Thoughts on a Concurring Opinion

Timothy Baldwin’s “A CONCURRING OPINION FOR SECESSION (Part 11 of 12)” continues his argument that a State’s supposed “right to secede” from the Union does not depend upon any procedures within the Constitution (such as the process for amendment in Article V). Although I have already addressed most of Mr. Baldwin’s contentions in earlier parts of my response to his commentaries, his eleventh article does contain a few points worthy of extended treatment.

1. Mr. Baldwin claims that “[n]ot one provision of the constitution delegates th[e] power of secession to the federal government nor prohibits this right from the states”. Of course, “[n]ot one provision of the constitution delegates th[e] power of secession to the federal government”. After all, precisely how could “the federal government” “secede” from the States? As to his second point, Mr. Baldwin adds that “regarding the right or lack thereof to leave the union, the constitution is silent. So, which of the modes of enumeration, delegation, or prohibition of sovereignty did the states use to waive their right to secede?” Mr. Baldwin answers his question with “None”. But, in all of the commentaries he has posted, he has had very little to say about Article V, and next to nothing about Article VI, Clauses 2 and 3, and Article VII, regarding “secession”; or about Article I, Section 10, Clauses 1 and 3, as they relate to any of the States’ forming some new “confederacy” outside of the Constitution. So his “None” rings somewhat hollow.

Mr. Baldwin contends that “the constitution provides for a way to amend, ratify, and add new states, but it is utterly silent on secession”. The question, though, is whether provisions to “amend” and “ratify” the Constitution can apply or relate to “secession” in fact (in the sense of a State’s leaving the Union) even though they do not mention the very word “secession”. The short answers are: (i) When States “ratify” a “compact”, as they did under Article VII, they implicitly agree to be legally bound by it. After all, “ratification” means “[t]he adoption by one, as binding upon himself, of an act done in such relations that he may claim it as done for his benefit, although done under such circumstances as would not bind him except for his subsequent assent”. Black’s Law Dictionary (St. Paul, Minnesota: West Publishing Co., Revised 4th Edition, 1968), at 1428 (emphasis supplied). A supposedly “retained” unilateral “right to secede” ad libitum from a “compact” denies the existence of such a binding legal obligation, and therefore cannot be assumed to survive the party’s ratification of the “compact”—indeed, such a claimed “right” negates the efficacy of any purported ratification to which it appertains. (ii) The power to “amend” the Constitution in Article V is limited in only one way (“that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”) and therefore in principle can apply to “secession” through an amendment to the Constitution that a State voluntarily seeks.

Mr. Baldwin asks whether “you find it peculiar that the[ States] left out this provision [that is, explicitly providing for ‘secession’] if the States in fact intended to bind themselves ‘perpetually’ and all others to remain in the union against their will”. I do not find it at all peculiar. The purpose of the Constitution is to maintain the pre-existing Union among the States, not to promote disunion (or even to suggest that disunion is possible, let alone to emphasize how it can be effected). So of course the Constitution does not dilate on “secession”, even to the degree that “secession” was addressed —and negatively, by the way—in Article XIII of the Articles of Confederation. Who, in favor of forming “a more perfect Union” among the States, would have entered into a “Union” that explicitly allowed, and by allowing encouraged, “secession” by any member at any time for any reason upon the unilateral decision of that member, when even the Articles of Confederation had not been that liberal? Indeed, would that have been considered a “Union” at all?

2. Mr. Baldwin then points to certain “history lessons”. Elsewhere, I have discussed at length the “history lesson” to be drawn from the Articles of Confederation. The “history lesson” Mr. Baldwin finds in the constitution of the Confederate States of America passes over my head. I am hardly surprised that officials of the Confederate States would have interpreted their constitution as allowing unilateral “secession” (if that is what it did allow, the matter never having been tested by one of the Confederate States actually trying to “secede” from their confederation), because that is how they claimed to have interpreted the Constitution of the United States. But why does Mr. Baldwin imagine that anyone else is obliged to accept those officials’ interpretations of the Constitution of the United States? Because after illegally “seceding” from the Union they nonetheless maintained that they were correct by writing a constitution that parroted the phraseology of the Constitution of the United States, even when half of the country repudiated their interpretation to the point of taking up arms against them? Surely, if these Confederate statesmen “were some of the most highly-educated and intelligent men alive” (and I for one shall not disparage them in that regard), they might have considered altering the language in the Confederate States’ constitution so as unequivocally to support their position on “secession”, rather than stubbornly clinging to the language in the Constitution of the United States in the vain hope that this would convince a doubting world that they were right to “secede” in the first place. After all, as Emerson pointed out, “a foolish consistency is the hobgoblin of little minds”. In any event, the great “history lesson” that the Confederate States provides is, not that a “right to secede” exists, but that even “some of the most highly-educated and intelligent men alive” can stumble into an unmitigated disaster (and drag Heaven knows how many innocent people down with them) when they do not properly prepare, physically as well as intellectually, for a course of action with potentially dire consequences.

3. In a headnote, Mr. Baldwin states that “Article V [of the Constitution] Only Addresses the Terms of the Compact, and Not the Parties of the Compact”. I have not been able to find any text in Part 11 of his series that expands upon this issue. But inasmuch as Mr. Baldwin takes it seriously, I feel constrained to point out that, in every “compact” or “contract”, as a practical matter the parties are part and parcel of the terms. Indeed, the terms of a “compact” or “contract” would be utterly meaningless without parties to which they related, and vice versa. The Constitution again and again refers to the parties to the “compact” (assuming for the sake of argument that the Constitution is a “compact” among the States), and to the particulars of their participation in the “compact” in the form of their rights, powers, privileges, immunities, and disabilities. Except as to one matter, Article V allows for any conceivable amendment of the Constitution. So what prevents an amendment which releases one of the original thirteen States from her original “Ratification” of the Constitution under Article VII—the effect of which release, according to Article VII itself, being that “the Establishment of th[e] Constitution between the States so ratifying” would be set aside with respect to that particular State? Does it matter that such an amendment would refer or relate to a party (that is, a State), or to a term of the “compact” (the continuing validity of that State’s “Ratification”), or (as I submit is obvious) to both the party and the term, inasmuch as the two are inextricably linked? However such an amendment were phrased, its undeniable effect would be that the State would be allowed to leave the Union (that is, to “secede”). Similarly for Article IV, Section 3, Clause 1, which provides that “[n]ew States [beyond the original thirteen] may be admitted by the Congress into this Union”.What prevents any admission of such a “new” State from being subsequently overridden and cancelled by an amendment of the Constitution under Article V (whether the amendment focuses on the new State herself or on that State’s admission to the Union)? Would not the undeniable effect of such an amendment be to allow that State to leave the Union (that is, to “secede”)?To be sure, no State can be expelled from the Union through an amendment of the Constitution, because Article V provides that “no State, without its Consent, shall be deprived of its equal suffrage in the Senate”. But, “with[ ] its Consent”, any State can seek to “secede” from the Union through amendment of the Constitution, because such an amendment is perfectly conceivable and nothing in Article V precludes it. Could it possibly matter, then, whether such an amendment, focusing on the party, were entitled “An Amendment To Allow the State of X To Leave the Union” or “An Amendment To Allow the State of X To Secede From the Union”? Or whether the amendment, focusing on the term, were entitled “An Amendment To Invalidate a Certain Ratification of the Constitution”?

Perhaps an allegory is appropriate here: If banks in Smallville are being robbed by thugs acting in secret collusion with rogue policemen, patriotic and rational citizens of that town will not conclude that the laws against bank robbery are “defective”, or that the local government which happens to employ those secretly dishonest policemen has “usurped its authority”, or that the people’s only hope is somehow to “secede” from Smallville entirely. Rather, such citizens will expose the individual rogue policemen as criminals, to the same degree as the thugs, and take appropriate action to weed them out of office and to punish them for their misdeeds. The patriotic and rational citizens will probably first petition their town council to purge the police department of rogues. If no action is forthcoming from the council, the citizens will elect a new slate of town councillors. If the new councillors turn out to be as ineffective (or corrupt) as the old ones, the citizens may even form their own Town Militia, and employ it in providing armed guards for the banks and in maintaining close surveillance of suspected policemen.

In each of these situations, though, the citizens will be acting in the interest of Smallville, within and for the vindication of her laws. The very last thing they will do, or even think of doing, will be to “secede” from Smallville. Because they will realize that, if they cannot correct the problem in Smallville, they are probably incompetent to govern themselves effectively anywhere else. Thus, “secession” will not help them. It will only impose upon them somewhere else new intractable problems that will further expose their political ignorance and impotence, and visit upon them the malignant harvest of their own folly.

So how do real contemporary Americans in the several States differ from the fictional inhabitants of Smallville? In a decisive way: namely, that this country consists of fifty Smallvilles, in only one of which the citizens need to use their collective intelligence in a constructive way to solve, according to constitutional principles, the political problems that plague them. Because, once one Smallville shows the way, the others will follow. So, at this stage in America’s journey, “secession” is not a matter of finding the way, let alone of showing the way, but of running away. And that, I should hope, is not the truly American way. For part twelve of twelve click below.