Proof that the
Michael T. Griffith
@All Rights Reserved
original union given to us by our founding fathers was supposed to be
voluntary.† States were supposed to be
able to peacefully withdraw from the
When the Constitution was adopted by the votes of States at Philadelphia, and accepted by the votes of States in popular conventions, it is safe to say there was no man in this country, from Washington and Hamilton on the one side to George Clinton and George Mason on the other, who regarded our system of Government, when first adopted, as anything but an experiment entered upon by the States, and from which each and every State had the right to peaceably withdraw, a right which was very likely to be exercised. (Henry Cabot Lodge, Daniel Webster, Boston, Massachusetts: Houghton, Mifflin, and Company, 1899, p. 176)
Thomas Jefferson, the author of the Declaration of
Independence and the third president of the
None other than President James Buchanan admitted in his last State of the
Union address that the federal government did not have the right to force
seceded states back into the
The question fairly stated is, Has the
Constitution delegated to Congress the power to coerce a State into submission
which is attempting to withdraw or has actually withdrawn from the
Confederacy?† [Note: It was common to refer to the
After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government. It is manifest upon an inspection of the Constitution that this is not among the specific and enumerated powers granted to Congress, and it is equally apparent that its exercise is not "necessary and proper for carrying into execution" any one of these powers. So far from this power having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution.
It appears from the proceedings of that body that on the 31st May, 1787, the clause "authorizing an exertion of the force of the whole against a delinquent State" came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed:
"The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."
Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: "Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress," evidently meaning the then existing Congress of the old Confederation.
Without descending to particulars, it may be safely asserted that the power to make war against a State is at variance with the whole spirit and intent of the Constitution. (State of the Union Address, December 3, 1860)
The founding fathers' fears about the federal government using force against a state can be seen in Article IV, Section 4 of the Constitution itself, wherein they stipulated that there could be no federal intervention in a state to "protect" the state against "domestic violence" unless the state's legislature or governor requested such intervention:
So the federal government can't protect a state against "domestic violence" (i.e., violent internal unrest) unless the state's legislature or governor request such protection.
Constitutional scholar and former law professor John Remington Graham discusses the framers' refusal to allow the federal government to use force against a state and the reflection of this refusal in IV:4:
It is an historical fact that, on two occasions during their deliberations, the framers in the Philadelphia Convention voted to deny Congress the power of calling forth military forces of the Union to compel obedience of a state, and on two further occasions they voted to deny Congress the power of sending the Federal army or navy into the territory of any state, except as allowed under Article IV, Section 4 of the United States Constitution--to repel a foreign invasion or at the request of its legislature or governor to deal with domestic violence. (A Constitutional History of Secession, Gretna, Louisiana: Pelican Publishing Company, 2002, p. 287)
None other than the great Justice Joseph Story, who was certainly no staunch advocate of states rights, acknowledged that IV:4 required state application before the federal government could intervene in the state to suppress domestic unrest:
It may not be amiss further to observe, (in the language of another commentator,) that every pretext for intermeddling with the domestic concerns of any state, under colour of protecting it against domestic violence, is taken away by that part of the provision, which renders an application from the legislature, or executive authority of the state endangered necessary to be made to the general government, before its interference can be at all proper. (Commentaries on the Constitution of the United States, 1833, volume 3, sections 1808, 1819; see also http://press-pubs.uchicago. edu/founders/documents/a4_ 4s14.html)
In commenting on IV:4, early American legal giant George Tucker, known as the "American Blackstone," noted that the clause was a protection against the federal government using the pretext of providing "protection" as an excuse for unjustified intervention in a state:
It may not he amiss further to observe, that every pretext for intermeddling with the domestic concerns of any state, under color of protecting it against domestic violence is taken away, by that part of the provision which renders an application from the legislative, or executive authority of the state endangered, necessary to be made to the federal government, before it's interference can be at all proper. (Tucker, editor, Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States, Volume 1, Appendix: Note D, Section 17:6)
Another highly esteemed early American legal scholar, William Rawle, not only agreed but added that IV:4 did not provide any authority for the federal government to use force against a state that had left the Union:
Hence, the term guarantee, indicates that the United States are authorized to oppose, and if possible, prevent every state in the Union from relinquishing the republican form of government, and as auxiliary means, they are expressly authorized and required to employ their force on the application of the constituted authorities of each state, "to repress domestic violence." If a faction should attempt to subvert the government of a state for the purpose of destroying its republican form, the paternal power of the Union could thus be called forth to subdue it.
Yet it is not to be understood, that its 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, and thereby incapacitate themselves from concurring according to the mode now prescribed, in the choice of certain public officers of the United States.
The principle of representation, although certainly the wisest and best, is not essential to the being of a republic, but to continue a member of the Union, it must be preserved, and therefore the guarantee must be so construed. 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
To make the case even more concrete, we find the following explanation of
IV:4 by James Madison in the Records of the Federal
2. The guarantee [of IV:4] is
1. to prevent the establishment of any government, not republican
3. to protect each state against internal commotion: and
2. against external invasion.
4. But this guarantee shall not operate in the last Case without an application
from the legislature of a state. (Records of the Federal Convention, 2:182,
The "last case" is item 3, "to protect each state against
internal commotion" (which was
Abraham Lincoln had no legal right to invade the Southern states, even
under his bizarre claim that they were still in the
ABOUT THE AUTHOR:† Michael T. Griffith holds a Masterís degree
in Theology from The Catholic Distance University, a Bachelorís degree in
Liberal Arts from Excelsior College, two Associate in Applied Science degrees from
the Community College of the Air Force, and an Advanced Certificate of Civil
War Studies and a Certificate of Civil War Studies from Carroll College.† He is a two-time graduate of the Defense
Language Institute in