The Wrong of Secession (1861)

BY PROFESSOR JOEL PARKER

THE right of secession is asserted as a State right, consistent with the Constitution, and founded upon it, or upon the history preceding it, and the circumstances attending its formation and adoption;—a right to be exercised only through State action, and to be made effectual by a peaceful declaration of the fact of secession, which of itself accomplishes the separation of the State from the Union; any forcible opposition to it on the part of the United States being usurpation and oppression. . . .

In determining whether such a right exists, we naturally turn in the first instance to the Constitution itself. But it is clear that this instrument contains no provision to that effect, in terms, nor any one which suggests such a result by any direct implication. It purports to be an organic and supreme law, limited as to its objects, and of course in its powers. . . . The government organized under it is formed through the instrumentality of the Constitution itself, as a fundamental law enacted by "We, the people of the United States;" and not one formed by the States, or one which when formed represents the States; although from the previous existence of the States, as sovereign communities, except so far as they were bound by the Articles of Confederation, the Constitution could not be adopted without the assent and sanction of the several States;—for which reason, and because the States were still to exist, the ratifications were by "the people" of each State. In no instance was it supposed that the existing State government could make the necessary ratification as a State act. . . . The powers of the government organized under it usually act directly upon the people of the whole country, as the powers of the State government act upon all the people of the State; sometimes with reference to geographical or State lines, as the powers of the State government act with regard to county, town, or city limits. . . . It is none the less true, that the States have no control over any of the departments of the general government. They do not direct their action, in the first instance, nor is there, by the Constitution, any appeal to State judgment, or State sanction, through which errors are corrected, or the action of the departments is affirmed or reversed. . . .

The Constitution declares that itself, the laws of the United States made in pursuance of it, and treaties made under its authority, shall be the supreme law of the land, by which the judges of every State shall be bound, anything in the laws or constitution of the State to the contrary notwithstanding. It is a perversion of terms to call the "supreme law of the land" a compact between the States, which any State may rescind at pleasure. It is not itself an agreement, but is the result of an agreement. And in the absence of an express declaration, or reservation, it is an entire subversion of all legal principles to maintain that the subordinate may at pleasure set itself free from the restrictions imposed upon it by the fundamental law constituting the superior, even if the subordinate have in other particulars an uncontrolled authority. The judges of each State being expressly bound by the Constitution and taws of the United States, anything in the constitution or laws of the State to the contrary, how can a State law (or ordinance, which is but another name for a law) relieve them from the obligation? And if they are bound, the State and the people are bound also. The judges are expressly named, the more surely to prevent a conflict of jurisdiction and decision.

The clause of the Constitution providing for amendments adds another to the arguments which show it to have the character of an organic law, and not of a compact. Whether regarded as the one or the other, it is clear that it could not become obligatory upon a State, or the people of a State, until adopted by them. The people of one State could not ratify and adopt it for the people of another State. But, being adopted by all, it contains a clause binding upon all, providing that "the Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to the Constitution, or, on application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress."

Now, considered as an organic law, the Constitution may be altered and amended in any mode which may be agreed upon and prescribed by the instrument itself. . . .

But if the Constitution is a compact between the States, any amendment which becomes a part of the Constitution is also a compact between the States, and the question arises, How is it that three fourths of the States, voting in favor of an amendment, are to make a compact with the other fourth, voting at the same time against it, and thus refusing to enter into the compact? How is it that the States voting to adopt, represent the States refusing to adopt, so that, by the vote of adoption, they make a compact between themselves and the others, against the will of the others expressed at the same time. Those voting to adopt act in their own behalf, thereby being one party to the bargain, and thus far it is well; but, on the compact theory, they must at the same time represent those who vote against the adoption, and thus make them another party to the bargain; when the others at the same time represent themselves, and refuse to make the bargain. . . .

Will the advocate of the compact theory say that the provision relative to amendments, in the Constitution as first adopted, constitutes the States agents of one another, so that three fourths of the whole number may thus make an agreement for all, against the will of their principals, acting at the same time and dissenting? If this is so, we must add a new chapter to the law of Agency. . . .

The Articles of Confederation expressly, explicitly, and in the most emphatic manner, established a "Perpetual Union" between the States. . . .

The Articles of Confederation which established this "perpetual," "permanent," "indissoluble" Union, proved to be inadequate to the purpose for which they were adopted. . . . The history of the change by which a Union under the Constitution was substituted for that under the Articles of Confederation, need not be set forth at this time. . . . The reasons for its adoption, summarily set forth in the preamble of the instrument itself, are "to form a more perfect Union, establish justice, insure domestic tranquillity, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."

Now it appears to be preposterous to contend that this more perfect Union, established for posterity as well as for the existing generation, and thus substituted for the perpetual, indissoluble Union under the Articles, is one which was to exist only at the pleasure of each and every State, and to be dissolved when any State shall assert that it is aggrieved, and repeal the act of ratification. The Union could not be made "more perfect" in relation to its endurance. It certainly was not intended to be made less perfect in that particular.

[Joel Parker], The Right of Secession, in , July, 1861 (Boston), XCIII, 221–244 passim.