The Argument for a Right of Unilateral Secession: A Pact Among the States
The U.S. Constitution does not expressly recognize or deny a right of secession. Accordingly, the argument for a right of unilateral secession begins (and pretty much ends) with a claim about the very nature of the Constitution.
That document, by the terms of its Article VII, only obtained legal force through the ratification by nine states, and then only in the states so ratifying it. Because the Constitution derived its initial force from the voluntary act of consent by the sovereign states, secessionists argued, a state could voluntarily and unilaterally withdraw its consent from the Union.
In this view, the Constitution is a kind of multilateral treaty, which derives its legal effect from the consent of the sovereign parties to it. Just as sovereign nations can withdraw from a treaty, so too can the sovereign states withdraw from the Union.
The Arguments Against a Right of Unilateral Secession
Most of the arguments against a right of unilateral secession can be found in President Abraham Lincoln's First Inaugural Address of March 1861. But as University of Texas Law Professor Sanford Levinson observes in a recent article in the Tulsa Law Review (and in condensed form in an April 2003 column on this site), Lincoln's case against a unilateral right of secession is hardly airtight.
First, Lincoln asserted that the fundamental law in every national government rejects the idea of its own termination. And indeed, as of 1861, no national constitutions expressly provided for their own dissolution. But this argument does not respond to the secessionists' claim that the U.S. Constitution's Article VII impliedly provided for the possibility of dissolution.
Second, Lincoln denied that the Union was a mere voluntary association--and claimed that even if it were, ordinary principles of contract law would bar unilateral secession. Lincoln noted that while one party can breach a contract, the consent of all parties is required to rescind a contract. But secessionists analogized the Constitution to a treaty, not a contract--on the ground that each state was more like a sovereign nation than a human being. And under treaty law, unilateral rescission is permissible.
Third, Lincoln claimed that the Union was older than the Constitution. In his view, it dated as far back as the Articles of Association of 1774, when the signatory parties were all colonies of England. Lincoln's claim, however, does not respond to the secessionist argument rooted in Article VII; on the secessionists' view, the Constitution implicitly affirmed a right to secede from the Union, regardless of the pre-Constitution character of the Union.
Moreover, experience in the very early days of the Constitution belies Lincoln's assertion. Nationalists frequently claim that the states were never sovereign: As colonies, they were under British dominion, and they declared and won their independence as the United States. Thus, the nationalists opine, there was no time during which any of the states exercised full sovereignty. Yet, as Professor Levinson has noted, that is not entirely true: North Carolina and Rhode Island, which did not ratify the Constitution until after President Washington was inaugurated, were treated by the new national government as essentially foreign sovereigns until they formally accepted the Constitution. That treatment, Levinson argues, and I tend to agree, indicates that all the states were in an important sense sovereign when they entered into the Constitution.
Fourth and finally, Lincoln denied that the Constitution was silent with respect to secession. The immediate predecessor to the Constitution, the Articles of Confederation, purported to establish a "perpetual Union." By seeking to create what the Preamble calls "a more perfect Union"--in an echo of the Articles' language--the Constitution, Lincoln said, simply strengthened the already indissoluble bonds between the States.
But the Constitution itself was established in blatant violation of the terms of the Articles--which required unanimous consent of the states for any amendment. Moreover, how do we know that the "perfection" of the Union required stronger rather than weaker bonds? To infer this point from the fact that, on the whole, the Constitution created a stronger national government than existed under the Articles is to acknowledge that the real work in this argument is not being done by the language of the Preamble.
The Judgment of War and the Supreme Court: No Right of Unilateral Secession
Perhaps the best argument for Lincoln's view is one that he did not make expressly, but that can fairly be inferred from his general approach: Whatever the status of the states when they entered the Union, they perpetually gave up important attributes of sovereignty in doing so. Among these was--and is--a right of unilateral secession.
In this view, it is significant that Article VII sets out the provision for original ratification, and that Article IV empowers Congress to admit new States, but that no provision of the Constitution authorizes a state to leave the Union. The juxtaposition of what the Constitution says about states entering the Union and what it does not say about them leaving, indicates that the door to the Union swings in but not out.
But this inference is only that, and there was considerable uncertainty about the legality of unilateral secession in
