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BOOK REVIEW
IF AT FIRST YOU DON’T SECEDE,
TRY, TRY AGAIN
ROBERT C. BLACK*
The Vermont Manifesto: The Second Vermont Republic
By Thomas H. Naylor
Philadelphia: Xlibris Corp., 2003, 128 pages
INTRODUCTION
Vermont was not part of the United States during the American
Revolution and the Confederation period. It was an independent republic
from 1777 until 1791, when it entered the Union as the fourteenth state.
Drawing upon this heritage, Thomas H. Naylor, a retired economics
professor, has issued a manifesto to Vermonters to reassert their historic
independence and secede from the United States. Their alleged historic
virtues—an incongruous amalgam of communitarian harmony and rugged
individualism—would flourish afresh, he believes, in an independent state.1
The independent Vermont Republic was not independent by choice. It
was, in the words of a sympathetic historian, “the Reluctant Republic.”2
Vermont became independent because it was not allowed to join the United
*
1.
2.
B.A., University of Michigan; J.D., Georgetown University; M.A. (Jurisprudence and
Social Policy), University of California (Berkeley) School of Law; M.A. (Criminal
Justice), State University of New York (Albany); member, New York and California
bars. Portions of this text were previously published in The Thought, and appear here
with the permission of its editor and publisher, Ronald C. Tobin.
THOMAS H. NAYLOR, THE VERMONT MANIFESTO: THE SECOND VERMONT REPUBLIC 41
(2003).
See generally FREDERIC F. VAN DE WATER, THE RELUCTANT REPUBLIC: VERMONT
1724–1791, at iii (1941) (intending “to lighten a shadowed chapter in American
general history and to emphasize the implausible attainments of a remarkable and
independent people”).
839
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States during the period of the Second Continental Congress or the Articles
of Confederation, and it was not immediately admitted to the United States
under the Constitution. The involuntary independence of Vermont
resembles, in our time, the independence of Singapore. Singapore, whose
Prime Minister had declared that “secession is out,” was nonetheless
expelled from Malaysia.3
Professor Naylor makes a plausible, if not entirely convincing, case
that Vermont would be better off outside the United States. These
pragmatic policy considerations will not, however, be discussed here. Nor
will I discuss the realistic prospects for secession, given that “secession
varies inversely with the centralization of the state,”4 and the American
State is today far more centralized than it was in 1776, 1791, or 1861.
Professor Naylor does not expect secession anytime soon.5 He
acknowledges, and deplores, the fact that “[s]ince 1791 Vermont has
become a lot less independent and considerably less sustainable
economically, agriculturally, environmentally, and culturally than it once
was.”6 Indeed, he is not the first or the only modern advocate of Vermont
independence.7
Rather, Professor Naylor’s assertions and assumptions about the
constitutionality of secession will be taken seriously enough to be explored.
He is certain that the United States Constitution does not now, and never
did, prohibit secession from the Union.8 This is hardly untilled ground, but
lawyers, as I have argued, should take seriously popular movements based
on legal ideas, even ideas remote from the legal mainstream.9 Professor
Naylor reviews a variety of contemporary movements for independence
3.
4.
5.
6.
7.
8.
9.
C.M. TURNBULL, A HISTORY OF SINGAPORE 1819–1975, at 297 (2d ed. 1989).
DONALD BLACK, THE BEHAVIOR OF LAW 86 (1976).
NAYLOR, supra note 1, at 19.
Id. at 73.
See, e.g., FRANK BRYAN & BILL MARES, OUT! THE VERMONT SECESSION BOOK 3
(1987) (predicting “the coming secession of Vermont from the Union in 1991”).
NAYLOR, supra note 1, at 79.
See Robert C. Black, “Constitutionalism”: The White Man’s Ghost Dance, 31 J.
MARSHALL L. REV. 513, 520 (1998) (book review) (noting that “the very absurdity of
so-called Constitutionalism should be more alarming than amusing to lawyers”). Yet
another of these fringe populist movements fixated on a particular conception of the
Constitution—this one has a much better argument than Professor Naylor’s or the
Constitutionalists’—is the “fully informed jury” movement, which expects great
things from juries once they are informed of their power to nullify the law, i.e., to
decide not only if a law is constitutional but, even if it is, to decide if it is just to apply
it in a particular case. See, e.g., Robert C. Black, FIJA: Monkeywrenching the Justice
System?, 66 UMKC L. REV. 11, 18–20 (1997) (attempting “to advance and improve
the resurgent debate over jury nullification in two ways: empirical and conceptual”).
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from the United States.10 It is entirely possible for intelligent laymen like
Professor Naylor, who have not undergone our professional socialization—
especially if they approach law and history with a preformed ideology—to
read that law and its history, in the view of historians and lawyers, in
unusual ways.
I believe, for two reasons, that such arguments deserve the courtesy of
a refutation. The first is that it is a professional responsibility of lawyers to
educate the public about the law.11 The second is that lawyers themselves
might want a refresher course on the great constitutional issues the Civil
War was fought over, but which they might not be able to debate
effectively with Professor Naylor or his followers. A lawyer who does not
thoroughly understand what is wrong with Professor Naylor’s arguments is
a lawyer who does not really understand the constitutional order. And there
are such lawyers. Law review articles upholding the right of secession were
published in 1986 and 1992.12 A Constitutional History of Secession,
apparently the work of a Southern lawyer, was published in 2002.13 The
10.
11.
12.
13.
NAYLOR, supra note 1, at 82–84.
MODEL RULES OF PROF’L CONDUCT pmbl. ¶ 6 (2005) (“[A] lawyer should further the
public’s understanding of and confidence in the rule of law and the justice system
because legal institutions in a constitutional democracy depend on popular
participation and support to maintain their authority.”). The ABA, always controlled
by the lawyerly elite although always pretending to speak for all lawyers, does not
entertain the possibility that these mandates are inconsistent. It is by no means
obvious that the more the public knows about the legal system, the more it supports it.
Usually, experience with the courts—which is a learning experience—erodes support
for them. Austin Sarat, Studying American Legal Culture: An Assessment of Survey
Evidence, 11 LAW & SOC’Y REV. 427, 439 (1976).
Robert W. McGee, The Theory of Secession and Emerging Democracies: A
Constitutional Solution, 28 STAN. J. INT’L L. 451, 452 (1992) (advancing “an
expansive theoretical view of the right of secession,” and concluding that “secession
is a workable option for minority groups, although practical obstacles exist”); H.
Newcomb Morse, The Foundations and Meaning of Secession, 15 STETSON L. REV.
419 (1986) (discussing the theoretical underpinnings of secession and nullification
with an analysis of states’ rights).
JOHN REMINGTON GRAHAM, A CONSTITUTIONAL HISTORY OF SECESSION (2002).
Graham’s book is mainly a justification of Southern secession. The dedication states
in part: “Sacred to the memory of the Army of Northern Virginia and the Army of
Tennessee.” Id. at 5. Hold on to your Confederate money! Other titles available from
the same publisher include JAMES RONALD KENNEDY & WALTER DONALD KENNEDY,
THE SOUTH WAS RIGHT! 9 (1994) (arguing in favor of “the legitimacy of the South’s
claim of … right to recall [its] delegated powers and to establish a new government”).
Presumably Graham’s book was unavailable to Professor Naylor when he wrote his
Manifesto, as it is not cited. But more recently, he has recommended the book.
Thomas H. Naylor, The Second Vermont Republic, Frequently Asked Questions
(n.d.) (on file with New England Law Review).
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recent Presidential election, once again evidencing a deeply divided
electorate, has already occasioned proposals for the “blue” states to secede
from the “red” states.14 Professor Naylor’s book has been lauded by liberal
economist John Kenneth Galbraith, by conservative economist Walter E.
Williams (why does this topic so interest economists?), by diplomat George
F. Kennan,15 and by the editor of Utne magazine, who calls Professor
Naylor a “Tom Paine for the 21st century.”16 Secession is a recurring
temptation.
Professor Naylor’s constitutional position is that the United States of
America has always been the creation of a compact of states and that the
national government is only their agent.17 The limited powers delegated to
the national government may be “recalled” by the principals, the states,
from their agent, the general government. From that premise follows
Vermont’s, or any state’s, “Constitutional right to leave the Union.” The
best summary of this position was made by John C. Calhoun: “Ours is a
system of governments, compounded of the separate governments of the
several States composing the Union, and of one common government of all
its members, called the Government of the United States. The former
preceded the latter, which was created by their agency.”18 Although
Calhoun never advocated secession, he believed in, as the logic of his
analysis supports, a state’s right of secession.19
I. BEFORE THE BEGINNING
Professor Naylor effectively commences his argument with the
Declaration of Independence20—but the independence of the states was
already compromised before July 4, 1776. From 1775 on, the Second
Continental Congress acted as the first national government of the United
14.
15.
16.
17.
18.
19.
20.
See, e.g., Joseph Curl, Blue States Buzz Over Secession, WASH. TIMES, Nov. 9, 2004,
at A1; Ian Williams, The Day After, METROLAND (Albany, N.Y.), Nov. 4, 2004, at 8.
See Christopher Ketcham, Long Live Secession!, SALON.COM, Jan. 20, 2005, available
at http://archive.salon.com/news/feature/2005/01/25/secession.
Jay Walljasper, How to Be an Expat Without Leaving Home: An Independence
Movement Arises in Vermont, UTNE, Jan.–Feb. 2004, at 66.
NAYLOR, supra note 1, at 77–78, 113.
JOHN C. CALHOUN, A DISQUISITION ON GOVERNMENT AND A DISCOURSE ON THE
CONSTITUTION AND GOVERNMENT OF THE UNITED STATES 111 (Legal Classics Library
1993) (1851) [hereinafter CALHOUN, DISQUISITION AND DISCOURSE]; see also John C.
Calhoun, Rough Draft of an Address to the People of South Carolina, in 11 THE
PAPERS OF JOHN C. CALHOUN 264, 270 (Clyde N. Wilson ed., 1978) (advocating the
view that “the Constitution is in fact, but a compact between the people of the States,
as distinct political bodies”).
CALHOUN, DISQUISITION AND DISCOURSE, supra note 18, at 300–01.
NAYLOR, supra note 1, at 17, 77.
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States.21 It authorized a Continental Army and appointed its officers,
notably its Commander-in-Chief, George Washington.22 That is how a
Virginian came to command the New England troops besieging the British
in Boston. The Congress arranged for the army’s supply, or tried to, and
prescribed its rules and regulations.23 The Congress regulated American
trade, established a Continental postal system, and established policies for
the treatment of Loyalists and relations with the Native Americans.24 It
borrowed money and issued currency.25 It initiated diplomatic dealings
with foreign nations.26
Much later, the Supreme Court would hold that even back then the
national government inherently possessed, under the law of nations,
“external sovereignty,” exclusive control of foreign relations.27 And that
position was also advanced in the early Republic. In 1795, Supreme Court
Justice William Paterson maintained that, even prior to the Articles of
Confederation, the Second Continental Congress exercised the “high
powers” of “external sovereignty.”28
At the Federal Convention, Rufus King stated,
The states were not “sovereigns” in the sense contended for by
some. They did not possess the peculiar features of
sovereignty,—they could not make war, nor peace, nor alliances,
nor treaties. Considering them as political beings, they were
dumb, for they could not speak to any foreign sovereign
whatever. They were deaf, for they could not hear any
propositions from such sovereign. They had not even the organs
or faculties of defence or offence, for they could not of
themselves raise troops, or equip vessels, for war. 29
Of course, the Continental Congress was deficient in some powers
which today, and to some extent even then, would be adjudged essential to
full sovereignty. Notably, it had no taxing power, and depended upon
voluntary state compliance with its requisitions. But the point is not
whether the national government had full sovereignty. The point is whether
21.
22.
23.
24.
25.
26.
27.
28.
29.
PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE DECLARATION OF
INDEPENDENCE, at xxi (1997).
Id. at 11.
Id.
Id. at 13.
Id. at 14.
See id. at 42; SAMUEL FLAGG BEMIS, A DIPLOMATIC HISTORY OF THE UNITED STATES
21–23 (3d ed. 1950).
United States v. Curtiss–Wright Corp., 299 U.S. 304, 316 (1936).
Penhallow v. Doane, 3 U.S. (3 Dall.) 54, 90 (1795).
Curtiss–Wright Corp., 299 U.S. at 317 (quoting 5 ELLIOTT’S DEBATES 212).
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the states did. They clearly did not. As Thomas Paine put it in 1783: “In
short, we have no other national sovereignty than as United States.”30
On May 15, 1776, the Second Continental Congress resolved that
Crown authority “should be totally suppressed.”31 On June 7, Richard
Henry Lee moved a resolution that the colonies “are absolved from all
allegiance to the British crown, and that all political connection between
them and the State of Great Britain is, and ought to be, totally dissolved
….”32 The resolution further called for efforts to form foreign alliances, and
that a committee be appointed “to prepare and digest the form of a
Confederation to be entered into between the colonies ….”33 It was
approved on July 2, 1776.34 This was the legally effective declaration of
independence.
When the vote on Lee’s resolution was postponed for three weeks (in
the hope that more states would approve independence, as they did), the
Congress also appointed a committee to draw up what we know as the
Declaration of Independence—just in case Congress should vote for
independence. Only after it did so, on July 2, did Congress debate the
Declaration of Independence, approving it on July 4, 1776.35 Independence
was the national act of the states collectively, “in General Congress,
Assembled.”36
II. THE DECLARATION OF INDEPENDENCE
A. Secession or Revolution?
John Locke is the ultimate source of the “social compact” theory of
government.37 The colonies might be said to have “seceded” from the
British Empire—although they never did say so, and there was no such
legal entity as the British Empire. They asserted no right to renounce at will
the connection to Britain. No language in the Declaration of Independence
30.
31.
32.
33.
34.
35.
36.
37.
The American Crisis XIII, in 1 THE COMPLETE WRITINGS OF THOMAS PAINE 230, 234
(Philip S. Foner ed., 1945).
MAIER, supra note 21, at 37 (quoting 4 JOURNALS OF THE CONTINENTAL CONGRESS
1774–1789, at 357–58 (Worthington Chauncey Ford ed., 1906)).
MAIER, supra note 21, at 41; see also 1 JONATHAN ELLIOT, THE DEBATES ON THE
ADOPTION OF THE FEDERAL CONSTITUTION 55 (Burt Franklin Reprints, 2d ed. 1974)
(1836).
ELLIOT, supra note 32, at 55.
Id. at 55–56.
Id. at 56.
THE DECLARATION OF INDEPENDENCE para. 4 (U.S. 1776).
See generally JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed.,
Cambridge Univ. Press 1970) (1690).
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suggests or implies that independence is a matter of withdrawal from a
political compact, much less withdrawal from a political compact as a
matter of right. Americans had no notion of, or even a word for secession
to draw upon. Instead, they invoked a right of revolution—something
entirely different, and something far from the idea that portions of a polity
might come and go as they please, as Locke made quite clear:
[S]uch Revolutions happen not upon every little mismanagement
in publick affairs. Great mistakes in the ruling part, many wrong
and inconvenient Laws, and all the slips of humane frailty will
be born by the People, without mutiny or murmer. But if a long
train of Abuses, Prevarications, and Artifices, all tending the
same way, make the design visible to the People, and they cannot
but feel, what they lie under, and see, whither they are going; ‘tis
not to be wonder’d, that they should then rouze themselves, and
endeavour to put the rule into such hands, which may secure to
them the ends for which Government was at first erected ….38
Locke’s language is noticeably similar to Jefferson’s in the
Declaration:
Prudence, indeed, will dictate that Governments long established
should not be changed for light and transient causes; and
accordingly all experience hath shewn, that mankind are more
disposed to suffer, while evils are sufferable, than to right
themselves by abolishing the forms to which they are
accustomed. But when a long train of abuses and usurpations,
pursuing invariably the same Object evinces a design to reduce
them under absolute Despotism, it is their right, it is their duty, to
throw off such Government, and to provide new Guards for their
future security.39
The Declaration recites “a long train of abuses”—real, exaggerated,
and imaginary grievances—because the Americans believed that they had
to make out a strong case of oppression in order to justify their revolution
according to their own values. Professor Naylor recites some contemporary
abuses of Vermont by the United States. Whether or not they rise to the
level of oppression required by Locke or Jefferson, which is doubtful, the
point is, the requirement of severe, protracted abuses implies that, without
them, there is no right of revolution. Professor Naylor’s assumption about
the impetus for the Declaration exemplifies an ancient confusion in the
38.
39.
Id. § 225, at 433.
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). Contemporaries noted the
resemblance. Richard Henry Lee said the Declaration had been “copied from Locke’s
treatise on government.” MAIER, supra note 21, at 124.
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meanings of the word “declare.”40 It might mean to ordain, to effectuate, to
accomplish. It might be constitutive. But it might also mean, and in this
case it does mean, merely to announce or proclaim. The Declaration of
Independence did not establish American independence—it only justified
it. “It was a paper issued subsequent to an action in order to explain that
action.”41 And “[t]he problem of sovereignty was not solved by the
Declaration of Independence.”42 Nor has anything else.
B. Constitutional Status of the Declaration
The Declaration of Independence is, in any event, not part of the law
of the United States. Strictly speaking, it did not declare independence in
the sense that it was the legislation which made America independent of
Great Britain. The Second Continental Congress had already accomplished
that when it approved Richard Henry Lee’s resolution two days before.
Rather, Jefferson and his colleagues were, in effect, expected to produce a
declaration about independence—a justification of an independence
already accomplished. Thus, the Declaration did not have—and was not
supposed to have—any legal effect. It is in the nature of a resolution or a
legal brief, not a statute. It does not purport to declare independence.
Moreover, the Declaration has never been held to be an independent source
of justiciable rights.43
But the Declaration has sometimes been invoked for the opposite
purpose: to subordinate the states. At the Philadelphia Convention, James
Wilson—one of only six men to sign both the Declaration and the
Constitution—argued that the Declaration characterized the United States
collectively as vested with the powers of war and peace, and thus was
paramount to the state constitutions.44 This argument I find unconvincing:
it goes too far. However, it does indicate how essentially contested is
almost every claim about sovereignty (a word not appearing in the
Declaration or the Constitution) or paramount authority in the arguments
eventuating in secession. And it refutes Professor Naylor’s claim that what
40.
41.
42.
43.
44.
MAIER, supra note 21, at 160–61.
GARRY WILLS, INVENTING AMERICA: JEFFERSON’S DECLARATION OF INDEPENDENCE
334 (1978).
GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776–1787, at 354
(1972).
Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting); Mark David Hall,
The Declaration of Independence in the Supreme Court, in THE DECLARATION OF
INDEPENDENCE: ORIGINS AND IMPACT 142, 145 (Scott Douglas Gerber ed., 2002).
See JOHN LANSING, JR., THE DELEGATE FROM NEW YORK 69 (Joseph Reese Strayer
ed., 1939).
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he calls the “nationalist theory” was not articulated until the 1830s.45 James
Madison, Alexander Hamilton, James Wilson, Rufus King, and others
articulated it during and after the Federal Convention. It is rather the
compact theory which was unknown to the Framers and was first
articulated by Madison and Jefferson in the Kentucky and Virginia
Resolutions of 1798.46
III. FROM THE DECLARATION TO THE CONSTITUTION
The United States of America, as some sort of loose political union,
was created by the Articles of Confederation, which Vermont was not
allowed to sign. Professor Naylor ignores the Articles, which recognized a
confederation of states—albeit not quite fully sovereign states—but which
also provided that the union, such as it was, would “be perpetual.” If it was
a perpetual union, secession was of course forbidden. In the Northwest
Ordinance of 1787, the perpetuity of the Union, its territories, and any
states created from its territories was likewise affirmed:
The said territory, and the States which may be formed therein,
shall forever remain a part of this confederacy of the United
States of America, subject to the articles of Confederation, and to
such alterations therein as shall be constitutionally made; and to
all the acts and ordinances of the United States in Congress
assembled, conformable thereto.47
The powers conferred on Congress by the Articles, as limited as they
were, certainly precluded full state sovereignty. Congress had total control
over foreign relations, treaties (states could not impose taxes inconsistent
with national treaties), and decisions as to war and peace, military and
naval forces (with some limitations). It had authority over boundary
disputes between states (such as the New York/Vermont controversy). It
had authority over weights and measures, the post office, and it could
regulate the value of coin struck by states.48 It could requisition funds from
the states. True, there was no enforcement mechanism, but the states had
nonetheless assumed the obligation to comply with these requests.49
45.
46.
47.
48.
49.
NAYLOR, supra note 1, at 78.
JOHN C. MILLER, CRISIS IN FREEDOM: THE ALIEN AND SEDITION ACTS 170 (1951).
Northwest [Territorial] Ordinance, in 1 SOURCES AND DOCUMENTS OF UNITED STATES
CONSTITUTIONS, 2d ser. 383, 388 (William F. Swindler ed., 1982).
ARTICLES OF CONFEDERATION, arts. VI, IX.; see also WOOD, supra note 42, at 359.
ARTTICLES OF CONFEDERATION, arts. VIII, XIII; KEITH L. DOUGHERTY, COLLECTIVE
ACTION UNDER THE ARTICLES OF CONFEDERATION 5 & n.7 (2001).
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IV. THE CONSTITUTION
The Constitution which replaced the Articles was intended and
universally understood, by friends and foes alike, to strengthen the Union.
It did not purport to make the Union less binding. The Framers took it for
granted that the Union was perpetual and indissoluble. This was the Union
which Vermont freely chose to enter in 1791.
Professor Naylor, invoking the always-suspect argument from
omission, asserts that nowhere in the Constitution do the states renounce
their “sovereignty.”50 Nowhere do they affirm their sovereignty either.
Indeed, to assume that the language of the Constitution is the language of
the states is to beg the question. The word “sovereignty” is not in the
Constitution. As Supreme Court Justice James Wilson stated, “To the
constitution of the United States the term SOVEREIGN is totally
unknown.”51 The argument from omission is actually an argument against
Professor Naylor: sovereignty—state sovereignty—had been affirmed,
explicitly, by the Articles.52 Its omission from the Constitution could hardly
have been an oversight.
As for Professor Naylor’s claim that “[b]y international law
sovereignty cannot be surrendered by implication, but only by an express
act,”53 it is unreferenced and apparently false. Many clauses of the
Constitution, as discussed below, could be considered express acts of
renunciation of sovereignty. Besides, why would an advocate of the
independence of self-constituted groups such as Professor Naylor pay any
more heed to international law than he does to national law?
John Remington Graham, a neo-Confederate secessionist polemic
recommended by Professor Naylor,54 quotes Alexander Hamilton in The
Federalist No. 22 as offering some support for the state compact theory—
“that a party to a compact has a right to revoke that compact”55—, at least
in allowing that “the doctrine itself has had respectable advocates.”56 This
could not be more wrong, or more perverse. Hamilton is bringing to a
rhetorical climax a strong denunciation of government under the Articles
for its incapacity to enact credible economic policies:
50.
51.
52.
53.
54.
55.
56.
NAYLOR, supra note 1, at 86.
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 454 (1793).
ARTICLES OF CONFEDERATION, art. II (“Each State retains its sovereignty, freedom and
independence, and every power, jurisdiction and right, which is not by this
confederation expressly delegated to the United States, in Congress assembled.”).
NAYLOR, supra note 1, at 86.
See supra note 13.
THE FEDERALIST NO. 22, at 146 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
Id., quoted in GRAHAM, supra note 13, at 99.
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It has not a little contributed to the infirmities of the existing
federal system, that it never had a ratification by the PEOPLE.
Resting on no better foundation than the consent of the several
Legislatures; it has been exposed to frequent and intricate
questions concerning the validity of its powers; and has in some
instances given birth to the enormous doctrine of a right of
legislative repeal. Owing its ratification to the law of a State, it
has been contended, that the same authority might repeal the law
by which it was ratified. However gross a heresy it may be, to
maintain that a PARTY to a COMPACT has a right to revoke
that COMPACT, the doctrine itself has had respectable
advocates. The possibility of a question of this nature, proves the
necessity of laying the foundations of our national government
deeper than in the mere sanction of delegated authority. The
fabric of American Empire ought to rest on the solid basis of
THE CONSENT OF THE PEOPLE. The streams of national
power ought to flow immediately from that pure original
fountain of all legitimate authority. 57
In the first place, for Hamilton, the doctrine of state “legislative
repeal,” i.e., nullification or secession revoking the compact, is a gross
heresy, even under the Articles of Confederation. Although it has
“respectable advocates,” they are fundamentally wrong.58 But the mere
“possibility” of entertaining this heresy proves the necessity of founding a
new national government under the Constitution on another basis than an
interstate compact. The new government must derive its authority from the
consent of the people, not from the state legislatures. Hamilton cannot
mean (as John C. Calhoun would later argue) the consent of the people in
and of the states from “the peoples,” not “the people” of the United
States.59 If that were so, the peoples of the states, presumably in
conventions, could withdraw their states from the compact—as in 1861.
But Hamilton clearly says that the asserted right to revoke the so-called
compact is a gross heresy, without qualifying that in favor of conventions
as opposed to legislatures.60 The new government, deriving its authority
directly from “We, the People of the United States,” is not a compact
between states. It is an independent expression of the will of the American
people, just as the state governments are expressions of their will at another
level. Or, as Supreme Court Justice Paterson explained in 1795: “[T]he
57.
58.
59.
60.
Id. at 145–46.
Id.
See id.
Id.
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people of the United States … are … the people of a single state.”61
By definition, the atom cannot be split; by definition, sovereignty
cannot be divided. But the atom has been split, and sovereignty has been
divided. Divided sovereignty is what Hamilton called “the political monster
of an imperium in imperio.”62 Yet he believed, or at least wrote, that the
states “would clearly retain all rights” of sovereignty “not exclusively
delegated” to the national government.63 John C. Calhoun, far removed
from Hamilton’s centralizing nationalism, agreed that sovereignty could
not be divided, although he too believed that sovereign powers could be
divided.64 Since sovereignty is by definition political power, any distinction
between sovereignty and sovereign rights or sovereign powers is
meaningless. Politics is about power. If, for instance, all the powers of
sovereignty are delegated, what remains of sovereignty? Also meaningless
is what Alexis de Tocqueville called “the doctrine of the sovereignty of the
people,”65 the traditional American doctrine that “the people” are
sovereign, something even Calhoun affirmed.66 But that was how the
proponents of the Constitution tried to escape the question whether the
national government or the states were sovereign.67 Then, the next question
is, which people? The people of the nation or the people of the states?
The Preamble to the Constitution states that one of its purposes is “to
form a more perfect union.”68 More perfect than what? More perfect than
the Articles of Confederation, obviously. As the Supreme Court stated in
Texas v. White in 1868, “It is difficult to convey the idea of indissoluble
unity more clearly than by these words. What can be indissoluble if a
perpetual Union, made more perfect, is not?”69
61.
62.
63.
64.
65.
66.
67.
68.
69.
Penhallow v. Doane, 3 U.S. (3 Dall.) 53, 93 (1795).
THE FEDERALIST NO. 15, at 93 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
THE FEDERALIST NO. 32, at 200 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
CALHOUN, DISQUISITION AND DISCOURSE, supra note 18, at 138–39.
See ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 36–39 (Henry Reeve trans.,
Legal Classics Library spec. ed. 1988) (1835).
CALHOUN, DISQUISITION AND DISCOURSE, supra note 18, at 138; THOMAS M. COOLEY,
A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE
LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 28 (Leslie B. Adams
1987) (1868); see also EDWARD S. CORWIN, LIBERTY AGAINST GOVERNMENT: THE
RISE, FLOWERING AND DECLINE OF A FAMOUS JURIDICAL CONCEPT 10 (1948).
See WOOD, supra note 42, at 530–32.
U.S. CONST. pmbl.
Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1869). Remarkably, the pro-Southern
(“doughface”) lame-duck Democratic President James Buchanan articulated all these
arguments in his last message to Congress on December 3, 1860. See JAMES M.
MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 246 (1988). However,
Buchanan believed he had no power to coerce seceding states whereas his successor,
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The states clearly renounced their sovereignty in Article VI, Section
1, which provides that the Constitution and laws of the United States “shall
be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.”70 Thus, all Congress has to do to thwart
secession is to pass a law against it.
Professor Naylor asserts, “Just as a group has a right to form, so too
does it have a right to disband, to subdivide itself, or withdraw from a
larger unit.”71 This might be good moral law,72 were there such a thing, but
it is bad constitutional law. The Constitution provides that “no new State
shall be formed or erected within the Jurisdiction of any other State; nor
any State be formed by the Junction of two or more States, or Parts of
States, without the Consent of the Legislatures of the States concerned as
well as of the Congress.”73
John C. Calhoun pointed to a feature of the original Constitution,
which, he maintained, indicated what he called the “federal” character of
the Union, i.e., its character as a confederacy of sovereign states. He
referred to the original arrangement whereby U.S. Senators were elected by
state legislatures.74 But the Seventeenth Amendment, providing for the
popular election of Senators, altered that arrangement in 1913.75 Other
Constitutional amendments, notably the Reconstruction Amendments,
arguably rule out secession even if it had been previously permissible.
Under the Guarantee Clause, “[t]he United States shall guarantee to
every State in this Union a Republican Form of Government ….”76 At first
70.
71.
72.
73.
74.
75.
76.
Abraham Lincoln, believed otherwise.
U.S. CONST. art. VI, § 1, cl. 2.
NAYLOR, supra note 1, at 77.
See, e.g., ALLEN BUCHANAN, SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM
FORT SUMTER TO LITHUANIA AND QUEBEC ch. 4 (1991); LUDWIG VON MISES, NATION,
STATE, AND ECONOMY: CONTRIBUTIONS TO THE POLITICS AND HISTORY OF OUR TIME
34 (Leland B. Yeager trans., 1983) (discussing the liberal nationalism of “freedomminded” people outside political associations); MURRAY N. ROTHBARD, THE ETHICS
OF LIBERTY 181 (1982) (questioning whether Laissez-fairists would recognize
secession as a moral right of government). Buchanan, however, imposes stringent
conditions on the right to secede—he does not, as do Rothbard and Professor Naylor,
believe that a group has a moral right to secede at pleasure.
U.S. CONST. art. IV, § 3, cl. 1.
U.S. CONST. art. I, § 3, cl. 1; see CALHOUN, DISQUISITION AND DISCOURSE, supra note
18, at 155.
U.S. CONST. amend. XVII.
U.S. CONST. art. IV, § 4. See generally WILLIAM M. WIECEK, THE GUARANTEE
CLAUSE OF THE U.S. CONSTITUTION 290–91 (1972) (noting that the Framers “did make
it clear that the [Guarantee Clause] established federal supremacy over the states,
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blush, that looks like Federal support for state sovereignty, especially since
the Clause further provides for protection against invasion and, on
application by the state, “domestic Violence.”77 That is its character,
according to James Madison in The Federalist No. 43.78 But Madison also
portrayed the Guarantee Clause in another light: “In cases where it may be
doubtful on which side justice lies, what better umpires could be desired by
two violent factions, flying to arms and tearing a State to pieces, than the
representatives of confederate States not heated by the local flame?”79
Bluntly restated, the message is that the Federal Government may
determine the outcome of political conflicts within a state, which is exactly
what happened in Rhode Island.80 During Reconstruction, Congress
literally reconstructed the governments of the secessionist states, and the
Supreme Court upheld the program on the authority of the Guarantee
Clause.81
Surely the feeblest of Professor Naylor’s arguments is that, because
three states ratified the Constitution conditionally, all the states reserved the
right to secede: “Each of these states explicitly retained exit rights.”82
However, no states “explicitly retained” any such rights.83 Indeed,
77.
78.
79.
80.
81.
82.
83.
which was to be preserved by the use of force to put down insurrectionary challenges,
if necessary”).
U.S. CONST. art. IV, § 4.
THE FEDERALIST NO. 43, at 291–93 (James Madison) (Jacob E. Cooke ed., 1961)
(noting that “protection against invasion is due from every society to the parts
composing it” and “[p]rotection against domestic violence is added with equal
propriety”).
Id. at 294.
See Luther v. Borden, 48 U.S. (7 How.) 1 (1849). See generally GEORGE M.
DENNISON, THE DORR WAR: REPUBLICANISM ON TRIAL, 1831–1861, at xiii (1976)
(focusing “on a pivotal moment in the historical career of the idea of popular
sovereignty and its corollary of peaceable revolution”).
Texas v. White, 74 U.S. (7 Wall.) 700, 729 (1869).
NAYLOR, supra note 1, at 86–87.
The only language which even comes close to asserting a right to secede is in the
Virginia Form of Ratification, which declared “that the powers granted under the
Constitution being derived from the people of the United States may be resumed by
them whensoever the same shall be perverted to their injury or oppression and that
every power not granted thereby remains with them and at their will ….” 10 THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1546 (John P.
Kaminski & Gaspare J. Saladino eds., 1993). But all this does is reiterate the Lockean
right of revolution as rehashed by Jefferson in the Declaration of Independence
language that nearly all Americans would assent to, in the abstract: the
Lockean/Jeffersonian position of a right of revolution when oppressions become
intolerable, not an unconditional right of secession. See supra Part II.A. It does not
even hint at the compact theory of the Federal Union. It refers to the people of the
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Professor Naylor does not cite any such reservations of rights because there
is nothing to cite. For one thing, New York replaced its conditional
ratification with unconditional ratification plus “recommendatory
amendments,”84 so we are down to two states. If conditional ratification
implies a right to secede, then unconditional ratification renounces the right
to secede. That means that forty-eight states other than Virginia and Rhode
Island—including Vermont!—have no right to secede.
Professor Naylor also neglects to mention what the “condition” was.
The reluctant ratifying states demanded a Bill of Rights as their condition
of ratification, and they got one. So even the conditionally ratifying states
have no right to secede—a deal is a deal. Nothing suggests that Virginia
and Rhode Island supposed that the Bill of Rights did not satisfy their
conditions for ratification. They claimed no right to secede, and they made
no moves to secede. The resolves of the ratifying states, whether they
ratified conditionally or unconditionally, never claim or refer to a right of
secession. The issue before them was not getting out of a Federal Union,
but getting into one. We know what they chose to do.
Perhaps most importantly, the Constitution nowhere acknowledges a
right of secession. Indeed, the subject was never even mentioned at the
Federal Convention.85 If it was ever mentioned in the debates of the state
ratifying conventions, no secessionist has ever found these mentions. And
the right was never claimed in any state constitution.
V. FROM RATIFICATION TO THE NULLIFICATION CRISIS
The first stirrings of ideas which even intimate the constitutionality of
secession are to be found in the Kentucky and Virginia Resolutions of
1798—resolutions of the legislatures of those states condemning as
unconstitutional the Alien and Sedition Acts.86 They were denounced by all
Northern legislatures, and all the other Southern legislatures responded to
them with silence.87 They assert state sovereignty and the compact theory
84.
85.
86.
87.
United States, not the state of Virginia.
John P. Kaminski, New York: The Reluctant Pillar, in THE RELUCTANT PILLAR: NEW
YORK AND THE ADOPTION OF THE FEDERAL CONSTITUTION 48, 111, 114 (Stephen L.
Schechter ed., 1985).
MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 206
(1913).
Kentucky Resolutions, 10 Nov. 1798, 14 Nov. 1799, in 5 THE FOUNDERS’
CONSTITUTION 131–35 (Philip B. Kurland & Ralph Lerner eds., 1987); James
Madison, Virginia Resolutions, 21 Dec. 1798, in 5 THE FOUNDERS’ CONSTITUTION
supra, at 135–36.
MILLER, supra note 46, at 171–72 n.30; FORREST MCDONALD, STATES’ RIGHTS AND
THE UNION: IMPERIUM IN IMPERIO, 1776–1876, at 43 (2000).
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of the Federal Union, and Jefferson’s Kentucky Resolution deduces from
that a state power of “nullification,” a word he here introduced into
political discourse.88
But neither Jefferson’s nor Madison’s resolutions (Madison wrote the
Virginia Resolution) asserts a right of secession. On the contrary, the
resolutions confirm each state’s attachment to the Union. Nullification is
not secession. Significantly, Madison had denounced the secession doctrine
in Philadelphia in 1787:
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.89
In other words, if international law allows secession, as Professor
Naylor has claimed,90 then the U.S. Constitution overrides international law
as to secession. Nothing in the Constitution subjects the United States to
international law as such. But anyway, Professor Naylor’s unreferenced
opinion is belied by all the constitutions of real nation–states. None
recognizes a right of secession, not even Switzerland’s, which is Professor
Naylor’s acknowledged model for an independent Vermont.91 How can
international law, the law of nations, affirm a right which no nation
affirms? In fact international law, though it is not perfectly clear on this
point as on so many others, is hostile to secession.92
That the Constitution was, in some sense, a “compact”—Professor
Naylor has picked up on the word93—it was a commonplace in the political
discourse of the day. Even Alexander Hamilton used that language,
88.
89.
90.
91.
92.
93.
Kentucky Resolutions, supra note 86, at 135.
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 93 (Max Farrand ed., rev.
ed. 1966).
See supra text accompanying note 53.
See NAYLOR, supra note 1, at 89–94.
“Any attempt aimed at the partial or total disruption of the national unity and the
territorial integrity of a country is incompatible with the Purposes and Principles of
the Charter of the United Nations.” Declaration on the Granting of Independence to
Colonial Countries and Peoples, G.A. Res. 1514, 15 U.N. GAOR, 15th Sess., Supp.
16, at 66, art. 6, U.N. Doc. A/4684 (1960), quoted in LEE C. BUCHHEIT, SECESSION:
THE LEGITIMACY OF SELF-DETERMINATION 86 (1978). This is not to say that the world
community has never sympathized with some secessionist movements, such as those
of the Soviet republics (ironically, the Soviet Constitution was unique in purporting to
recognize a right of secession). But it has not recognized a general right of secession
in international law.
See NAYLOR, supra note 1, at 77–78.
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although he was then referring to the Confederation under the Articles.94
That this arch-nationalist spoke in those terms suggests that social compact
language does not necessarily entail a right of secession, especially since
the Articles of Confederation, to which he was referring, explicitly
preclude secession. At the Federal Convention, Oliver Ellsworth, a future
Federalist and U.S. Supreme Court Chief Justice, thought that the act of
unification “becomes a compact from which no one of the parties can
recede of itself.”95 Nobody contradicted him. Supreme Court Justice Henry
Baldwin, for instance, in his Charles River Bridge concurrence in 1837,
stated that the Constitution was not merely a compact—it was a corporation
created by charter or grant from the states; and yet, “The state has made an
irrevocable restriction on its own once plenary sovereignty, which it cannot
loosen, without the concurrence of such a number of states, as are
competent to amend the constitution.”96 For states, the Federal Union is
like a Roach Motel: they check in, but they do not check out. As a practical
matter, that was settled by the Civil War.
Professor Naylor also invokes, as a precedent for secession, the
proceedings of the Hartford Convention in 1815, without going into the
issues there.97 It was a gathering of delegates from the New England states,
which were opposed to the War of 1812.98 The Convention never did more
than hint at secession.99 With the almost simultaneous arrival of news of a
peace treaty and the spectacular American victory in New Orleans,
Americans turned away with revulsion from the Hartford Convention and
the secessionism it was supposed to stand for.100 Secessionism was
everywhere discredited for almost a generation. The flirtation with
secession—which was diametrically opposed to the party’s nationalist
94.
See THE FEDERALIST NO. 21, at 130 (Alexander Hamilton) (Jacob E. Cooke ed.,
1961).
95. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 91 (Max Farrand ed., rev.
ed. 1966).
96. Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge, 9 L. Ed.
773, 940 (1837) (Baldwin, J., concurring). Justice Baldwin’s concurrence appears in
HENRY BALDWIN, A GENERAL VIEW OF THE ORIGIN AND NATURE OF THE
CONSTITUTION OF THE UNITED STATES 134, 138 (Da Capo Press 1970) (1837),
reprinted in 9 L. Ed. 938 (1837). See also generally STANLEY I. KUTLER, PRIVILEGE
AND CREATIVE DESTRUCTION: THE CHARLES RIVER BRIDGE CASE (1971) (providing
legal, political and historical background).
97. See NAYLOR, supra note 1, at 78.
98. MCDONALD, supra note 87, at 69–70.
99. RICHARD BUEL, JR., SECURING THE REVOLUTION: IDEOLOGY IN AMERICAN POLITICS,
1789–1815, at 285 (1972).
100. Id. at 289–91; DONALD R. HICKEY, THE WAR OF 1812: A FORGOTTEN CONFLICT 308
(1989).
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principles—eliminated the Federalist Party from national and, for the most
part, state politics.101
VI. NULLIFICATION VS. SECESSION
Professor Naylor asserts that “numerous” states nullified federal acts
prior to the Battle of Fort Sumter,102 which occurred on April 12, 1861.103
Such incidents were not numerous, however. In citing Kentucky (1799) as
his first example, Professor Naylor must be construing Jefferson’s
Kentucky Resolution as nullifying the Alien and Sedition Acts.104 But it did
not purport to do so. Rather, it invited the other states to join Kentucky in
collectively nullifying the Acts.105 It was only a resolution—a statement of
principle—like the other one Jefferson wrote in 1776. What has often
happened is that individuals violated federal law—and state law—when
they could, with the complicity of state officials (such as during
Prohibition). That is not nullification. States have sometimes connived at
violations of federal law. Georgia defied federal law by expelling its Native
Americans, despite contrary Supreme Court decisions—setting a bad
example for South Carolina.106 But defiance is not nullification, any more
than organized crime is legislation.
Only one state—South Carolina—ever purported formally to nullify a
federal statute, the Tariff of 1828.107 South Carolina was not successful,
although the state’s intransigence eventually influenced the amendment of
the Tariff. Still, frequent or not, this kind of “nullification” does not
strengthen the legal case for secession because it was a simple matter of
“might-makes-right.” That is an argument Professor Naylor does not want
to rely on because now the federal government has the “might.”
The argument for nullification is not an argument for secession, as
even John C. Calhoun acknowledged. Nullification, as Calhoun explained,
is a way of working through the system. Secession is a rejection of the
101. See SAMUEL ELIOT MORISON, HARRISON GRAY OTIS 1765–1848: THE URBANE
FEDERALIST 342–46, 362 (1969).
102. NAYLOR, supra note 1, at 78, 85–86.
103. See generally RICHARD N. CURRENT, LINCOLN AND THE FIRST SHOT 11, 207–08 (1963)
(discussing the immediate run-up to Fort Sumter and the Civil War).
104. NAYLOR, supra note 1, at 85.
105. MILLER, supra note 46, at 170. Actually, there were two Kentucky Resolutions. See
supra note 86. The second one, not authored by Jefferson, contained the proposal for
joint state action. Id. Jefferson’s Resolution was not even that practical.
106. JOHN NIVEN, JOHN C. CALHOUN AND THE PRICE OF UNION: A BIOGRAPHY 187–88
(1988).
107. See WILLIAM W. FREEHLING, PRELUDE TO CIVIL WAR: THE NULLIFICATION
CONTROVERSY IN SOUTH CAROLINA 1816–1836, at 1 (1966).
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system. They are, he wrote, “totally dissimilar.”108 Besides, a right of state
nullification—meaning, a state’s right to nullify a federal statute as
unconstitutional—does not include a right of secession, unless secession is
already part of the constitutional order (which begs the question).
Nullification is an argument within, not against, constitutional discourse. If
anything, nullification implies acquiescence in the Constitution, as Calhoun
appreciated. Nullification is merely a method of neutralizing an allegedly
unconstitutional statute, like judicial review. Which federal statutes does
Professor Naylor want Vermont to nullify? All of them?
VII. SECESSION IN PRACTICE: THE CIVIL WAR
Every provision of the U.S. Constitution relied on, then or later, to
justify secession has its counterpart in the Confederate Constitution of the
states which made secession a reality—for a while. The Confederate
Constitution includes the Supremacy Clause and the Guarantee Clause. In
lieu of the reference to forming “a more perfect Union,” the Confederate
Constitution states: “We, the people of the Confederate States, each state
acting in its sovereign and independent character, in order to form a
permanent federal government ….”109 The reference to forming a
“permanent federal government” comes closer to proclaiming an
indissoluble Union than does any language in the U.S. Constitution.
Given the previous discordant interpretations of these provisions, the
Confederate Constitution might be expected to assert explicitly the right to
secession upon which its legitimacy, if it had any, rested. Remarkably, it
did nothing of the sort. And, in fact, the Confederacy repressed those who
would secede from secession—the Southern Unionists, who were in the
majority in certain areas. The Confederacy sought to conquer the
Appalachian Unionists under Governor Andrew Johnson in eastern
Tennessee. The Appalachian Unionists, in turn, petitioned the state
legislature to secede from Tennessee—to secede from secession.110 The
Confederacy vainly resisted the secession from Virginia by the Unionists in
the area that was reconstituted as West Virginia.111 Clearly, Confederate
108. John C. Calhoun, [Letter] to James Hamilton, Jr., [Governor of South Carolina], in
11 THE PAPERS OF JOHN C. CALHOUN 613, 630–32 (Clyde N. Wilson ed., 1978).
Professor Naylor’s constitutional source, H. Newcomb Morse, agreed that
nullification “falls far short of secession.” MORSE, supra note 12, at 419.
109. CONST. CONFEDERATE STATES OF AMERICA, in 3 SOURCES AND DOCUMENTS OF THE
UNITED STATES CONSTITUTION, 2d ser. 125 (Donald J. Musch ed., 1985).
110. CARLETON BEALS, WAR WITHIN A WAR: THE CONFEDERACY AGAINST ITSELF 81
(1965).
111. Which, in turn, set up a situation ripe for secession from secession from secession:
twenty-four counties (with sixty percent of the population) were Unionist, and
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secession was not principled. It was self-interested, opportunistic, and
hypocritical.
Professor Naylor even rehashes the wails of pro-Confederate
nostalgics about the circumstances surrounding the ratification of the
Fourteenth Amendment. To be sure, the states in rebellion were required to
ratify the Thirteenth and Fourteenth Amendments as conditions for
readmission to the Union; and there were some irregularities.112 But if
states can set conditions for entry into the Union, as Professor Naylor
approved for the 1780s, why should not the states, in Congress assembled,
set conditions for (re)entry into the Union in the 1860s? Congress had often
done so before. Texas was admitted subject to several conditions, among
them territorial concessions.113
Consent is mutual. The South’s name for the Civil War—the War
Between the States—has some truth to it. It was not just a war between the
national government and the states. If it were, the states would have
quickly triumphed, because a national American state scarcely existed.114 It
was a war waged by most of the states rallying to what they considered
their federal government against other states. Vermont was one of those
states.
Professor Naylor overlooks that the national government was
differently composed in the 1860s than it is today, in a way that John C.
Calhoun considered important. It was truly what James Madison called it,
“in strictness neither a national nor a federal constitution; but a composition
of both.”115 U.S. Senators were not elected by popular vote until 1913.
Previously, they were elected by state legislatures. Thus, they represented
the states directly. In order to return to the Union, the renegade states had
to satisfy their fellow states (including Vermont), not a national
112.
113.
114.
115.
twenty-four were pro-Confederate and opposed “dismemberment.” RICHARD ORR
CURRY, A HOUSE DIVIDED: A STUDY OF STATEHOOD POLITICS AND THE COPPERHEAD
MOVEMENT IN WEST VIRGINIA 5–6, 137 (1964). The gratuitous incorporation of the
latter counties, which were contiguous to (what was left of) Virginia, shows that
neither side held a principled opinion in favor of self-determination through
secession. It was reminiscent of Westside Vermont’s domination of the Eastside. See
infra text accompanying notes 166-75.
MCDONALD, supra note 87, at 212; see GRAHAM, supra note 13, at 389–93, 401–02.
Joint Resolution for Annexing Texas to the United States, S.J. Res. 8, 28th Cong., 5
Stat. 797–98 (1845) (referring to the “terms” and “conditions” to which Texas had to
accede in order to be admitted to the Union).
STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF
NATIONAL ADMINISTRATIVE CAPACITIES, 1877–1920, at 5 (1982); see also GEORG
WILHELM FRIEDRICH HEGEL, THE PHILOSOPHY OF HISTORY 84–87 (Dover Pubs.1956)
(1899).
THE FEDERALIST NO. 39, at 257 (James Madison) (Jacob E. Cooke ed., 1961).
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bureaucracy or an imagined cabal of vindictive Radical Republican
politicians. And Professor Naylor’s beloved Vermont, which he encourages
to secede, was as opposed to secession as any state in the Union during the
Civil War. Out of a population of 300,000,116 Vermont provided 30,000
men to the Union army.117 Vermont “rose” to repress secession:
The people of Vermont rose with the grand uprising of the
North; and thence forward for four years the main thought of the
people of the State, without distinction of party, sex or condition,
was how they should do the most to aid the Government in the
task of quelling rebellion, and preserving the union of the
States.118
Relative to population, Vermont incurred a higher rate of fatalities
than any state in the Union.119 With no sense of irony, Professor Naylor
pays tribute to the tremendous effort made by Vermont to suppress
secession.120
Historians have long since discredited the deplorable “Birth of a
Nation” fantasies,121 although Professor Naylor recommends a volume
which exhumes them.122 The Reconstruction governments made
116.
117.
118.
119.
1 G.G. BENEDICT, VERMONT IN THE CIVIL WAR 1861–1865, at 25 n.1 (1886).
See generally id.
Id. at 17.
FRANK M. BRYAN, YANKEE POLITICS IN RURAL VERMONT 16 (1974). Professor Bryan
is now a supporter of Vermont independence. See supra note 7.
120. See NAYLOR, supra note 1, at 48.
121. See generally ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION,
1863–1877 (Henry Steele Comminger & Richard B. Morris eds., 1988); JOHN HOPE
FRANKLIN, RECONSTRUCTION: AFTER THE CIVIL WAR (1961) (offering a balanced view
of American life during the Reconstruction era); KENNETH M. STAMPP, THE ERA OF
RECONSTRUCTION, 1865–1877, at viii (1965) (discussing the “brief political history of
reconstruction [in] an attempt to give more general currency to the findings of
scholars during the past few decades”).
122. Naylor, supra note 13. Graham has really gone over the top with his nostalgia for the
antebellum and Civil War South. He explains that vast numbers of newly freed slaves
“were confused and broken-hearted, for they had seen the bottom fall out of their
world. And so they died like flies.” GRAHAM, supra note 13, at 386. The “darkies”
had been so happy—thoughtless of tomorrow, as Robert E. Lee is quoted as
explaining—because the master took care of all their needs, and after they put in a
little work picking cotton, they could dance and sing, strummin’ on the old banjo. See
id. at 385–87. I kid you not—this book makes Gone With the Wind look like Glory.
Graham is a conspiracy theorist. Both the American Revolution and the Civil
War were brought on, he insists, by conspiracies by “monied interests”—in the
former, the East India Company and the Bank of England, id. at 76–78, 85–89; in the
latter, financiers like Jay Cooke, Jacob Rothschild, and Junius Morgan, whose
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improvements in education,123 tax reform, women’s rights,
reapportionment, democratization of the franchise, penal reform, 124 per
capita income, housing, diet, and other areas. Despite the same scandals
and corruption which plagued railroad promotion in the North, the
Reconstruction governments increased the mileage of railroad tracks in the
ex-Confederate states from 8336 miles in 1865 to 11,015 miles by 1871.125
I will not affirm, because I lack the space to defend, the opinion that the
Reconstruction governments were the best governments that the South ever
had. But I will relate the opinion of Kenneth M. Stampp that, “granting all
their mistakes, the radical governments were by far the most democratic the
South had ever known.”126
The majority of Southerners, who were poor whites and freed slaves,
supported the Reconstruction amendments. But it is all legally irrelevant to
the secession issue, because the Fourteenth Amendment is irrelevant to the
secession issue. The Amendment placed new limitations on the states, but
no one has ever claimed that its purpose was to rebut the right to secede.
For those who enacted it, there was no right to rebut. In Texas v. White,127
for example, the Supreme Court did not even mention the Fourteenth
Amendment when it held that secession was unconstitutional.128
VIII. SECESSION AS ANARCHY: VERMONT AS A TEST CASE
The argument for secession is its own best refutation. It can always be
asserted against those who have asserted it. Virginia seceded from the
United States, so a disgruntled Unionist minority, in effect, seceded from
Virginia by creating West Virginia. During South Carolina’s nullification
crisis, the majority “nullificationists” persecuted and disenfranchised the
minority Unionists: “In the end, the theory of nullification succeeded in
123.
124.
125.
126.
127.
128.
purchases of war bonds enabled them (somehow) to take over the banking system, id.
at 345–48. The Civil War “was produced neither by secession nor by slavery, not
even by cultural distinctiveness, but by a hidden cause.” Id. at 342. The occult
influence is amplified by a slew of horribly-mixed metaphors he uses to claim that the
conspirators’ “tentacles eventually control[led] the vital organs of the United States,
with strings pulled by unseen hands ….” Id. at 347.
FRANKLIN, supra note 121, at 108–09, 140–41. See also generally ROBERT C. MORRIS,
READING, ’RITING, AND RECONSTRUCTION: THE EDUCATION OF FREEDMEN IN THE
SOUTH, 1861–1870, at ix (1981) (detailing the Northern-based movements to educate
Southern blacks and the controversies this created).
STAMPP, supra, note 121, at 172–73, 182.
MARK W. SUMMERS, RAILROADS, RECONSTRUCTION, AND THE GOSPEL OF PROSPERITY:
AID UNDER THE RADICAL REPUBLICANS, 1865–1877, at 136 (1984).
STAMPP, supra note 121, at 184–85.
74 U.S. (7 Wall.) 700 (1868).
Id. at 724–25.
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establishing the majority despotism on the state level which it sought to
destroy nationally.”129 In principle, the revolutionary—better yet,
devolutionary—doctrine of secession can be successively applied
repeatedly and indefinitely. Every creation of a majority out of a minority
also creates a new minority.
The multiplication of statelets is not likely to promote liberty, as
Professor Naylor perhaps assumes. Small states are often more oppressive
than large ones. One reason is that, as James Madison argued, they are
more homogeneous and therefore less tolerant of minorities.130 Even a prosecessionist admits that “[t]he right to secession cannot be practically
reconciled with a democratic form of government unless the population is
perfectly homogeneous.”131 Insofar as secession is always undertaken in the
name and in the direction of greater homogeneity, it tends to weaken
minority rights.132 In homogeneous democratic city-states like ancient
Athens, the very concept of individual rights was unknown, and the citizen
was always at the disposal of the state.133 Thomas Hobbes wrote scornfully
that there is no more personal freedom in democracies than in
monarchies.134
Despite its homogeneity—it is the whitest as well as the most rural
state in the Union135—it is possible to contemplate an independent Vermont
with equanimity. This may not be so if some other states “resume” their
independence. “Many Texans,” according to Professor Naylor, want to
restore their republic.136 One might be uneasy about a Texas republic
unrestrained by the U.S. Constitution and federal laws. But one must be
129. FREEHLING, supra note 107, at 171.
130. THE FEDERALIST NO. 10, at 63–64 (James Madison) (Jacob E. Cooke ed., 1961).
Extend the sphere, and you take in a greater variety of parties and
interests; you make it less probable that a majority of the whole will
have a common motive to invade the rights of other citizens; or if such a
common motive exists, it will be more difficult for all who feel it to
discover their own strength, and to act in unison with each other.
131.
132.
133.
134.
135.
136.
Id. at 64. This is perhaps the most famous, and the most important single argument in
American political philosophy.
McGee, supra note 12, at 473.
See Martin Ostwald, Shares and Rights: “Citizenship” Greek Style and American
Style, in DĒMOKRATIA: A CONVERSATION ON DEMOCRACIES, ANCIENT AND MODERN
49, 54–57 (Josiah Ober & Charles Hedrick eds., 1996) [hereinafter DĒMOKRATIA].
Robert W. Wallace, Law, Freedom, and the Concept of Citizens’ Rights in
Democratic Athens, in DĒMOKRATIA, supra note 132, at 105, 106–07.
THOMAS HOBBES, DE CIVE 135 (Howard Warrender, ed., Oxford 1983) (English
version) (1651).
NAYLOR, supra note 1, at 48.
Id. at 82. Really? They control the United States; why should they want to leave it?
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alarmed at the restoration of the state of Deseret, much of which is now the
state of Utah. Deseret—and, to a great extent, the subsequent Utah
territorial government—was a Mormon theocracy autocratically ruled by
Brigham Young (who, like church founder Joseph Smith, was born in
Vermont). The Constitution of Deseret included counterparts to the
Establishment and Free Exercise Clauses,137 but that was just to placate
American public opinion and improve the chances of eventual statehood.
Mormon theology espoused, not the separation, but the fusion of church
and state.138 In the 1860s and 1870s, non-Mormons (“Gentiles”) comprised
ten to fifteen percent of the population of what had become a federal
territory, yet they complained constantly of violations of their political and
civil rights.
The proportion of Gentiles is higher now, but they are still in the
minority. A Utah subject to the unrestrained rule of its Mormon majority
might reintroduce theocratic features beyond anything seen in the United
States in centuries. For example, in the late 1830s, well before their arrival
in Utah, the Mormons formed the Sons of Dan, or Danites, while they
sojourned in Missouri. These were clandestine terrorists and death squads
set up “to use violence against external foes and internal dissenters.”139
They were active in Utah throughout the 1850s.140 Who is to say they might
not resume their activities in the second state of Deseret?141
There is no intent to disparage Mormons here. They have their values
as I have mine. But if Utah seceded, it could only be at the behest of the
Mormon majority. Its traditions are theocratic. The presence of
137. DESERET CONST. art. VIII, § 3, reprinted in 9 SOURCES AND DOCUMENTS OF UNITED
STATES CONSTITUTIONS 375, 380 (William F. Swindler ed., 1979).
138. GUSTIVE O. LARSON, THE “AMERICANIZATION” OF UTAH FOR STATEHOOD 3–4 (1971)
(discussing the “easy transition of high Church leaders into high civil officials” and
how “the separation of executive, legislative, and judicial powers was more apparent
that real” under the constitution of the Mormon state); DALE L. MORGAN, THE STATE
OF DESERET 13 (1987) (discussing the overlap among religious and civic leadership).
139. Marvin S. Hill, The Rise of the Mormon Kingdom of God, in UTAH’S HISTORY 97, 102
(Richard D. Poll et al. eds., 1978).
140. NORMAN F. FURNISS, THE MORMON CONFLICT, 1850–1859, at 2, 46 & passim (1960).
Sir Arthur Conan Doyle assigned the Danites a central and sensational role in his first
Sherlock Holmes story. See A Study in Scarlet, in THE COMPLETE SHERLOCK HOLMES
15–86 (n.d.).
141. Another problem, which I will do no more than identify here, is state boundaries.
Deseret included a far larger area than the present state of Utah. It included parts of
eight other states, such as the southernmost part of California (another former
republic), including San Diego. Parts of these lost territories, such as southern Idaho,
even contain Mormon majorities. Texas also reluctantly relinquished much land upon
admission to the Union. See supra note 113. If these states secede, they might want
the return of land they relinquished as the quid pro quo of admission to the Union.
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counterparts to the Establishment and Free Exercise Clauses in the Utah
Constitution142 no more assures religious freedom than did their
counterparts in the Deseret Constitution.143 It is likely that if Utah seceded,
the intended goals—or at least the almost certain consequences—of
independence would include a much closer relationship between state and
church: and not with just any, or every, church, but with the Church of
Jesus Christ of Latter-day Saints.144 Secession would likely endanger
minority rights.
The ultimate logical consequence of secession—or its “essence,” as
Abraham Lincoln put it—is anarchy.145 The principle of secession justifies
unlimited political divisibility.146 The anarchist economist Murray N.
Rothbard agrees: “Once admit any right of secession whatever, and there is
no logical stopping-point short of the right of individual secession, which
logically entails anarchism, since then individuals may secede and
patronize their own defense agencies, and the State has crumbled.”147
Alexander Hamilton deplored minority obstruction of the majority will
under the Articles of Confederation as a “situation” which will “sometimes
border upon anarchy.”148
I use the word “anarchy” in no pejorative sense, but in its
philosophical sense of a stateless society. It has had noteworthy American
exponents, such as Henry David Thoreau, and it has even been claimed that
a deep streak of anti-authoritarianism in the Americans’ history and
character (Professor Naylor may be an example) is essentially, if often
142. UTAH CONST. art. I, § 4. Indeed, the Utah provision, while including it, elaborates on
143.
144.
145.
146.
147.
148.
the First Amendment language: “There shall be no union of Church and State, nor
shall any church dominate the State or interfere with its functions.” Id. Article III,
peculiar to Utah, contains an irrevocable ordinance forever banning polygamy. This
was a prerequisite to admission to the Union. James T. McHugh, A Liberal
Theocracy: Philosophy, Theology, and Utah Constitutional Law, 60 ALB. L. REV.
1515, 1516 (1997) (noting that “[t]he express political and religious price of statehood
for Utah was the abandonment of both the practice of polygamy and the theocratic
system of government within that territory that had been established there by the
Church of Jesus Christ of Latter Day Saints”). If the ordinance is irrevocable enough
to survive secession—becoming, in effect, a bilateral international treaty—query
whether the seceded state is fully sovereign.
See supra note 137 and accompanying text.
See Maxwell v. Dow, 176 U.S. 581, 615–16 (1900) (Harlan, J., dissenting) (citing the
establishment of the Mormon Church in Utah as a hypothetical example of a violation
of the privileges and immunities of citizens).
MCPHERSON, supra note 69, at 247.
See BUCHHEIT, supra note 92, at 28 (discussing the troubling legal and political
aspects of “secessionist self-determination” and “the threat of indefinite divisibility”).
ROTHBARD, supra note 72, at 181.
THE FEDERALIST NO. 22, supra note 55, at 141.
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unconsciously, anarchistic.149 Anarchists find majority rule little better than
minority rule, and the majority of a majority, they observe, is usually a
minority anyway.150 However, most anarchists espouse voluntary collective
forms of social organization.151 What happens when majority and minority
disagree? They discuss the matter. They may decide to make no decision
for the time being, in case a community consensus forms. An anarchist
community is not an artificial aggregation of strangers as is an electorate; it
is a community. The minority, because it values the society it shares with
the majority more than it does a favorable decision on a particular issue,
may recede. If all else fails, the best solution, if it is possible, is for the
majority and the minority to each implement its own preference.152
The political trajectory of Lysander Spooner dramatizes the anarchist
logic of secession.153 In 1845, Spooner, a Massachusetts lawyer, published
Part I of an unlikely best-seller, The Unconstitutionality of Slavery, whose
improbable thesis is stated in its title.154 Other radical abolitionists, like
149. See generally DAVID DELEON, THE AMERICAN AS ANARCHIST: REFLECTIONS ON
150.
151.
152.
153.
154.
INDIGENOUS RADICALISM (1978) (identifying varieties of radicalism as intellectual
imports while showing that others represent enduring traditions); JAMES J. MARTIN,
MEN AGAINST THE STATE: THE EXPOSITORS OF INDIVIDUALIST ANARCHISM IN
AMERICA, 1827–1908 (Ralph Myles Pub., Inc. 1970) (discussing the lives and work of
numerous American anarchists during this time period); WILLIAM O. REICHERT,
PARTISANS OF FREEDOM: A STUDY IN AMERICAN ANARCHISM (1976) (providing a
comprehensive and detailed history of American anarchism).
ERRICO MALATESTA, THE ANARCHIST REVOLUTION: POLEMICAL ARTICLES 1924–1931,
at 78 (Vernon Richards ed., 1995). The ethnographic record leaves no doubt that
functioning anarchist societies are not only possible, but were common until recently.
Hunter-gatherer, horticultural, and some tribal societies were anarchist. See generally
HAROLD BARCLAY, PEOPLE WITHOUT GOVERNMENT: AN ANTHROPOLOGY OF
ANARCHISM (1982) (describing a number of anarchist societies). The human race
lived in anarchy for at least its first one million years. If anarchy were impossible,
none of us would be alive today.
See, e.g., ALEXANDER BERKMAN, WHAT IS COMMUNIST ANARCHISM? (1972); Peter
Kropotkin, Anarchist Communism: Its Basis and Principles, in KROPOTKIN’S
REVOLUTIONARY PAMPHLETS 46–78 (photo. reprint Dover Books, 1970) (Roger N.
Baldwin ed., 1927) (discussing how anarchists are drawn to a communist–type
society where individuals and not the state control); RUDOLPH ROCKER, ANARCHO–
SYNDICALISM 82–86 (1989) (rejecting socialism as an effective way of implementing
anarchist ideals and supporting syndicalism instead).
See GIOVANNI BALDELLI, SOCIAL ANARCHISM 96 (1971); ERRICO MALATESTA: HIS
LIFE AND IDEAS 72 (Vernon Richards ed., 1984).
See REICHERT, supra note 149, at 117–40.
From 1845 until its completion in 1860, Spooner revised The Unconstitutionality of
Slavery several times: Part I was republished in 1846; Part II was published in 1853,
1856, and two editions appeared in 1860 (the second contained two appendices and
prefatory material from 1857). For the complete version, see Lysander Spooner, The
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William Lloyd Garrison, more plausibly argued the opposite, that the
Constitution protected slavery and was thus to be denounced as a “covenant
with death.”155 However, many antislavery Americans naturally would
agree with Spooner rather than Garrison. Then, as now, most Americans
were enchanted by the Constitution as a symbol, although they might not
know very much about its meaning.156
The antislavery mainstream, rejecting both extremes, acknowledged
that slavery was constitutional in the states where it was already
established, but that it should not be allowed to spread, and the Constitution
allowed for various ways of undermining the institution. This became the
ideology of the Republican Party.157 But Spooner, along with Joel Tiffany,
contributed to abolitionism the “constitutional doctrine of paramount
national citizenship,” with distinct state and national citizenships158—
ironically, as Spooner evolved into an anarchist.
By 1868, Spooner had become an anarchist. From 1867 to 1870, he
published three tracts under the general title No Treason, the last with the
subtitle The Constitution of No Authority.159 His main argument was that
155.
156.
157.
158.
159.
Unconstitutionality of Slavery (1860), reprinted in 4 THE COLLECTED WORKS OF
LYSANDER SPOONER (Charles Shively ed., unpaginated photo. reprint 1971) (arguing
that natural justice and natural law, as well as the omission of any reference to slavery
in the text of the Constitution, made slavery unconstitutional).
PHILLIP S. PALUDAN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW, AND
EQUALITY IN THE CIVIL WAR ERA 3 (1975) (quoting Garrison’s abolitionist newspaper,
THE LIBERATOR, July 7, 1854); see also The United States Constitution, in
SELECTIONS FROM THE WRITINGS AND SPEECHES OF WILLIAM LLOYD GARRISON 302–
15 (1852).
See generally MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF: THE
CONSTITUTION IN AMERICAN CULTURE, at xi (1987) (describing “the place of the
Constitution in the public consciousness and symbolic life of the American people”
including “the perceptions and misperceptions, uses and abuses, knowledge and
ignorance of ordinary Americans”).
See generally ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE
REPUBLICAN PARTY BEFORE THE CIVIL WAR 5 (1970) (discussing the Republican
Party’s beliefs and values in the 1850s); Arthur Bestor, The American Civil War as a
Constitutional Crisis, 69 AM. HIST. REV. 327 (1964) (discussing the Republican
Party’s stance on slavery and the constitutional crises created between 1845 and 1877
by irreconcilable constitutional doctrines).
JACOBUS TENBROEK, EQUAL UNDER LAW 108–15 (new enlarged rev. ed. 1965).
See, e.g., Lysander Spooner, No Treason No. 1. (1867) (explaining the relationship
between treason and rebellion in 1776 and 1861); Lysander Spooner, No Treason No.
II. (1867) (discussing treason and the Constitution); Lysander Spooner, No Treason
No. VI.: The Constitution of No Authority (1870) (arguing that the Constitution is of
no significance since it has no authority). Photoduplicated reprints of these articles are
available in 1 THE COLLECTED WORKS OF LYSANDER SPOONER (Charles Shively ed.,
1971).
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the Constitution was an instrument to which no contemporary Americans
had given their personal express consent.160 It was therefore not an
authority that anyone was obligated to respect. The old abolitionist drew
from his thesis the startling corollary that the South had been right: it had
the right to secede!161 By the same sort of natural law arguments that
showed that slavery was unconstitutional, Spooner now sought to show that
the Constitution was, in effect, unconstitutional.162 In a final irony, at
exactly the time that the anarchist lawyer was repudiating the Constitution
in a more fundamental way than Garrison ever did, his doctrine of
paramount national citizenship became part of the Constitution as the first
section of the Fourteenth Amendment.163
Thoughtful anarchists, then, hold that secession leads to anarchy.
Thoughtful secessionists will likely disagree. We need evidence. We have
it from the best possible place: Vermont.
The Republic of Vermont was a wild place, conspicuously lacking the
tranquility and civility of the state today. New York, New Hampshire, and
even Massachusetts laid claim to part or all of the state, and at one time or
another, various Vermont towns offered their allegiance to all of these
states.164 New York was the most insistent, and its claim to Vermont kept it
out of the Union until 1791.165
The Green Mountains bisect the state from north to south, and settlers
with distinct social origins occupied the Eastside and the Westside.166
Political differences between the Eastside and the Westside have always
played a prominent role in Vermont politics, at least until recently.167
160.
161.
162.
163.
Spooner, No Treason No. VI.: The Constitution of No Authority, supra note 159.
Spooner, No Treason No. II., supra note 159, at 8–9, 12.
MARTIN, supra note 149, at 180–97.
See TENBROEK, supra note 158, at 114–15. Section 1 of the Fourteenth Amendment
states:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
U.S. CONST. amend. XIV, § 1.
164. PETER S. ONUF, THE ORIGINS OF THE FEDERAL REPUBLIC: JURISDICTIONAL
CONTROVERSIES IN THE UNITED STATES, 1775–1787, at 139–41 (1983).
165. Id. at 127–28.
166. See BRYAN, supra note 119, at 7–8, 63.
167. Id. at 63–67. Under the “Mountain Rule,” many statewide political offices were
alternated between East and West. Id. Reapportionment seems to have upset the
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Easterners resented Western domination, and “[e]very foreign policy
initiative provoked disgust and dissension in one part of the state or
another.”168 Few Westerners, but many Easterners, were “Yorkers,”
supporters of the New York claim.
Even the East/West cleavage understates the dissension. In the
Eastside alone there were, at one point, five factions: (1) Vermont
nationalists, (2) Yorkers, (3) pro-New Hampshire, (4) pro-Massachusetts,
and (5) the “College Party,” which sought a new state consisting of eastern
Vermont and western New Hampshire.169 Later many members of the
College and pro-New Hampshire parties became allies with the objective of
joining the state of Vermont.170 Meanwhile, Vermont, controlled by Ethan
Allen and his Westside supporters, annexed sixteen New Hampshire towns
(the Eastern Union) as well as New York territory west to the Hudson
River (the Western Union), acquisitions which were renounced under
pressure from Congress in 1782.171
Unlike Professor Naylor, the first Vermont republicans wanted
nothing more than to gain admission to the American Union or, as a last
resort, even to return to the British Empire.172 Few Vermonters believed
that their small, isolated, landlocked, faction-wracked republic could
survive without the protection and assistance of a “higher authority.”173 The
Westside-based Vermont Establishment did not share Professor Naylor’s
beliefs in the rights of dissent and secession. Between 1782 and 1783,
punitive expeditions crossed the Green Mountains and arrested, prosecuted,
expropriated, and imprisoned some Yorker dissidents; others went into
exile.174 Almost every Vermonter was, from the perspective of some other
Vermonter, a traitor.
I suggested above that devolution is logically limitless. Republican
Vermont might be said to have originated in secession (although to say
from what, would embroil me in the squabbles of the time—it does not
matter). Fragments of Vermont chronically sought to secede from Vermont,
168.
169.
170.
171.
172.
173.
174.
balance of power, at least in the legislature. Id. at 54, 134; see also Baker v. Carr, 369
U.S. 186 (1962) (mandating one-person, one-vote in the apportionment of state
legislative districts). The Westside now has a much higher population than the
Eastside. See BRYAN, supra note 119, at 134.
ONUF, supra note 164, at 129.
VAN DE WATER, supra note 2, at 224–26.
Id. at 227.
ONUF, supra note 164, at 128, 132–37. This was done in exchange for a
Congressional offer of statehood which Congress reneged on. Id. at 137.
Id. at 135.
Id. at 131.
Id. at 143–44.
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although usually to attach themselves to other states, not to assert their own
independence. In the town of Guilford (population 4000), Cumberland
County, Yorkers set up a “miniature republic.” Vermont dispatched troops.
Five men were banished and their property confiscated.175
CONCLUSION
At the Federal Convention, future Supreme Court Justice James
Wilson exclaimed, “Can we forget for whom we form Governments—for
Men not imaginary Beings called States.”176 Professor Naylor reminds us
that the U.S. Constitution is a means, not an end, and that the federal
government is an expedient.177 But I remind Professor Naylor that the same
is true of Vermont or any other state. Like the federal government, it is, for
all its power, in a certain sense what James Wilson called it—an imaginary
or at least an artificial being.178 That is the implication of all the failed
attempts to apply the concept of sovereignty to Madison’s “composite”
system. Who has what power? Who ought to have it? Whatever the
answers to these questions, they have nothing to do with whether the states
were sovereign at any particular time before, during, or after the Revolution
or the ratification of the Constitution.
What does the Declaration of Independence declare? The radical
doctrine “[t]hat whenever any Form of Government becomes destructive of
these ends, it is the Right of the People to alter or abolish it ….”179 The
question which has always haunted secessionists is which “people”?
Professor Naylor answers, any people.180 A “people,” as opposed to a mere
population of arbitrarily agglomerated individuals, is supposedly selfconstituted, although in practice it is usually minorities of politicians and
intellectuals who do the constituting, creating the nationalist ideologies
which typically precede nationhood and national consciousness.181 Ivor
175.
176.
177.
178.
179.
180.
181.
VAN DE WATER, supra note 2, at 299–306.
See LANSING, supra note 44, at 96.
See supra note 17 and accompanying text.
See supra Part III.B.
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
NAYLOR, supra note 1, at 17, 77–79.
Take, for example, Lithuania:
Lithuanian nationalism is a recent development. Lithuanian has always
been the language of the peasantry, but until the present [20th] century
the educated class spoke Polish or Russian. About the beginning of the
century a few educated people, influenced by modern nationalism,
decided that they were Lithuanians, began to speak the Lithuanian
language and recalled the military glories of the early Lithuanian State,
founded by pagan princes who extended their dominions to the Black
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Jennings, referring to Wilsonian principles of self-determination, has
written: “On the surface it seemed reasonable: let the people decide. It was
in fact ridiculous because the people cannot decide until somebody decides
who are the people.”182 In principle, the people might be as numerous as
“We, the People of the United States,” or as few as the 4000 treasonable
townspeople of secessionist Guilford. Maybe “the people” can even be “the
person,” as advocated by Murray N. Rothbard and perhaps Henry David
Thoreau.
Despite the opinions of John C. Calhoun and, implicitly, Professor
Naylor, and even granting that it is meaningful to speak of the several
“peoples” of the states, nonetheless, the peoples of the states occupy no
privileged position relative to the people of the nation or the people of
smaller districts or localities. The right of secession belongs to everyone or
no one. Professor Naylor says it belongs to everyone.183 That, as the
anarchist economist Murray Rothbard argued and as the distinguished
anarchist lawyer Lysander Spooner exemplifies, leads to anarchy.
In American history, secessionists for themselves have invariably
opposed secessionists from themselves. Were states like Utah or even
Vermont to secede, they would likely make a travesty of Professor
Naylor’s generous principles. Secession does not solve the problem of
centralized nation-states, or even diminish it; it only fragments it. As our
inquiry has led us to the threshold of anarchy, let the anarchist Errico
Malatesta have the last word: “Not knowing how to solve a problem does
not oblige one to accept unconvincing solutions ….”184
Sea before the Union with Poland. A fortunate combination of
circumstances gave the small body of Lithuanian nationalists the
opportunity after the First World War to create an independent
Lithuanian State. For twenty years the new rulers devoted themselves to
creating a new educated Lithuanian class, to turning the sons of
apathetic and primitive peasants into Lithuanian nationalist intellectuals.
HUGH SETON-WATSON, EASTERN EUROPE BETWEEN THE WARS 1918–1941, at 325–26
(3d ed., rev. 1962). This is not an exceptional case: most Asian and nearly all African
nationalisms follow this pattern.
182. IVOR JENNINGS, THE APPROACH TO SELF-GOVERNMENT 56 (1956).
183. NAYLOR, supra note 1, at 17, 77–79.
184. MALATESTA, supra note 152, at 43. Or as H.L. Mencken put it, “The fact that I have
no remedy for all the sorrows of the world is no reason for my accepting yours.” H.L.
MENCKEN, MINORITY REPORT: H.L. MENCKEN’S NOTEBOOKS 63 (1997).
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