St. George Tucker On Secession

“And since the seceding states, by establishing a new constitution and form of federal government among themselves, without the consent of the rest, have shown that they consider the right to do so whenever the occasion may, in their opinion require it, we may infer that the right has not been diminished by any new compact which they may since have entered into, since none could be more solemn or explicit than the first, nor more binding upon the contracting partie.”
~St. George Tucker *

Secession from the Articles of Confederation, the first Constitution, set a legal and moral precedent. The Constitutional Convention was initiated with the limited mandate of improving, not replacing, the first Constitution. Not all the states were present at the Constitutional Convention and the the second Constitution was initially ratified and enacted prior to the agreement and consent of all states, which was directly and explicitly unconstitutional according to the first Constitution (The Vague and Ambiguous US Constitution). The first Constitution originated in unanimous agreement and required unanimous agreement to make any changes to it, but the second Constitution was an act of fiat and so a non-violent coup.

Or was it non-violent? The American Revolution continued on with numerous rebellions by the veterans of the Revolutionary War. These rebellions were violently put down by the federal government (e.g., Shays’ Rebellion). This was the very thing that the Anti-Federalists feared and warned about. They sensed the imperialist and authoritarian aspirations of some of the leading pseudo-Federalists. Once a large centralized government controlled both taxation and military, the ruling elite would have total control and a free society would be doomed (Dickinson’s Purse and Sword). It turns out the Anti-Federalists were right

Since the second Constitution was an entirely new constitutional order enforced through coercion, there is no reason a third (or fourth or fifth) Constitution could be blocked on constitutional grounds. A third Constitution would not require legitimacy based on the second Constitution any more than the second Constitution required legitimacy based on the first Constitution. Unless there is consensus, as was the case with the first Constitution, any further Constitutions would be acts of secession, as was the case with the second Constitution. The fact that we, nonetheless, accept the second Constitution as legitimate explicitly gives legitimacy to secession itself.

Neither of the constitutional orders were formed without violence. And as the second Constitution was a secession from the Articles of Confederation, the first Constitution was likewise a secession from the British Empire. There is a strong precedence of secession in American history. The Southern states weren’t wrong in affirming this right of secession. The initiation of the Civil War wasn’t done to stop secession. The federal government would not have had public support for attacking the Confederacy, if Southern rebels had not first attacked the federal government in shooting cannons at Fort Sumter. Without that initial act of violence, the South probably would have successfully seceded and so would have set a new precedent for peaceful secession.

Secession had long been part of American thought. Leaders in the Northern states had earlier discussed secession as well. That was one of the original rights of the Articles of Confederation, that the union was an agreement freely joined according to consensus of all states. The states were considered independent. That is why they were called states, in the sense of being nation-states in a union. Democracy was assumed to operate within the separate (nation-)states, as the federal government was intentionally constrained. The federal government served the states, as the states served their citizenry, not the other way around.

Ultimate authority exist within the public mandate of each local citizenry. A state seceding from the United States, as such, is no different than secession of the UK from the European Union. This is what it means to be part of a free society where citizens are free to choose their own government.

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* Quoted in a comment at the Civil War Talk forum.

St. George Tucker was an American Revolution veteran, slave emancipation advocate, law professor, respected legal scholar, and federal judge. He wrote View of the Constitution, the first detailed commentary on the U.S. Constitution after its ratification, and Commentaries that became the most important text on early American law.

He was an Anti-Federalist (i.e., true Federalist) and a strong believer in Natural Rights. His defense of the Second Amendment was not in favor of individual rights but states rights, that is to say he saw the purpose of the public owning a gun not as a justification for vigilantism but as a way for citizens to protect their freedom against authoritarianism (Saul Cornell, St. George Tucker and the Second Amendment: original understandings and modern misunderstandings).