The Other McCain

Secession Meeting at the Mills House, Charleston, S.C., 1860

On this day in 1860, South Carolina voted to secede from the Union, and this 150th anniversary inspires historian Paul Rahe to publish his endorsement of the “indissoluble union” theory:

The legitimacy of secession has been debated ever since. In my view, secession was unlawful. There is provision in the United States constitution for ratification and for the admission of new states into the Union. There is no provision for secession.
It is true, of course, that – in ratifying the Constitution – Virginia specified “that 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.” But this unilateral assertion on Virginia’s part is not and could not be an assertion of a legal right under the Constitution – which, even if viewed as a contract, recognizes no such right. Rather, it is a reassertion of the natural rights that underpin the right to revolution asserted in the Declaration of Independence, and it applies to the people of the United States and not to the state of Virginia or even the people of the state of Virginia as such.

Of course, this theory effectively abolishes the states, rendering them nothing but administrative jurisdictions of the unitary and all-powerful national government — the negation of federalism.

From the standpoint of political science, it makes no difference whether in your opinion Southern secession was wise or just in 1860, or whether you are in favor of secession as a general idea, and it certainly makes no difference what your opinion is as to the controversies over slavery that provoked the crisis of 1860-61.

The fundamental question is, “Who ratified the Constitution, and what sort of union was created by that ratification?” And the answers to those questions are not, nor can they be, a matter of mere opinion. There are historical facts to be considered, and which Rahe glosses over.

The American colonies which declared their independence from Great Britain in July 1776 made it as clear as possible what their intent was:

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

The colonial uprising we now know as the American Revolution had been under way for more than a year. The battles of Lexington and Concord were fought in April 1775 and the Battle of Bunker Hill in June 1775. The provisional government represented by the Second Continental Congress — which also convened in 1775 — voted for independence on July 2, 1776.

All of these things, then, had been done prior to the adoption of the Declaration of Independence. So when Rahe refers to “the right to revolution asserted in the Declaration of Independence” — well, this was a right that patriot militiamen and Continental troops had been actively exercising at the peril of their lives for some 15 months before it was ever “asserted.” And had they lost the war, they’d have been hanged as traitors to the Crown.

So much, then, for “the right to revolution” — a right entirely dependent on the fortunes of war.

The union of “Independent States” described in the Declaration was therefore a military alliance for mutual self-defense, as the representatives of the rebellious colonies “in Congress, Assembled” pledged their common purpose. There could be no separate peace — the King and Parliament could not hope to enter into negotiations with Rhode Island or North Carolina, seeking a treaty that would break the alliance.

By the time it voted for independence and issued the Declaration, Congress had already appointed a committee to write a plan of common government. The Articles of Confederation were submitted to the states in 1777, but not finally ratified by all the states before 1781. The American victory at Yorktown in 1781 to all effects ended the Revolution, the peace secured in 1783 by the Treaty of Paris, which names the states whose independence was thereby recognized:

His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states . . .

So, by their united effort in war, these states had won their independence. Their common government under the Articles of Confederation was so severely flawed that, only six years after Yorktown, the need for changes led to the Constitutional Convention of 1787. While the delegates to that convention had originally been authorized only to amend the Articles, it became obvious that the best thing to do was to start from scratch. Having overstepped their original authority, the Convention recognized that the new framework of government they had wrought would require ratification, and it was two years before a necessary nine of the 13 states had ratified it.

This ratification was conducted in each state by a special convention, and the debate was quite intense. Patrick Henry, among others, was in the anti-Federalist faction, warning that the Constitution granted too much power to the national government. It was to allay these concerns that the Bill of Rights was adopted immediately after ratification. Among those amendments, the 10th gave especial protection to the states, limiting the government to those powers delegated by the Constitution, and reserving the balance to the several states.

Now, we must pay careful attention to a key point about the Constitution, namely Article 7:

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Which is to say that as many as four of the original states might have, by refusing to ratify the Constitution, exempted themselves from that government. And when nine states had ratified the Constitution, two of the largest states, New York and Virginia, still had not ratified it. It was not until 1790 that Rhode Island finally ratified — by which time the Bill of Rights, including the 1oth Amendment, had already been submitted to the states for ratification.

The idea that tiny Rhode Island might have gone its separate way might seem absurd — well, it would have spared us the obnoxious Sheldon Whitehouse — but its long delay in ratifying the Constitution shows that at the time of the Founding, there was a serious concern that this new government might be too powerful, a threat to those “Free and Independent States.”

Did these states, by ratifying the Constitution, thereby permanently forfeit their independence?  Is there nothing the federal government could do — no act of the president or Congress, no decision of the Supreme Court — that would justify any state in saying, “OK, you’ve gone too far now”?

It would seem that Paul Rauh answers that question in the negative, that he denies that the states have retained any shred of their original independence, that no state has any just recourse if its citizens should feel that the federal government has overstepped its rightful bounds.

The states are therefore no longer states in any meaningful sense, and we no longer in fact have a federal system of government, but rather one vast unified empire of 300 million subjects, with whatever vestiges of the “states” remain being subject to obliteration so soon as it suits a majority in Congress (or the Supreme Court) to do so.

Ideas have consequences, as Richard Weaver once famously observed, and so it is with the idea of the indissoluble union. (Evidently, it’s like La Cosa Nostra — once you join, there’s no quitting.) What we now have is a national government without any effective limit to its power, except so far as regular elections may have any limiting effect. But if this also fails and the advocates of an all-powerful national government should obtain a permanent majority, what remedy can there be under Rahe’s theory?

As it is now, California and Illinois — both states deeply in thrall to the advocates of unlimited government — teeter on the verge of bankruptcy. Should the citizens of Texas or any other more thrifty state be compelled to pay for the federal bailout of a bankrupt state?

Even if one were to stipulate that South Carolina’s secession in 1860 was ill-advised and unjustified, it still does not follow that the states, in joining the Union, thereby foreswore forever any prior claim to sovereignty.

Paul Rahe should be glad he’s a professor of history in Michigan, and not in Texas. Those Texans can be mighty touchy about their independence, you know.

UPDATE: My good friend Stogie calls Professor Rahe “a misinformed Northern apologist,” which seems a tad too hostile. While we cannot rule out the possibility that Professor Rahe’s views are inspired by the all-too-common error of boreal supremacy — the belief that all things Northern are superior to all things Southern — I would not accuse anyone of such a hateful prejudice without solid evidence.

Stogie also reproduces a famous handbill:

C’mon, can I get a “Yeee-haaaww,” y’all?