Secession and the Compact Theory

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Many people who discuss the War Between the States refer to the Confederates as traitors. These types of people tend to believe that the Southerners rebelled against their rightful, just government and were, therefore, in the wrong.

As I’ve mentioned elsewhere, I actually believe that secession is a perfectly acceptable action and that the Confederacy was well within its legal bounds to act in the way that it did. I realize that this view is fairly unpopular, so I want to attempt to give an explanation of my perspective.

Government Authority by Consent

Before discussing the compact theory directly, I want to discuss how many of the Founders viewed government. Particularly, it is worthwhile to note their view of the basis upon which government derives its power. For we must remember that these Founding Father had just completed a violent separation from the authority of England and believed that they were entirely justified in their actions. These Founders believed that government derived its authority from the consent of the governed and when government no longer possessed this consent, it was rendered illegitimate. The very first paragraph of the Declaration of Independence makes the predominant perspective among the Founders on governmental authority quite clear:

“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

Notice the phrase “dissolve the political bands.” This is terminology used to describe secession (i.e. the action of withdrawing formally from membership of a federation or body, especially a political state) rather than revolution (i.e. a forcible overthrow of a government or social order in favor of a new system). For these colonials were not interested in overthrowing the British government, but alternatively, they desired to govern themselves.

It is relevant to note that the Founders acknowledge the inalienable right to separate from political power that has become tyrannical or destructive. The Declaration continues:

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government… But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Thus, I think it can appropriately be argued that individuals have a natural right to seek alternative governance in the midst of tyranny. The Founding Fathers certainly believed this and used these arguments to justify their actions against England. Therefore, it would appear that arguments against the philosophical validity of secession would also negate the validity of the American Revolution.

The Compact Theory and the Anti-Federalists

Although this initial argument regarding the Founders’ view of government has significant worth, let us consider some of the history behind the ratification of the Constitution. These historical facts help to illuminate the nature of this document and how it affected the states specifically, especially in terms of the right to secede.

Many modern advocates of secession hold to the compact theory, which is the idea that the United States of America was formed through a voluntary agreement between the states, and that the Federal government was created by the states. This viewpoint makes sense when one considers that the Constitution was voted on by delegates who each represented individual states, rather than delegates who represented all of the aggregate colonial people.

Throughout the ratification debates, the Anti-Federalists vocalized this perspective. Historian Sheldon Richman explains, “For their part, Anti-Federalists were shocked, on seeing the preamble’s first words, ‘We the People,’ that the Constitution was written not as though the union were a federation of sovereign states, but rather a single population to be ruled directly by a central government in an extended republic.” These Founders viewed the Constitution as forming a confederation of sovereign states, rather than a single central government.

Patrick Henry clarified the Anti-Federalist viewpoint,”The question turns, sir on that poor little thing — the expression We, the people, instead of the states, of America. States are the characteristics and soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all states.”

This was not an uncommon view at the time. Samuel Adams declared, “I confess, as I enter the Building I stumble at the threshold. I meet with a National Government instead of a Federal Union of Sovereign States.” This distinction is important because these Anti-Federalists viewed the states as a line of defense between the rulers and the individuals. As Richman notes, these Anti-Federalists believed “that liberty is best protected by a layered system in which a variety of associations stand between the individual and the central government to check its power… A direct central-state-to-citizen relationship is precisely what the Anti-Federalists feared; they saw the states, among other associations, as buffers between the individual and a distant ruling aristocracy.”

Concern regarding the Federal government’s level of power was so great that various states (at this time) clearly stated that they would secede if appropriate. As historian Tom Woods writes:

“So concerned were Virginians about the possibility that the new Union would infringe upon their rights of self-government that upon ratification of the Constitution, Virginia declared that it reserved the right to secede from the Union. Some scholars have tried to argue that Virginia was simply setting forth the right to start a revolution, which no one disputed, rather than a right to withdraw from the Union. But this interpretation is untenable, since evidence from Virginia’s ratifying convention makes clear that the delegates believed they were entering a voluntary compact among states rather than yielding sovereignty to an all-powerful national government. New York and Rhode Island would include similar clauses in their own acts of ratification.”

Additionally, Jefferson, in the Kentucky Resolutions of 1798, and representatives of New England, at the Hartford Convention during the War of 1812, espoused and supported the compact theory.

Calhoun on States’ Rights

In 1828 Congress passed legislation that imposed significant import tariffs, which particularly hurt the economy of the state of South Carolina. Responding to this supposedly unjust act, Vice President and South Carolina native John C. Calhoun authored “The South Carolina Exposition and Protest.” In this essay, Calhoun described the compact theory and defended the states’ rights to secession and nullification (i.e. the subversion of federal decrees). He wrote, “The Constitution of the United States is in fact a compact, to which each state is a party… The general Government emanated from the people of several States, forming distinct political communities, and acting in their separate sovereign capacity, and not from all of the people forming one aggregate political community.” As historian Jeffrey Hummel comments:

“Calhoun’s Exposition and Protest defended what has become known as the compact theory of the Constitution. This theory contends that the Constitution was a compact, or contract, among sovereign states. The states had established the central government as their agent to perform specific delegated powers such as national defense… Not only was the central government strictly limited, but if any dispute arose over the extent of these powers, it was the creators of the compact, the states — not their agent, the central government — that should be the final arbiter.”

Calhoun described the Constitution as an agreement among the states, of which the federal government was a result. Therefore, the states should have the final say in interpreting the Constitution. Calhoun’s perspective was that “no one side in a compact could have the exclusive right to interpreting its terms,” writes Woods. “This was especially true in the case of the federal compact, since it was Calhoun’s contention that the federal government was not a party to the compact, since it was itself established by the joint action of the states.”

All of this may seem like semantics, but in terms of the sovereignty of the states and their right to secession, Calhoun’s insights regarding the nature of Constitution are vitally important. If the states voluntary agreed to form the Federal government, then it would follow that any one of them should be able to voluntarily leave said agreement. If this agreement between the states created the Federal government, then the states should be the ones with the final say in terms of interpreting the Constitution, rather than the Federal government.

Appealing to the beliefs of the Founding Fathers (similarly to what I wrote in the first section of this post), Calhoun described recourse against tyranny as a “fundamental principle of our system, resting on facts historically as certain, as our Revolution itself, and deductions as simple and demonstrative, as that of any political or moral truth whatever.” Without state sovereignty and the right to secede, Calhoun argued, states possess no protection from the powerful central government.

Conclusion

Thus, it can be said that, as the Founders opposed British tyranny, they affirmed the right of individuals to withdraw from the authority of tyrannical governments. Further, many of the Founding Fathers vocally acknowledged the right of the states’ to secede, and politicians in later years, such as John Calhoun, persuasively affirmed this right.

Besides the historical intrigue of these issues, the topic of secession has at least some level of modern relevance. For in the wake of Brexit, Catalonian and Kurdish struggles for independence, and threats of secession from California and Texas, there are numerous modern debates regarding the validity of subgroups choosing to govern themselves. Hopefully, this post provided some useful historical and theoretical information that will help inform evaluations of these important current events.

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