Disunion And The Right To Recede In The Founding Era

On July 19, 1788, as Federalist and Anti-Federalist delegates at the sharply divided New York ratifying convention debated the relative merits of the Constitution, Alexander Hamilton wrote to James Madison. The New York convention sought to include a series of conditions and amendments before ratifying, and Hamilton solicited Madison’s opinion as to whether New York could exercise the right to withdraw, or “recede,” from the union if, after a specified length of time, the recommended amendments were not adopted. Hamilton wrote:

You will understand that the only qualification will be the reservation of a right to recede in case our amendments have not been decided upon in one of the modes pointed out in the Constitution within a certain number of years, perhaps five or seven.[1]

New York’s principal concern—which was shared by several of its sister states—was that in adopting the Constitution, it would be effecting its third political disaffiliation in a mere twelve years (the British Empire, the Revolutionary Government, and the Confederation) and entering into its fourth constitutional union. Given this demonstrable pattern of separation and disunion, their hesitation and skepticism were certainly prudent and justified. Accordingly, it was perfectly logical that convention delegates would seek to establish a definitive safeguard in the event the Constitution, upon a full trial, should prove to be as defective, tenuous, and dysfunctional as their three previous governments had been.

The question of disunion under the Constitution was delicate and complicated, and coming from Hamilton, it was singularly revealing. Not only had he been a delegate to the Constitutional Convention, but he was also an ardent nationalist who had authored fifty-one of the Federalist Papers, in which he fastidiously examined and exegetically discussed the principles and complexities of the Constitution in detail.[2] Hamilton was, in fact, among the foremost constitutional experts in the United States, yet the Constitution was sufficiently ambiguous on this point that even he did not know if it allowed for a disaffected state to withdraw.

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While political volatility, instability, and disunion characterized the political experience of the colonies under the British Constitution and the states under the Revolutionary government and the Articles of Confederation, the Constitution was intended to establish a measure of constancy and stability. Nevertheless, the question of permanency remained unresolved, and the nature of the union remained fragile because, whether deliberately or inadvertently, the Framers did not explicitly prohibit the right to recede or promulgate a law of perpetuity in their new plan of government.

The perpetual nature of the United States union is most often treated as a historical absolute, and the political and constitutional right of a state to recede is frequently dismissed summarily; however, the historical record reveals these issues to be considerably more nuanced and balanced in the founding era.

Disunion: From the British Empire to the Articles of Confederation

It is generally understood that the United States owes its existence to an act of political disunion. In July 1776, renouncing the authority of Parliament and requesting the permission of absolutely no one, thirteen North American colonies boldly and unapologetically declared their independence from the British Empire. There was, of course, no constitutional basis or statutory right for the colonies to rupture the British Empire in this manner; that right, should it ever be exercised, belonged exclusively to Parliament. Nevertheless, the American colonists undauntedly and vociferously proclaimed to all the world that they possessed the God-given natural right “to alter or abolish” their system of government.

King George III, his ministry, and Parliament all flatly rejected the natural law rights claimed by the colonists and waged a prolonged war in an effort to prevent the colonies from leaving the empire and achieving political independence. Indeed, to the extent that the British Constitution acknowledged natural law, its interpretation specifically denied the right of revolution. Sir William Blackstone, the esteemed English jurist, commented:

It must be owned that Mr. Locke and other theoretical writers, have held, that “there remains still inherent in the people ‘a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for when such trust is abused; it is thereby forfeited, and devolves to those who gave it. But however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing . . . so long therefore as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.[3]

Blackstone’s observation was an insipid irrelevancy to the colonists, and the American revolutionaries, undeterred, proceeded to effect a separation. Their successful revolution concluded with the Treaty of Paris in 1783, and an American political precedent had been established and a corresponding doctrine confirmed. In particular, and as communicated by the Declaration of Independence, a political faction, or body, had the right to withdraw from a larger system of government when it judged, for itself, that such government no longer served its purposes or was conducive to its pursuit of happiness. The American Revolution had unleashed the destabilizing and potentially uncontrollable social force of political self-determination. Or, as English philosopher Jeremy Bentham dyslogistically exclaimed, the American Congress had “put an ax to the root of all government.”[4]

The first independent government the Founders established after the separation from Great Britain, the Revolutionary Government of the Second Continental Congress, assumed the reins of power in the vacuum created by the forced departure of Parliament’s sovereign authority. It governed for approximately five years, from July 4, 1776, until March 1, 1781, before it naturally dissolved in favor of the Confederation Congress.

It was originally intended that the American Revolutionary Government would be ephemeral and transitory, with the Articles of Confederation ratified expeditiously. However, disputes, suspicions, and distrust among the thirteen sovereignties delayed the ratification for years, and by default, the Second Continental Congress simply continued to exercise authority until all thirteen states had ratified the Articles.[5]

And while it governed, it did so on the de facto basis of common acquiescence, as it held no formal charter or written instrument under which to operate. Nevertheless, for nearly five years it performed all the essential and critical functions of a wartime government (i.e., raising and regulating an army and navy, borrowing money, issuing currency, conducting requisitions, appointing officers and ambassadors, forming alliances, and negotiating treaties). The de facto authority of the Second Continental Congress was, again, peacefully relinquished to the government of the Articles of Confederation when they were finally ratified in March 1781.

Pursuant to the terms of the Articles of Confederation, the union of states it governed was explicitly and emphatically declared to be perpetual. Specifically, Article XIII stated:

The Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.[6]

Nevertheless, when the American people and their political leadership subsequently became dissatisfied with the system of government under the Articles—and in plain violation of its explicit terms of unanimity and legislative primacy—they determinedly dissolved that union.[7] Notably, in that instance, there were no complaints or accusations of despotism, abuses, or tyranny, as there had been under the British Imperial Constitution. Instead, there was merely an inefficient, incompetent, and failing form of government that required correction and renewal.

Madison understood the issues surrounding both procedural breaches and the attendant potential criticisms perfectly well, but he dismissed them because he also understood the supreme governing principle established by the Revolution: the transcendent right of the people to alter or abolish their system of government. In Federalist 40, contemplating the complaints and objections regarding the unanimity and legislative sovereignty requirements of Article XIII, he appealed directly to the Declaration of Independence:

They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.”[8]

Madison’s use of the Declaration’s natural law philosophy and language in Federalist 40 to morally and intellectually justify the unlawful abrogation and dissolution of the Articles of Confederation necessarily and significantly extended the scope of the people’s right of political self-determination. In the original context of the Revolution, political separatism, it might be argued, was exclusively a moral response to the insufferable injustices of tyranny and despotism. Now, there was no iniquitous misconduct from which to escape, so Madison democratized and applied Jefferson’s ideal in a benign manner as a convenient administrative instrument to transition from one government to another.

Federalist 40 was merely one of an abundance of the Federalist Papers authored by Madison and Hamilton that either implicitly contemplated or explicitly advocated a general dissolution of the professedly perpetual Articles of Confederation.[9] In fact, in order to adopt the Constitution, it was necessary to completely abandon the Articles; as the Supreme Court later said in Owings v. Speed, “both governments could not be understood to exist at the same time.”[10] And when the Federalist Papers repeatedly considered and discussed the potential fracturing of the union into either three or four confederacies, or even as many as thirteen separate and distinct sovereignties, it openly acknowledged the possibility of disunion.

Just as the Founders willfully disregarded the lawful constraints imposed by the British constitutional order against rupturing the empire, they similarly ignored the clear textual limitations prohibiting disassociating from the Articles of Confederation. The voluntary confederated union under the “perpetual” Articles of Confederation was, therefore, deliberately and systematically dismantled after only eight years, and the Founders had thereby enlarged the rights of political self-determination.

The Constitution: The Right to Recede

By 1788, the people of the United States had established the undisputed right of political self-determination and experienced three successive forms of government within approximately twelve years. Then on March 4, 1789, the American people instituted a fourth government, the federal republic under the United States Constitution. And for all his estimable constitutional acumen and expertise, Alexander Hamilton, as reflected by his July 19 letter to James Madison, did not know if the Constitution permitted a state to recede from the union.

Hamilton’s disquietude was eminently reasonable because, significantly, one of its provisions, Article VII, could readily be interpreted to implicitly endorse separation and disunion—or at least acknowledge the possibility—as it required only nine states to ratify for it to become operative.[11] The states that chose not to ratify were politically independent of the United States and free to decide their fate. Indeed, as of March 4, 1789, when the Constitution commenced, the constitutional union of American states had been severed, at least temporarily, because two states, Rhode Island and North Carolina, had not yet ratified.[12]

Unlike the defunct Articles of Confederation, the Constitution did not declare a firm law or doctrine of perpetuity, nor did it expressly prohibit disunion. Accordingly, when the New York Convention became especially contentious and ratification doubtful, Hamilton consulted Madison regarding the possibility of a conditional withdrawal.

Indeed, while Hamilton was equivocal, Madison—who himself had authored twenty-nine of the Federalist Papers and would come to be known as the Father of the Constitution—was equally conflicted on the subject. While it is true that Madison answered Hamilton firmly in the negative and claimed the Constitution must be ratified “in toto, and forever,” it is also true that Madison, only weeks earlier, had explicitly and contradictorily advised the Virginia Convention that the state would assuredly have the right to abandon the Constitution if it proved injurious or dissatisfactory: “If we be dissatisfied with the national government, if we choose to renounce it, this is an additional safeguard to our defense.”[13]

Other Virginia delegates held the same opinion, including Edmund Pendleton, a dedicated Federalist and esteemed lawyer and judge who served as president of the Virginia Convention. Pendleton, in fact, maintained that should Virginia have been in error in ratifying the Constitution, its people would simply “wholly recall our delegated powers.”[14]

Moreover, in the Federalist Papers, both Madison and Hamilton again identified conditions and circumstances under which there could be a separation or dissolution of the union. Madison, in number 45, remarked, “Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union.”[15] And in Federalist 16, Hamilton considered the unhappy prospect of a conflict between the states and the union and concluded:

When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions . . . would be apt to carry the States against which the arms of the Union were exerted . . . The first war of this kind would probably terminate in a dissolution of the Union.[16]

It is immediately apparent that these particular observations thoroughly complicate the idea that the union is intrinsically and necessarily perpetual. While neither comment is an endorsement of the right to recede, they do, nevertheless, serve as a profound constitutional commentary because they plainly assert that there are potential circumstances under which the union may be dissolved (public unhappiness and civil war).

Historically, as evidenced by Rhode Island’s and North Carolina’s status as independent republics in 1789 and 1790, and theoretically, as evidenced by Madison’s pronouncement in Federalist 45 and Hamilton’s remarks in Federalist 16, the continued existence of the American union was conditionally dependent upon its ability to promote the safety, welfare, and happiness of its citizens.

Conclusion

In 1803, St. George Tucker, a Revolutionary War veteran and patriot, professor of law at the College of William and Mary, constitutional scholar, and federal judge for the District of Virginia, examined the question of separation and disunion under the Constitution in an appendix to his edition of Blackstone’s Commentaries, entitled View of the Constitution. It is generally considered the first constitutional exegesis published after ratification. In it, Tucker wrote:

The federal government then, appears to be the organ through which the united republics communicate with foreign nations, and with each other . . . its sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent.[17]

Tucker’s discussion of the subject was considered commonplace in 1803 and, ironically, was immediately given practical consideration. Indeed, in 1803, Thomas Jefferson negotiated the Louisiana Purchase from France, and it created an intense political imbroglio. The purchase treaty antagonized many New England statesmen for a multitude of reasons, among them the possibility, even likelihood, of diminished political power. One United States Senator, Timothy Pickering, a staunch Federalist from Massachusetts, suggested that a dissolution of the Union would provide the solution: “The principles of our Revolution point to the remedy—a separation.”[18]

The Massachusetts Senator continued: “I do not believe in the practicability of a long-continued union. A Northern confederacy would unite congenial characters, and present a fairer prospect of public happiness; while the Southern States, having a similarity of habits, might be left “to manage their own affairs in their own way.”[19]

As St. George Tucker and Senator Timothy Pickering so amply demonstrated, the federal union of states under the United States Constitution was not a mandate from heaven that cosmically and spiritually bound its adherents for all eternity. Instead, the union was a decidedly imperfect and artificial voluntary association of political sovereignties with a proven history of numerous disaffiliations. Throughout the founding era, exactly how long the union would remain intact and in what manner it might be dissolved remained a ponderous question.

[1] Alexander Hamilton James Madison, July 19, 1788, founders.archives.gov/documents/Hamilton/01-05-02-0012-0076.

[2] Hamilton originally claimed to have authored sixty-three of the Federalist Papers, leaving twelve in dispute. Modern scholars largely agree the twelve disputed papers were authored by Madison.

[3] Sir William Blackstone, Commentaries on the Laws of England, ed. Wilfrid Prest (New York: Oxford University Press, 2016), 1:108.

[4] Jonathan Lind, An Answer to the Declaration of the American Congress (London, 1776), 122.

[5] Maryland delayed ratifying the longest and withheld its assent until Virginia relinquished its land claims North of the Ohio River.

[6] Articles of Confederation of 1781, art. XIII.

[7] Article XIII required the approval of Congress and the unanimous approval of the state legislatures to alter the Articles, not specially elected state conventions.

[8] James Madison, “Federalist No. 40,” in The Federalist Papers, ed. Clinton Rossiter (New York: Penguin, 1961), 249.

[9] Alexander Hamilton, Federalist Nos. 1, 6, 7, 8, 9, 11, 12, 13, 15, and Madison, Federalist Nos. 10, 14, The Federalist Papers, 27-113.

[10] Owings v. Speed, 18 U.S. (5 Wheat.) 420 (1820).

[11] U.S. Constitution, art. VII.

[12] North Carolina did not ratify until November 21, 1789, and Rhode Island ratified on May 29, 1790.

[13] Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787 (Washington, DC: Jonathan Elliot, 1836) 3:414-415 (June 4, 1788).

3 Ibid./

[14] Ibid., 37.

[15] Madison, “Federalist No. 45,” The Federalist Papers, 286.

[16] Hamilton, “Federalist No. 16,” The Federalist Papers, 109.

[17] St. George Tucker, View of the Constitution With Selected Writings, ed. Clyde N. Wilson (Indianapolis: Liberty Fund, 1999).

[18] Timothy Pickering to George Cabot, January 29, 1804, press-pubs.uchicago.edu/founders/documents/v1ch7s24.html.

[19] Ibid.