Union and States' Rights: 150 Years After Sumter, A Legal History of Interposition, Nullification, and Secession

6. William Rawle and Secession

111 6William Rawle and Secession Legal Rights and Political Wrongs H.JeffersonPowell,DukeUniversitySchoolofLaw T heconstitutionalissueofsecessionisasdeadasanyonce-liveissueinU.S. constitutional law can be, buried beyond recall by “the constitutional experts on Missionary Ridge” who successfully fought a great Civil War to put down the Republic’s one episode.1 Even to understand what the issue involvedinitsantebellumheydayisalittletricky.Notonlyisthequestionobsolete , but so as well are some of the concepts that statesmen and lawyers used before and during the War in discussing it. Most critically, to understand their disagreements one must distinguish between ‘secession’ and ‘revolution,’ between the exercise of a legal right (one that the government denied it was legallyobligedtorespect)andtheattempttooverthrowtheexistinggovernment. Theconstitutionalquestionwaswhetheranattemptbyastateorgroupofstates to exit the Union could be lawful, and thus demand respect from the United States government as well as support from the citizens of the seceding state(s), or whether secession could only be a revolutionary act that the federal governmentmightlawfullyattempttosuppressandthatloyalistsmightreject .Inturn, answering this question involved consideration of other legal and moral issues as well—for example, how one should define the political community that is relevant to issues of secession and revolution—but this chapter shall omit the intellectual epicycles and focus on the point of practical debate: may an individual state secede from the Union, or is the only option that its citizens (or in practice, some subset of its citizens) attempt a revolution? 112 William Rawle and Secession To begin with the debate’s common starting point, everyone agreed that a people2 hasamoralorpoliticalrighttoriditselfofgovernmentbyoverthrowing it—howcouldtheynot,giventheoriginsinrevolutionoftheUnitedStatesitself? As Abraham Lincoln—no supporter of secession—put it in his first inaugural address: “Whenever [the people] shall grow weary of the existing Government, they can exercise...their revolutionary right to dismember or overthrow it.”3 The moral legitimacy of revolution was, Lincoln agreed, a political premise of theAmericansystem.Atthesametime,Lincolnandotherantebellumnationalists regularly denied any logical connection between the principles animating theDeclarationofIndependenceandasupposedlegalorconstitutionalrighton the part of individual states to secede from the Union. The right of revolution is simplytheultimatetranslationintoactionofthepreceptthatalljustgovernment derives its authority from the consent of the governed. If the people decide it necessary to withdraw that consent, the government loses its legitimacy and eitherfallsorbecomesatyranny;butbyanecessitythatisbothlegalandpractical , such a radical reworking of the existing constitutional order cannot be the exerciseofalegalrightwithinthatorder.“Itissafetoassertthatnogovernment proper ever had a provision in its organic law for its own termination,” Lincoln insisted, and “in contemplation of universal law and of the Constitution the Union of these States is perpetual...it being impossible to destroy it except by some action not provided for in the [Constitution] itself.”4 Rather than citizens exercising a constitutional right, the secessionists of 1860 and 1861 were mere rebels and lawbreakers, and the actions they took “against the authority of the UnitedStatesareinsurrectionaryorrevolutionary,accordingtocircumstances.”5 The duty of those charged with exercising “the authority of the United States,” includingoneA.Lincoln,wasthereforetomaintainthatauthority,nottorespect some nonexistent constitutional right. Thirty years before Lincoln spoke, Justice Joseph Story dismissed as mere dogma the claim that the legitimacy of the American Revolution necessarily implied the legality of state secession. The people of the United States have a right to abolish, or alter the constitutionoftheUnitedStates ;butthatthepeopleofasinglestatehavesucharight, is a proposition requiring some reasoning beyond the suggestion, that it is implied in the principles on which our political systems are founded.6 Theonlycolorableexcuseforinferringtheexistenceofaconstitutionalright of secession, Story continued, lay “in the notion of all governments being foundedincompact,andthereforeliabletobedissolvedbytheparties,oreither h. jefferson powell 113 of them; a notion which it has been our purpose to question.” In his view, the idea that the American Union is the product of a compact among sovereign states, “having no foundation in the words of the constitution, is altogether a gratuitousassumption,andthereforeinadmissible.”7 TheConstitution,intruth, is “a permanent form of government” established by the same authority that alonehastherightofrevolution,thepeople,whilethenotionoflawfulsecession (like its close relative, state nullification of federal law) is a constitutional chimera, the product of “artificial reasoning founded upon theory” rather than law or fact.8 Withoutanydoubt,thestandardargumentin1860–61forthelegitimacyof secession was a mirror image of Lincoln’s and Story’s nationalism. For most secessionists, the Constitution was precisely what Story said it was not, a compact: a treaty or contract among sovereign states that, having created the compactbytheirownvolition,werefreetoleaveitatwill.AformerConfederate soldier named Alpheus Baker admirably summarized the secessionist position inhispostwarpetitionforpardon:he“‘hadbeentaughtfrommyyouthupwards to believe...that the Union was a revocable compact, & Secession a constitutional right.’”9 The interpretation of the Constitution as a compact among the states as independent sovereigns was almost as old as the Constitution itself, having been crafted...