Divorcing Ourselves from Akhil Reed Amar (Part III)
In the two previous posts, I dealt with Amar’s criticism of Jefferson related to the Virginian’s opposition to the national bank and his advocacy of nullification. This post deals with Jefferson and secession, which Amar blasts as follows: “He played footsie with the plainly unconstitutional idea that a state could unilaterally secede. (At one point he nonchalantly declared that whether America remained united or instead divided into two parts was “not very important” to American ‘happiness.’ Jefferson Davis was aptly named.).”
As an initial matter, secession is an American political concept. Our country was formed in a secession from Great Britain. The united states sought to remove themselves from the jurisdiction of the British Crown and Parliament. Thus, secession was in the blood of the revolutionary generation—they participated in secession. Even if Amar were to concede my description of the break with Britain, he would undoubtedly fall back on the Constitution and argue that secession is not recognized in the document.
Let’s look at the messages from several ratification conventions to judge the original intent on this matter. Virginia’s ratification message declared as follows: “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 and that every power not granted thereby remains with them and at their will.” Rhode Island averred that “the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness.” New York also made it known that “the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness.” In the Virginia ratifying convention, Edmund Pendleton (a supporter of the Constitution) assured Anti-Federalists that if the national government proved oppressive, Virginia could take action in convention: “we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse; and punish those servants who have perverted powers, designed for our happiness, to their own emolument.” These are just a few examples, but show that secession was not a “plainly unconstitutional idea” to the ratifiers of the Constitution.
The Constitution was not submitted to one national convention but to individual state conventions. In the Philadelphia Convention, Gouverneur Morris moved for a single national convention, but no delegate seconded the proposal even to allow its discussion. Separate state conventions, the framers realized, were necessary for ratification because the people of each state, in adopting the Constitution of 1787, also were amending their state constitutions. For instance, to the extent that a state constitution granted the legislature the power of regulating trade with foreign nations, sister states in the union, and Indian tribes, the people of the state had to reassume that power and then confer it on the general government. No one other than the people of a state themselves could do so. Accordingly, the states as political societies in their highest sovereign capacities are the parties to the constitutional compact.
According to Madison in the Report of 1800, the states (i.e., “the people composing those political societies in their highest sovereign capacity”) are the parties to the compact that is the Constitution. Although consolidationists such as Amar have urged that the people of the entire United States and not of the several states are the ratifiers of the Constitution of 1787, the mode of ratification is incongruent with this argument. Consolidationists also ignore that when the general government began operation, two states (North Carolina and Rhode Island) were outside of the union and remained outside until the conventions in those states voted to accept the Constitution. Had the amalgamated “American people” been the parties to the compact, North Carolina and Rhode Island would have never been outside the union because a supermajority of the American people had adopted the Constitution.
Based on our secession from Great Britain, the state ratification messages and debates, and the mode through which the Constitution was ratified, the idea of secession is not “plainly unconstitutional.” Sure, Amar could argue that Appomattox settled the issue, but his essay criticizes Jefferson for believing in secession. Jefferson died in 1826, and thus, “developments” such as Appomattox or Texas v. White (1868) cannot be applied against him.
Finally, Amar posits that the results of secession would render America “unhappy” and that happiness is only achievable in a continental union. Actually, the opposite is true. We would not be at each other’s throats in making public policy if, say, we had a Left Coast Confederacy, a Northern Confederacy, a Midwestern Confederacy, and a Southern Confederacy. Different regions could handle abortion, immigration, the death penalty, and other volatile issues in accordance with the temperament and values of the different peoples. This would exponentially contribute to happiness and political health if we could dispense with the continental winner-take-all system.