Re: Was Secession Legal? Part 15
>If this is true, “The earliest denials that the Constitution would allow states to secede from the Union go back to 1787 and the very drafting of the document.”, then I am sure you can site specifics and not leave us hanging in mid-air. – Johnny Reb 1865
Of course.
The only discussion relevant to the right of secession at the Constitutional Convention occurred on July 23, 1787. The question came up tangentially, in the context of a discussion about whether the Constitution should be ratified by state legislatures, or by special conventions representing the people of each state. Three men addressed the question. Quoting now from James Madison’s notes of the debates in the convention:
“Col. MASON [George Mason, Virginia] considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it…. Another strong reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Govt. would stand in each State on the weak and tottering foundation of an Act of Assembly….”
“Mr. ELSEWORTH [Oliver Ellsworth, Connecticut]….. It was said by Col. Mason
1. that the Legislatures have no authority in this case.
2. that their successors having equal authority could rescind their acts.
As to the 2d. point he could not admit it to be well founded. An Act to which the States by their Legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself….”
Mr. MADISON [James Madison, Virginia] thought it clear that the Legislatures were incompetent to the proposed changes…. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter.
1. A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.
2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.”
To summarize: Mason wanted the Constitution ratified by conventions, because he thought that othderwise a future state legislature could simply “unratify” the Constitution, thus withdrawing from the Union. Ellsworth disagreed. He though that no state would be able to be able to “recede” from the constitutional compact regardless of whether it was ratified by state legislatures or by state conventions. Madison supported Mason and disagreed with Ellsworth. According to Madison, the Constitution, if ratified by state legislatures, would be a mere treaty. The obligation to adhere to a treaty was merely “moral,” not legal. If ratified by state conventions, the Constitution would be what it said it was — a constitution. If so ratified, the states would not have a legal right to withdraw from the compact even in cases where the Constitution was violated by some of the states.
It is noteworthy that no one at the convention spoke in favor of the notion that states should have the constitutional right to “recede from the compact.” – Gary Charbonneau
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