Lincoln’s Four Main Arguments
against Secession

 


[Simplified version, but with extensive notes]

 


George Desnoyers

Revised: January 23, 2009

 

 


Introduction



Lincoln used many arguments against secession.  But many of his arguments were pragmatic ones only, made to individuals in an effort to convince them that their state was better off in the union than it would be if it seceded.  Those types of arguments were often not applicable to the entire nation, or even to the entire South.  Other arguments were applicable over a large region, but are not considered important today because (1) the issues they dealt with are no longer alive, and/or (2) they lack philosophical depth and political or legal weight.1  Of all of Lincoln’s arguments against secession, today only four are considered important enough to demand attention when dealing with the topic of secession.  In the context of secessions advocated today, these four arguments have close to the same philosophical, political, and legal importance now as they had back when Lincoln used them.

 

These four arguments worth addressing can be packaged this way: as two political arguments and two legal arguments.  Two groups of two.  This is convenient, because, as everyone knows, people can remember lists of two or three, while lists longer than three are hard to remember.

 

 

 

Lincoln's Political Arguments

 


Let’s try to imagine ourselves as living back in the time of Lincoln’s first inauguration, March 4, 1861.  At that point in time, seven states2 had already seceded from the Union, and several more states were
considering secession.  However, no hostilities had taken place, and it was still hoped by many folk, including Lincoln, that the secessions which had already taken place would be reversed peacefully.

 

I’ll talk about Lincoln’s two important political arguments first.  The purpose of political arguments is to persuade people to make political decisions.  The political decisions Lincoln wanted people to make were: (1) to peacefully reverse the seven secessions which had already occurred, (2) to prevent additional secessions, and (3) to not support secessions in general.3,10

 

Both political arguments can be given names beginning with the letter ‘a’.  Lincoln's first political argument can be called the “Anti-majoritarianism Argument."  His second can be called the “Anarchism Argument."  Elements of both these arguments, somewhat tied together, can be found in Lincoln’s First Inaugural Address.

 

 

The Anti-majoritarianism Argument

 

Let’s talk about the “Anti-majoritarianism Argument” first.  Lincoln believed that minorities had a duty to submit to the will of the majority.  He believed in the virtue of this not because the majority is always right – Lincoln was way too smart to believe that -, but because the majority of the people getting their way keeps the greatest number of people satisfied or happy.  It is a better arrangement, thought Lincoln, to have the majority get their way and the minority not, than to have the minority get its way and the majority not.  Rule by the majority can work, but rule by the minority, thought Lincoln, was “wholly inadmissible.”4

 

This argument is dismissed in the following way.  Secessionists are not anti-majoritarian.  By the act of seceding, they create two majorities where previously there had been only one.  After secession, both the North and the South would have satisfied and happy majorities and dissatisfied minorities.  Secessionists could point out that Lincoln had not received a single popular vote for President from a huge ten-state geographical area.5  “Ought not,” argued secessionists, “such a huge geographic and populous area itself be entitled to have a satisfied majority?  How can it possibly be argued we are anti-majoritarian.  Lincoln is the anti-majoritarian one, for wanting to deny such a vast populace a satisfied and happy majority of its own.”

 

 

The Anarchism Argument

 

Now let’s move on to the second of Lincoln’s political arguments against secession, the “Anarchism Argument."

 

Lincoln argued that, if a secession occurred for the reason of a minority’s disagreement with a majority, then the same thing would almost certainly happen again.  In the seceded area there would be a new majority and a new minority which would at some future time come to a disagreement on some issue.  Another secession would occur, and then another.  Each secession would in turn lead to a new majority, a new minority, new disagreements, and then another secession.  There would be a series of secessions until there was no longer any government worthy of the name.  The end result, thought Lincoln, of relying on secessions to resolve disputes is anarchy.  Here’s how Lincoln put it in his First Inaugural Address:


If a minority, in such case, will secede rather than acquiesce, they make a precedent which, in turn, will divide and ruin them; for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy, a year or two hence, arbitrarily secede again, precisely as portions of the present
Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this.6


It may sound silly to us today, but, to Lincoln this was a serious argument.  There was a general fear of anarchism in Lincoln’s day, especially in Europe.

 

The answer to this Anarchism Argument wasn’t supplied only by people with secessionist leanings.  Lincoln was underestimating, or at least understating, people’s tolerance for imperfect government.  Educated people of many different stripes disagreed with Lincoln that secessions would ever become frequent.  Historically, that had not been the case.  Secessions had been rare, and our Declaration of Independence even said so.  Do you remember these words?

 

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.7

 

Besides the fact that secessions were relatively rare, it's also the case that secessions were more likely to improve the overall quality of government than worsen it, and that no correlation between secessions and anarchy could be demonstrated from examining history.

 

Here it should be pointed out that the Declaration of Independence, the signing of which is usually recognized as marking the beginning of this nation, is about as pro-secession as a document could possibly be.  It was written to explain and justify the secession of English colonies from English rule.  For example, it says:

 

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.8

 
 

 

Lincoln's Legal Arguments



Let's move on to
Lincoln's two important legal arguments.  Like Lincoln’s two main political arguments, elements of these legal arguments can also be found in Lincoln’s First Inaugural Address.  But they were made more articulately in a special address to Congress, sometimes referred to as his “War Speech,” on July 4, an easy day to remember, 1861.  These arguments were made after eleven states had seceded and some hostilities had already taken place.  Like Lincoln’s political arguments, his legal arguments were also intended to persuade.  Specifically, in July 1861, they had to persuade what was left of Congress that keeping the seceded states in the Union was important enough to go to war.  And these legal arguments had to do something else.  They also had to spell out the legal justification for the decision to go to war against seceding states.  Political reasons alone could never be sufficient for that; going to war requires legal justification.

 

Lincoln’s two important legal arguments have names beginning with the letter ‘c’.  His first legal argument can be called the “Constitutional Argument."  His second legal argument can be called the “Continuance of Union Argument."

 

 

The Constitutional Argument
 

First, I’ll talk about Lincoln’s Constitutional Argument.
 

The Constitutional Argument has two parts.  Part I of the Constitutional Argument involves the Tenth Amendment.  In this argument, Lincoln was on defense.  That is because the Tenth Amendment, on its face, would appear to support the view that secession was permissible under the Constitution.  Part II of the Constitutional Argument involves Section IV of Article IV.  In that part of the Constitutional Argument, Lincoln went on the offense.

 

 

Part I of the Constitutional Argument: the Tenth Amendment Argument

 

Secessionists believed states had the right to secede because of the reserved powers clause of the Constitution’s – and the Bill of Rights’ - Tenth Amendment which says,

 

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.9

 

To secessionists, nothing could be clearer: the Constitution did not prohibit states from seceding.  Therefore, the right to secede was reserved to the states.  Such had been the thinking all across the nation ever since the Constitution had been ratified in 1788.  In fact, several secessions had been proposed in the first 70 years after the Constitution was ratified, in different sections of the country, and nobody ever said that secession would be illegal.  Even Abraham Lincoln himself, while he was a member of the House of Representatives (Illinois 7th District, March 4, 1847 to March 3, 1849), spoke in favor of the right of secession.10

 

By the way, historians are unanimous – 100% in agreement – that, if the Constitution had prohibited secession, it would never have been ratified by the required nine states.  In fact, it was likely that no state would have voted to ratify such a Constitution.  Three states, Virginia, New York, and Rhode Island, wrote it into their motions to ratify the Constitution that they retained the right to secede.  Some other states didn’t do that only because they thought their right to secede was too obvious to be required in the written motions.11

 

Lincoln acknowledged that the Constitution nowhere prohibited secession, but he said that, despite the clear words of the Tenth Amendment, the power to secede was not reserved to the states because the Constitution could not be construed to have within it a provision for the destruction of the Union.  Lincoln actually used the word, “destroy.”12

 

Lincoln’s critics did not let that go unanswered.  They objected to Lincoln’s use of hyperbole to make a legal argument.  The seceding states, they said, were not destroying the Union.  They were simply withdrawing their membership in it.  as James Ostrowski has asked, if secession had "destroyed" the Union, as Lincoln said it would, what was the entity that put a million-man force13 in the field against the secessionist states, and more than two and one-half million men14 in the field over the course of four years of war?  So much for Part I of Lincoln’s Constitutional Argument, a legal argument based on hyperbole!15
 

 

Part II of the Constitutional Argument: The Article IV Argument

 

Part II of Lincoln’s Constitutional Argument had to do with Section IV of Article IV of the Constitution which says,

 

The United States shall guarantee to every State in this Union a republican form of government....

 

Note that those words say that the United States shall guarantee to every State in the Union a republican form of government.  From those words, Lincoln argued that there was an obligation to guarantee all the states a republican form of government, even those that had seceded, i.e., withdrawn from the Union, and that the obligation was binding even if guaranteeing the states a republican form of government could only be accomplished by using militarily force.

 

For this argument to make sense the seceded states had to be considered still in the Union, and that’s exactly what Lincoln did.  He himself often spoke of the “secession” of the eleven states.  However, when it came to his legal arguments, Lincoln refused to acknowledge that they were true secessions and that the eleven “seceded” states were outside the Union.  Instead, he insisted that they were merely states in rebellion.  In his July 4, 1861, “War Speech,” he said the use of the word “secession” was a “sophism” to “sugarcoat” what was in reality just a rebellion.16  But Lincoln never satisfactorily explained why the seceded states were wrong to use the word “secession.”  That would have been hard, because the secessionists were correct and because almost everyone, North and South, accepted the use of the word “secession.”  There is a fundamental difference between secession and rebellion.  Secession is the withdrawal of recognition of an authority as lawful; rebellion is the refusal to obey recognized lawful authority.  Clearly, the eleven states had seceded.17

 

 

The Continuance of Union Argument

 

Lincoln’s second important legal argument against secession has been called the “Continuance of Union Argument.”

 

Like the Constitutional Argument, the Continuance of Union Argument involves the Constitution.  But it differs from the Constitutional Argument by its reliance on two earlier documents, the Declaration of Independence (1776) and - more importantly - the Articles of Confederation (written in 1777, ratified in 1881, and in effect until 1788).

 

To understand this argument, it is well to remember that the colonies/states went through periods in which they experienced four different kinds of “unity,” or “union.”

 

  1. The union the colonies had as British territories before the Declaration of Independence and Revolutionary War,
  2. The union among the territories after they separated from England via the Declaration of Independence,
  3. The union of the states under the Articles of Confederation, and
  4. The union of states under the Constitution.

 

Lincoln acknowledged a unity among the colonies before 1776, when they were all subject to the same British Crown.  Probably no-one would disagree with him on that point.  But Lincoln’s view of things after the signing of the Declaration of Independence is another matter, as people can reasonably disagree with Lincoln’s view of exactly what the Declaration of Independence accomplished.

 

While speaking of the Declaration of Independence in his July 4, 1861, War Speech to Congress, Lincoln said,

 

Therein the ‘United Colonies’ were declared to be ‘free and independent States;’ but even then the object plainly was not to declare their independence of one another or of the Union, but directly the contrary, as their mutual pledge and their mutual action before, at the time, and afterward, abundantly show.18

 

So, while the Declaration of Independence declared the thirteen colonies to be separated from the Great Britain, and to be “free and independent States,” Lincoln said they were not really independent states after the signing of the Declaration since they voluntarily made some mutual pledges to each other and then kept them.  According to Lincoln’s view, they were free and independent from Great Britain, but not free and independent from each other.

 

After discussing the Declaration of Independence, Lincoln immediately went on to say,

 

The express plighting of faith by each and all of the original thirteen in the Articles of Confederation, two years later19, that the Union shall be perpetual is most conclusive.20

 

Now we have arrived at the heart of the Continuance of Union Argument.  While Lincoln saw a continuance of union, albeit with a change in nature and significance, with the signing of the Declaration of Independence, it is primarily from the Articles of Confederation that Lincoln conclusively sees the “Union” as having a perpetual quality.  Let’s closely examine his reasoning.

 

Lincoln was correct in his first premise, that the Articles of Confederation had proclaimed a “perpetual union.”  In fact, the word “perpetual” can be found in the body of the Articles of Confederation five times, and another time in its introductory words.  Lincoln’s second premise was also correct, that the first fifteen words in the Preamble to the Constitution are, “We the people of the United States, in order to form a more perfect union….”  But the conclusion Lincoln drew from the two correct premises was faulty.  He reasoned, if the union under the Articles of Confederation had been perpetual, and if the union under the Constitution was intended to be “more perfect” than the union under the Articles of Confederation, then certainly the perpetual aspect to union under the Articles of Confederation must continue under the new Constitution even if the Constitution doesn’t explicitly say so.  (Hence the name for this argument, the “Continuance of Union Argument.”)

 

There are several problems with this argument.


First, it could just as well, or even
better, be argued that the reason the Union under the Constitution was “more perfect” than the Union under the Articles of Confederation was because the framers of the Constitution deliberately did not attempt to bind the states to a perpetual arrangement.

 

As most children are taught in grammar school, the Founders believed that the government being established under the Constitution, in 1789, was an experiment.  They did not expect that their work would be as successful as it turned out to be.  Thomas Jefferson, for example, spoke about the likely need for more revolutions in the future.  Jefferson understood the principles behind actuarial tables, at least one of which in his day estimated a generation to be 18 years and eight months.21  He rounded that number up to 19 and suggested that the nature of government should be revisited every nineteen years.  He believed that no generation should make the decision for succeeding generations as to what forms of government they should have.22


Even without the Constitution saying that states, once in the Union, could never leave, the votes to ratify the Constitution in several states were very, very close.  Some votes to ratify could be said to have passed by a proverbial hair.23  There was no way ratification of the Constitution by the required nine states could have occurred if the Constitution had within it a provision that said that, once a state joined the Union, it could never leave.24  Even with the three amendments to the Constitution passed in the immediate wake of the Civil War, and all the other amendments since, the Constitution
still has no provision explicitly forbidding states from seceding.25


The second serious problem with Lincoln’s Continuance of Union Argument is that the "Union" under the Constitution, over which Lincoln and the secessionists were debating, was
not the same kind of "union" called perpetual in the Articles of Confederation.  Under the Articles of Confederation, drafted by the Second Continental Congress, there was no significant central government.  States retained a great deal of their sovereignty.  Presidents of the United States under the Articles of Confederation – there were eight Presidents of the United States before George Washington26 – could only serve a one-year term, and they didn’t hold much power for that year.  Their accomplishments as Presidents are so little that almost no-one remembers their names, or even that they existed.  The people who broke away from British rule in 1776 were reluctant for many years to expose themselves to a possible new tyranny to replace the old.  The “Union” referred to in the Articles of Confederation was primarily a union of opposition to any strong central government.  The Articles of Confederation are sometimes referred to as “minimalist,” because they gave the central government so little power over the states.


The third reason
Lincoln’s Continuance of Argument fails is that the union under the Articles of Confederation was not perpetual, as we all can see by the fact that it doesn’t exist today.  As seen above, the Union which exists under the Constitution is a much different Union, a Union with a very much stronger central government.

 

In fact, the supposedly perpetual union under the Articles of Confederation was ended by a type of secession.  Under the rules established by the Constitutional Convention, and incorporated into the Constitution, at the very point at which New Hampshire became the ninth state to ratify the Constitution, on June 21, 1788, the union under the Articles of Confederation was considered dissolved and the Articles of Confederation immediate began to lose their force as the transition to a new type of government began.  The transition was completed on April 30, 1789, when George Washington was sworn in as President.

 


Summary


To summarize,
Lincoln had four main arguments against secession, two political ones and two legal ones.  Historians and legal scholars do not consider any one of the four to be a strong argument.  His political arguments, the Anti-majoritarianism Argument and the Anarchism Argument, failed in that they (1) did not persuade states which already had seceded to reverse their decision, and (2) didn’t prevent some additional states from seceding.  His legal arguments, the Constitutional Argument and the Continuance of Union Argument, although perhaps no better than his political ones, succeeded by (1) persuading Congress to go to war, and (2) serving as the legal basis for the Union’s war against the seceded states. 



Questions, and Implications for Today


We know what happened in
Lincoln’s time.  Eleven states seceded, and people in some other states and territories attempted to do so.  The Civil War was fought over four years, more than 618,00014 people were killed, and the Confederacy made up of seceded states was ultimately overthrown.  But what are the implications for today?  If a portion of the United States attempted to secede today, would you be in favor of stopping it if the cost of stopping it was likely to be the slaughter of many thousands of innocent people as happened during the Civil War?

Another question is this.  Since neither any of the three Amendments to the Constitution adopted in the immediately wake of the Civil War, nor any other Amendment adopted since,
explicitly prohibits secession even today25, and the Tenth Amendment is still in force, what would your argument be if a state or group of states wanted to secede now?  Would you use any of the same arguments Lincoln or his opponents used, or would you look for better ones?


Some people think the crucial question is whether a state joining the Union becomes partner to a treaty which
can be unilaterally broken, as many treaties can be27, or to a contract which cannot be unilaterally broken?  Lawyers disagree on the answer to that question, but how do you feel about it? 


Some people think the best argument against the legality of secession is one that rests upon secession being an “insurrection."  Article 1, Section VIII, of the Constitution which empowers Congress, among other things,

 

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

 
Undoubtedly, if one of today’s secession movements reached the point at which secession was actually attempted, some people would favor punishing the secessionists as if the secession
were an insurrection or rebellion against recognized lawful authority.

 

However, other people would argue that secession is not an insurrection or rebellion. They see secession as the withdrawal of recognition of an authority as lawful rather than the refusal to obey recognized lawful authority.  There’s a very big difference between, on the one hand, not recognizing an authority as lawful, and, on the other hand, recognizing an authority as lawful and refusing to obey it.

There’s another point that people have mentioned: Secession is
not in itself an aggressive action against states left within the Union.  The people of some states that seceded, for example Texas, are proud of the fact that their states did not fight an offensive war against the Union, but only fought a defensive war in order to be able to govern themselves as they wished.  Secession is about self-determination for a people as to their form of government.  What’s wrong with that?

 

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Notes:

 

1Here's a paraphrased example of one of Lincoln's arguments that is no longer considered important.  Lincoln, in effect, said during his First Inaugural Address, "Some of you are concerned because your fugitive slaves are not always being returned to you as the law says they should be returned.  However, if you stay in the Union, more of your fugitive slaves will be returned than if you secede.  If you secede, none will be returned."  This argument is considered unimportant today for a number of reasons.  First, it is dated in time and place; now, no-one cares about their fugitive slaves not being returned because there aren't any.  Second, this was an argument based on pragmatism only, and without any philosophical depth.  Third, the argument today has no political or legal weight whatsoever.

 

2The seven states which seceded prior to the inauguration of Lincoln on March 4, 1861 were:

 

South Carolina on December 20, 1860

Mississippi on January 9, 1861

Florida on January 10, 1861

Alabama on January 11, 1861

Georgia on January 19, 1861

Louisiana on January 26, 1861

Texas on February 1, 1861

 

3Lincoln’s anti-secession views were in contrast to his view in 1847, when, as a member of the House of Representatives, he had argued in favor of the right of states to secede, saying, "Any people whatever have the right to abolish the existing government and form a new one that suits them better." (Congressional Records, 1847.)  On January 12, 1848, Lincoln put it this way: “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better." ("Lincoln, Secession and Slavery,” Tibor Machan, cato.org, June 1, 2002.)

 

4Here is the entire paragraph in which the "wholly inadmissible" phrase occurs in Lincoln's First Inaugural Address:

 

Plainly, the central idea of secession is the essence of anarchy. A majority, held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

 

5Lincoln did not receive a single popular vote from the ten states of North Carolina, South Carolina, Georgia, Tennessee, Louisiana, Mississippi, Alabama, Arkansas, Florida, and Texas.  He had not been on the ballot in nine of those states, and South Carolina had not held a popular election.  In addition to those ten states, Lincoln had also not received any electoral votes from Delaware, Kentucky, Maryland, Missouri, and Virginia.  Thus Lincoln did not receive any electoral votes from fifteen of the thirty-three states in the Union.

6"First Inaugural Address," Abraham Lincoln, March 4, 1861.
 

7Declaration of Independence, 1776.

8Declaration of Independence, 1776.

9The Ninth Amendment might also be deemed relevant. That one says,

 

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 

10When Lincoln was in the House of Representatives, he spoke in favor of the right of Texas to secede and return to independence.  Texas had become a state within the United States on December 29, 1845.  In 1847, Lincoln believed that Texas’ return to independence could bring a quick end to the U.S.-Mexico War.  Within this context, the Congressional Records for 1847 quote Lincoln as having argued, “Any people whatever have the right to abolish the existing government and form a new one that suits them better."  On January 12, 1848, Lincoln said, "Any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better."

 

As it turned out, Texas did not attempt to return to independence, and the Mexican War, which had formally begun on May 13, 1846, eventually ended with the signing of the Treaty of Guadalupe Hidalgo on February 12, 1848.

 

By July 4, 1861, Lincoln appears to have become sensitive to the fact that he had in the past supported the right of Texas to secede.  This seems to be the case because, in his War Speech to Congress, Lincoln made a significant effort to single out Texas as the only state which had been an independent political entity before joining the United States.   Lincoln was wrong on that point.  Vermont had been an independent republic for fourteen years prior to its joining the Union.

 

11A strong argument can be made that inclusion of the right to secede in the ratification motions passed by Virginia, New York, and Rhode Island guarantees the right to secede to all states.  The argument rests on the following three points:

 

(1)   In asserting their retention of the right to secede, Virginia, New York, and Rhode Island were simply putting into the text of their ratification motions a right they believed naturally belonged to all the states.  That they were not attempting to conditionally ratify the Constitution, i.e., ratify the Constitution only upon the condition that the other states grant them a right to secede, is understood from the fact that all ratifications of the Constitution by states were required to be given unconditionally.

 

(2)   The ratifications of Virginia, New York, and Rhode Island were accepted as valid by the other states.  Therefore, the ratifications of Virginia, New York, and Rhode Island could not have been understood by the other states to have been given conditionally.

 

(3)   Whatever rights were possessed by some states must be possessed by all states, since the states were, and are, considered to be equal in their rights under the Constitution.

 

12Here is an excerpt from Lincoln’s July 4, 1861, “War Speech” in which Lincoln accuses the secessionists of trying to “destroy” the Union.

 

“It might seem at first thought to be of little difference whether the present movement at the South be called ‘secession’ or ‘rebellion.’  The movers, however, well understand the difference.  At the beginning they knew they could never raise their treason to any respectable magnitude by any name which implies violation of law.  They know their people possessed as much of moral sense, as much of devotion to law and order, and as much pride in and reverence for the history and Government of their common country as any other civilized and patriotic people.  They knew they could make no advancement directly in the teeth of these strong and noble sentiments.  Accordingly they commenced by an insidious debauching of the public mind.  They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps through all the incidents to the complete destruction of the Union.  The sophism itself is, that any State of the Union may, consistently with the national Constitution, and therefore lawfully and peacefully, withdraw from the Union without the consent of the Union or of any other State.  The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice.

 

“With rebellion thus sugar coated, they have been drugging the public mind of their section for more than thirty years, and until at length they have brought many good men to a willingness to take up arms against the Government the day after some assemblage of men have enacted the farcical pretense of taking their State out of the Union, who could have been brought to no such thing the day before.

 

“This sophism derives much, perhaps the whole, of its currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State - to each State of out Federal Union.  Our States have neither more nor less power than that reserved to them in the Union by the Constitution - no one of them ever having been a State out of the Union.  The original ones passed into the Union even before they cast off their British colonial dependence, and the new ones each came into the Union from a condition of dependence, excepting Texas; and even Texas in its temporary independence was never designated a State.  The new ones only took the designation of States on coming into the Union, while that name was first adopted for the old ones in and by the Declaration of Independence.  Therein the ‘United Colonies’ were declared to be ‘free and independent States;’ but even then the object plainly was not to declare their independence of one another or of the Union, but directly the contrary, as their mutual pledge and their mutual action before, at the time, and afterward, abundantly show.  The express plighting of faith by each and all of the original thirteen in the Articles of Confederation, two years later, that the Union shall be perpetual is most conclusive.  Having never been States, either in substance or in name, outside of the Union, whence this magical omnipotence of ‘State rights,’ asserting a claim of power to lawfully destroy the Union itself?  Much is said about the ‘sovereignty’ of the States, but the word even is not in the national Constitution, nor, as is believed, in any of the State constitutions.  What is a ‘sovereignty’ in the political sense of the term?  Would it be far wrong to define it ‘a political community without a political superior?’  Tested by this, no one of our States, except Texas, ever was a sovereignty; and even Texas gave up the character on coming into the Union, by which act she acknowledged the Constitution of the United States and the laws and treaties of the United States made in pursuance of the Constitution to be for her the supreme law of the land.  The States have their status in the Union, and they have no other legal status.  If they break from this they can only do so against law and by revolution.  The Union, and not themselves separately, procured their independence and their liberty.  By conquest or purchase the Union gave each of them whatever of independence and liberty it has.  The Union is older than any of the States, and in fact it created them as States.  Originally some dependent colonies made the Union, and in turn the Union threw off their old dependence for them and made them States, such as they are.  Not one of them ever had a State constitution independent of the Union.  Of course it is not forgotten that all the new States framed their constitutions before they entered the Union, nevertheless dependent upon and preparatory to coming into the Union.

 

“Unquestionably the States have the powers and rights reserved to them in and by the national Constitution; but among these, surely, are not included all conceivable powers, however mischievous or destructive; but, at most, such only as were known in the world, at the time, as governmental powers; and certainly a power to destroy the Government itself had never been known as a governmental -- as a merely administrative power.”

 

13“An Analysis of President Lincoln’s Arguments against secession,” Paper by James Ostrowski, delivered at the first-ever academic conference on secession - "Secession, State, and Economy", sponsored by the Mises Institute, Auburn, Alabama, held at the College of Charleston, Charleston, South Carolina, April 7-9, 1995.


14
At least 618,000 Americans died in the Civil War, and some experts say the toll reached 700,000.  The number that is most often quoted is 620,000.  At any rate, these casualties exceed the nation's loss in all its other wars, from the Revolution through Vietnam.

 

The Union armies had from 2,500,000 to 2,750,000 men.  Their losses, by the best estimates:

 

Battle deaths:

110,070

Disease, etc.:

250,152

Total

360,222

 

The Confederate strength, known less accurately because of missing records, was from 750,000 to 1,250,000.  Its estimated losses:

 

Battle deaths:

94,000

Disease, etc.:

164,000

Total

258,000


Source: "The Civil War, Strange and Fascinating Facts," by Burke Davis
 

15In this short treatment the Constitutional Argument can be quickly dismissed because the Tenth Amendment is pretty clear.  In a longer treatment, the Constitutional Argument pertaining to the Tenth Amendment could become more involved because the beliefs and intents of the Founders as indicated by speeches and writings outside of, but around the time of, the Constitutional Convention could be debated.  Even then, it would remain important that no-one at the Constitutional Convention itself advocated for a Constitutional provision prohibiting secession.

Particularly interesting is the matter of whether secession is prohibited by any of the three amendments to the Constitution passed in the immediate wake of the Civil War, or any other amendments passed since.  To the present day, no amendment explicitly prohibits secession.  Some lawyers, however, have claimed to have found an implicit prohibition of secession in one or more of them.
 

16In the following excerpt from his July 4, 1861, War Speech, Lincoln argues that the use of the word "secession" is merely a sophism to sugar coat rebellion.

 

“It might seem at first thought to be of little difference whether the present movement at the South be called ‘secession’ or ‘rebellion.’  The movers, however, well understand the difference.  At the beginning they knew they could never raise their treason to any respectable magnitude by any name which implies violation of law.  They know their people possessed as much of moral sense, as much of devotion to law and order, and as much pride in and reverence for the history and Government of their common country as any other civilized and patriotic people.  They knew they could make no advancement directly in the teeth of these strong and noble sentiments.  Accordingly they commenced by an insidious debauching of the public mind.  They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps through all the incidents to the complete destruction of the Union.  The sophism itself is, that any State of the Union may, consistently with the national Constitution, and therefore lawfully and peacefully, withdraw from the Union without the consent of the Union or of any other State.  The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice.

 

With rebellion thus sugar coated, they have been drugging the public mind of their section for more than thirty years, and until at length they have brought many good men to a willingness to take up arms against the Government the day after some assemblage of men have enacted the farcical pretense of taking their State out of the Union, who could have been brought to no such thing the day before.

 

“This sophism derives much, perhaps the whole, of its currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State - to each State of out Federal Union.  Our States have neither more nor less power than that reserved to them in the Union by the Constitution - no one of them ever having been a State out of the Union.  The original ones passed into the Union even before they cast off their British colonial dependence, and the new ones each came into the Union from a condition of dependence, excepting Texas; and even Texas in its temporary independence was never designated a State.  The new ones only took the designation of States on coming into the Union, while that name was first adopted for the old ones in and by the Declaration of Independence.  Therein the ‘United Colonies’ were declared to be ‘free and independent States;’ but even then the object plainly was not to declare their independence of one another or of the Union, but directly the contrary, as their mutual pledge and their mutual action before, at the time, and afterward, abundantly show.  The express plighting of faith by each and all of the original thirteen in the Articles of Confederation, two years later, that the Union shall be perpetual is most conclusive.  Having never been States, either in substance or in name, outside of the Union, whence this magical omnipotence of ‘State rights,’ asserting a claim of power to lawfully destroy the Union itself?  Much is said about the ‘sovereignty’ of the States, but the word even is not in the national Constitution, nor, as is believed, in any of the State constitutions.  What is a ‘sovereignty’ in the political sense of the term?  Would it be far wrong to define it ‘a political community without a political superior?’  Tested by this, no one of our States, except Texas, ever was a sovereignty; and even Texas gave up the character on coming into the Union, by which act she acknowledged the Constitution of the United States and the laws and treaties of the United States made in pursuance of the Constitution to be for her the supreme law of the land.  The States have their status in the Union, and they have no other legal status.  If they break from this they can only do so against law and by revolution.  The Union, and not themselves separately, procured their independence and their liberty.  By conquest or purchase the Union gave each of them whatever of independence and liberty it has.  The Union is older than any of the States, and in fact it created them as States.  Originally some dependent colonies made the Union, and in turn the Union threw off their old dependence for them and made them States, such as they are.  Not one of them ever had a State constitution independent of the Union.  Of course it is not forgotten that all the new States framed their constitutions before they entered the Union, nevertheless dependent upon and preparatory to coming into the Union."

 

17Lincoln was well aware of being on weaker legal ground if he acknowledged the eleven states had seceded rather than rebelled.  That appears to be his reason for treating the use of the word “secession” as merely a “sophism” to “sugarcoat” rebellion.  In his March 4, 1861, Inaugural Address, Lincoln had revealed what was probably his real reason for opposing the secession, namely his belief in his responsibility to hand over to his successor as President a nation at least as strong as it was when he had taken office.  The pertinent paragraph from the Inaugural Address reads as follows:

 

The Chief Magistrate derives all his authority from the people, and they have referred none upon him to fix terms for the separation of the States.  The people themselves can do this if also they choose; but the executive, as such, has nothing to do with it.  His duty is to administer the present government, as it came to his hands, and to transmit it, unimpaired by him, to his successor.

 

18Here is the paragraph of the Declaration of Independence to which Lincoln was referring:

 

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. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

 

19In his War Speech, Lincoln said the Articles of Confederation came two years after the Declaration of Independence.  In fact the Articles of Confederation were written and proposed in 1776, were passed in the Second Continental Congress on November 15, 1777, but were not ratified until 1781.  It would not have helped Lincoln’s cause for him to call attention to the ratification process, and the fact that each of the “free and independent states” resulting from the Declaration of Independence was free to accept or reject the Articles after they were written.  The freedom of each to accept or reject the Articles would have highlighted their free and independent status, while Lincoln was arguing that they were dependent states.

 

20Here is the entire paragraph in which Lincoln leaves his discussion of the Declaration of Independence and goes on to the Articles of Confederation:

 

The express plighting of faith by each and all of the original thirteen in the Articles of Confederation, two years later, that the Union shall be perpetual is most conclusive.  Having never been States, either in substance or in name, outside of the Union, whence this magical omnipotence of 'State rights,' asserting a claim of power to lawfully destroy the Union itself?  Much is said about the ‘sovereignty’ of the States, but the word even is not in the national Constitution, nor, as is believed, in any of the State constitutions.  What is a ‘sovereignty’ in the political sense of the term?  Would it be far wrong to define it ‘a political community without a political superior?’  Tested by this, no one of our States, except Texas, ever was a sovereignty; and even Texas gave up the character on coming into the Union, by which act she acknowledged the Constitution of the United States and the laws and treaties of the United States made in pursuance of the Constitution to be for her the supreme law of the land.  The States have their status in the Union, and they have no other legal status.  If they break from this they can only do so against law and by revolution.  The Union, and not themselves separately, procured their independence and their liberty.  By conquest or purchase the Union gave each of them whatever of independence and liberty it has.  The Union is older than any of the States, and in fact it created them as States.  Originally some dependent colonies made the Union, and in turn the Union threw off their old dependence for them and made them States, such as they are.  Not one of them ever had a State constitution independent of the Union.  Of course it is not forgotten that all the new States framed their constitutions before they entered the Union, nevertheless dependent upon and preparatory to coming into the Union.

 

21A More Perfect Constitution, Larry J. Sabato, Walker and Company, 2007, page 259.

 

22"On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law.  The earth belongs always to the living generation.  They may manage it then, and what proceeds from it, as they please, during their usufruct.  They are masters too of their own persons, and consequently may govern them as they please.  But persons and property make the sum of the objects of government.  The Constitution and the laws of their predecessors extinguished them, in their natural course, with those whose will gave them being.  This could preserve that being till it ceased to be itself, and no longer.  Every constitution, then, and every law, naturally expires at the end of 19 years.  If it be enforced longer, it is an act of force and not of right." (Emphasis added.)  - Letter dated September 6, 1789, from Thomas Jefferson (in Paris) to James Madison.  The quotation is given as presented in A More Perfect Constitution, Larry J. Sabato, Walker and Company, 2007, page 7.

 

Jefferson also wrote to a friend, Samuel Kercheval, on July 12, 1816, “I know, also, that laws and institutions must go hand in hand with the progress of the human mind.  As that becomes more developed, more enlightened,  as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.” - Quotation given as presented in A More Perfect Constitution, Larry J. Sabato, Walker and Company, 2007, page 8.


23The United States Constitution was written in 1787, ratified in 1788, and began its operation in March of 1789.  When the Constitution was passed to the states for ratification, many people were concerned that the new Constitution did not include a list of the rights of the people.  To encourage passage, it was agreed that a Bill of Rights would be added to the Constitution if it was ratified.  This promise proved to be decisive.

When the Constitution was completed and sent to the states for ratification, nine of the thirteen states had to ratify the Constitution before it could become the law of the land.  Each state held a special convention with delegates to vote on the Constitution.  At this point, people divided into two groups over whether to accept or to reject the Constitution.  Supporters of the Constitution were known as the Federalists.  The Federalists wanted a stronger national government because they felt that the Articles of Confederation were too weak, and that the government wasn't working well enough.  They wanted to unite the country, and feared that America would break up into thirteen different nations.  People that opposed the Constitution were called the Anti-Federalists.  The Anti-Federalists felt the new government defeated the purpose of their involvement in the American Revolution.  They were worried that a strong national government would weaken the powers of the state governments, and take away the rights of the people.  The public was flooded with pamphlets, letters, and speeches that represented both sides of the debate.


Delaware had the honor of being the first state to approve the Constitution, on December 7, 1787.  On June 21, 1788, the Constitution went into effect when New Hampshire became the ninth state to ratify the document. 
North Carolina and Rhode Island did not approve the Constitution until after it went into effect.  New York City was selected as the nation's first capital.  On April 30, 1789, George Washington was sworn in as the first President of the United States under the Constitution.  (There had been eight Presidents of the United States under the Articles of Confederation.)


The following table gives the years of ratification in the original thirteen states, and the results of the votes.  Note the close margins in Massachusetts (187-168), New Hampshire (57-47), Virginia (89-79), New York (30-27), and Rhode Island (34-32).  The hard-fought debates and close votes in
New York and Virginia were especially important, because those states’ ratifications came late, and there was a widespread feeling that the United States could not survive without the participation of both states.

 

  Ratification Votes By State  

States

  Year  

  Votes  

Delaware

1787

30-0

Pennsylvania

1787

46-23

New Jersey

1787

36-0

Georgia

1788

26-0

Connecticut

1788

128-40

Massachusetts

1788

187-168

Maryland

1788

63-11

South Carolina

1788

149-73

New Hampshire

1788

57-47

Virginia

1788

89-79

New York

1788

30-27

  Bill of Rights Passage - 1789  

North Carolina

1789

194-77

Rhode Island,

1790

34-32

  Bill of Rights Ratification - 1791  


 

24When they originally ratified the U.S. Constitution, at least three states – New Virginia, New York, and Rhode Island - included clauses asserting the right to secede from the Union at a future time.  Of the three states, the ratifications by New York and Virginia were considered necessary for the Union to have a chance to succeed.  The debates within those two states received great attention.  Both were large states, and their ratifications were uncertain for several months.  Virginia’s ratification (with a vote of 89 to 79) came on June 25, 1788 and New York’s (with a vote of 30 to 27) on July 26, 1788.  Even though the ratifications by Virginia and New York occurred after the ratification of the Constitution by the necessary ninth state, New Hampshire, on June 21, 1788, they were nevertheless still viewed as crucial.  When the ratifications of Virginia and New York finally occurred, confidence was high that the new nation would at least have a fighting chance to succeed.

 

Rhode Island’s clause asserting its right to secede is often overlooked due to its being the last of the original thirteen states to ratify.  Rhode Island’s first attempt to ratify the Constitution, by referendum, had failed on March 4, 1788. The state finally ratified the Constitution (with a vote of 34 to 32) on May 29, 1790.  This was nearly two years after the ratifications by New Hampshire, Virginia, and New York, after the swearing in of George Washington as President, and after the House of Representatives had passed a Bill of Rights containing twelve Amendments (September 25, 1789).  Ten of the twelve Amendments passed by the House were ratified by the states and were incorporated into the Constitution as “The Bill of Rights” on December 15, 1791.

 

Some important facts should be pointed out:

 

First, the ratifications of the Constitution by Virginia, New York, and Rhode Island were not given conditionally upon those states being granted the right to secede by the other states.  Had that been the case, the ratifications would have been invalid.  Ratifications of the Constitution had to be unconditional.  Those who voted to ratify the Constitution in Virginia, New York, and Rhode Island simply put into writing a right they thought naturally belonged to their respective states.  The states were voluntarily joining the Union, and most people believed the same principles toward self-governance that gave states the right to join the Union also gave states the right to withdraw from the Union.  It’s sometimes said that the way people think regarding that last point may be determined by whether they view a state’s joining the Union as making a contract or as joining a treaty. The right to unilaterally withdraw from treaties is generally accepted. The right to unilaterally withdraw from contracts is not generally accepted.

 

Second, the ratifications of Virginia, New York, and Rhode Island were unanimously accepted as valid.  Those states’ claims to the right of secession was understood and agreed to by the other ratifiers, including George Washington who presided over the Constitutional Convention and served as a delegate from Virginia.

 

Third, many lawyers believe that the acceptance of these three ratifications (Virginia, New York, and Rhode Island) as valid guarantees all states the right to secede.  This conclusion is based on the principle that whatever rights are held by some states must be held by all states.  (Exceptional rights have been granted to some states in order to encourage them to join the Union. But those special rights were understood by all states already in the union at the time the states granted special rights were accepted.)

 

Fourth, other states might have included clauses asserting their right to secede.  However, they thought it unnecessary since the Constitution did not forbid secession and because it was believed that states’ rights were preserved wherever the Constitution did not expressly transfer states’ powers to the new federal government.  On December 15, 1791, this idea was incorporated into the Constitution as the Tenth Amendment which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  The belief of the Constitution’s ratifiers was that the states were entering into a voluntary association and not giving up their sovereignty.  One of the Federalist Papers expressing the ideas that were persuasive in convincing states to join the Union is Federalist Paper #45.  That publication, addressed to the “People of the State of New York,” said, “The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.”

 

Fifth, several writings of the founders referred to the formation of the Union under the Constitution as an experiment.  Although many people clearly hoped the new Union of states would long endure, very few people expressed great confidence that it would. More widespread were expectations that states would withdraw from the Union if the arrangement were found to be unsatisfactory.

 

Sixth, for nearly seven decades, from the ratification of the Constitution to shortly before the Civil War, very few people questioned the right of states to secede from the Union.  Most people took the right to secede for granted, and secession had occasionally been considered by states in different regions of the country.  After all, the country had been formed largely through secession from British rule.  Secession has not incorrectly been called, “as American as apple pie.”

25The key word is "explicitly."  Some people do see the Fourteenth Amendment as prohibiting secession.  However, other people have made arguments rebutting the contentions that the Fourteenth Amendment prohibits secession.

The Fourteenth Amendment is as follows:
 

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

 

Section. 3. No person shall be a Senator or Representative in

Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

 

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

 

[End of text of Fourteenth Amendment]

 

The following discussion of the Fourteenth Amendment is from "An Analysis of President Lincoln’s Arguments against secession,” Paper by James Ostrowski, delivered at the first-ever academic conference on secession - "Secession, State, and Economy", sponsored by the Mises Institute, Auburn, Alabama, held at the College of Charleston, Charleston, South Carolina, April 7-9, 1995.

 

“The Fourteenth Amendment, however, poses more serious problems for a constitutional doctrine of secession. That Amendment reads in relevant part:

 

"Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

“The Amendment goes on to make apparent reference to the Civil War by prohibiting any military officer, who, having previously sworn to support the Constitution, engaged in ‘insurrection or rebellion’ against it, shall not serve as a federal official.   It further provides that, while no state shall assume or pay any debt ‘incurred in aid of insurrection or rebellion against the United States,’ no debts incurred in ‘suppressing insurrection or rebellion shall be questioned.’

 

“The Amendment grants the federal government vast new powers over the states in the context of a concern over the post-Civil War welfare of the recently freed slaves.  That fact, and the pejorative references to ‘insurrection and rebellion’ quoted above, allow a persuasive argument to be made that the Fourteenth Amendment bars secession.  If it did not, states could simply secede and thus avoid federal regulation under Section 1 of the Amendment, thus defeating the purpose of the Amendment.  Ironically, if this argument is correct, the pre-war case for secession is strengthened.  That is, if the Fourteenth Amendment bars secession, then presumably there was such a right before the Amendment was passed.

 

“Is there any room for a secessionist argument to be made in the post-Fourteenth Amendment era?  First, the obvious can be stated: the Fourteenth Amendment does not explicitly prohibit secession.  One would have thought that the pro-unionists who controlled American politics after the War would have included such a provision.  Their failure to do so, whatever the motive, means that resort may still be had to the pro-secession arguments stated above.  Unionists might respond by arguing that the Fourteenth Amendment impliedly bans secession and since it was passed after the other portions of the Constitution, it prevails over them in any conflict of meaning.  That argument would be perfectly valid if the Amendment explicitly banned secession; however, since it does not, we are left with the need to resolve an apparent implicit conflict between the Fourteenth Amendment and the Ninth and Tenth Amendments.  The best that can be said in this context is that any secession movement designed to restore blacks to their pre-Civil War political and economic status would be barred by the Fourteenth Amendment.

 

“Second, the Fourteenth Amendment was ratified by the seceding states under the same type of duress which forced several of them to ban secession in their state constitutions.  Ratification of the Fourteenth Amendment was made a condition of re-admission of the states to the Union by the Reconstruction Act of 1867.  It was only after such ratification that military rule was ended in those states.  Thus, as it regards the issue of secession, the Fourteenth Amendment is tainted, having been enacted under the same duress which this article concludes was a violation of the right to secession, i.e, the invasion and occupation of the South by the Union army.  Thus, any Fourteenth Amendment-based argument against secession is self-negating since it must implicitly concede a pre-Amendment right to secede, the violation of which directly led to the enactment of the Fourteenth Amendment.

 

“Finally, in resolving a conflict between the Fourteenth and the Ninth and Tenth Amendments, reliance on the doctrine of inalienable rights would be useful.  An inalienable right is one possessed by a human being that is so basic to his or her welfare that we do not enforce any contract or agreement in which a person relinquishes such a right.  As Murray Rothbard writes:

 

"[T]here are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily.  Specifically, a person cannot alienate his will, more particularly his control over his own mind and body.  Each man has control over his own mind and body.  Each man has control over his own will and person, and he is, if you wish, ‘stuck’ with that inherent and inalienable ownership.  Since his will and control over his own person are inalienable, then so also are his rights to control that person and will.  That is the ground for the famous position of the Declaration of Independence that man's natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so.

 

“If the right of secession, protected as it is by the Ninth and Tenth Amendments, is inalienable, then that right survives any attempt to relinquish it through the Fourteenth Amendment.  The right to "alter or abolish" forms of government does appear to be such a fundamental right that it should be treated as inalienable.  It is integral to the protection of other rights which Jefferson termed inalienable such as the rights to life and liberty.  Thus, it is a right that should survive regardless of its alleged implicit relinquishment under the Fourteenth Amendment.”


26
Who was the first President of the United States?  I'm sure that George Washington was your best guess.  After all, no one else comes to mind.  But think back to your history books — The United States declared its independence in 1776, yet Washington did not take office until April 30, 1789.  So who was running the country during these initial years of this young country?  It was the first eight U.S. Presidents.  In fact, the first President of the United States was one John Hanson.  I can hear you now — John who?  John Hanson, the first President of the United States.  Don't go checking the encyclopedia for this guy's name — he is one of those great men that are lost to history. If you're extremely lucky, you may actually find a brief mention of his name. (It's in the Encyclopedia Britannica.)

 

As we saw during the celebration of the country’s Bicentennial in 1976, most Americans believe the country was formed by the signing of the Declaration of Independence in July 1776.  Others, however, think the new country was actually formed on March 1, 1781, with the adoption of The Articles of Confederation (often called “The Articles”).  This document was actually proposed on June 11, 1776, but it wasn’t agreed upon by Congress until November 15, 1777.  Then it was sent to the states for approval.

 

Maryland refused to sign this document until Virginia and New York ceded their western lands (Maryland was afraid that these states would gain too much power in the new government from such large amounts of land).

 

Once the signing took place in 1781, a President was needed to run the country.

 

John Hanson was chosen unanimously by Congress (which included George Washington). In fact, all the other potential candidates refused to run against him, as he was a major player in the revolution and an extremely influential member of Congress.

 

As the first President, Hanson had quite the shoes to fill.  No one had ever been President and the role was poorly defined.  His actions in office would set precedent for all future Presidents.

 

He took office just as the Revolutionary War ended.  Almost immediately, the troops demanded to be paid.  As would be expected after any long war, there were no funds to meet the salaries.  As a result, the soldiers threatened to overthrow the new government and put Washington on the throne as a monarch.

 

All the members of Congress ran for their lives, leaving Hanson as the only guy left running the government.  He somehow managed to calm the troops down and hold the country together.  If he had failed, the government would have fallen almost immediately and everyone would have been bowing to King Washington.

 

Hanson, as President, ordered all foreign troops off American soil, as well as the removal of all foreign flags.  This was quite the feat, considering the fact that so many European countries had a stake in the United States since the days following Columbus.

 

Hanson established the Great Seal of the United States, which all Presidents have since been required to use on all official documents.  President Hanson also established the first Treasury Department, the first Secretary of War, and the first Foreign Affairs Department.  Lastly, he declared that the fourth Thursday of every November was to be Thanksgiving Day, which is still true today.

 

The Articles of Confederation only allowed a President to serve a one year term during any three year period, so Hanson actually accomplished quite a bit in such little time.

 

Seven other presidents were elected after him — Elias Boudinot (1782-83), Thomas Mifflin (1783-84), Richard Henry Lee (1784-85), John Hancock (1785-86), Nathan Gorman (1786-87), Arthur St. Clair (1787-88), and Cyrus Griffin (1788-89) — all prior to Washington taking office.

 

So what happened?  Why don't we hear about the first eight presidents?

 

It's quite simple: the Articles of Confederation didn't work well.  The individual states had too much power and nothing could be agreed upon.  A new document had to be written and agreed upon, something we know as the Constitution.

 

And that leads us to the end of our story.  George Washington was definitely not the first President of the United States.  He was just the first President of the United States under the Constitution we follow today.

 

And the first eight Presidents are forgotten in history.

 

To summarize, the first eight Presidents of the United States were:
 

John Hanson, 1781-1782

Elias Boudinot, 1782-83

Thomas Mifflin, 1783-84

Richard Henry Lee, 1784-85

John Hancock, 1785-86

Nathan Gorman, 1786-87

Arthur St. Clair, 1787-88

Cyrus Griffin, 1788-89


All of these men were President of the United States prior to George Washington taking office.

 

27Some treaties set in motion a series of events which are inherently irreversible, so that the treaties themselves are considered permanent.  The other end of the spectrum would be treaties which are made for a set term and have no provision for extending the term or renewing the treaty.  With respect to endurance, most treaties fall between those extremes.

 

Treaties agreed to for a specific term often include a provision allowing for the treaty to be renewed, with or without changes, after a period of negotiations which usually begins before the treaty's expiration.  Also, treaties often include provisions within the treaty to cover a situation in which the balance of benefits established by the treaty turns into an imbalance with the result that the treaty's provisions become intolerable for at least one of the parties.  Sometimes the treaties provide for a party finding the terms of a treaty no longer tolerable to request that terms of the treaty be revisited.  If the terms of the treaty are reconsidered, and revisions satisfactory to all the parties cannot be made, the treaty itself may allow for a party to withdraw from the agreement.

 

Some treaties, especially those with many signatories, will include a provision allowing for a party to give notice and withdraw without making any attempt to change the terms of the treaty.  In most cases a party withdrawing from a treaty will be required to first give notice of intention to withdraw, and then to wait for some period of time before actually withdrawing.



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