Steven Yates, "When is Political Divorce Justified?" in David Gordon, ed., Secession, State and Liberty, Transaction Publishers, 1998.
WHEN IS POLITICAL DIVORCE JUSTIFIED?
This essay has two bold aims: first, to identify the conditions which justify secession, and second, to conclude that since those conditions were effectively met in 1860s America, the secession of those parts of the United States desiring freedom from the central government was justified on both moral and legal grounds.
Secession here means the process of political divorce and formation of at least one new sovereign unit through a formal declaration of independence. Secession can take at least two forms. In the first, a section of a larger political entity (such as a state or a group of states) separates from the whole (the Union) and formally declares itself a sovereign, independent unit. While this may change geographical borders, the political structure and legal apparatus of the original unit is left mostly intact. For Americans, the best known successful instance of the first of these is, of course, the separation from Great Britain of the original Thirteen Colonies, and the formation of the first Union under the Articles of Confederation. The best known failed attempt is that of the Confederacy which led to the War for Southern Independence (called by most historians the "Civil War," a term I have elected not to use here).
In the second, all (or most) regions of the larger unit secede at once. The larger unit is dissolved, sometimes to be replaced with a new and improved model, sometimes not. The best example of this is the dissolution of the Union as defined by the Articles of Confederation, and its reformation in 1787 under the Constitution. The most significant recent example is the collapse of the Soviet Union.
It is extremely important to note that a secession need not necessarily involve violence. The replacement of the Articles of Confederation with the Constitution was non-violent. The secessions of the Baltic States from the Soviet Union were relatively bloodless in comparison to previous attempts by satellite states to free themselves of Communism (think of Czechoslovakia in 1968, Hungary in 1956, and so on). The dissolution of Czechoslovakia into Slovakia and the Czech Republic took place peacefully. It is possible that the Confederacy might have separated
peaceably had Confederate troops not erred tragically by firing on Fort Sumter. Thus, political divorce might be accomplished peacefully if the larger power either is willing to let the smaller one go, or is incapable of preventing a formal declaration of independence which is recognized as legitimate by other nations.
The literatures of moral, political, legal, and economic philosophy have surprisingly little to say about secession.1 Major figures in the history of political philosophy neglect at regardless of their orientation. Until recently, there was little reason for scholars other than specialized historians to study secession. Today, though, the topic is crying out for sustained philosophical attention. The above list of secessions is hardly exhaustive, and more may very well be on their way. The Azerbaijanis want to secede from Armenia. The Chechens have fought a valiant, if so far unsuccessful, struggle for freedom from Russian domination. The Kurds have long wanted freedom from Iraqi control. Quebec is moving to secede from the rest of Canada.2
The grounds which I use to defend a right of secession are fundamentally moral, incorporating a Constitutionalism holding that a Constitution is a morally binding contract between citizens and a government they created. Both contemporary libertarian philosophy and Austrian-school economics have provided compelling arguments for individualism and economic liberty. Together, they supply a broader philosophical and socioeconomic context in which neosecessionist arguments are at home. While secessionist movements are occurring all over the world, to keep the subject matter down to manageable size, I will limit this discussion to cases which have occurred on American soil.
Two final introductory comments are in order.
(1) There are some who prefer to bypass non-economic arguments for liberty and secession. I consider this shortsighted. It implies that a choice must be made between individualism, economic liberty, and political freedom on the one hand and morality on the other. Since many of those we must convince respect
moral considerations and are suspicious of purely economic arguments, this effectively cedes a crucial element of the discussion to the collectivists and centralists. It is necessary, therefore, to show that individualism, political freedom, and economic liberty are morally superior to collectivism, centralization, and servitude. Without each of these elements, no defense of liberty, whether to justify secession or for any other purpose, is complete.3
(2) Late in this essay, I will reach the conclusion that secession is a live option both morally and legally; government by consent of the governed includes the right to secede, and to form a new government. I do not infer from this that any state or group of states ought to secede. Secession, as we shall see, is a procedure with enormous and potentially grave consequences -- military, economic, and otherwise. Consequently, my conclusion is that secession ought to be considered as an absolute last resort, to be attempted only after every reasonable effort to restore government to its original functions has been blocked, every avenue closed off, every effort to discuss issues met with disdain or silence. Anything less would be irresponsible.
The argument of this essay -- what I will call the neosecessionist argument -- is in this case straightforwardly deductive:
(1) Government has legitimate -- but strictly limited -- functions which can be identified and shown to be such.
(2) If government has legitimate but strictly limited functions which can be identified and shown to be such, and if a given government develops in such a way that it ignores its legitimate functions and instead undertakes tasks it cannot reasonably perform or should not perform (because they violate its legitimate functions), then individuals living under the given government are morally justified in taking action to restore limited government, including, as a last resort, secession.
(3) The federal government of the United States sometimes developed in ways that ignored its legitimate functions, and instead undertook tasks it could not reasonably perform or should not perform (because they violated its legitimate functions).
(4)American citizens are morally justified in taking action to restore limited government, including, as a last resort, secession.
The role of Premise (1) in the neosecessionist argument is to underscore the fact that neosecessionists are not closet anarchists motivated by hatred of government as such and opposed to it tout court -- propaganda to the contrary notwithstanding. Human nature being what it is, we cannot live in society without rules, or without a legitimate authority to recognize and/administer them when necessary. One of James Madison's most famous observations was, "If men were angels, government would not be necessary." Such realizations show why the institution is legitimate.
Yet, history shows all too well that this institution cannot really be trusted; not all of its participants behave morally and responsibly. Moreover, government, once established, is almost exclusively an agency of coercion (or threat thereof). Madison went on: "If angels were to govern men, neither external nor internal controls on government would be necessary." Thus, there is the need to limit government somehow, as a condition of its legitimacy. Madison then put his finger on the central problem in political morality: "In framing a government, which is to be administered by men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, to control itself." The tendency of some to accumulate power and privileges at the expense of others and at the expense of the liberties they have been entrusted to uphold must somehow be checked.
A contractarian view of limited government proposes to do this: in a free society, government results from a contract between governors and governed; it derives its moral and its legal justification from the consent of the governed. The government of a free society is accountable to its citizens. It serves rather than rules them. If it ceases to serve and becomes a master (or in some other way fails to fulfill its role), then citizens have a right to do something about it: change it from within, leave its jurisdiction, or void their contract with it. Our concern here is with the third.
But first, let us be as clear as we can about what limited government is. What is this ideal on which our own country was founded, from which we contend it has departed, and to which neosecessionists (among others) desire to return? And what is its basis? What makes it superior to other options? Frederic Bastiat, the great nineteenth-century economist, statesman, and author, wrote:
We hold from God the gift that includes all others. This gift is life: physical, intellectual, and moral life.
But life cannot maintain itself alone. The creator of life has entrusted us with the responsibility of preserving, developing, and perfecting it. In order that we may accomplish this, He has provided us with a collection of marvelous faculties. And He has put us in the midst of a variety of natural resources. By the application of our faculties to these natural resources we convert them into products, and use them. This process is necessary in order that life may run its appointed course. Life, faculties, production, in other words, individuality, liberty, property, this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation and are superior to it. Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.
... Each of us has a natural right -- from God -- to defend his person, his liberty, his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent on the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties?4
John Locke, of course, had presented the classic formulation of the doctrine of a natural right to property over a century-and-a-half earlier:
God, who hath given the world to all men in common, hath also given them the reason to make use of it to the best advantage of life and convenience. . . .
Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person; this nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it that excludes the common right of other men.5
Some twentieth-century defenders of these same basic ideas, Ayn Rand, for example, eliminate the theistic component:
The source of rights is man's nature.... The source of man's rights is not divine law or congressional law, but the law of
identity. A is A -- and Man is Man. Rights are conditions of existence required by man's nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational be ing: nature forbids him the irrational.6
Murray Rothbard argued along similar Aristotelian lines:
"Natural rights" is the cornerstone of a political philosophy which, in turn, is embedded in a greater structure of "natural law." Natural law theory rests on the insight that we live in a world of more than one -- in fact, a vast number -- of entities, and that each entity has distinct and specific properties, a distinct "nature," which can be investigated by man's reason, by his sense perception and mental faculties. . . . The species man . . . has a specifiable nature, as does the world around him and the ways of interaction between them. . . . [T]he nature of man is such that each individual person must, in order to act, choose his own ends and employ his own means in order to attain them. Possessing no automatic instincts, each man must learn about himself and the world, use his mind to select values, learn about cause and effect, and act purposively to maintain himself and advance his life. Since men can think, feel, evaluate, and act only as individuals, it becomes vitally necessary for each man's survival and prosperity that he be free to learn, choose, develop his faculties, and act upon his knowledge and values. This is the necessary path of human nature; to interfere with and cripple this process by using violence goes profoundly against what is necessary by man's nature for his life and prosperity.7
Rothbard thus enumerates a basic axiom, one's right to self-ownership: "the absolute right of each man, by virtue of his (or her) being a human being, to 'own' his or her own body; that is, to control that body free of coercive interference."8 From this he derives a right to justly acquired property in a way which intersects with Locke's view above.
These remarks all point to the task of limited government. The task of limited government is to serve as an institutional vehicle for recognizing and protecting the antecedent rights of individuals to life, liberty, the non-coercive and non-fraudulent pursuit of happiness, the non-coercive and non-fraudulent pursuit of property, the retention of legitimately-acquired property, and
the enforcement of mutually-agreed-upon contracts. It also serves as the agency of punishment against individuals who transgress these rights, according to an explicit body of laws. Bastiat again:
If every person has a right to defend -- even by force -- his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly.... The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.9
The world into which we are born does not sustain us. For all known plant species and nearly all animal species, built-in processes and instincts ensure their survival. Human beings, I would maintain, have a survival instinct as well -- but it does not operate in the same way as that of other animals. For human beings have a capacity no other living thing has, so far as we know: the ability to think, or reason. Thought -- rationality -- does not work automatically. Hence, we must learn to think, to identify regularities in our surroundings. Then we must take specific courses of action. As Rand puts it, we survive by means of our minds. Minds, moreover, come one to an individual; "there is no such thing as a collective brain."10 Hence, we are essentially individual human beings.11 Thought being a condition for human action, it follows that all human action is individual action; references to collective actions are metaphorical at best. This should not be taken to preclude communication and voluntary interaction with others, the development of team efforts in which a number of individuals have come to agreement on a specific course of action, the formation of organizations, and the divisions of labor which result when all realize that more can be accomplished when people work together than when they work alone.
Given the indifference of the physical-biological universe, we must work; that is, we must produce the means of our survival amidst scarce resources, either producing for ourselves or producing for others, trading with them things they value for things we value. Clearly, we must be free to initiate and conduct such exchanges, whose details are only evident to the participants in
the exchange. We must be free to develop such organizational arrangements as make such exchanges more efficient. Outside interference with such development can have only one result -- to slow it down, or worse, to stop it altogether, or even to prevent it from occurring in the first place.
Historically, the institution which has most often interfered with the capacities of human beings to acquire knowledge, act freely in the world, identify what others value, and set about to provide it either singularly or as a member of some institutional entity, is government. Here is where trouble threatens, and why we should attempt to limit government. Let us state our moral premises clearly: since action is a necessary condition for the survival and self-improvement of an individual, it is morally proper that every individual be regarded as the sole owner of his own mind, his own life, the fruits of his own labors, and the fruits of honorable transactions with others. Conversely, no individual has a moral claim on the mind, life, labor, or transactions of another individual (unless the two have come to a specific contractual arrangement). Hence, no individual has the right to forcibly interfere with or defraud another individual.
The idea behind limited government is the idea that government should protect these basic principles, which are taken as more basic than any legal arrangements since they derive from the conditions for human survival and self-improvement in this life. The principles themselves can be understood either theisti-cally or non-theistically. Though we have refrained from going into the issue here, many writers have argued that a theistic understanding of the universe and of the foundations of freedom is both reasonable and provides a greater moral impetus to take correct and morally responsible actions than any non-theistic account. Be this as it may, limited government still emerges as the greatest of political ideals, supporting those who defend natural rights. It establishes the responsibility of government as an institution enforcing the rule of law which protects rights understood as antecedent to its legal apparatus. Advocates of limited government, therefore, necessarily reject the idea that governments can invent rights by legislative fiat. They see government-manufactured rights as leading away from the rule of law, and toward rule by politicians and bureaucrats who, more and more, come to wield arbitrary and unpredictable force to advance their own causes. Advocates of limited government see the latter as one of the key developments behind the slow erosion of individual freedoms in the United States.
LIMITED GOVERNMENT VERSUS HUMAN NATURE
Bastiat observed a tendency among people which ought to make every defender of limited government pause a moment:
When they can, [people] wish to live and prosper at the expense of others. This is no rash accusation. Nor does it come from a gloomy and uncharitable spirit. The annals of history bear witness to the truth of it: the incessant wars, mass migrations, religious persecutions, universal slavery, dishonesty in commerce, and monopolies. This fatal desire has its origin in the very nature of man -- in that primitive, universal, and insuppressible instinct that impels him to satisfy his desires with the least possible pain.12
Eighty-five years later, Albert Jay Nock would elaborate:
There are two methods ... whereby man's needs and desires can be satisfied. One is the production and exchange of wealth; this is the economic means. The other is the uncompensated appropriation of wealth produced by others; this is the political means.... The State ... whether primitive, feudal, or merchant, is the organization of political means. Now since man tends always to satisfy his needs and desires with the least possible exertion, he will employ the political means whenever he can -- exclusively, if possible; otherwise, in association with the economic means. He will, at the present time that is, have recourse to the State's modern apparatus of exploitation: the apparatus of tariffs, concessions, ' rent-monopoly, and the like.13
History, indeed, testifies that actual governments have never accepted the limited role assigned to them by the tradition of natural-rights. Our own system of federalism had its critics, the Antifederalists, who held that the Constitution delegated too much power to the central government. Even those who accept limitations on their authority tend to abrogate those limitations and increase their power until open rebellion results. The problem, Bastiat and Nock suggest, lies not so much with government per se but with human nature itself.
This suggests that -- aside from the possibility of intervention by the Almighty -- limited government will never be more than either a temporary, unstable arrangement or a regulative ideal. Human beings must produce the means of their survival, and they can do this only through individual action, through the re-arrangement of raw materials supplied by nature into useful
materials, useful either for one's own purposes or for the purpose of trade with others. This, of course, is Nock's economic means. But most human beings, as Bastiat observed, tend to want to satisfy their needs and desires in the most expedient fashion, wjlh-the least amount of effort. So if a political means of obtaining the means of their survival is made readily available, they will seize on it. Hence, the origin of plunder, as opposed to production, as a means of satisfying one's wants: "[S]ince man is naturally inclined to avoid pain -- and since labor is pain in itself -- it follows that men will resort to plunder whenever plunder is easier than work."14 An expansion of government (e.g., to extend a subsidy or protect some local enterprise with a tariff), if made available, will come to look very attractive as a means of insuring a "short cut" to success and prosperity. Certain forms of plunder will be entirely legal: Bastiat calls them "legal plunder."
In addition, government tends to attract people more interested in the political than in the economic means of getting things done. Conversely, those more content with the economic means tend to be uninterested in government -- unless relying exclusively on the economic means becomes inconvenient or places them at an automatic disadvantage. Consequently, governments have found it easy to seize control of the economic means. In our society, this has occurred in increments. The history of America's railroads shows conclusively that the process was already underway by the 1820s15; the trajectory of modern "public education" reveals another government usurpation which began in the 1850s.16 With the Federal Reserve System, adopted in 1913, the federal government began to assume control of money, banking, and credit, eventually leading to the destabilizations which produced the Great Depression17 -- its inroad to control over more and more of the economy via the creation of New Deal entitlements which now constitute the lion's share of the federal budget.
The mixture of political means with economic means typically results in special privileges for some at the expense of others. There is an automatic incentive to compromise, since the person who resists political temptations while others make full use of them automatically ends up at a competitive disadvantage. It is
easy to forget Jefferson's remark that "eternal vigilance is the price of liberty." Thus, we must restate the basic problem of political morality: if government does not restrain its nature itself, and if it has a natural tendency to expand, accumulate power, and become increasingly tyrannical, then how do citizens restrain it? Of course, government is just people. It isn't a mysterious entity standing above them.
Remember, our government is still representative; people have the right to vote, and can get rid of presidents and representatives they find unsatisfactory. Even the fact that some representatives have vastly more money and resources than their would-be challengers doesn't abrogate the fact that they can be voted out of office. In practice, of course, this doesn't always happen; today it doesn't even happen that often. A politician can retain his position by making promises to constituent groups -- special interests -- thus using the political means. Many citizens with interests of one sort or another seem to be easily tempted by such promises, and special interest groups have multiplied during the twentieth century; it would be easy to list several dozen special interest groups now influential in politics. So given that those who control government come from the citizenry (where else can they come from?), and must be supported by at least some of them, our question has an important corollary: how can citizens restrain their own temptations to pursue political as opposed to economic means of satisfying their needs and desires? Basti-at, as usual, framed the problem well:
Generally, the law is made by one man or one class of men. And since law cannot operate without the sanction and support of a dominating force, this force must be entrusted to those who make the laws. This fact, combined with the fatal tendency that exists in the heart of man to satisfy his wants with the least possible effort, explains the almost universal perversion of the law. Thus it is easy to understand how law, instead of checking injustice, becomes the invincible weapon of injustice.18
It is important not to underestimate the formidable nature of this problem, which may be the biggest source of the corruption of free markets and free societies. Both Rand's and Rothbard's denials that human beings have any "automatic instincts" is probably false if meant literally; if human beings have any instincts, they are for security, which they easily choose over freedom when maintaining freedom requires more effort than being
safe (as it so often does).19 If anything, Bastiat's and Nock's remarks are acknowledgements that human nature includes what we may call, however Nietzschean this rings, a will to security -- perhaps born of the fact that the universe around us is indifferent to our needs and ends and, viewed from a limited perspective, may often seem to openly thwart them. Different people derive a sense of security from different things. Some people pursue security by pursuing political power over others -- these people are naturally attracted to positions in government. Others pursue security by pursuing special advantages to avoid open competition -- these people are easily tempted by the political means offered by those in government.
These pursuits, arguably, corrupt the very language: rights become not individual rights to pursue one's interests without coercive interference from others, but entitlements to specific goods, often on the basis of a collective identity -- requiring coercive interference with others. Liberty does not mean economic freedom from coercion but political empowerment. Free action and personal responsibility become alien concepts. Actions become possible only given certain institutional arrangements -- to be supplied by political means. Responsibility is shifted from the individual to the individual's environment (socioeconomic, etc.). Justice itself comes to mean advantages for us (my interest group).
Yet the core truth remains that human beings are not necessarily slaves to this will to security or to any other alleged instinct. We can overcome such natural inclinations with our intelligence. This, I maintain, is a necessary truth; were it not so, the mere identification of this or any other natural inclination would be a cognitive impossibility. Overcoming them has been done; the existence of our sciences, our technologies, our industries, and many other facets of twentieth-century life show that human beings are capable of overcoming their wills to security with a wide variety of intellectual, technological, and economic achievements.
Today, however, philosophies which emphasize security over truth and liberty have risen to power. Egalitarianism, for example, stresses the moral imperative of making all individuals and groups as economically equal as possible -- automatically placing moral and political shackles on anyone who tends to soar ahead of the pack. Socioeconomic determinism regards an
19As H.L. Mencken puts it in his cynical Notes on Democracy,
individual as a product of immediate circumstances -- automatically placing his capacity for independent thought, action, and personal responsibility in doubt. The social sciences of the past 150 years have been a great impetus to these developments, as well as having benefited directly from them as established disciplines in modern public universities. Since the various features of the socioeconomic environment can be observed, categorized, and to some extent manipulated politically, many political intellectuals have contributed directly to an expanded government, ideally with themselves (or their proteges) at the helm. Such people believe that they constitute an elite which alone has the knowledge, wisdom, and motivation to redress social inequalities, and to build, from the center outward, a progressively more egalitarian state. Of course, a moment's thought should make it clear that egalitarianism is an illusion; no citizen or group of citizens would be equal, either politically or economically, to the egalitarians themselves, who would remain a powerful political elite. Nevertheless, promises of cradle-to-grave security have often proven irresistible. Though overcoming the will to security with intelligence is possible, this is no more automatic than any other act of human cognition; it takes effort. For many people today, making this effort will be very hard -- some have almost a lifetime of false promises to overcome.
The genuine elite in a free society is an elite of talent, ability, and achievement. Its members have obtained their standing through work and accomplishment, not through coercive interference with the honest labors of others. An elite of achievement must be contrasted with the elite of privilege which develops from increased use of the political means under an expanding central government, requiring coercive interference with others and making it more and more difficult for honest, hardworking citizens to function economically. When an elite of privilege takes power, individuals showing evidence of genuine talent, ability, and the capacity for achievement become a threat. Eventually, the latter must take action. Among their possible courses of action may be organization and secession from the geographical domain controlled by the elite of privilege. We therefore turn to the question of a right of secession itself.
FROM INDIVIDUAL RIGHTS TO A RIGHT OF SECESSION
Premise (1) of the neosecessionist argument thus emerges triumphant; it is up to human beings to conquer their weaknesses. When their governments get dictatorial enough, people will rise to the occasion. For whenever elites of privilege seize the helm
of government, individuals of ability -- or merely uncorrupted integrity -- will begin first to chafe with discomfort and, when not recognized, engage in more and more active forms of rebellion. The will to security, after all, is not simply an impulse to legislate oneself into political slavery; under conditions of political repression it can be re-tooled into a servant of liberty. In practice, a government-supplied cradle-to-grave security becomes less and less distinguishable from repression -- meaning that there is more security in both political and economic freedom than in bondage.
In addition, there remain those individuals, however few in number, who realize through their own force of intellect that economic liberty is superior to political bondage, and that an expanding government is therefore not to be trusted. These individuals will maintain the ideals of individuals' rights to life, liberty, and justly acquired property, and to the belief that government should be limited to recognizing and protecting these rights. Some of these individuals will write down their thoughts where they will be available for anyone motivated to seek them out. Hence, despite the natural tendency of governments to accumulate power, a belief in liberty and its benefits will survive -- despite lack of official recognition, and even in the face of opposition (witness the survival of Ayn Rand's ideas in the face of the open hostility of the twentieth-century intellectual establishment). Among the resulting notions will be major alterations in government, ranging from secession to complete dissolution.
John Locke addressed the problem of when the "dissolution of governments" is justified:
The constitution of the legislative is the first and fundamental act of society, whereby provision is made for the continue ation of their union under the direction of persons and bonds of laws made by persons authorized thereunto by the consent and appointment of the people, without which no one man or number of men amongst them can have authority of making laws that shall be binding to the rest. When any one or more shall take upon them to make laws, whom the people have not appointed so to do, they make laws without authority, which the people are not therefore bound to obey; by which means they come again to be out of subjection and may constitute to themselves a new legislative as they think best, being in full liberty to resist the force of those who without authority would impose anything upon them.20
Locke believed, in other words, that citizens have a fundamental right to abolish a government which oversteps its legislative bounds and abuses its authority. Locke discusses a number
of circumstances under which governments are dissolvable, but not all pertain to a right of secession. For example, Locke discusses the right of a citizenry to dissolve a government which is neglectful. Other circumstances do raise the question of secession, such as what happens when governments betray their trust: "The legislative acts against the trust reposed in them when they endeavour to invade the property of the subject, and to make themselves or any part of the community masters or arbitrary disposers of the lives, liberties, or fortunes of the people."21 The trust of government is the protection of rights, e.g., the right to justly-acquired property. Those in government who substitute their own agendas have abrogated this trust. Locke goes on:
Whenever the legislators endeavour to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people who are thereupon absolved from any further obedience, and are left to the common refuge which God hath provided for all men against force and violence. Whensoever, therefore, the legislative shall transgress this fundamental rule of society, and either by ambition, fear, folly, or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people, by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people who.have a right to resume their original liberty, and by the establishment of a new legislative, such as they shall think fit, provide for their own safety and security, which is the end for which they are in society.22
The same applies to what Locke called individual "supreme executors":
He acts also contrary to his trust when he either employs the force, treasure, and offices of the society to corrupt the representatives and gain them to his purposes, or openly pre-engages the electors and prescribes to their choice such whom he has by solicitations, threats, promises, or otherwise won to his designs, and employs them to bring in such who have promised beforehand what to vote and what to enact. Thus to regulate candidates and electors, and new-model the ways of election, what is it but to cut up the government by the roots, and poison the very fountain of public security?23
Locke nowhere mentions secession as such. But his discussion opens the door to the issue at one crucial juncture. Virtually no
government explicitly states in any official document that one or more of the regions under its authority may secede or that it may not; the issue is simply never breached. Locke tells us:
If a controversy arise betwixt a prince and some of the people in a matter where the law is silent or doubtful, and the thing be of great consequence, I should think the proper umpire in such a case should be the body of the people; for in cases where the prince hath a trust reposed in him and is dispensed from the common ordinary rules of the law, there, if any men find themselves aggrieved and think the prince acts contrary to or beyond that trust, who so proper to judge as the body of the people -- who, at first, lodged that trust in him -- how far they meant it should extend? ...
[If the people] have set limits to the duration of their legislative and made this supreme power in any person or assembly only temporary, or else when by the miscarriages of those in authority it is forfeited, upon the forfeiture, or at the determination of the time set, it reverts to the society, and the people have a right to act as supreme and continue the legislative in themselves, or erect a new form, or under the old form place it in new hands, as they think good.24
Thus, for Locke, a given government, headed by a given sovereign, was not a permanent and unalterable institution. The citizenry had the right to replace their sovereign, and even replace their government. Does this include the right to organize and divorce themselves from a government which has betrayed its trust? The suggestion here is that where the law itself is silent, the people decide. Thus, if a group of people has a serious complaint against their sovereign, and they wish to secede, they have every right to do so.
Locke, again, does not say this explicitly, and it would be putting words in his mouth to attribute to him any unqualified claim of a right of secession. Thomas Paine, however, picked up a century later where Locke left off, defending the rights of the then-flourishing thirteen colonies against abusive British elites of privilege. Paine endorsed essentially the same natural-rights philosophy as Locke. In Paine's The Rights of Man, we read:
Natural rights are those which always appertain to man in right of his existence. Of this kind are all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the rights of others.25
In Common Sense, Paine, having lived in the colonies only a few months, forcefully attacked the British elite of privilege, and argued on behalf of American colonists that:
A government of our own is our natural right: And when a man seriously reflects on the precariousness of human affairs, he will become convinced, that it is infinitely wiser and safer, to form a constitution of our own in a cool deliberate manner while we have it in our power, than to trust such an interesting event to time and chance.26
Such sentiments bore fruit on American soil with the Declaration of Independence, which qualifies as a statement of secession if anything does. Thomas Jefferson, its author, picks up the idea where Paine leaves off:
When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them to another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident: that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these rights are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to affect their safety and
happiness----[W]hen a long train of abuses and usurpations
... 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.27
Thus, those men who inspired or led the founding of the United States held that a group of citizens is morally justified in leading a separation from a government which ceases to fulfill its proper functions, violates honorable agreements, or abandons the role of a servant and assumes that of a master.
We can find occasional statements today that a right of secession exists. Some of these are very heavily qualified. Allen Buchanan discusses the right of secession in the context of group
rights, explaining the relative neglect of the topic from the alleged neglect of group rights by liberalism:
The views on secession advanced in this book . . . will . . . provide a strong case for revising liberal doctrine's apparent refusal to recognize group rights as fundamental moral or constitutional rights. This result in turn will help to explain why liberalism, in spite of its emphasis on self-determination, diversity, and consent, has not included a right to secede but has instead remained largely silent on secession. . . .
Listening to Buchanan, one would think that the concept of group rights had played virtually no role in twentieth-century moral philosophy public policy. This, of course, is very strange.
My hypothesis is that the issue of secession has been an embarrassment that liberals have sought to ignore because it challenges two fundamental tenets of liberalism: the universalism that is a chief part of liberalism's inheritance from the rationalism of the Enlightenment, and the preoccupation with individual rights to which liberalism has been led by its conviction that the ultimate unit in the moral universe is the individual person. . . .
Liberalism's conviction that what matters most, morally speaking, are individuals, and its hostility toward those who would devalue the individual in the name of the collective ... make it at minimum suspicious of the very concept of a group right. This suspicion has led ... some liberal thinkers to underestimate the role that group rights, including a right to secession, can play in protecting individuals and the values that they affirm in their lives -- particularly the value ... in being members of groups.28
Let us consider the views of one of those liberals whom Buchanan would unquestionably reject as too individualistic, Austrian-school economist Ludwig von Mises. Mises was no proponent of group rights in any sense of this term; yet, for Mises, there is unquestionably a right of secession that can be derived exclusively from the rights of individuals, bypassing groups completely:
If a democratic republic finds that its existing boundaries, as shaped by the course of history before the transition to liberalism, no longer correspond to the political wishes of the people, they must be peacefully changed to conform to the results of a plebiscite expressing the people's will. It must always be possible to shift the boundaries of the state if the will of the inhabitants of an area to attach themselves to a state other than the one to which they presently belong has made itself clearly known.
Whenever the inhabitants of a particular territory,
whether it be a single village, a whole district, or a series of adjacent districts, make it known ... that they no longer wish to remain united to the state to which they belong at the time, but wish either to form an independent state or to attach themselves to some other state, their wishes are to be respected and complied with. This is the only feasible and effective way of preventing revolutions and civil and international wars.
[This] right of self-determination ... is not the right of self-determination of a delimited national unit, but the right of the inhabitants of every territory to decide on the state to which they wish to belong ..., the right of self-determination of the inhabitants of every territory large enough to form an independent administrative unit.
. . . If . . . one seeks to determine their political fate against their will by appealing to an alleged higher right of the nation, one violates the right of self-determination no less effectively than by practicing any other form of oppression.29
Mises takes the view that individuals may choose to separate themselves and their property from the territory claimed by an abusive government. At first glance, this sounds extreme. No doubt it runs contrary to today's prevailing opinions which owe more to Rousseau, Hegel, Marx, and Rawls, than to Locke, Paine, or the Austrian school. The former reject individualism, and see societies as quasi-organic entities in which it is the job of government, not communities of individuals, to resolve social problems in ways suitable to them. Still, the former (and their many disciples) hold that they, as intellectuals, have the knowledge and wisdom to reshape society to fit an intellectual ideal, using both the universities and expanded government -- especially the powers of the courts -- as the most convenient instruments.
It should be sufficient to show that this kind of thinking has generated a great deal of tragedy in our century. The two bloodiest tyrannies the world has ever seen, Nazism and Communism, are both variants of it. Our own society is, at present, heading in a similar direction partly due to a widespread acceptance among the influential elite that government is capable of fulfilling a myriad of tasks beyond its original purpose of protecting individuals' rights to life, liberty, and justly acquired property. The widespread relativism and nihilism (postmodernism) rampant in the universities is rapidly robbing the rest of society of its
moral compass, which would be its major weapon of resistance to the increasing control over their lives. Government, as Jefferson observed, tends to accumulate power. He wrote, "The natural progress of things is for liberty to yield and government to gain ground."30
Our government has proven to be as prone to this tendency as any, and now some fear we are progressing toward a home-grown, American brand of tyranny. This is the source of the current anti-government sentiment, and of the question of secession. Supposing that creating the government of a Constitutional republic means creating a contract between governers and governed, if either partner to the contract fails to hold up its end of the bargain, the contract may be dissolved, and the government loses legitimacy. A right of secession exists, in this case, if individual rights include the right to organize a new body politic to escape the reach of a repressive regime. These, of course, are still very general remarks. Let us turn to concrete applications.
ANOTHER LOOK AT THE WAR FOR SOUTHERN INDEPENDENCE
The above material should establish the moral right of secession, that is, it should establish premise (2) above. Now we come to the all-important question: is (3) true? For while (2) establishes a right of secession in principle, (3) holds that secession is justified at specific times. This, of course, is a far more provocative claim. Thus, it might help to consider an earlier case of secession from the Union, and to consider the arguments its defenders provided, a case we may think of as
a precedent which is cemented in our history, perhaps by the divine hand, for specific use in our day when evil and conspiring men would attempt to destroy the sovereignty of the 50 States along with the Constitution.31
Our present federal government was created when nine states ratified the Constitution, thus replacing the Articles of Confederation. The Constitution was the contract by which the states created the federal government, and limited its powers by creating specific branches of government, and by delegating specific
tasks to each, allowing each to check the powers of the others, in order to keep the whole on a short leash. The Federalist Papers were written to allay the fears of those who thought the Consti-tutiojivyould give too much power to the new federal government. While this got the Constitution ratified, it is doubtful that the /new Union was ever as stable during its first century as the history books imply.
The Constitution explained how a territory could enter the Union as a state, but was unspecific regarding secession. It is suggestive, though, that the Articles of Confederation used the term Perpetual Union which appears nowhere in the Constitution. The Federalist Papers also avoid secession as a topic, but they contain numerous references to state sovereignty. Hamilton observes that "The State governments by their original constitutions are invested with complete sovereignty."32 Madison adds: "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."33 He chastised the critics of the Constitution for thinking of the two as rivals:
the ultimate authority,... resides in the people alone, and ... will not depend merely on the comparative ambition or address of the different governments whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.34
Nevertheless, both Hamilton and Madison were convinced that there would be more danger to the Union from the states than to the states from the Union.35 This seemed to make questions of secession moot.
Belief that states had the right to secede was nevertheless widespread. Secession movements stirred in 1798,1801,1811, and 1814 for various reasons.36 A secession convention was actually held in Hartford, Connecticut, shortly after the War of 1812, to discuss the possibility of the secession of New England.37 William Rawle, an attorney and early authority on the Constitution,
was among the first to discuss secession from the constitutional point of view.
It is not to be understood, that interposition would be justifiable, if the people of a state should determine to retire from the union, whether they adopted another or retained the same form of government, or if they should, with the express intention of seceding, expunge the representative system from their code___
It depends on the state itself to retain or abolish the principle of representation, because it depends on itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases a right to determine how they will be governed.
This right must be considered as an ingredient in the original composition of the general government, which, though not expressed, was mutually understood, and the doctrine heretofore presented to the reader in regard to the indefeasible nature of personal allegiance, is so far qualified in respect to allegiance to the United States. It was observed, that it was competent for a state to make a compact with its citizens, that the reciprocal obligations of protection and allegiance might cease on certain events; and it was further observed, that allegiance would necessarily cease on the dissolution of the society to which it was due.
The States, then, may wholly withdraw from the Union, but while they continue they must retain the character of representative republics.38
According to Rawle, then, there is an implied right of secession in the Constitution. But secession is not, in his view, a step which ought to be taken lightly and frivolously.
The secession of a state from the Union depends on the will of the people of such state. The people alone as we have already seen, hold the power to alter their constitution. The constitution of the United States is to a certain extent incorporated into the constitutions of the several states by the act of the people.
The state legislatures have only to perform certain or-ganical operations in respect to it. To withdraw from the Union comes not within the general scope of their delegated authority. There must be an express provision to that effect inserted in the state constitution. This is not at present the case with any of them, and it would perhaps be impolitic to confide it to them. A matter so momentous ought not be entrusted to those who would have it in their power to
exercise it lightly and precipitately upon sudden dissatisfaction, or causeless jealousy, perhaps against the interests and the wishes of a majority of their constituents.
But in any manner by which a secession is to take place, nothing is more certain than that the act should be deliberate, clear, and unequivocal. The perspecuity and solemnity of the original obligation require correspondent qualities in its dissolution. The powers of the general government cannot be defeated or impaired by an ambiguous or implied secession on the part of the state, although a secession may perhaps be conditional. The people of the state may have some reasons to complain in respect to acts of the general government, they may in such cases invest some of their own officers with the power of negotiation, and may declare an absolute secession in case of their failure. Still, however, the secession must in such case be distinctly and peremptorily declared to take place on that event, and in such case -- as in the case of an unconditional secession, the previous ligament with the Union, would be legitimately and fairly destroyed. But in either case the people is the only moving power.39
Rawle was not alone in thinking of secession as a Constitutional right. The history of the period is replete with other such remarks. Daniel Webster commented that "If the Union was formed by the accession of the States, then the Union may be dissolved by the secession of the States." He added that
The Union is a Union of States founded upon a Compact. How is it to be supposed that when different parties enter into a compact for certain purposes either can disregard one provision of it and expect others to observe the rest? If the Northern States willfully and deliberately refuse to carry out their part of the Constitution, the South would be no longer bound to keep the compact. A bargain broken on one side is broken on all sides.40
Horace Greeley wrote in the New York Tribune:
If the Declaration of Independence justified the secession of 3,000,000 colonists in 1776,1 do not see why the Constitution ratified by the same men should not justify the secession of 5,000,000 of the Southerners from the Federal Union in 1861.
We have repeatedly said, and we once more insist that the great principle embodied by Jefferson in the Declaration of Independence that government derives its power from the consent of the governed is sound and just, then if the Cotton States, the Gulf States or any other States choose to form an independent nation they have a clear right to do it.
The right to secede may be a revolutionary one, but it exists nevertheless; and we do not see how one part can have a right to do what another party has a right to prevent. We must ever resist the asserted right of any State to remain in the Union and nullify or defy the laws thereof; to withdraw from the Union is another matter. And when a section of our Union resolves to go out, we shall resist any coercive acts to keep it in. We hope never to live in a Republic where one section is pinned to the other section by bayonets.41
Even Abraham Lincoln, in 1847, had said that "any people whatever have a right to abolish the existing government and form a new one that suits them better."42 It is clear, then, that secession was considered a live option, as was shown by additional stirrings in the years 1832, 1845, and 1856 -- some in northern states -- all prior to South Carolina's actually putting the idea to official test in December of 1860 with the Ordinance of Secession.
Many historians have contended that the southern states seceded mainly to preserve slavery. If this is true, then since any moral code taking its starting point from the individual's right to life, liberty, and justly acquired property requires the rejection of slavery, this would cast doubt on the moral legitimacy of the Confederacy. But it is doubtful there was any intent on the part of Confederate authorities to preserve slavery. First, and most obviously, the institution only affected a small percentage of the white population (under ten percent owned slaves). It seems unlikely that thousands would have gone willingly to their deaths against a numerically and militarily superior foe just to help a handful of plantation owners keep their slaves.43 Slavery was, in fact, dying out on its own. Jefferson Davis even observed that regardless of the outcome of the War for Southern Independence, the slave property of southerners "will eventually be lost."44 As Dowdey also notes:
Slavery was passing. With no importations to replace the slaves being sold south, as large plantations continued to cease the slave-system operation and few yeomen held aspirations to slave ownership, the time would come when there would be no more slaves.45
Finally, it is clear from Lincoln's own words -- unfortunately mostly unknown -- that despite his publicly stated purpose "To
free the slaves," legal equality between whites and blacks was hardly a motive force of the War. In 1858, Lincoln had stated unequivocally:
I will say, then, that I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races -- that I am not, nor ever have been, in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races.... I, as much as any other man, am in favor of having the superior position assigned to the white race.46
In a similar context, Lincoln wrote that "If I could preserve the Union without freeing the Negro, I would do so."47 He also had doubts about the feasibility of doing away with slavery: "I think no wise man has yet perceived how it could be at once eradicated without producing a greater evil even to the cause of human liberty itself."48 In other words, contrary to prevailing opinions, freeing the slaves wasn't the reason the North went to war at all!
What created the acute dilemma over slavery was the fact that while the institution was widely perceived to be immoral, it was nevertheless understood as Constitutionally acceptable. In 1857, Supreme Court Chief Justice Roger B. Taney wrote, in Dred Scott v Sanford, that "the right of property in a slave is distinctly and expressly affirmed in the Constitution."49 Taney went on to describe "negroes" as an "inferior race" whose members could not be citizens of the United States. The southern economy, moreover, had come to depend in large measure on slavery; freeing slaves all at once threatened enormous dislocation. Too, in light of the Nat Turner rebellion in 1831, many white southerners -- rightly or wrongly -- feared the growing black population too much to trust it with freedom. As a result, southern states perceived attacks on slavery as attacks on southern culture and their right of self-determination. Nevertheless, there was no special attachment to slavery as definitive of southern culture.
Lest there be any doubts as to where Jefferson Davis actually stood, the Confederate Constitution explicitly forbade importing any more African slaves, and he once vetoed a bill which he deemed in conflict with this:
Gentlemen of Congress: With sincere deference to the judgment of Congress, I have carefully considered the bill in relation to the slave trade, and to punish persons offending therein, but have not been able to approve it, and therefore do return it with a statement of my objections. The Constitution (Art. I, §7) provides that the importation of African negroes from any foreign country other than slave-holding States of the United States is hereby forbidden, and Congress is required to pass such laws as shall effectually prevent the same. . . . This provision seems to me to be in opposition to the
In other words, Davis knew the institution would gradually die out as more and more slaves were able to buy their freedom or die and not be replaced.
policy declared in the Constitution -- the prohibition of the importation of African negroes -- and in derogation of its mandate to legislate for the effectuation of that object.50
The reason the southern states gave for secession was their desire for a self-determination they saw themselves losing in the face of both government intrusions and broken agreements -- in short, to escape a federal government which had already stepped outside its bounds. In 1831, the federal government unilaterally imposed high tariffs on imports which automatically favored northern states at the expense of southern ones. South Carolina resisted, nullifying the tariff and creating the Nullification Controversy.51 The nullifiers spoke of seceding right then and there, threatening a confrontation with President Andrew Jackson which would have started the War for Southern Independence in 1831 instead of 1861. The tension was exemplified in Jackson's toast at a large dinner party: "Our Union must be preserved," to which Vice President John C. Calhoun, a South Carolinian, replied, "To our Union, next to our liberties, most dear." Jackson made it clear he would not tolerate Nullification and threatened to send troops into South Carolina if it seceded.52 South Carolina blinked, as there was as of yet no Confederacy or anything like it, meaning that the state would have been entirely on its own. But from that time forward, the northern states and the southern ones were on a collision course.
Matters began to come to a head in 1846 when territory purchased from Mexico -- what became New Mexico, Arizona, and southern California -- came with a "proviso" forbidding slavery in those states, in violation of the Missouri Compromise of 1820
which had established the legality of slavery in all new states south of the lateral from the southern boundary of Missouri extending west to the Pacific.53 Clay's Compromise of 1850 admitted/California as a non-slave state and allowed New Mexico and Utah to choose -- offering the progressively outnumbered southern states nothing. Southerners saw northerners as using the slavery issue for political and economic gain, as a means of extending their manufacturing economy. What southerners feared was not so much the end of slavery but the destruction of their agrarian way of life in the face of the growing industrialization of the North. Days before his death in 1851, Calhoun predicted that "The Union is doomed to dissolution. . . . The probability is that it will explode in an election within twelve years."54
He was right. The election of Lincoln directly precipitated South Carolina's decision to secede. The situation had deteriorated to the point where physical violence was breaking out between northerners and southerners, often with the tacit support of the northern states. The worst such incident was the murderous assault in Northern Virginia by a group of abolitionists led by John Brown in October of 1859. Southerners, offended by such actions, and even more by the North's refusal to repudiate them, were looking for an opportunity to leave the Union. As Lincoln was perceived as more hostile to southern interests than was his opponent Stephen Douglas, his election gave them the opportunity, and on 17 December 1860, South Carolinians convened to secede from the Union. Three days later, they adopted the Ordinance of Secession:
We, the people of the State of South Carolina in Convention assembled, do declare and ordain, and it is hereby declared and ordained, that the ordinance adopted by us in Convention on the twenty-third day of May, in the year of our Lord 1788, whereby the Constitution of the United States of America was radified, and also all acts and parts of acts of the General Assembly of this State ratifying amendments of the said Constitution, are hereby repealed; and that the union now subsisting between South Carolina and the other States, under the name of the "United States of America," is hereby dissolved.
Done at Charleston the twentieth day of December, in the year of our Lord, I860.55
Tracts with names like The South Alone Should Govern the South appealed to other southern states to leave the Union and form what would become the Confederacy, and by April of 1861, six more states had seceded. Soon-to-be Confederate President Jefferson Davis made some remarks which are worth our attention. In January of 1861, prior to his leaving, he told the U.S. Senate:
It is known to Senators who have served with me here, that I have, for many years, advocated, as an essential attribute of State sovereignty, the right of a State to secede from the Union.... Secession ... is to be justified upon the basis that the States are sovereign. There was a time when none denied it. I hope the time may come again, when a better comprehension of the theory of our government, and the inalienable rights of the people of the States, will prevent anyone from denying that each State is sovereign, and thus may reclaim the grants from which it has made to any agent whomsoever.56
References to slavery are conspicuous by their absence. In his 18 April 1861 address to the Confederacy at Montgomery, Alabama, Davis stated that secession and formation of a new country were justified for the same reason that the breakaway of the thirteen original colonies from Great Britain had been justified:
Our present political position . . . illustrates the American idea that governments rest on the consent of the governed, and that it is the right of the people to alter or abolish them at will whenever they become destructive of the ends for which they were established. The declared purpose of the compact of the Union from which we have withdrawn was to "establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity": and when, in the judgement of the sovereign States composing this Confederacy, it has been perverted from the purposes for which is was ordained, and ceased to answer the ends for which it was established, a peaceful appeal to the ballot box declared that, so far as they are concerned, the Government created by that compact should cease to exist.57
In an address at Richmond, Virginia, on 22 February 1862, after the North had begun waging war, Davis added:
The people of the States now confederated became convinced that the Government of the United States had fallen into the hands of a sectional majority, who would pervert that most sacred of all trusts to the destruction of the rights which it
was pledged to protect. They believed that to remain longer in the Union would subject them to continuance of a disparaging discrimination, submission to which would be inconsistent with their welfare, and intolerable to a proud people. They therefore determined to sever its bounds and established a new Confederacy for themselves.... The experiment instituted by our revolutionary fathers, of a voluntary Union of sovereign States . . . had been perverted by those who, feeling power and forgetting right, were determined to respect no law but their own will. The Government had ceased to answer the ends for which it was ordained and established.. . . True to our traditions of peace and our love of justice, we sent commissioners to the United States to propose a fair and amicable settlement... but the Government at Washington, denying our right to self-government, refused even to listen to any proposals for peaceful separation. Nothing was then left to do but to prepare for war. . . . We are in arms to renew such sacrifices as our fathers made to the holy cause of constitutional liberty.58
In short, Davis believed his cause was the same as those who originally formed the Union: to create and preserve an ideal of government by consent of the governed, an ideal he accused the North of having systematically violated. In the case of those states in the second wave of secessions -- Virginia, North Carolina, Tennessee, and Arkansas -- this was clearly the reason.
To sum up, it seems clear that on any reasonable interpretation of the Declaration of Independence and the Constitution, the South was right! If the Declaration of Independence was morally legitimate, then so was South Carolina's Ordinance of Secession and other such declarations. The peoples of the southern states were within their rights to secede from the Union and form a new sovereign unit. Premise (3) of the argument was true during the period 1830-1861; and therefore (4), the statement that secession was then justified, is also true.
1 The only two book-length works on the topic are Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder, Colo.: Westview Press, 1991), and Lee C. Buchheit, Secession: The Legitimacy of Self-Determination (New Haven, Conn.: Yale University Press, 1978). The first is marred by its subsuming self-determination in a collectivist ethos. For why this is a fault, see Steven Yates, Civil Wrongs: What Went Wrong With Affirmative Action (San Francisco: ICS Press, 1994), pp. 97-102.
2 Lansing Lamont, Breakup: The Coming End of Canada and the Stakes for America (New York: W. W. Norton, 1994).
3 For a more complete statement of this position, see Tibor Machan, Individuals and Their Rights (LaSalle, Ill.: Open Court, 1989).
4 Frederic Bastiat, The Law (Irvington-on-Hudson, N.Y.: Foundation for Economic Education,  1950), pp. 5-6.
5 John Locke, Second Treatise on Government (New York: Hafner,  1969), p. 134.
6 Ayn Rand, "Man's Rights," in The Virtue of Selfishness (New York: Signet, 1964), pp. 94-95.
7 Murray N. Rothbard, For a New Liberty: A Libertarian Manifesto (New York: Collier, 1973), pp. 27-28.
8 Ibid., p. 28.
9 Bastiat, The Law, pp. 6-7.
10 Ayn Rand, "What Is Capitalism?" in Capitalism: The Unknown Ideal (New York: Signet, 1967), p. 16.
11 Machan, Individuals and Their Rights, pp. 21-22.
12 Bastiat, The Law, pp. 9-10.
13 Albert Jay Nock, Our Enemy, The State (New York: Libertarian Review Foundation,  1973), pp. 26-27.
14 Bastiat, The Law, p. 10.
15 Clarence B. Carson, Throttling the Railroads (Irvington-on-Hudson, N.Y.: Foundation for Economic Education, 1971).
16 George Roche, The Fall of the Ivory Tower: Government Funding, Corruption, and the Bankrupting of Higher Education (Washington, D.C.: Regnery, 1994).
17 Murray N. Rothbard, America's Great Depression, 4th ed. (New York: Richardson and Snyder, 1983).
18 Bastiat, The Law, pp. 10-11.
19 As H. L. Mencken puts it in his cynical Notes on Democracy, "The common man does not want to be free. He simply wants to be safe" (New York: Alfred A. Knopf, 1926), p. 148.
20 Locke, Second Treatise on Government, pp. 229-30.
21 Ibid., p. 233.
22 Ibid. p. 233.
23 Ibid., p. 234.
24 Ibid., p. 246-47.
25 Thomas Paine, The Rights of Man (Buffalo, N.Y.: Prometheus Books,  1987), p. 43.
26 Thomas Paine, Common Sense (New York: Penguin Classics,  1986), p. 98.
27 Quoted in Paine and Jefferson on Liberty, Lloyd S. Kramer, ed. (New York: Continuum, 1988), pp. 63-64.
28 Buchanan, Secession, pp. 7-8, emphasis added.
29 Ludwig von Mises, Liberalism: In the Classical Tradition (Irvington-on-Hudson, N.Y.: Foundation for Economic Education, and San Francisco: Cobden Press,  1985), pp. 108-11.
30 Thomas Jefferson, "Letter to Colonel Edward Carrington of 1788," in The Life and Selected Writings of Thomas Jefferson, Adrienne Koch and William Peden, eds. (New York: Random House, 1994), p. 447.
31 Joseph Stumph, Saving Our Constitution From the New World Order (Salt Lake City, Utah: Northwest Publishing, 1993), p. 213.
32 The Federalist Papers, no. 32.
33 Ibid., no. 45.
34 Ibid., no. 46.
35 Ibid., no. 45.
36 Ashley Halsey, Jr., Who Fired the First Shot? (New York: Fawcett World Library, 1963), p. xiii.
37 James Ronald Kennedy and Walter Donald Kennedy, The South Was Right (Gretna, La.: Pelican Publishing, 1994), p. 312.
38 William Rawle, A View of the Constitution (Baton Rouge, La.: Land and Land,  1993), pp. 234-35, emphasis added.
39 Ibid., pp. 238-39.
40 Quoted in Kennedy and Kennedy, The South Was Right, p. 313.
41 Quoted in ibid., pp. 313-14.
42 Quoted in ibid., p. 313.
43 Ibid., pp. 34-35.
44 Quoted in ibid., p. 35.
45 Clifford Dowdey, The History of the Confederacy: 1832-1865 (New York: Barnes and
Noble Books, 1955), p. 62.
46 Ibid., p. 55.
47 Cited in ibid., p. 219.
48 Cited in ibid., p. 6.
49 Quoted in Halsey, Who Fired the First Shot? p. 18.
50 Quoted in Kennedy and Kennedy, The South Was Right, p. 332.
51 William W. Freehling, Prelude to Civil War: The Nullification Controversy in South
Carolina 1816-1836 (New York: Oxford University Press, 1965).
52 Dowdey, The History of the Confederacy, p. 38.
53 Ibid., p. 31.
54 In ibid., pp. 350-51.
55 In South Carolina: A Documentary Profile of the Palmetto State, Elmer D. Johnson
and Kathleen Lewis Sloan, eds. (Columbia: University of South Carolina Press, 1983), pp. 350-51.
56 Quoted in Kennedy and Kennedy, The South Was Right, pp. 316-17.
57 Quoted in ibid., p. 322.
58 Quoted in ibid., pp. 328-29.