“Long Live Secession”
By Christopher Ketcham
Jan. 20, 2005 | The idea of an American right of secession — a state’s right to abandon the union — today invites a veritable cyclone of scorn and bafflement. Secessionism, you will be told, is immoral, treasonous, seditious, the failed machination of slave-holding Southerners whose nutty dream died in the judgment of 1865. “What insanity it is to reopen this issue,” says Pauline Maier, professor of American history at MIT.
What you will not hear is that secessionism is as old as the states themselves, that it was not always a reviled idea, that it cleaves to the heart of a celebrated but perhaps outmoded American principle — the rebellion against centralized power — and that it is a founding American act enshrined in our most revolutionary document. “[W]henever any Form of Government becomes destructive,” counsels the Declaration of Independence, “it is the Right of the People to alter or to abolish it, and to institute new Government.”
Although secessionism today is politically impossible, if tenuously legal, the secession specter has arisen again, waking to the Declaration’s call to self-governance. In 2005, it is the blue-state Northerners, bitter from the defeat of Nov. 2, who are, ironically, wearing its robes.
If their plaints have an epicenter, it is in Charlotte, Vt., in the wood-frame house of Thomas Naylor, professor emeritus, agitator, author, Rage Against the Machine fan, and founder and chair of the “Second Vermont Republic.” Naylor seeks the rebirth of Vermont as the independent nation it was between 1777 and 1791. White-haired, jowly and soft-spoken, Naylor describes his little band of “rebels” (the Second Vermont Republic boasts 125 card-carrying members) as “a peaceful, democratic, libertarian, grassroots movement opposed to the tyranny of the United States,” which has become “too big, too centralized, too intrusive, too militarized, and too unresponsive to the needs of individual citizens and small communities.”
Like the original red-state secessionists, it is to the founding documents — the Declaration of Independence and the Constitution of the United States — that Naylor turns to buttress his belief in the morality and legality of secession. “We are enmeshed in a global system of conquest and destruction in which Corporate America and the United States government manipulate and control the lives of millions of ostensibly free individuals,” he writes in his “Vermont Manifesto,” published in 2003. “How many Americans are prepared to die to make the world safe for McDonald’s, Wal-Mart, 747s, gas-guzzling SUVs, the Internet, Bill Gates, and the rest of the Forbes 400 richest Americans?”
Naylor comes to his radicalism by a not uncommon boomerang of contrary experience. He grew up in the 1940s in Jackson, Miss., one-time hotbed secessionist slave state, but hated the states’-righters who lamented the “war of Southern independence.” Naylor kicked his way out of Jackson and went on to found a software company that sold $50,000-a-pop programs to Fortune 500 companies. After he sold the enterprise in 1980, he claims to have never again touched a computer.
For 30 years, Naylor was a professor of economics at Duke University, where he became best known as the co-creator of a freshman course on the giant topic of the “meaning of life” and as the coauthor of the subversive, anti-consumerist book “Affluenza.” He also worked as a management consultant to corporations and governments worldwide — including, fatefully, the Soviet Union, in whose peaceful collapse Naylor happens to see the future of the United States of America.
If the dark comparison holds — the United States, according to Naylor, enjoys a similar far-flung geography, a one-party political system disguised in multiparty rhetoric, a corporate socialism that defies free markets, and a congressional incumbency as stable as the Politburo — then Vermont is the antidote. By this, Naylor means the Vermont of small towns, small farms, small businesses, local governance, grassroots democracy, green activism: Vermont as the gentle Switzerland of North America (but armed to the teeth, as Vermonters enjoy hunting in the woods).
The push for the Second Vermont Republic is no anomaly. Today there are secession movements afoot in Hawaii and Alaska, both complaining, with some validity, that fraud and coercion forced their entrance into the union. In New York, activist and author Jason Flores-Williams, lately best known for his disruptions at the Republican National Convention, plans a New York City secession movement “as much Andy Warhol as it is Tom Paine,” he says, predicting his “secession parties” will become “the most happening cultural events in NYC, events that echo up and down the hierarchy.”
Flores-Williams might consider contacting the people at Republic of Atlantica, which imagines a seaboard megalopolis nation stretching from Boston to Washington, D.C. Three thousand miles to the west, the Republic of Cascadia seeks to comprise Oregon, Washington and British Columbia as the country “whose software is on 97 percent of the world’s computers.” The group’s Web site warns, “For too long have our people put up with indifference and condescendence from distant seats of power.”
Most recently, on Nov. 15, a former evangelical minister from California named Jeff Morrissette announced the founding of the Committee to Explore California Secession, or Move On California. California as a nation, Morrissette notes, would be the world’s fifth-largest economy — larger than those of China, France, Italy and Canada. Among Morrissette’s “train of abuses” is the brazen piracy of the California energy crisis in 2000 and 2001, which resulted in $9 billion in overcharges to consumers — “economic sabotage,” as Morrissette describes it, engineered by Enron and other energy traders close to the Bush administration.
“I’m not sure that secession is legal or constitutional,” Morrissette says. “But I would certainly draw an analogy to the colonists and King George. The colonists didn’t ask. They simply declared it done.” He adds: “The legality and constitutionality are really a moot point. New nations are born by a declaration of independence.”
The Constitution is silent on the matter of secession — neither denying nor authorizing — and up until the Civil War, the silence was the object of tortured interpretation. It was axiomatic among many antebellum constitutional scholars, both North and South, that if the states were once sovereign entities that had acceded to joining the union, then they implicitly retained the right to rescind the treaty and withdraw. In essence, it was argued, the Constitution’s silence implied consent to the right of secession.
The 10th Amendment appears to back this argument. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,” the amendment reads, “are reserved to the States respectively, or to the people.” In other words, states are delegated powers, not sovereignty. Sovereignty remained with the people of the state.
Antebellum thinking was typified by Alexis de Tocqueville’s assessment in “Democracy in America.” “In uniting together, [the states] have not forfeited their nationality; nor have they been reduced to the condition of one and the same people,” Tocqueville observed in 1835. “If one of the states choose to withdraw from the compact, it would be difficult to disprove its right of doing so, and the Federal Government would have no means of maintaining its claims directly by force or right.”
Secession was taught at West Point to young cadets like Robert E. Lee and U.S. Grant. Petulant states in the formative years of the republic habitually threatened it, with Yankees, and abolitionists especially, showing an early fondness for cutting loose from a union that increasingly catered to Southern slaveholder interests. In 1804, lawmakers in New England and New York plotted a failed secession movement, and eight years later, during the War of 1812, the threat to New England’s trade with English Canada was enough to prompt a second and wider Northeastern cry for departure, resulting in the official complaint of the Hartford Convention of 1815.
So it was that on the eve of the Civil War, in the spring of 1861, secession as a basic American principle inspired dozens of Northern newspapers to editorialize on behalf of the Southern independence movement. New York City’s newsmen were particularly noisy in their support. “If the cotton States decide they can do better out of the Union,” said the New York Tribune, organ of abolitionist publisher Horace Greeley, “we insist on letting them go in peace. The right to secede may be a revolutionary right, but it exists nevertheless.” The New York Herald offered: “Each State is organized as a complete government, possessing the right to break the tie of the Confederation. Coercion, if it were possible, is out of the question.” The day after Jefferson Davis was inaugurated president of the Confederate States of America, the Detroit Free Press warned: “An attempt to subjugate the seceded States, even if successful, could produce nothing but evil — evil unmitigated in character, and appalling in extent.”
The counterpoint — however unpopular in the press and on the street — had the benefit of being espoused rather eloquently by the newly elected president. In his 1861 inaugural address, Abraham Lincoln distilled the anti-secession argument to its essence. He claimed that no American state had the right to secede because (among other reasons) “no government proper, ever had a provision in its organic law for its own termination.” Somewhere out there, beyond the letter of the law, Lincoln said, the “organic law” of the government provides for the “Union” as an infinite entity, “indestructible” and “perpetual.”
In fact, a “perpetual union” established in 1781 under the Articles of Confederation, grandfather to the Constitution, was indeed rendered, in the words of the Constitution’s preamble, “more perfect” in the abiding document that was ratified by nine of the 13 states in 1791. “Perpetual union” was dropped from the Constitution’s final language because the sovereign states refused to accept the concept — in the written contract, anyway — of an indissoluble bond under the new government. But the real significance of “more perfect union” is hardly clear: What exactly did the founders mean by “perfection”?
“How do we know,” asks Columbia law professor Michael Dorf, writing in FindLaw, “that the ‘perfection’ of the Union required stronger rather than weaker bonds?” “A ‘more perfect Union’ between states presumably means they will be more perfectly joined,” says Daniel Farber, a professor of law at UC-Berkeley and the author of “Lincoln’s Constitution.” However, Farber admits that the question of the legality of secession of 1861 is likely unanswerable, again, because of the silence of the founding document. “My conclusion is that, on balance, the anti-secessionist argument is stronger,” he says. “But since the original Constitution doesn’t expressly speak to the subject, it’s impossible to prove this conclusion beyond a reasonable doubt.”
If current scholarship can’t answer the question, then we might look to the telling record of the rump Congress of 1861 in its legislation following the secession fever that spring. On March 2, after seven states had already seceded, an amendment was proposed to outlaw their departure. Today, Pepperdine University law professor H. Newcomb Morse asks the obvious question: “Why would Congress have even considered [Constitutional] amendments forbidding or restricting the right to withdraw from the Union if any such right was already [prohibited] under the Constitution?”
Adding to doubts about Lincoln’s logic was his odd use of the marriage metaphor in explaining the concept of the union. He blasted the kind of marriage that the South had in mind: “The Union, as a family relation,” Lincoln averred, “would not be anything like a regular marriage at all, but only as a sort of free love arrangement — to be maintained on what that sect calls passionate attraction.”
Sanford Levinson, a University of Texas law professor and constitutional scholar, takes exception to this line, for the argument can be made that free love among the states is exactly what the founders envisioned. “Lincoln’s view of secession seems clearly wrong,” Levinson wrote in a FindLaw column in 2003. “After all, few of us today support a view of marriage that demands its maintenance whatever the degree of unhappiness (or worse) it brings to one of the parties.” Levinson upends Lincoln’s metaphor, noting that “every marriage ‘constitution’ [has] a de facto secession provision. And for good reason: One suspects that many people would hesitate to get married if divorce were legally impossible.”
In the 1780s, the sovereign American states were indeed hesitant, enough so that three of them — Virginia, New York and Rhode Island — wrote escape clauses into their state ratification documents inexplicitly preserving the right to secede. North Carolina and Rhode Island at first refused to join the union, during which time the nascent nationalist government regarded them as foreign sovereigns.
As Levinson argues, the respectful treatment given North Carolina and Rhode Island “indicates that all the states were in an important sense sovereign when they entered into the Constitution.”
By dint of his iconic stature and the kindness of historians (and his assassination, which rendered Lincoln tragic), Lincoln’s claims of the illegality of Southern secession come to us pure, unalloyed and unassailable across the judgment of the ages. But Lincoln was not the moral paladin that the hagiographic textbooks portray him to be.
We might take a moment to consider the maverick history — some call it the real history, others denounce it as a blasphemic, spiteful revision — that places Lincoln as the first of the imperial presidents, an opportunist who in service of a vast expansion of federal power twisted the law in the name of what neoconservatives (who happen to be Lincoln lovers all) call moral clarity.
Loyola College professor of economics Thomas DiLorenzo, in his recent book “The Real Lincoln,” argues — and is much attacked for it — that Lincoln’s “moral clarity” was entirely fiscal. Lincoln as the inheritor of the Whig/Hamiltonian principles of centralized government, writes DiLorenzo, fought the war of 1861-65 not to abolish slavery or gestate “a new birth of freedom” but to erect high protective tariffs that would promote Northern industry (industry that bankrolled the Republican Party), while government would offer subsidies to companies building canals and railroads. Lincoln presided, says DiLorenzo, over the bloody birth of the American corporate-welfare imperium.
While DiLorenzo has his objectors, it’s clear from Lincoln’s own words that the blood of the Civil War was not shed, as popular convention would have it, in service of destroying slavery (which likely would have died a natural death from economic, technological and mass immigrant pressures). Lincoln in the summer of 1862 told Horace Greeley, “If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it … What I do about slavery, and the colored race, I do because I believe it helps to save the Union.”
Notably, the 1862 Emancipation Proclamation arrived just two weeks before that year’s gubernatorial elections, which lends weight to the suggestion that freeing the slaves was a political maneuver; after all, politicians do not make earth-shattering decisions on a whim two weeks before an election. The Emancipation Proclamation freed the slaves where they were already free, in the North, and freed them where it had no jurisdiction, in the Confederacy. It also had the effect of stirring up violent opposition to three Republican governors who were expected to challenge Lincoln in 1864. The governors were toppled from office by an electorate driven as much by racism as disgust at what appeared to be a dictatorial fiat.
And if saving the union was Lincoln’s sole purpose, then breaking the law appeared to be his method. One wonders what kind of union he hoped in the end to save. As DiLorenzo notes, Lincoln was the first and only president to suspend habeas corpus. He shut down hundreds of newspapers that preached peace or criticized his administration, arrested thousands of political dissenters en masse, censored telegraph communications, used federal troops to intervene in elections, even deported a congressional opponent. Church ministers too felt his heavy hand: They were threatened with imprisonment if they failed to include at the beginning of each service a prayer for Lincoln and the preservation of the union.
According to Edward S. Corwin, writing in 1947 in his book “Total War and the Constitution,” Lincoln probably “invented” the war-powers doctrine that has since provided such convenient legal cover for militarist ventures issuing from the White House. Oddly appropriate, then, that George W. Bush, announcing “victory” in his war, should have landed on the USS Abraham Lincoln. Following the attacks of Sept. 11, some news outlets, notably the New York Times, went so far, not incorrectly perhaps, as to dub Bush “Lincolnesque.”
Which brings us back to zealous Thomas Naylor and the modern-day secessionists. Unfortunately, they face a Supreme Court decision barring the path to disunion — the 1868 case of Texas vs. White, in which Lincoln’s ex-treasurer and court appointee Salmon P. Chase, who wrote the legislation that financed the Civil War, issued the judicial coup de grâce to secession. Chase’s justification in the highest court was fundamentally the same as Lincoln’s on the brink of war, and almost identical in language. Chase said that despite Texas’ having been an independent republic before joining the union in 1845, it had no right to secede. “The Constitution,” Chase wrote, “in all its provisions, looks to an indestructible Union, composed of indestructible States.”
Some scholars question Chase’s objectivity, given that he was a war appointee and the war’s public financier. “There must have been an overwhelming fatefulness in Chase’s mind,” writes John Remington Graham, the author of “Constitutional History of Secession,” and an amicus lawyer in the failed Quebec secession movement in Canada during the 1990s. “The country [had] suffered a million casualties in combat, and had probably lost another four hundred thousand from starvation. This enormous conflict had cost something like three-fourths of the assessed value of all taxable property in the United States in 1860, and had multiplied the national debt fifty-three times in only four years.” Under the circumstances, Graham claims, “[Chase] could not write the truth, so he wrote something else.”
The secession issue, however, was collateral to the issue at law in Texas vs. White, which at bottom concerned the legitimacy of state bond sales during the secessionist period of 1861-65. The secession question would have been directly considered in providing Jefferson Davis, president of the Confederate States of America, a fair and speedy trial to answer the treason charge leveled in federal court following his arrest in May 1865. (It was a treason, wrote Harper’s Weekly, “so towering, so sanguinary, so causeless” that the magazine, and many others, called for Davis’ death.)
But Davis was not tried. He was held for two years in prison and then released in 1867 on a $100,000 bond — paid for, in part, by none other than abolitionist Horace Greeley. Today, Davis apologists — he was the first “president,” they say, to appoint a Jew to his cabinet, and the only one to adopt a black child — assert that he was never tried because federal prosecutors feared losing the case.
In any case, Texas vs. White, as penned by Salmon Chase, serves as established law. However, Columbia law professor Dorf suggests that a loophole exists in the Chase decision: Texas vs. White may have made unilateral secession illegal but the door remains open to secession “through consent of the states,” as Chase wrote — what Dorf calls secession by mutual agreement.
Although the Constitution provides no method on how to effect this friendly goodbye, Dorf suggests the process of constitutional amendment, meaning a two-thirds vote in each house of Congress and ratification by three-fourths of the state legislatures, which ensures that a majority of the federalized states agrees to the departure of the seceding state. Whether this is doable depends on the graces of polities and politicians who fully realize that if one state goes, all could go — and the United States would then be well on its way to collapse. And, clearly, it’s not doable.
“Secession is not possible today without violence,” exclaims MIT’s Maier, the author of the acclaimed “American Scripture: Making the Declaration of Independence.” “To assume something different is mad. It’s to follow the example of the Southern secessionists who thought that they could just leave the union peacefully — and, nuttier still, get a part of the unsettled territory as a parting gift. It’s almost as crazy as the idea that once you topple a dictator, democracy happens, much as weeds appear on a plowed field. Isn’t it time that Americans began learning something from history? Or must we again bleed ourselves into wisdom?”
Naylor is undeterred. He offers that no state is more historically prepared for going it alone than Vermont, which he calls “the most radical state in the Union” in terms of town meetings and direct democracy. Vermont, Naylor says, was the first state to outlaw slavery in its constitution of 1777, the first to mandate “universal manhood suffrage,” and is currently one of only two states that allows incarcerated felons to vote. It has no death penalty and virtually no gun-control laws, yet remains one of the least violent jurisdictions in America. It has no military bases, no strategic resources, few military contractors. All three members of its congressional delegation voted against the Iraq war resolution.
Vermont is rural and wild, with the highest percentage of unpaved roads in the nation, the highest percentage of residents living in the countryside; it was the first state to ban billboards alongside highways. It is rebellious: It fathered Ethan Allen and his Green Mountain Boys and 200 years later elected Howard Dean. With its vigorous environmental-impact laws, Vermont fended off the depredations of Wal-Mart superstores longer than any other state; Montpelier is the only state capital in America without a McDonald’s restaurant. Following mock secession debates in seven Vermont towns in 1990, all seven voted for secession.
As it happens, Naylor in his fringe venture has found a rare advocate in the figure of George F. Kennan, the venerated former U.S. ambassador to the Soviet Union and architect of Cold War containment, who envisioned in disenchanted old age just such a dismembering of the United States as Naylor espouses. Kennan as early as 1993 observed that the country might be broken into nine republics whose boundaries serendipitously align with the likes of Atlantica, Cascadia, and the free republics of Alaska and Vermont. “There is a real question,” Kennan observed, “as to whether bigness in a body politic is not an evil in itself.”
When Naylor wrote Kennan outlining a map of New England that united Maine, New Hampshire, and Vermont, Kennan responded with a thunderous letter dictated from his sick bed: “I write to say that in the idea of the three American states’ ultimate independence, whether separately or in union, I see nothing fanciful … I see no other means of ultimate preservation of cultural and societal values that will not only be endangered but eventually destroyed by an endlessly prolonged association [with] the remainder of what is now the U.S.A.”
And should the “remainder” refuse Vermont’s peaceable request to separate — and the nation will — what could Vermont do in answer?
Naylor is a pacifist and will not take up arms, though he admits that Vermont, with its mountains and forests, and high gun ownership among an historically contrarian people, is ideal ground for a guerrilla insurgency. “This is a call for nonviolent revolt against the world’s global superpower by 608,000 people,” he says. “What will the superpower do? Will it burn off the sugar maple trees? Will it destroy all the black-and-white Holstein cows? Just imagine trying to enslave independent-minded Vermonters.”