedural reforms were needed, including an amendment to the Constitution requiring that taxes be passed annually–meaning that any taxation law would have to be passed/renewed each year or expire. What is interesting about this discussion is that neither of them called secession treason. Jefferson didn’t want it to happen, but he never questioned the right of the States to leave the Union. Taylor would have been happy to see New England go – he was sick of the Yankee-controlled Federal government pushing the States around.
After Thomas Jefferson’s election to the Presidency in 1800, there were plenty of Federalists who discussed secession. No one called them traitors. Far from it. Thomas Jefferson had the following to say in his first inaugural message in 1801: “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”[18] Federalist proposals for secession continued throughout the Jefferson and Madison administrations, finally petering out with the failure of the Hartford Convention in 1815.
9: “It has been well observed, that to coerce the States is one of the maddest projects that was ever devised.”[19] -Alexander Hamilton
Thomas Jefferson wholeheartedly defended secession from the Union. The first occasion was a letter to James Madison in August of 1799:
“That the principles already advanced by Virginia & Kentucky are not to be yielded in silence, I presume we all agree. I should propose a declaration or resolution by their legislatures on this plan. 1st. answer the reasonings of such of the states as have ventured into the field of reason, & that of the Committee of Congress. Here they have given us all the advantage we could wish. Take some notice of those states who have either not answered at all, or answered without reasoning. 2. Make a firm protestation against the principle & the precedent; and a reservation of the rights resulting to us from these palpable violations of the constitutional compact by the Federal government, and the approbation or acquiescence of the several co-states; so that we may hereafter do, what we might now rightfully do, whenever repetitions of these and other violations shall make it evident that the federal government, disregarding the limitations of the federal compact, mean to exercise powers over us to which we have never assented. 3. Express in affectionate & conciliatory language our warm attachment to union with our sister-states, and to the instrument & principles by which we are united; that we are willing to sacrifice to this every thing except those rights of self-government the securing of which was the object of that compact; that not at all disposed to make every measure of error or wrong a cause of scission [separation], we are willing to view with indulgence to wait with patience till those passions & delusions shall have passed over which the federal government have artfully & successfully excited to cover its own abuses & to conceal its designs; fully confident that the good sense of the American people and their attachment to those very rights which we are now vindicating will, before it shall be too late, rally with us round the true principles of our federal compact; but determined, were we to be disappointed in this, to sever ourselves from that union we so much value, rather than give up the rights of self government which we have reserved, & in which alone we see liberty, safety & happiness.”[20] (emphasis mine)
He defended secession again on 12 August 1803 in a letter to John C. Breckinridge (the one who served as Jefferson’s Attorney General, not the future Vice President and Confederate Secretary of War):
“The future inhabitants of the Atlantic & Mississippi States will be our sons. We leave them in distinct but bordering establishments. We think we see their happiness in their union, & we wish it. Events may prove it otherwise; and if they see their interest in separation, why should we take side with our Atlantic rather than our Mississippi descendants? It is the elder and the younger son differing. God bless them both, & keep them in union, if it be for their good, but separate them, if it be better.”[21]
And again in an 1804 letter to Dr. Joseph Priestly:
“Whether we remain in one confederacy, or form into Atlantic and Mississippi confederacies, I believe not very important to the happiness of either part. Those of the western confederacy will be as much our children & descendants as those of the eastern, and I feel myself as much identified with that country, in future time, as with this; and did I now foresee a separation at some future day, yet I should feel the duty & the desire to promote the western interests as zealously as the eastern, doing all the good for both portions of our future family which should fall within my power.”[22]
And finally, in an 1816 letter to William H. Crawford:
“If any state in the union will declare that it prefers separation with the 1st alternative, to a continuance in union without it, I have no hesitation in saying, ‘Let us separate.’ I would rather the states should withdraw, which are for unlimited commerce & war, and confederate with those alone which are for peace & agriculture. I know that every nation in Europe would join in sincere amity with the latter, & hold the former at arm’s length by jealousies, prohibitions, restrictions, vexations & war.”[23]
In his 1825 book, A View of the Constitution of the United States, William Rawle says:
“It depends on the state itself to retain or abolish the principle of representation, [in the Federal Congress] because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle of which all our political systems are founded, which is, that the people have in all cases, a right to determine how they will be governed.”[24]
Rawle reiterates the point a few pages later: “The secession of a state from the Union depends on the will of the people of such state.”[25] Rawle was a well-known lawyer, scholar, and personal friend of George Washington, who appointed him U.S. District Attorney for Pennsylvania, a position he held from 1791 to 1800. Rawle’s book was so highly respected that it was adopted as the Constitutional law textbook for the army cadets at the United States Military Academy at West Point and remained in use there for decades.
In other words, secession has been recognized as a constitutionally protected right of the people of the States since the founding of the Union. To deny that is to ignore the historical record.
10: I can anticipate your counter-argument. You might quote to me Article III, Section 3: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”[26]
Having quoted the Constitution, you might then say: “The South fired the first shot at Fort Sumter, starting a war, and then fought a war for four years against the United States. Doesn’t that count as treason according to the Constitution?”
To this I would give the following reply:
A: As previously stated, the Constitution only applies to States still in the Union. The seceded States were not in the Union any longer. Their right to secede has been thoroughly proven by my preceding arguments in points 1-9.
B: The South fired on Fort Sumter in response to armistice violations by U.S. military forces. Yes, they fired the first shot, but only because they had been repeatedly provoked and threatened with imminent invasion. Abraham Lincoln started the war by deliberately provoking the South into shooting first. By 6 April 1861, he had set in motion five separate military expeditions which had been given explicit orders to violate truces in place between U.S. and Confederate authorities at Pensacola, Florida, Fort Pickens, Florida, and Fort Sumter, South Carolina. If you don’t believe me, just examine the official U.S. and C.S. reports contained in the Official Records of the Union and Confederate Navies in the War of the Rebellion (Washington, D.C.: 1880-1891), Series I, Volume 4, pages 77, 90, 108-114, 122-127, 135-136, 210, 223, 225-229, 232-233, 235, 244-251, and 259.[27]
C: Let me grant, for the sake of argument, that Lincoln was correct and the seceding States could not and did not leave the Union. By that logic, yes, the Southern States committed treason by “levying war against” the Northern States. However, by that logic, Lincoln also violated Article III, Section 3, when he invaded the Southern States, “levying war against” some of the “them” protected by Article III, Section 3, and, as the aggressor and instigator, Lincoln was the more guilty party of two. I wonder, though. Is it reasonable to call self-defense treason?
Based on the words of Article III, it would seem to me that “levying war against them” clearly condemns the instigator, not the aggrieved party or parties defending itself or themselves from assault.
11: If you want to know how the Founding Fathers interpreted the Constitution, reading their own words is always the best way to go. The best primary source for the ratification debates is The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, compiled and edited by Jonathan Elliot.
For excellent examinations of Constitutional law written by members of the Founding Generation, I suggest New Views of the Constitution of the United States by scholar, author, U.S. Senator, and Jefferson ally John Taylor of Caroline and A View of the Constitution of the United States by William Rawle. An excellent antebellum work on the subject is Abel P. Upshur’s A Brief Enquiry into the True Nature and Character of Our Federal Government. For more modern works on the founding, the Constitution, and the sovereignty of the States, I recommend The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765– 1800 by Aaron N. Coleman, and The Founding Fathers Guide to the Constitution and How Alexander Hamilton Screwed Up America by Brion McClanahan.
For an in-depth examination of the CSA Constitution, see The Confederate Constitution of 1861: An Inquiry into American Constitutionalism by Marshall L. DeRosa.
For works concerning the unconstitutionality of Mr. Lincoln’s War, see When in the Course of Human Events by Charles Adams, The Real Lincoln, Lincoln Unmasked, and The Problem with Lincoln, by Thomas J. DiLorenzo, Lincoln as He Really Was, and Southern Independence: Why War? by Charles T. Pace, and It Wasn’t About Slavery: Exposing the Great Lie of the Civil War by Samuel W. Mitcham, Jr.
For a coherent discussion of secession in America today, I suggest Rethinking the American Union for the Twenty-First Century, by Donald Livingston, et. al.
Based on the historical evidence, including the plainly evident sovereignty of the States and the words of the Founding Fathers, the States have the right to leave the Union. Secession was not, is not, and never will be treason. On the contrary, it is a vital and inherent part of the American political tradition.
[1]https://en.wikipedia.org/wiki/Fifth_Virginia_Convention
[2] https://www.historyisfun.org/blog/breaking-news/
[3]https://www.landofthebrave.info/1783-treaty-of-paris-text.htm
[4]http://resources.utulsa.edu/law/classes/rice/Constitutional/AntiFederalist/antifed.htm
[5]https://guides.loc.gov/federalist-papers/full-text
[6]https://avalon.law.yale.edu/18th_century/artconf.asp
[7]https://www.law.cornell.edu/constitution/articlevii
[8]https://www.law.cornell.edu/constitution/articlev
[9]https://avalon.law.yale.edu/18th_century/fed45.asp
[10]https://avalon.law.yale.edu/18th_century/fed45.asp
[11]https://www.law.cornell.edu/constitution/articlei#section10
[12]The States must act within the limits of their own constitutions, of course, but I am here writing of the U.S. Constitution, not the constitutions of the fifty separate States.
[13]https://www.law.cornell.edu/constitution/articleiii
[14] https://www.abbevilleinstitute.org/wp-content/uploads/2014/12/1794-Disunion-Sentiment-in-Congress-in-1794-John-Taylor-of-Caroline.pdf
[15]https://founders.archives.gov/documents/Jefferson/01-30-02-0280
[16]https://founders.archives.gov/documents/Jefferson/01-30-02-0280
[17]https://founders.archives.gov/documents/Jefferson/01-30-02-0313
[18]https://avalon.law.yale.edu/19th_century/jefinau1.asp
[19]https://founders.archives.gov/documents/Hamilton/01-05-02-0012-0005
[20]https://founders.archives.gov/documents/Jefferson/01-31-02-0145
[21]https://founders.archives.gov/documents/Jefferson/01-41-02-0139
[22]http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl161.php
[23]https://founders.archives.gov/documents/Jefferson/03-10-02-0101
[24]2nd Edition, Page 296.
[25]2nd Edition, Page 302.
[26]https://www.law.cornell.edu/constitution/articleiii
[27]http://collections.library.cornell.edu/moa_new/ofre.html
