Guest Essayist: Eric Sands

The Civil War was the greatest trauma to affect the United States in its history. The horrors of that conflict and the issues it brought to light continue to haunt the nation today and scholars continue trying to make sense of the turmoil that gripped the nation. One of the residual problems left over from that era is the doctrine of secession, or the ability of a state to rescind its membership in the Union and leave by itself or with other states. This, of course, is what eleven states tried to do in 1861 precipitating the bloody, awful war that followed. But is there a “right” of secession in the United States Constitution? How would a right of secession square with prevailing ideas of the Union? What response can be given to states claiming a right to secede from the Union? These and other questions required serious consideration in the 1860s and were answered most clearly by Abraham Lincoln.

The argument for secession begins with a claim that the states are the constitutive elements of the American political system. The states “made” the Union and thus never relinquished their essential sovereignty when the Constitution was formed. Under this view, the states were the parties to the original social contract that gave rise to the Union and thus are the entities that most legitimately judge whether the terms of that contract have been honored. When Southerners began to perceive that the terms of the contract were being violated over the slavery issue in the 1850s, a movement grew for the Southern states to withdraw their consent to be governed and to “peacefully” leave the Union to form their own political organization. In total, eleven states joined this movement and created the essential breach that inaugurated the Civil War.

President Lincoln was thrust into the role of defender of the Union and had to meet the secessionist argument head on. In his First Inaugural Address, Lincoln criticizes the secessionists for putting too much emphasis on the Constitution in articulating their understanding of the Union. According to Lincoln, the Union did not originate with the Constitution. Instead, “the Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen states expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778.” Finally, the quest for “a more perfect” Union was embodied in the Constitution in 1787.

The Union, therefore, according to Lincoln, was perpetual. “Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our national Constitution, and the Union will endure forever.” The essence of secession is thus suicide, and it is inconceivable that the Founders would have incorporated such a concept into the constitutional system. No association of states could hold together if some of them were free to leave whenever the mood struck them. Moreover, secession would not leave the Union “more perfect;” it would leave the Union less perfect, which is not consistent with the intentions of the Constitution set out in the preamble. Accordingly, it cannot be said that the Founders endorsed something like secession in the constitutional system.

Even more, secession ignores the Declaration of Independence and the first words of the Constitution. The Declaration, when speaking of the need to separate from Great Britain, does not talk about colonies or states doing the separating. The language of the Declaration is that “one people” must separate. Clearly, then, the act of separating is not a function of state sovereignty but an act of popular sovereignty, a Union of people that has been forged in shared struggle and oppression and now seeks to liberate itself from tyranny. Likewise, the first words of the Constitution are not “we the states” but “we the people.” It is the people forming a new government out of their sovereignty, not the sovereignty of the states. The states, of course, are to be partners in this new government and significant roles are delineated to them in the constitutional system. But power is ultimately held by the people, the Union is made up of the people. The people may thus dissolve the Union if they ever chose to do so, but the states may not.

Lincoln reinforces these points in his Message to Congress in Special Session. He calls secession “sugar-coated rebellion” and denies any revolutionary character to it. Instead, it is a “sophism” deriving its “currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State – to each State of our Federal Union. Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union.” The original thirteen became a Union before completing their separation from Great Britain. And the others came into the union from a condition of dependence. Thus, the reverence given to “states” is based on mist and shadows and does not match this history of the American regime. In short, the states only possess those powers granted to them by the Constitution, and this does not include the power of secession.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College.  He has written a book on Abraham Lincoln and edited a second volume on political parties.  His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties. 


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Guest Essayist: Eric Sands

The Constitutional Convention has been referred to as the “Miracle in Philadelphia” and there is a great deal of justice to that label. The delegates to the convention faced long odds in reaching compromise on a new form of government. But in many respects, writing the United States Constitution was only half the battle; the delegates then had to get it ratified. This proved to be a difficult task and required the assistance of some of the leading minds in the country to convince the American people to accept the new document.

These proponents of ratification were known as Federalists and included men such as Alexander Hamilton, James Madison, John Jay (collectively known as “Publius”), James Wilson, George Washington, Gouverneur Morris, John Marshall, and Benjamin Franklin. These men were nationalist in their orientation and believed that a stronger national government was a necessary corrective for the defects in the Articles of Confederation. Opposing these Federalists were the Anti-federalists who argued against ratification, or at least counseled serious modifications to the Constitution’s design. Among the most prominent Anti-federalist writers were Patrick Henry, Melancton Smith, and authors writing under pseudonyms such as Cato, Brutus, Centinel, and Federal Farmer. These men advocated for a confederal form of government where most of the power would be held in the hands of the states.

The Anti-federalist arguments generally fell into two categories. The first was pursuing structural changes in the Constitution itself to limit the power of the national government. During the public debates, Anti-federalists raised numerous objections to the Constitution and pointed out that the power being ceded to the national government was a danger, not just to the states, but to the people. The Anti-federalists, for example, argued that too much power was being given to the president and that he could become a monarch. This was especially true given his infinite re-eligibility. The Anti-federalists complained that the Constitution blended powers too much and needed to adhere to a much stricter principle of separation of powers. They feared that the Supreme Court would become an all-power government tribunal and proposed presidential commissions that could overturn bad judicial decisions. Congress’ power was seen as too extensive and needed to be scaled back. Limits needed to be put in place governing Congress’ control over the state militias and federal elections, and there was an overarching fear about how much power Congress might subsume under the necessary and proper clause. Finally, the Anti-federalists harbored deep suspicions that a republican form of government could work over a territory and with a population as large as the United States. Conventional wisdom of the day held that republics could only be successful in a small territory with a small and relatively homogenous population. A republic on the scale of the United States had no historical precedent and the Anti-federalists believed it could not work.

As enlightened as some of the Anti-federalist objections to the Constitution were, structural changes were not in the cards. All the Anti-federalist amendments introduced at the ratifying conventions were defeated. A large part of this defeat was owing to the efforts of the Federalists to get their defenses of the Constitution into print and the larger number of newspapers that supported ratification. However, the Anti-federalists had a second category of arguments that proved far more successful. These arguments revolved around the lack of a bill of rights in the Constitution. The lack of a bill of rights seemed to them to be particularly egregious given how much power was being given to the national government. Thus, in numerous essays, the Anti-federalists complained about a need for specific protections like freedom of speech, press, religion, assembly, petition, and possession of arms. Most of these rights were guaranteed to the people at the state level, so it made little sense that the people’s rights should be less secure at the national level.

Federalists initially countered these arguments in a couple of ways. In Federalist 84, for example, Hamilton argued that the Constitution should be allowed a trial period before alterations were made. There may be several things the American people want to change five or ten years down the road, so make the changes then when a judgment can be made about whether they are necessary. Second, the structure and design of the Constitution already protected rights through separation of powers, checks and balances, enumerated powers, and republicanism. Any attempt to infringe on personal rights would never be able to survive this gauntlet of obstructions. Finally, a bill of rights could endanger rights because it would only include certain specified rights, leaving others unprotected. It would also imply that rights come from government and that it alone chooses which rights to recognize.

Despite this defense of not including a bill of rights in the Constitution, the American people remained unpersuaded, and the Constitution stood a real chance of not being ratified because of this defect. Eventually, however, the Federalists gave in, and several of their most prominent members made promises that a bill of rights would be on the agenda of the First Congress. With this promise in place, ratification moved forward, and eleven states initially joined the Union (Rhode Island and North Carolina did not ratify until later).

The first national elections were a disaster for the Anti-federalists with them winning only a few seats in the House and the Senate. The landslide victory for the Federalists had cooled Federalist opinion about the need for amendments. Some speculated that the promise made to the people could be safely ignored, while others argued that some vague, superficial amendments would likely suffice. James Madison, however, stood up for a bill of rights. Having made a personal campaign pledge to produce a bill of rights to his constituents, Madison made repeated efforts to get the bill on the legislative agenda. When that did not work, he presented a formal proposal of amendments he thought should be introduced into the Constitution. Still, Federalists were not enthusiastic about his proposal and likely would have never allowed the bill to move forward had Madison’s not received Washington’s endorsement, which Washington articulated in his inaugural address. Once the federal revenue system was completed, the Federalists finally got around to Madison’s amendments.

Anti-federalists, though few and far between, used the opportunity to start making their own proposed amendments to change the structure of the Constitution. But they were voted down every time, with antagonism between the two sides becoming so heated that congressmen challenged each other to duels. In the end, Madison’s patience and his willingness to compromise helped move the amendments along. Congress did not adopt all the amendments, and the language of others was altered, but that was the price Madison had to pay to see the amendments submitted to the states. On December 15, 1791, enough states ratified the Bill of Rights to formally make the ten amendments part of the Constitution.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties. His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties. 


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