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There’s No Room for Secession in the Constitution

July 4th, 2010 · 10 Comments ·

Paleocon and Southern Nationalist Thomas DiLorenzo has made a career of writing books with the objective of redefining the causes of the Civil War and rewriting the history of the Lincoln presidency. While he has been scoffed at by mainstream historians, he has gathered a following among deluded quasi-libertarians through his association with the Von Mises Institute and Lew Rockwell's peculiar brand of post-libertarian, anti-government extremism.

In honor of Independence Day a few years ago, DiLorenzo came up with an article which ably demonstrates the kind of distorted reasoning and poor research he has used to suck willing dupes through the looking glass into his bizarre alternate history of America. In this article DiLorenzo makes an argument that secession was always intended to be allowed under the Constitution on the basis of a few selected comments from Thomas Jefferson.

The foundational fallacy in his argument is the mere act of looking to Jefferson as an expert on the Constitution. Not only was Jefferson opposed to the Constitution, but he was not at the Constitutional Convention and was in France throughout the convention and for much of the ratification process. DiLorenzo realizes that Jefferson is highly regarded by libertarians and that he was critical of the Constitution in some areas, and just assumes that people will not notice that his appeal to authority is to an authority with little or no connection to the subject matter he is addressing.

The members of the paleocon choir to which DiLorenzo preaches make a very big show of exalting the Constitution and demanding that it be observed and adhered to in every possible particular. But I find it hard to believe that even they can buy into his argument that Jefferson had anything more than a tenuous connection to the Constitution or held it in the same regard which they do.

The actual author of the Constitution, as much as it had one, was Jefferson's friend James Madison, who was at the convention and probably understood the document it produced better than any of his contemporaries. But even Madison, who was the Constitution's greatest champion, did not have the kind of sacramental regard for it which modern paleocons have developed.

One of the peculiarities of the mindset of DiLorenzo and his followers is that they have become convinced that the Constitution, which was specifically written to turn a loose confederation of unorganized states into a permanent and binding union, somehow sanctions and justifies the Civil War and even modern secessionism. It is particularly ironic that they claim to regard the Constitution so highly and yet understand its content and purposes so poorly.

That DiLorenzo should choose to selectively ignore Madison's thoughts on the Constitution is convenient, self-serving and deceptive and characteristic of his approach to history where only those sources which agree with his politicized vision of the past are given an airing. It's a particularly shameful deception, because Madison wrote at length on secessionism and the Constitution in the early 1830s.

Madison outlived Jefferson and lasted long enough to see the first major crisis in the ongoing struggle which eventually led to the Civil War, the Nullification Crisis. As the Nullifiers began talking about secession and breaking up the union, people wrote to Madison and asked for his opinion on whether it was legitimate for states to leave the union or for a minority of states to dissolve the union and he was quite willing to share his expertise.

In a letter on this subject to Senator Daniel Webster in 1833, Madison wrote:

"It is fortunate when disputed theories can be decided by undisputed facts: and here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several States who were parties to it, and therefore made by the States in their highest authoritative capacity. they might, by the same authority and by the same process, have converted the Confederacy into a mere league or treaty, or continued it with enlarged or abridged powers, or have imbodied the people of their respective States into one people, nation or sovereignty; or as they did, by a mixed form, make them one people, nation or sovereignty for certain purposes, and not for others.

"The Constitution of the United States being established by a competent authority — by that of the sovereign people of the several States who were parties to it — it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes the government into the usual legislative, executive and judiciary departments; invests it with specific powers, leaving others to the parties to the Constitution. It makes the government, like other governments, to operate directly on the people; places at its command the needful physical means of executing its powers; and finally proclaims its supremacy, and that of the laws made in pursuance of it, of the Constitutions and Laws of the States, the powers of the Government being exercised, as in other elective and responsible Governments, under the control of its constituents, the people and the legislatures of the States, and subject to the revolutionary rights of the people, in extreme cases.&quot

Here we see Madison arguing the supremacy of the Constitution and the fact that it was created as an alternative to various other forms of less centralized government and structured in such a way that the people would have a voice at multiple levels and would not need to secede from the union it had created.
In another letter to journalist and diplomat Nicholas Trist on the same subject in 1833, Madison wrote:

"The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater fight to break off from the bargain, than the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of –98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a single party, with the parties to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created."

Here Madison states unambiguously that states cannot leave the union without the consent of the other states once they have all agreed to what is essentially a contract. In the same way that the parties to a commercial contract cannot dissolve that agreement unilaterally the states cannot act individually or as groups to break up the union and negate the Constitution.

Madison goes on to actually cite Jefferson himself, taking note of one of Jeffersons opinions which DiLorenzo has chosen to ignore in his own writing on the subject.

"It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington (Pages 43 & 203, vol. 2,1) with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject."

There's nothing equivocal about Madison's position or his exhortation to Trist to use his very sharp pen to disabuse the nullifiers of their dangerous and unconstitutional notions.  What Madison makes clear is that the Constitution created the union specifically to bind the states together and the union is the embodiment of the Constitution

To secede or to overthrow the union is to overthrow the Constitution, because it binds the states and the people together under a system of government which should protect the rights of minorities and individuals and should make secession unnecessary, except in the most extreme of circumstances where a true second revolution is called for.

Yet in 1833 or in 1865 or today when the issue has been raised again, no one has come forward with a cause of sufficient merit to justify the dissolution of the union and the shredding of the Constitution. It is certain that slavery is not such a cause, nor is dissatisfaction with the Federal Reserve or with Obamacare.  The claim from DiLorenzo and his neo-secessionist followers that secession is somehow constitutional or even a defense of the Constitution is utterly delusional and southerner and slave owner though he was, Mr. Madison certainly would not have approved.

This article previously appeared on Blogcritics Magazine in a somewhat different form.

Dave Nalle has worked as a magazine editor, a freelance writer, a capitol hill staffer, a game designer and taught college history for many years. He now designs fonts for a living and lives with his family in a small town just outside Austin where he is ex-president of the local Lions Club. He is on the board of the Republican Liberty Caucus and Politics Editor of Blogcritics Magazine. You can find his writings about fonts, art and graphic design at The Scriptorium. He also runs a conspiracy debunking site at IdiotWars.com.

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10 responses so far ↓

  • 1 Don Emmerich // Aug 3, 2010 at 2:43 pm

    Ladies and gentlemen, I introduce to you Dave Nalle, King of the Straw Man Argument.

    “In this article DiLorenzo makes an argument that secession was always intended to be allowed under the Constitution on the basis of a few selected comments from Thomas Jefferson.”

    Interesting, because, in his article, DiLorenzo never discusses the Constitution but simply the Declaration of Independence and other statements made by Thomas Jefferson.

  • 2 Dave Nalle // Aug 21, 2010 at 1:21 am

    So you’re suggesting that arguments for secession have nothing to do with the Constitution? I agree. There’s no Constitutional support for it. Guess DiLorenzo’s article was an even bigger waste of time than I thought.

    Dave

  • 3 David // Nov 1, 2010 at 11:13 pm

    In Secession, State, and Liberty (a very good collection of essays which you should read, by the way), Clyde Wilson quotes Madison (the actual reference which is referred to is Writings of James Madison, Gaillard Hunt, ed. New York: G.G. Putnam’s Sons, 1900-1910, vol. 9, pg. 372). Madison said that the meaning of the Constitution is to be sought “not in the opinions or intentions of the body which planned and proposed it, but in those of the state conventions where it received all the authority which it possesses.” Also, in Madison’s report on the Virginia Resolutions, he said “the powers of the federal government… [are] limited by the plain sense and intention of the instrument constituting the compact [the states]. Here it seems that Madison would defer to the interpretations and intentions of the states, as put forth in the ratifications.
    New York and Rhode Island, two of the four states who voted against the Constitution, said this- “the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.” Likewise, Virginia (another of the states that voted against the Constitution at first) said “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.” Both of these statements, especially the first, support the right of one state to secede. The federal government was set up so that it was authoritative over all the states in certain areas (laid out in Article I section 8). All other functions of a government were left to the states. VA, NY, and RI clearly reserved the right to re-assume the power they gave to the federal government “whenever it shall become necessary to their happiness.” This is a clear articulation of secession- the states resuming the duties and authorities that they had previously delegated to the federal government if they think it necessary to their happiness. Judging by the earlier quotes by Madison, we should interpret the Constitution by the intentions of the states, not even the authors (like him).
    All of this is in The Real Lincoln and Secession, State, and Liberty.

    Besides, Madison actually lays out his conditions for secession in his letter to Nicholas Trist. “The former [one state] as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created.” A state can secede either by the consent of all the states, or when the federal government (the “power created”) abuses their power intolerably. What do you think qualifies as an intolerable abuse of the power created? Who is a better judge of when the power becomes intolerable than each individual state?

    You may want to read R. L. Dabney’s biography of Stonewall Jackson. In chapter 5 he gives a thorough defense of the South. I cannot go into it here, but I will bring up one thing Dabney said which you can confirm over the internet. It was proposed at the Constitutional convention to give the federal government the power to coerce states by force of arms. That proposition was discarded, and left out of the Constitution. Thus by design (especially considering the Tenth Amendment) the federal government was left powerless to, as Dabney put it, force even its legitimate will upon a state. Di Lorenzo brings up a quote by Hamilton where Hamilton gives his reasons for leaving the fed. without this power. Lincoln’s war was unconstitutional.

    “To secede or to overthrow the union is to overthrow the Constitution, because it binds the states and the people together under a system of government which should protect the rights of minorities and individuals and should make secession unnecessary, except in the most extreme of circumstances where a true second revolution is called for”
    Doesn’t this paragraph support the right of secession? If a second revolution is necessary, why not keep the authority of the states? Jefferson coined the term (in the political sense) in describing the Revolution- the colonies seceded from Britain. Why should we not use the model laid out by the founders in the revolution, where every state decides for itself whether it should secede? It seems that either you contradict yourself, or your differences with Di Lorenzo are only of degree.

  • 4 David // Nov 1, 2010 at 11:17 pm

    By the way, DiLorenzo does not discuss the Constitution in that article, but he does in the Real Lincoln. There is Constitutional support for it, but that is not the point of that particular DiLorenzo article (from what I gather from Don’s and your comments).

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