Chernikov on secession: a mix of irrelevant and wrong

At this point, I’m sure everyone is tired of the secession debate. Nevertheless, Dmitry Chernikov has written a blog post here challenging my position, and he has so far shown much more intellectual seriousness and much less ad homimem than is usual that side of the issue, so I will respond below the fold.

First, Mr. Chernikov argues that “decentralization is a pivotal Jeffersonian principle.” That is true, and in fact, I think I’ve taken care to say that I disagree with Jefferson’s interpretation of federalism, or at least much of it. When push came to shove, Jefferson still believed that the Confederacy could coerce states to abide by the Articles of Confederation, a point many of the neo-Confederates tend to ignore when they appeal to Jeffersonianism, but the core text of Jefferson’s sentiments on this matter must be the Kentucky Resolutions, and I’ve tried to be clear that I believe Jefferson’s theory of federalism presented there is quite clearly wrong. Madison himself was hesitant about them at the time they were written, and spent the closing years of his life trying to extricate Jefferson from the intellectual thicket he stumbled into with the Kentucky Resolutions. Bottom line: in Jefferson’s view, the Constitution creates a sort of treaty among sovereign states, and he is wrong about that. The text of the Constitution, and the ratification debates, make it quite clear that the Constitution does no such thing. Much as I admire Jefferson, I’m willing to say when I think he was wrong.

Chernikov suggests that I’m twisting Jefferson’s statement about the Confederacy coercing states, and quotes Jefferson saying that the “energy which absolute governments derive from an armed force” is a bad thing. Well, nobody denies that, but it’s irrelevant. My point was that Jefferson did equivocate on the matter of secession, and did believe that under the Articles, Congress had the authority to coerce states to abide by the Articles. Chernikov interprets this as meaning that “Jefferson meant: either abide by the terms of the Articles of Confederation or secede!” But I see no evidence of that, at least not at this point in Jefferson’s career. Certainly he does not argue for secession in the letter in question. As to whether the Civil War was a tragic and awful thing because a lot of people died, obviously that is true, and nobody would dispute it. But that really doesn’t have anything to do with whether states may, consistently with the Constitution, unilaterally secede from the union. Also irrelevant is whether Jefferson supported free markets and Lincoln did not. Lincoln was a Whig, and favored certain forms of government intervention to establish “internal improvements” which Jefferson (rightly, in my view) considered unconstitutional and unwise. But that really has nothing to do with secession.

In Part 2 of his post, Chernikov responds to my quoting Rufus King regarding state independence, but he seems to miss the point. My point—laid out with greater clarity in my Reason Papers article, and in Daniel Farber’s Lincoln’s Constitution—is that there are basically three ways to view the Constitution and state’s “rights.” First, there’s the strong union view, or the early union view, which Lincoln held and Harry Jaffa holds today: that is, that the Declaration of Independence created the American union. This view was held by Rufus King, as well as by other members of the founding generation (possibly James Wilson), but not by Madison and not by me. (Contrary to the Mises Institute’s shrieking, I disagree with Prof. Jaffa quite often, and disagree with him here, too.)

There’s much to say for this view, including King’s observation that the states did not have full sovereignty even in 1776, because states could not make war or peace and so forth. But on the whole, I think that view is defeated by the fact that the Articles referred to each state “retaining” its sovereignty.

The second view, the weak union or late union view, is that the Constitution created a new sovereign federal union for certain limited purposes—and not a treaty among sovereign states that “voluntarily” gave up sovereignty. The states did no such thing. Rather, the people reconsidered their sovereignty, and created a new institution, wiping the slate clean, more or less, and instituting a sovereign federal government, while vesting other elements of their sovereignty in state governments. The third view, of course, is the Calhounian compact theory that the Constitution is a treaty among the states, which is quite clearly wrong.

This is the answer to Chernikov’s claim that “The point...is (1) whether before joining the Confederation a territory could have chosen to become a sovereign state, and (2) whether after joining the Confederation a state could secede from said Confederation and become a separate nation.” No, that isn’t the point, because we’re construing the Constitution, not the Articles of Confederation. While states probably—though far from certainly—retained such sovereign powers under the Articles, they clearly do not under the Constitution, largely because the states did not “join” the Constitution. The People of the United States formed a more perfect union by ordaining and establishing the Constitution.

That is a profound difference, as Madison (and many, many others) made clear: the Articles, he explained, had been “derived from the dependent derivative authority of the legislatures of the states; whereas this [Constitution] is derived from the superior power of the people.” The Constitution did not consolidate the states entirely, but “[s]hould all the States adopt it, it will be then a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large.” Chernikov’s argument that the Declaration of Independence was only “a temporary military alliance” and “not a permanent political one” is—while highly questionable—ultimately irrelevant also to the question of whether states have power, consistent with the Constitution of 1787, to unilaterally leave the union. The Constitution quite obviously is a permanent political institution. But it is not an alliance; it is a constitution (“the system of fundamental principles according to which a nation, state, corporation, or the like, is governed.”).

Although Chernikov writes “I wouldn’t press this argument in any court of law,” the fact is that it has been pressed, repeatedly, in courts of law, and it has repeatedly won. The first time was in 1793, in Chisolm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793) (“The powers of the general Government…do for the most part (if not wholly) affect individuals, and not States: They require no aid from any State authority. This is the great leading distinction between the old articles of confederation, and the present constitution”); see also id. at 470 (Jay, C.J.) (“the people, in their collective and national capacity, established the present Constitution”).  But the same points have been made in Respublica v. Corbbett, 3 U.S. (3 Dall.) 467 (1798); Hylton v. United States, 3 U.S. (3 Dall.) 171, 178 (1796) (per Paterson, J.,); id. at 181 (per Iredell, J.); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236 (1796) (per Chase, J.); Banks v. Greenleaf, 10 Va. 271, 277-78 (1799); McColloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819); Cohens v. State of Virginia, 19 U.S. (6 Wheat.) 264, 434-440 (1821); Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76-78 (1869); and most famously and explicitly in Texas v. White, 74 U.S. (7 Wall.) 700, 724-30 (1869). More recently, the Court has made this point in Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); Printz v. United States, 521 U.S. 898, 920-21 (1997), and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 803-805 (1995). There are problably others, but those are all I have written down.

Chernikov makes some very strange comments claiming that I’m “living in a Bizarro World,” but it seems instead that he has simply misunderstood my point again. A revolutionary act is, of course, illegal, since it means the violation of the law. Such an act is justified nevertheless, since it is undertaken in defense of individual rights. This is not “highly unorthodox,” but is the longstanding understanding of revolution in the Lockean—that is to say, the American—tradition. To understand the Civil War, therefore, one must ask first whether secession was illegal or not. If it was legal, then obviously the south was right, and the federal government was in the wrong. But it was not legal. The second question, therefore, is whether the act was nevertheless a legitimate revolutionary act. That’s when we get into motives and so forth. This is quite straightforward, and can only seem “Bizarro” to a person who misreads my very clear writing on the subject, either by accident or design.

Probably the weakest point of Chernikov’s argument is his attempt—like so many on that side of the argument—to claim that the south didn’t really secede over slavery, but over the “economic exploitation of the South by the North.” This is a very old canard, quite easily refuted by simply examining the secession declarations of the states themselves. Georiga: “A brief history of the rise, progress, and policy of anti-slavery and the political organization into whose hands the administration of the Federal Government has been committed will fully justify the pronounced verdict of the people of Georgia.” Mississippi:  “Our position is thoroughly identified with the institution of slavery....  There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union....” South Carolina: “Those [northern] States have...denounced as sinful the institution of slavery...have encouraged and assisted thousands of our slaves to leave their homes....” We could go on, but we can instead rely on the words of Confederate Vice President Alexander Stephens: “Our new government is founded...its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

It is quite clear on even the most cursory examination of the actual actions of the Confederate states that, to borrow Chernikov’s phrase, everything for the south revolved around slavery. To protect it was their crusade.

Of course, Lincoln never promised to abolish slavery in the south. He (rightly) believed he had no authority to do so, and spent years repeatedly emphasizing that fact. What he wanted was to bar the expansion of slavery into the federal territories. It was this that led the southern states to secede, since they knew that states formed in those territories would be free states, and would send free-state senators to Congress who could eventually outnumber them and eventually abolish slavery legally, by Constitutional Amendment. In the words of the Texas secession declaration, southern states felt that a ban on slavery in“from all the immense territory owned in common by all the States on the Pacific Ocean, for the avowed purpose of acquiring sufficient power in the common government to use it as a means of destroying the institutions of Texas and her sister slaveholding States” was a leading reason to secede.

Chernikov’s claim that I see Lincoln as the “Great Man” in whom was “culminated” the “march of History” is nonsensical. Nobody who is not controlled by his ideology could claim that I believe such things. Lincoln was not on a “crusade” to eliminate slavery. He was on a crusade to prevent it from spreading into the west, and more importantly to put a stop to the growing belief that slavery was a positive good. The burden is on Mr. Chernikov to point to any place where I have ever taken a Hegelian view of Lincoln (or of anything, ever) or that I have said that only consequences matter. (It is true, however, that I believe that ends justify means. Nothing else could possibly justify a means than the ends! Why else undertake a means, except to accomplish an end?)

At this point, Chernikov has gone so far afield from both the historical record and what I have ever actually argued, that says that I advocate “massive wars to punish bribe-taking officials” or something like that. Where he gets this, I don’t know. The fact is, it was the South that started the War, by firing upon Fort Sumter (when it was being reprovisioned, not with arms, but with foodstuffs). It did this in the service of a claim of “secession” which was quite clearly illegal. It is the Constitutional duty of the President to see that the laws be faithfully executed, including the “supreme law of the land,” which is the Constitution. By simple syllogism, therefore it was Lincoln’s duty to enforce the law of the land, and if that had to be done by force, that lamentable fact could not change the duty; just as sometimes the police must use force to stop a criminal from harming someone.

Chernikov then asks about individuals: can’t citizens “secede” unilaterally by giving up their citizenship? The answer is, of course they can. And if the entire population of a state unanimously gave up their citizenship, then you would have a bunch of people who were no longer citizens running around. These people might go to some unoccupied place and declare themselves a new sovereignty, and they would absolutely have the right to do that—as the Mormons did in Lincoln’s own day. Of course, they could not engage in lawbreaking within the jurisdiction of the United States. But again, this is all irrelevant to the question of the Civil War or the lawfulness of secession. Southern citizens did not unanimously waive their American citizenship and emigrate. Certainly black citizens of the south did not! Some southern whites (and not a clear majority of them) instead declared that their municipal institutions were now independent of the United States, and then used that as an excuse to fire upon federal authorities lawfully going about their duties and to steal property owned by the federal government. This is a criminal conspiracy, which the government has the proper authority to put down. So the thought experiment is really a rather frivolous way to evade the important questions.

At the end of his post, Chernikov goes off to argue against the Federalists. That’s his prerogative, but it is, again, not relevant. The fact is that the people of the United States did choose to enact the Constitution (rightly so, I think), under which unilateral secession is illegal. If Chernikov thinks that they chose wrongly, then that’s a debate for another day (specifically, for the Winter of 1787-88). But it does not in any way show that secession is legal, or that the Confederacy was justified by the right of revolution to break the law.

Update: Mr. Chernikov has some brief replies. These are more on point, but they do not succeed in establishing that states may unilaterally secede consistent with the Constitution.

1. Jefferson’s views of the nature of states being strictly irrelevant, I won’t pursue the point further.

2. Chernikov’s second argument begs the question. It is obvious that the people retained certain elements of sovereignty when creating a federal government of limited, enumerated powers. He then suggests that one of those elements of sovereignty was the “right to secede.” But, of course, he has not established that such a right exists. He may be confusing this with (a) the individual right to emigrate, or (b) the right of revolution. These being inalienable rights, they were obviously not given up. But when they people of the United States ordained and established a constitution of government over the federal union, they most obviously did change the nature of sovereignty in the federal union, thereby giving up those claims to state autonomy which might have been asserted under the Confederation.

I mean no disrespect when I say it does not appear Mr. Chernikov is very familiar with the literature on this subject, and I would encourage him to become so. This “rights retained” argument was very common in the antebellum period (as opposed to the Declaration of Independence argument, which was not nearly as common among the slavedrivers as among the alleged libertarians of our day!) and was dispatched by, among other things, Lincoln’s July 4, 1861 address to Congress.

Secession must be distinguished from revolution. The latter is the right to rebel against government and break laws which are oppressive. The former is a claim based on a state’s “sacred right of self government” to interrupt the federal constitutional order and strike out on its own, supposedly consistent with the Constitution.

Chernikov says, “Where in that document does it say that the “more perfect Union” can only expand and never contract in territory, member states, or people? The Union was certainly not called ‘perpetual’ or anything like that.” But in fact it was. As the Republicans of Lincoln’s day all pointed out, the union was called perpetual in the Articles of Confederation—and the Constitution was intended to create a more perfect union than that! As the Supreme Court observed in one of the cases Chernikov ignores,

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to "be perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

Texas v. White, 74 U.S. (1 Wall.) 700, 724-25 (1869).

Even aside from the question of whether a union that somehow can be divided up at the will of a state legislature, in contradiction to the explicit language of the Constitution, and thus rendering the Constitution more or less advisory—it is still clear that the Constitution creates a government—it is a law—and a government, by its nature, has the authority to use force to enforce the law. More than that, the Constitution explicitly overrides state laws, declaring that it is the law of the land, anything in a state constitution or law notwithstanding! Thus it is, like all governments, inherently perpetual, except where its lawful processes allow for change, or it is destroyed by a revolution or an invasion. But being peacefully destroyed by the unilateral act of another sovereign? I don’t think so. On this point, Jaffa’s New Birth of Freedom is quite good (despite the reservations I’ve expressed about Jaffa’s early-union theory). Finally, to answer the question directly, in Article IV section 3 that new states may be added. It also says that Congress shall ensure to every state a republican form of government, that states may form no alliance or compact without federal approval, that citizens in one state shall have their privileges or immunities respected in other states—and many other provisions entirely inconsistent with the notion that states can declare themselves independent.

I have, however, always made it quite clear that states may leave the union—just not unilaterally. The United States has more than once given up territory over which it had a lawful claim, and it could do so again, in the proper procedures laid out in the Constitution (amendment, for example).

Chernikov goes on to argue that the Constitution is “part a creature of the people and a creature of states.” But this is not correct; in fact, the evidence he cites proves the opposite. The Constitution provides that certain things shall be done when state legislatures do them—like an amendment being ratified by a state legislature. For that authority to be delegated to a state legislature, though, requires that there be some superior authority to do the delegating. Who is that superior? The people of the United States. A similar point is made by looking at the Ninth Amendment. It speaks of rights retained by “the people.” Unlike the Tenth Amendment, it does not refer to states. What people could be meant here? Why, the same “people” in the preamble: the people of the United States. This is the same “one people” that declared independence in 1776. Now contrast that with the Ninth Amendment’s analogue in the Confederate Constitution: “The enumeration, in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people of the several States.” It is clear that even the secessionists themselves recognized that the “people” in the Constitution was the whole people of the United States, and not some compound of sovereign states.

3. I don’t think I’ve misunderstood Chernikov’s point at all. He is correct that “secession of individuals should be perfectly legal,” and aside from the fact that the word “secession” is misused here, I agree entirely. (Secession, by definition, can only be done by municipal establishments.) That is irrelevant, however, since that is not what happened. What happened was that a group of white politicians took over the state legislatures, declared the supreme law of the land to be null and void in that area, and kidnapped millions of blacks into perpetual servitude. Not really the same thing as saying “I don’t want to be an American citizen anymore; I think I’ll go to England” or something!

4. Mr. Chernikov claims that if I don’t “advocate massive wars to punish bribe-taking officials” (indeed, I don’t even advocate small wars for this purpose) “then neither should [I] defend a military assault of the North on the South to punish slave-owners or to fight for the rights of slaves.” But the war was not engaged to punish slave owners or to fight for the rights of slaves. It was fought because a large faction of the country was in violation of the supreme law of the land and fired upon lawfully authorized officers who were (peacefully) trying to enforce that law. People who resist laws by force have only one potential justification for doing so: the law is unjust. That was not the case in 1861. Thus it was the President’s duty to “see that the laws be faithfully executed,” by force if necessary. Whether a war was necessary for this purpose or not was entirely up to the southerners! Had they accepted the lawful course of events, there would not have been a war. They chose war rather than to obey the legitimate and non-oppressive order of the United States (non-oppressive except to their victims, the slaves, that is!). The fault for the war is entirely theirs.

5. “[T]here is evidence,” Chernikov writes, “that Lincoln provoked the South into firing the first shot.” Oh, please. Lincoln wired ahead to the governor of South Carolina to tell him that the federals were sending a vessel loaded with food and non-weapon provisions to the fort. South Carolina chose to fire upon the for instead. Certainly Lincoln expected them to do this—even carefully planned it around that expectation. But that doesn’t change the fact that the south initiated force. See William Lee Miller’s excellent new book on this subject.

Most of Chernikov’s arguments have been dealt with adequately elsewhere, and in addition to the books I’ve recommended, I would urge Mr. Chernikov to check out Lincoln’s July 4, 1861 address, as well as Daniel Farber’s Lincoln’s Constitution, the opening chapters to Amar’s America’s Constitution, and Thomas Krannawitter’s new book, Vindicating Lincoln. I don’t think I’ll be able to pursue the subject further unless something new comes up.