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05/18/2020

Originalism and Secession
Michael Ramsey

In his recent book  American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020), F.H. Buckley (a non-originalist) says that “the constitutional originalist must . . . conclude that the states had a right to secede.”  (This is mostly an aside, as the book is not principally about originalism).  In the current Balkinization symposium on Professor Buckley's book, Robert Tsai (American University) objects

[T]he answer isn’t obvious. Buckley doesn’t adequately grapple with the text of the Constitution, which neither establishes a right to secede nor prohibits it explicitly. Yet it does expressly change the terms of political community, as well as its foundations. It does so by dropping the Article of Confederation’s language of “confederation” and the more strident rhetoric of state “sovereignty”—along with the power of a single state to stop a constitutional amendment dead in its tracks—in favor of “the people of the United States” forming a new government based entirely on a new formula that gives no such veto power to any single state.
 
These changes, as Bruce Ackerman, Akhil Amar, and many others have pointed out, reflect a powerful rejection of the compact theory as the basis for self-rule in favor of an account of sovereignty grounded in the “people of the several states.” The states retain form and authority, but they have been dethroned in our political theory as the genesis of sovereignty—it rests in the hands of the people themselves. At least that’s what the Constitution seems to say and the Framers’s own example demonstrates. Of course, it’s a separate question entirely how many people remember or accept this move, and for that matter, what lessons later generations might draw from this precedent.
  
But changing the rules collectively once doesn’t mean that just anyone can change the rules again—or more importantly, that one segment of the citizens can do so through unilateral action. In fact, a self-executing right of secession would have greatly alarmed most of the Framers, particularly the Federalists driving the project of renewal, given their general mission to strengthen federal power as the primary method of enhancing “a firm union.” It would also have worsened the problems of faction with which they were intensely occupied if a single state could rattle its saber and threaten to dissolve the union or depart every time it disagreed with a piece of legislation or a president’s order.
 
Now, Buckley cites Federalist No. 43 as if it unquestionably settles the matter, but of course that pamphlet did no such thing. Toward the end of that essay, Madison takes up the issue of why the “Confederation . . . can be superseded without the unanimous consent” the states. He invokes the nature of a “compact between independent sovereigns,” which, according to well-established treaty principles, allows a party to it to claim that the agreement has been “violated and void.” That’s correct given the original terms of who entered into that agreement. Behind that contract principle, of course, is the deeper right of self-governance rooted in natural law. But Madison nowhere asserts that if the Constitution were approved based on the new theory of self-governance, a single state or even a few disgruntled states, can dissolve it.
 
Indeed, Madison insists, in a letter dated January 1, 1833 to Alexander Rives, that “a rightful secession requires the consent of the others, or an abuse of the compact.” The idea that “a single State has a right to seceded, at will from the rest . . . would not, till of late, have been palatable anywhere.” Even if secession could be done, it would have be accomplished “without injustice or injury to the Community.” Think of the “consequences,” including the dismemberment of territory. An individual expatriate could not, for instance, “withdraw his portion of territory from the common domain.”
 
Agreed, and I think the counterargument is even stronger that Professor Tsai puts it.  I would sketch the argument this way:
 
(1) The Constitution declares that it and federal statutes (and treaties) are the supreme law of the land, notwithstanding any state laws or state constitutional provisions to the contrary (Art VI).  Thus, not only does it not provide any express (or, I would say, implied) power of states to secede, it directly declares that states as states do not have the power to displace the Constitution or federal law.
 
(2) As Professor Tsai says (following Ackerman, Amar, etc.), the Constitution's preamble invokes the people of the United States, not the states, as the possessors of ultimate sovereignty (a point reaffirmed in the Tenth Amendment).  The Constitution thus is not a compact of the states, and whatever could be implied about secession from a compact of states doesn't apply to the Constitution.  While I wouldn't endorse everything that Ackerman and Amar draw from this proposition, it does seem at minimum to further reject the idea of the states having a reserved right of secession. 
 
(3) I'm not aware of any commentary from the ratification debates indicating that if states tried out the Constitution for a while and didn't like it, they could withdraw.  If that had been a common understanding, it would have been a good argument for Federalists to deploy, as it would suggest that states would not be risking much in giving the Constitution a try.  But in fact, as Professor Tsai says, Federalists most likely had the opposite view given their desire for a stronger union.
 
(4) Professor Buckley rests principally on Federalist 43, but Professor Tsai counters (and I agree):
 
Buckley cites Federalist No. 43 as if it unquestionably settles the matter, but of course that pamphlet did no such thing. Toward the end of that essay, Madison takes up the issue of why the “Confederation . . . can be superseded without the unanimous consent” [of] the states. He invokes the nature of a “compact between independent sovereigns,” which, according to well-established treaty principles, allows a party to it to claim that the agreement has been “violated and void.” That’s correct given the original terms of who entered into that agreement. Behind that contract principle, of course, is the deeper right of self-governance rooted in natural law. But Madison nowhere asserts that if the Constitution were approved based on the new theory of self-governance, a single state or even a few disgruntled states, can dissolve it.
 
In any event it seems quite untrue that originalists "must" accept the constitutionality of state secession.