Must all States agree before One can Secede?

Must all States agree before One can Secede?

by Ben Miller

Lincoln reasoned the Constitution was a contract, and as such, required all States who were party to the contract to agree should one State want to withdraw. In his inaugural address of 1861, he said:

If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?

Notice that Lincoln couldn’t bring himself to emphatically claim that the consent of all parties to a contract was required before a contract could be rescinded—he framed his opinion as a question. Perhaps Lincoln, the lawyer, couldn’t allow Lincoln, the politician, to make such a dodgy claim.

There are several reasons why Lincoln’s argument is specious, beginning with the basics of contract law whereby, absent any terms and conditions addressing the withdrawal of a party, it’s a “contract at will” and can be ended by any party with reasonable notice—and without cause.

While the Constitution does speak to the process of adding States to the Union through Article IV, Section 3: “New States may be admitted by the Congress into this Union,” there is no corresponding provision addressing the withdrawal of States. Therefore, without any term or termination provisions, our Constitution is nothing more than a “contract at will” between the States. The Tenth Amendment—reserving such unspecified powers to the States—further bolsters this right of the individual States, and the individual States alone, to decide the issue of withdrawing from the agreement.

It is also noteworthy that the peaceful withdrawal from the Constitution by a few States in 1860-61 did not interfere with the continued performance of those States remaining in the Union. The Constitution therefore remained intact and unbroken without grounds for objection due to any harm or interference in the performance of the Compact by either the central government or the remaining States. Not that the withdrawal of a State from an “at will” contract must be done without harming any of the remaining parties; it does not, but it’s an interesting footnote to the events of 1860-61.

But what about cause? Some have claimed that unless there is evidence showing that any seceding State’s rights are being abused, there is no right to withdraw from the Compact. As explained above, there is no language in the Constitution addressing the issue of termination, either with or without cause, and absent language defining the terms of withdrawal, the States are “at will” to terminate their participation. Here again, the Tenth Amendment rules, with the States having the unfettered right to decide the issue—cause or no cause.

The fallacy of the “cause” argument is even more problematic when one considers who is to judge if a State’s cause for withdrawal is sufficient to justify such an action. Without guidance from the Constitution, or the delegation of such authority to the federal government, there is no party empowered to make such a determination—again, leaving the matter entirely up to the individual States.

That said, the issue of cause is essentially irrelevant, particularly so after more than two hundred years of the federal government’s incessant encroachment into areas never authorized along with their assumption of powers never delegated.

There is also precedent to consider since those nine States that withdrew from the Articles of Confederation in 1788-89 did so without securing the approval of all the other States. This precedent is even more remarkable since there are no provisions in our Constitution, as there were in the Articles of Confederation, proclaiming the term of this compact to be perpetual, and requiring unanimous consent to change.

Finally, it’s impossible to imagine the Founders agreeing to this Compact had there been a provision allowing other States to hold sway over any State wanting to withdraw from a Union whose central government routinely breached their Constitution. Any student of history knows our Founders would have soundly rejected such preposterous conditions.

Reprinted with Permission, © 2010, Secession University.

Deo Vindice

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