Secession and the Constitution

I posted this as a comment in this CF thread, but since I invested some research time in it, I may as well repost it here with a headnote. Commenter Justin suggests that while "[t]he Constitution does not give explicit rights to secede[,] ... the history of the signing does give implicit permission. Two of the colonies, New York and some other, refused to ratify the Constitution if it disallowed secession." (Not in fact true, see Amar, America's Constitution: a Biography 37-38 (2005).) He cites this piece by David Alan Black in support of the theory. I'm unpersuaded, not least because the Black piece contains some history that is dubious, some that is outright wrong, and some which smells of red herring.

First, Black argues that "The point was raised in the convention: Should there be a 'perpetual union' clause in the Constitution? The delegates voted it down, and the states were left free to secede under the Constitution, which remains the U. S. government charter today."

I have searched Madison's notes of the convention, and find no such motion or debate about a "perpetual union." Indeed, I find only nine mentions of the term "perpetual," and they are in the following contexts. On June 26th, James Madison suggested that the "long term allowed to the 2d. branch should not commence till such a period of life, as would render a perpetual disqualification to be re-elected little inconvenient either in a public or private view." On July 21, he warned that the choice of judicial selection mechanism risked "throw[ing] the appointments entirely into the hands of ye. Northern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States." On July 11, Madison said that "[h]e could not agree that any substantial objection lay [against] fixing numbers for the perpetual standard of Representation," and on August 8th, he objected to fixing "1 for every 40,000, inhabitants as a perpetual rule."

On June 21st, James Wilson worried that "in spite of every precaution the general Govt. would be in perpetual danger of encroachments from the State Govts." On July 14, Wilson averred that "perfection was unattainable in any plan; but being a fundamental and a perpetual error, it ought by all means to be avoided." And on August 13th, Wilson suggested that "an insuperable objection [against] the proposed restriction of money bills to the [House of Representatives] that it would be a source of perpetual contentions where there was no mediator to decide them." On August 18th, several members of the convention discussed "perpetual revenue," and on June 11, "Mr. READ disliked the idea of guarantying territory. It abetted the idea of distinct States [which] would be a perpetual source of discord."

Moreover, while I'm willing to look at Madison's notes as general background, to rest excessive authority on them seems as mistaken to me as is reliance on legislative history in statutory matters (albeit to a lesser extent). Even assuming the unvarnished accuracy of Madison's notes, the public that ratified the Constitution were not privy to those notes, or to the debates. Thus, even if Black could support his assertion, it would not convince me. It is the original meaning of the Constitution that controls, not any particular intent on the part of individual speakers at the convention: the question is "what would this document have been understood to mean by the society that ratified it?" It is well-established that when construing a statute, that "our starting point must be the language employed by Congress, and we assume that the legislative purpose is expressed by the ordinary meaning of the words used. Thus[,] absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (internal citations and quotation marks omitted); accord Smith v. United States, 508 U.S. 223, 228 ("[w]hen a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning"); id. at 242 (Scalia, dissenting) ("[i]n the search for statutory meaning, we give nontechnical words and phrases their ordinary meaning"); Neder v. United States, 527 U.S. 1 (1999) ("where Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms"). So for statutory interpretation, so for Constitutional interpretation, excepting that the Constitution nowhere defines its terms, and therefore, when construing the Constitution, we seek the plain meaning of its words in 1788, informed by its structure, by the common law, and by the discernible background assumptions of the society that ratified it. See generally R. Bork, The Tempting of America (1990), 144 ("Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time"); A. Scalia, A Matter of Interpretation (1998), 38 ("it is curious that most of those who insist that the drafter's intent gives meaning to a statute reject the drafter's intent as a criterion for interpretation of the Constitution. I reject it for both ... What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended") (emphasis added); F. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol. 61, 68 (1994) (“[i]ntent is elusive for a natural person, fictive for a collective body”); M. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005).

Black attributes to Alexander Hamilton the quote that "[t]o coerce the states is one of the maddest projects that was ever devised," but cites no primary source and provides no context. A google search for the phrase returns but a handful of pro-secession websites, mostly repeating without citation.

The quote is authentic, but was not uttered for the purpose that the secessionist apologists would use it. It comes from the New York ratifying convention, see II Elliot's Debates 232. The entire passage is too lengthy to quote, and should be read in full, but here, at least, is the remark set back into the paragraph from which it has been teased:

From the delinquency of those states which have suffered little by the war, we naturally conclude, that they have made no efforts; and a knowledge of human nature will teach us that their ease and security have been a principal cause of their want of exertion. While danger is distant its impression is weak; and while it affects only our neighbors, we have few motives to provide against it. Sir, if we have national objects to pursue, we must have national revenues. If you make requisitions, and they are not complied with, what is to be done? It has been observed, to coerce the States is one of the maddest projects that was ever devised. A failure of compliance will never be confined to a single state; This being the case, can we suppose it wise to hazard a civil war? Suppose Massachusetts, or any large state, should refuse, and Congress should attempt to compel them, would they not have influence to procure assistance, especially from those states which are in the same situation as themselves? What picture does this idea present to our view? A complying state at war with a non-complying state; Congress marching the troops of one state into the bosom of another; this state collecting auxiliaries, and forming, perhaps, a majority against its federal head. Here is a nation at war with itself. Can any reasonable man be well disposed towards a government which makes war and carnage the only means of supporting itself--a government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a government.

Hamilton was speaking of the deficiency of the Articles of Confederation, which failed to provide means for the central government to "coerce" the States to comply with the requisitions for revenue. To say the least, putting the quote back into context undercuts the support it offer's Black's thesis.

Black's history descends from dubious to outright farcical when he asserts -- without any citation or support -- that:

After the [civil] war, Jefferson Davis ... was arrested and placed in prison prior to a trial. The trial was never held, because [Chief Justice Chase] ... informed President Andrew Johnson that if Davis were placed on trial for treason the United States would lose the case because nothing in the Constitution forbids secession. That is why no trial of Jefferson Davis was held, despite the fact that he wanted one.

In the first instance, the Federal Courts do not issue advisory opinions, a practise that was established in the earliest days of the Republic when Chief Justice Jay refused to answer certain questions the administration desired the Supreme Court's opinion on. See Muskrat v. United States, 219 U.S. 346 (1911). If Chase did so tell Johnson, it would have amounted to his personal opinion, without legal force, and in any event, Black cites no source in support of this contention. More reliable accounts of the history - i.e. those not trying to prove a point - record that Chase, sitting as Circuit Judge, "made known" in November 1868 his view that §3 of the 14th Amendment "nullified" the indictment against Davis: "[i]f this prohibition was found by the court to be a penalty, it would bar further prosecution on the basis of double jeopardy. At the start of the trial the motion was made and argued by counsel." And in any event, the case was rendered moot within a month when, "[i]n December[,] [President] Johnson issued a general amnesty."

In the absence of any textual provision supporting secession, Justin must turn to one of two sources: he must either go around the Constitution altogether, and identify some fuzzy natural law right to secede (Josef Stalin's 1913 thesis Marxism and the National Question suggests that "A nation is a historically constituted, stable community of people, formed on the basis of a common language, territory, economic life, and psychological make-up manifested in a common culture ... [and] [a] nation has the right to arrange its life on autonomous lines. It even has the right to secede" - but I wouldn't think that Marxist theory filtered through Josef Stalin would hold much appeal to an American southern secessionist), which doesn't establish a Constitutional right to secede but rather declares the Constitution irrelevant to the question, or to go through the Constitution, you'd have to identify atextual sources that clearly establish that the original understanding in 1788 of the Constitution clearly denied that it was a union in perpetuo. If that is the challenge Justin wishes to take up, I submit that he needa more than Black's transparently flawed and misleading history to support it. Everyone is entitled to their own opinion - but not to their own facts.