It’s one of the great and, for many left-leaning Americans, unpalatable facts associated with American history.
And this great and unpalatable fact was raised, however unwittingly, by Georgetown University School of Law Professor David Super in a recent discussion of the Convention of States effort. As Super stresses, the Founders broke the law during the ratification of the U.S. Constitution by abandoning the Articles of Confederation to form a new national compact under a new Constitution. How? By ignoring the provision in the Articles of Confederation and Perpetual Union that required not only the approval of the Congress of the United States but also the unanimous consent of all of the states before any revision of the Articles could occur.
The Delegates’ Commission under the Articles of Confederation
Bear in mind that delegates commissioned to represent their states at the convention in Philadelphia were “solely and expressly” charged with the task of revising the Articles of Confederation, not with drafting an entirely new framework of government.
Over the course of discussing the intractable limitations associated with the Articles, though, the delegates concluded that simple revision was an impractical goal. Redressing their acute limitations would require a whole new written charter, one that likely would not be accepted by all the states.
So the delegates resolved to draft an entirely new Constitution, though one that would require the formal assent of only three-fourths of the states for it to go into effect. Eleven States eventually ratified the new constitution in the intervening twenty months between the convention delegates’ signing of the new charter and the inauguration of George Washington as the first President of the United States.
The U.S. Constitution: Born of Secession
Think about that: Eleven states, in effect, seceded from the Confederation to form the new American compact we know today as the American Union. Yet, two states, Rhode Island and North Carolina, had not ratified the Constitution and, consequently, were out of the Union when Washington took the his first presidential oath of office in
North Carolina finally came into the Union in November of 1789. However, Rhode Island dragged its feet and grudgingly ratified the Constitution after the new federal government threatened to sever commercial relations. And even then, ratification squeaked by with only two votes.
James Madison’s “Delicate Truth”
The 11 acts of secession that culminated in the new American Union poses what in 21st century parlance would be known as an “inconvenient truth.”
James Madison described it as “the delicate truth” beyond the American Union.
Writing in The Federalist Papers, he described the 11 states’ secession from the Articles of the Confederation to form a new compact as a simple matter of “self-preservation.” He justified this self-preservation on the basis of what he characterized as “the transcendent law of nature; and of nature’s God, which declares that the safety of and happiness of society are the subjects at which political institutions aim, and to which all such institutions must be sacrificed.”
California Secession: Not Treasonous at All
Simply put, the Articles of Confederation and Perpetual Union were no longer capable of securing a lasting,sustainable union and had to be scrapped out of necessity and replaced with something entirely new. And this could be achieved only by a super majority of states seceding from the old constitutional system and creating a newer, more sustainable one.
So, viewed within the wide context of American constitutional history, California’s current secessionist sentiment isn’t treasonous at all but is merely the latest expression of a very well-established American tradition.
Twice Born of Secession
The United States was twice born of secession: first in 1776, when thirteen former colonies issued a joint declaration declaring their intent to withdraw from the British Empire, and later in 1789, when the majority of the states withdrew from the Articles to form a new and improved confederation (Washington’s term for the new union).
And, incidentally, speaking of unpalatable facts, the great nationalist Founding Father Alexander Hamilton repeatedly described the new American government as a “Confederate Republic” and as a “Confederation” and described the new constitution as a “compact” throughout the Federalist Papers.
But that is another remarkable and rather unpalatable constitutional fact that I’ll save for discussion at a later date.